State v. Robertson ( 2015 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
    IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA14-1149
    Filed: 5 May 2015
    Guilford County, No. 12 CRS 085608-9
    STATE OF NORTH CAROLINA,
    v.
    CHARLES WILSON ROBERTSON, Defendant
    Appeal by defendants from judgments entered 30 January 2014 by Judge
    Tanya T. Wallace in Guilford County Superior Court. Heard in the Court of Appeals
    18 March 2015.
    Attorney General Roy Cooper, by Special Deputy Attorney General Ann W.
    Matthews, for the State.
    Kimberly P. Hoppin, for defendant.
    ELMORE, Judge.
    On 16 January 2014, a jury found defendant guilty of first degree burglary,
    felonious larceny after burglary, and felonious possession of stolen goods. The trial
    court sentenced defendant to consecutive terms of active imprisonment of 128-166
    months for the first degree burglary conviction and 18-31 months for the larceny after
    burglary conviction. The trial court arrested judgment on defendant’s conviction for
    STATE V. ROBERTSON
    Opinion of the Court
    felonious possession of stolen goods.      After careful consideration, we hold that
    defendant received a trial free from prejudicial error.
    I. Facts
    At approximately 2:00 a.m. on 7 August 2012, on-duty Officers J.C. McIntosh
    and Sheila Lennox-Spaulding of the Greensboro Police Department were traveling in
    a patrol vehicle on Martin Luther King Boulevard in Greensboro. While they were
    driving northbound, the officers observed two males on the sidewalk, walking in
    tandem not more than one foot from each other, approaching their direction. As their
    marked vehicle approached the two males, the officers noticed a large, square, flat-
    appearing object wrapped in a blanket and tucked under the arm of Charles Wilson
    Robertson (defendant). The other individual, Larry Doggett, carried a book bag. The
    two men immediately left the sidewalk and began to walk away from the officers.
    Doggett went behind a bush and reappeared without the bag. Defendant dropped the
    flat object on the ground, and the officers determined the object to be a television.
    The officers exited their vehicle and approached the men. Officer McIntosh
    asked defendant about the television, and defendant repeatedly denied having any
    knowledge about its existence. The officers decided to detain both men. Defendant
    did not obey the officers’ commands and appeared to reach for his back pocket while
    Officer Lennox-Spaulding attempted to handcuff him. For officer safety purposes,
    Officer McIntosh tackled defendant in order to detain him. A taser and cell phone
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    STATE V. ROBERTSON
    Opinion of the Court
    fell out of defendant’s pocket when he went to the ground. In the backpack carried
    by Doggett, the officers found two laptop computers and several hats.
    Officer B.R. Denny examined the two computers and traced the computers’
    serial numbers to identify their registered owner.         The registered owner was
    Chauncey Gianni Bennett, whose address was 219 Southside Square, a location
    within walking distance of where the officers first noticed defendant and Doggett.
    At approximately 2:30 a.m., Officer Denny and Sergeant A.H. Hollis went to
    219 Southside Square and made contact with the tenant, Barbara Bennett (the
    victim). The building at 219 Southside Square has a commercial space on the first
    floor and residential quarters upstairs. There is an entrance and stairway leading to
    the residence from inside the downstairs commercial space.         The building also
    contains another door and stairway to the residence located on the front exterior of
    the building, which is accessible from the street and separate from the business. This
    door is the entrance way used by the victim’s family to access her apartment. Her
    apartment also contains a back door with a stairway leading to a courtyard.
    The victim was alone in the apartment when the officers arrived, but her two
    adult sons, one of whom was Chauncey Bennett, also lived with her. The victim
    testified at trial that she went to bed and fell asleep between 9:00 - 10:00 p.m. on 6
    August. Her two sons were with her in the apartment that evening, but they left at
    some point after she fell asleep.
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    STATE V. ROBERTSON
    Opinion of the Court
    When the officers arrived at the victim’s apartment building, the victim invited
    them inside her living space. The officers asked her to search the apartment for any
    missing items. The victim discovered that items were taken from her apartment
    without her consent, including two laptops, a blanket, hats, cell phones, and a taser.
