State v. Trammell
| Decision Date | 02 August 2011 |
| Docket Number | NO. COA10-1606,COA10-1606 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE OF NORTH CAROLINA v. THOMAS CLEVELAND TRAMMELL |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
File Nos. 10 CRS 467, 732
Appeal by defendant from judgments entered 5 August 2010 by Judge James U. Downs in Haywood County Superior Court. Heard in the Court of Appeals 7 June 2011.
Defendant Thomas Cleveland Trammell appeals from judgments sentencing him to concurrent terms of a minimum of 125 months and a maximum term of 15 9 months imprisonment in the custody of the North Carolina Department of Correction, coupled with a recommendation that he be required to pay restitution in the amount of $317.14 as a condition of work release or post-release supervision, based upon his convictions for felonious breaking or entering, felonious larceny, and having attained the statusof an habitual felon. On appeal, Defendant contends that the trial court erred by (1) refusing to dismiss the felonious breaking and entering and felonious larceny charges that had been lodged against him for insufficiency of the evidence, (2) instructing the jury in such a manner as to permit Defendant's conviction of felonious larceny on the basis of an "abstract" theory not alleged in the indictment, (3) failing to adequately inquire into Defendant's request that his court-appointed counsel be removed, and (4) adopting a restitution recommendation that lacked adequate evidentiary support. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's convictions should remain undisturbed. We do, however, conclude that the record lacks sufficient evidence to support the trial court's restitution recommendation, compelling us to vacate that restitution recommendation and remand this case to the trial court for further proceedings not inconsistent with this opinion.
At approximately 3:00 p.m. on 9 November 2009, Cass McGaha left his mobile home in order to pick up his daughter from work. A video surveillance camera was located on Mr. McGaha's porch and focused on his driveway. After Mr. McGaha's departure,Defendant and Mr. McGaha's neice, Julie Guffey,1 came to Mr. McGaha's mobile home to get food. Ms. Guffey and Defendant had been drinking since 9:00 a.m. and had not eaten breakfast or lunch.
Although Ms. Guffey had lived with Mr. McGaha in the past, Mr. McGaha claimed that he had "run [Ms. Guffey] off" about a year earlier, that he had told Ms. Guffey that she was no longer welcome at his residence, that Ms. Guffey had not been in his home since that date, and that he had not given Ms. Guffey permission to enter his residence on the date in question. Ms. Guffey confirmed the essential accuracy of this portion of Mr. McGaha's testimony. However, Ms. Guffey also testified that it was her idea to go to Mr. McGaha's residence and that she told Defendant that Mr. McGaha would not have a problem if they got something to eat in Mr. McGaha's absence because Mr. McGaha had "been there for her" since she was 16.
As Ms. Guffey approached Mr. McGaha's residence, she waved to Brittany Winchester, a neighbor who saw Defendant and Ms. Guffey as they walked up the driveway. Upon reaching Mr. McGaha's residence, discovering that Mr. McGaha was not at home, and finding that the front door was padlocked, Ms. Guffey told Defendant to wait on the front porch and went to the rear of theresidence. At that point, Ms. Guffey forced her way into Mr. McGaha's mobile home by kicking or hitting the back door. When Ms. Guffey opened the door, one of Mr. McGaha's dogs escaped. Ms. Guffey did not have a key to Mr. McGaha's mobile home and had not been invited to enter his residence on that date. Defendant followed Ms. Guffey into Mr. McGaha's mobile home.
After entering the mobile home, Ms. Guffey disabled Mr. McGaha's surveillance camera in order to prevent Mr. McGaha from learning that the two of them had entered his residence. While in Mr. McGaha's residence, Defendant and Ms. Guffey ate a sandwich and consumed a glass of milk. Ms. Guffey testified that Defendant participated in the entire event with her.
Upon returning home, Mr. McGaha noticed that one of his dogs was out and that another dog was missing. When he walked around the back of the residence, Mr. McGaha noted that milk had been poured in the yard, that the back door was open, and that a glass pane in the back door had been broken. After entering the mobile home, Mr. McGaha observed that some food had been disturbed and that a broken drinking glass was on the floor. Mr. McGaha discovered that a sword, a BB gun, a cell phone, his dog and a knife were missing after the break-in.2 Each of these items had been present in the mobile home before Mr. McGaha left to go pick up his daughter.
After learning from Ms. Winchester that Defendant and Ms. Guffey had been seen approaching his mobile home, Mr. McGaha called the police. Detective P. T. Trantham of the Waynesville Police Department came to Mr. McGaha's residence in response to his call. After restoring power to the surveillance camera and retrieving the tape that the machine made before being disabled, Mr. McGaha and Detective Trantham observed footage of Defendant and Ms. Guffey coming to Mr. McGaha's mobile home. As a result, Detective Trantham obtained warrants for the arrest of Defendant and Ms. Guffey.
A few minutes later, another law enforcement officer informed Detective Trantham that Defendant and Ms. Guffey were at the residence of Defendant's father, at which the other officer had responded to a disturbance. After learning that Detective Trantham had obtained warrants for their arrest, the second officer took Defendant and Ms. Guffey into custody. Following her arrest, Ms. Guffey told Detective Trantham that she would tell investigating officers where the stolen property was located in the event that the State elected to prosecute her rather than Defendant.3 Aside from the dog, none of the other missing items were ever recovered.
On 29 March 2010, the Haywood County grand jury returned bills of indictment charging Defendant with felonious breaking and entering, felonious larceny and having attained the status of an habitual felon. On 2 August 2010, the State filed a response to Defendant's motion for a bill of particulars in which the State informed Defendant that it "intends to prove that at the time of the breaking or entering, defendant had the intent to commit a larceny therein of at least the following items, if not other items: one knife, one BB gun, a pit bull dog mix, one sword, and/or possibly a ham sandwich, and a glass of milk."
The charges against Defendant came on for trial before the trial court and a jury at the 2 August 2010 criminal session of the Haywood County Superior Court. Prior to trial, Defendant's trial counsel moved to withdraw from his representation of Defendant4 on the grounds that Defendant lacked faith in him. After engaging in a colloquy with Defendant and Defendant's trial counsel, the trial court declined to replace Defendant's trial counsel. The trial court did, however, advise Defendant that he was free to hire his own attorney or to represent himself.
On 4 August 2 010, the jury returned verdicts convicting Defendant of felonious breaking or entering and felonious larceny. On the same date, the jury convicted Defendant of having attained the status of an habitual felon. At the ensuing sentencing hearing, the trial court found that Defendant had accumulated ten prior record points and should be sentenced as a Level IV offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of 125 months and a maximum term of 159 months imprisonment for felonious breaking or entering and to a concurrent term of a minimum of 125 months and a maximum term of 159 months imprisonment for felonious larceny, with both sentences to be served in the custody of the North Carolina Department of Correction. In addition, the trial court recommended that Defendant be required, jointly and severally with Ms. Guffey, to pay restitution in the amount of $317.40 as a condition of post-release supervision or work release. Defendant noted an appeal to this Court from the trial court's judgment.
On appeal, Defendant initially argues that the trial court erred by denying his motion to dismiss the charges against him because the evidence was insufficient to support his convictions. We disagree.
The standard of review "for ruling on a motion to dismiss is 'whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.'" State v. Harris, 145 N.C. App. 570, 578, 551 S.E.2d 499, 504 (2001) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)), disc, review denied, 355 N.C. 218, 560 S.E.2d 146 (2002) . "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (citing State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert, denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000)), cert, denied, 537 U.S. 1005, 154 L. Ed. 2d 403, 123 S. Ct. 495 (2002). "In resolving this question, the trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor...
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