    The officers presented the victim with items that had been retrieved from defendant
    and Doggett, and she identified each item as belonging to her or her sons.
    II. Analysis
    a.) Motion to Dismiss: First Degree Burglary & Larceny Pursuant to a
    Burglary
    Defendant argues the trial court erred by denying his motion to dismiss the
    charges of first degree burglary and larceny pursuant to burglary. Specifically,
    defendant avers the State failed to present sufficient evidence that a “breaking”
    occurred.   Additionally, defendant argues that due to the absence of sufficient
    evidence of a “breaking,” the trial court erred by allowing the State to rely on the
    doctrine of recent possession to withstand defendant’s motion to dismiss.         We
    disagree.
    We review a trial court’s denial of a motion to dismiss de novo. State v. Smith,
    
    186 N.C. App. 57
    , 62, 
    650 S.E.2d 29
    , 33 (2007). This Court must determine “whether
    there is substantial evidence of each essential element of the offense charged and of
    the defendant being the perpetrator of the offense.” State v. Clagon, 
    207 N.C. App. 346
    , 350, 
    700 S.E.2d 89
    , 92 (2010) (citation and quotation marks omitted). “In ruling
    on a motion to dismiss, the trial court must examine the evidence in the light most
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    STATE V. ROBERTSON
    Opinion of the Court
    favorable to the State, and the State is entitled to every reasonable inference and
    intendment that can be drawn therefrom.”             
    Id.
     (citation and quotation marks
    omitted).
    The test of the sufficiency is the same whether the evidence
    is circumstantial or direct, or both: the evidence is
    sufficient to withstand a motion to dismiss and to take the
    case to the jury if there is evidence which tends to prove
    the fact or facts in issue or which reasonably conduces to
    its conclusion as a fairly logical and legitimate deduction,
    and not merely such as raises a suspicion or conjecture.
    State v. Jones, 
    303 N.C. 500
    , 504, 
    279 S.E.2d 835
    , 838 (1981) (citations and quotation
    marks omitted).
    In order to sustain a conviction for the felony charge of first degree burglary,
    the State must provide substantial evidence that defendant committed “(1) the
    breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used
    as a sleeping apartment (5) of another (6) which is actually occupied at the time of
    the offense (7) with the intent to commit a felony therein.” State v. Blyther, 
    138 N.C. App. 443
    , 447, 
    531 S.E.2d 855
    , 858 (2000) (citation and quotation marks omitted). A
    larceny can also constitute a felony if it is committed pursuant to a burglary. N.C.
    Gen. Stat § 14-72(b)(2) (2013).    Thus, a conviction for felony larceny pursuant to a
    burglary requires sufficient evidence that a “breaking” occurred.
    A “breaking” is “any act of force, however slight, employed to effect an entrance
    through any usual or unusual place of ingress, whether open, partly open, or closed.”
    State v. Cunningham, 
    140 N.C. App. 315
    , 321, 
    536 S.E.2d 341
    , 346 (2000) (citation
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    STATE V. ROBERTSON
    Opinion of the Court
    and quotation marks omitted). “Breaking” can be established by circumstantial
    evidence that “prior to entry all doors and windows were closed” or “evidence of habit
    or custom” that the doors and windows were typically closed at the time of entry.
    State v. Howell, 
    335 N.C. 457
    , 473, 
    439 S.E.2d 116
    , 125 (1994).
    Where the evidence is purely circumstantial, the State can rely on the doctrine
    of recent possession to raise the presumption that the possessor of stolen property is
    guilty of a breaking and entering as long as “there is sufficient evidence that a
    building has been broken into and entered[.]” State v. Maines, 
    301 N.C. 669
    , 674, 
    273 S.E.2d 289
    , 293 (1981).     “When the doctrine of recent possession applies in a
    particular case, it suffices to repel a motion [to dismiss] and defendant’s guilt or
    innocence becomes a jury question.” 
    Id.
    Because defendant only challenges the sufficiency of the evidence with regard
    to “breaking,” we limit our analysis to a discussion of that element. In the light most
    favorable to the State, we hold the State presented sufficient circumstantial evidence
    of a “breaking.”
    The victim testified the door from the commercial space downstairs that leads
    to her apartment always stays locked. She further testified that both her front and
    back doors were closed when she went to sleep and when the police arrived. The
    victim also stated that it is her usual practice to make sure all the doors leading to
    her apartment are physically closed, and her sons typically keep the front door shut
    when they leave the apartment.        Moreover, when the officers arrived to her
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    STATE V. ROBERTSON
    Opinion of the Court
    apartment, she initially opened her window to speak to them. Because the victim
    testified that the window and all of the doors leading to her apartment were closed
    and were usually kept shut, and the property in question went missing from her
    apartment without her consent, the evidence was sufficient to establish that a
    breaking of her residence occurred while she was asleep by an individual turning the
    front doorknob and entering the residence. See State v. Alexander, 
    18 N.C. App. 460
    ,
    462, 
    197 S.E.2d 272
    , 273 (1973) (“The State must present evidence that a breaking
    occurred, or from which it may reasonably be inferred that the defendant broke into
    the dwelling. Such proof is usually accomplished by testimony showing that prior to
    the entry all doors and windows were closed.”); see also State v. Sweezy, 
    291 N.C. 366
    ,
    383, 
    230 S.E.2d 524
    , 535 (1976) (“It is well established that the mere pushing or
    pulling open of an unlocked door constitutes a breaking.”). As such, the trial court
    did not err by denying defendant’s motion to dismiss for insufficient evidence of a
    “breaking.” Because the State presented sufficient evidence of a “breaking,” the trial
    court did not err by allowing the State to rely on the doctrine of recent possession to
    withstand defendant’s motion to dismiss.
    b.) Acting in Concert
    Next, defendant argues the trial court’s jury instruction on acting in concert
    was prejudicial error because that theory of guilt was not supported by the evidence.
    We disagree.
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    STATE V. ROBERTSON
    Opinion of the Court
    We evaluate a challenge to the trial court’s jury instructions under a de novo
    standard of review. State v. Gabriel, 
    207 N.C. App. 440
    , 443, 
    700 S.E.2d 127
    , 129
    (2010). In general, a trial court errs by instructing the jury “upon a theory of a
    defendant’s guilt which is not supported by the evidence.” State v. Brown, 
    80 N.C. App. 307
    , 311, 
    342 S.E.2d 42
    , 44 (1986). Despite a trial court’s error, a defendant in
    challenging non-constitutional matters carries the burden to establish prejudicial
    error— “a reasonable possibility that, had the error in question not been committed,
    a different result would have been reached at the trial out of which the appeal arises.”
    N.C. Gen. Stat. § 15A-1443(a) (2013).
    Even if we presume arguendo that the trial court’s jury instruction on acting
    in concert was not supported by the evidence, defendant has failed to establish
    prejudicial error. The trial court did not instruct the jury that it could only convict
    defendant exclusively based on a theory of acting in concert with Doggett. With
    regard to the burglary charge, the trial court instructed the jury: “[i]f you find from
    the evidence . . . the defendant . . . acting either by himself or together with
    [Doggett]” committed the elements of first-degree burglary, “it would be your duty to
    return a verdict of guilty[.]” Similarly, the trial court instructed the jury on the
    larceny charge: “[i]f you find from the evidence . . . the defendant, acting either by
    himself or acting together with [Doggett],” committed the elements of larceny
    pursuant to a burglary, “it would be your duty to return a verdict of guilty[.]”
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    STATE V. ROBERTSON
    Opinion of the Court
    (emphasis added). Thus, the jury was free to convict defendant based on his actions
    alone.
    Had the trial court omitted the acting in concert instruction from the jury’s
    consideration, no reasonable possibility exists that the jury would have acquitted
    defendant of the burglary and larceny charges. The relevant evidence shows that
    defendant was in exclusive possession of identifiable property, including the
    television, blanket, taser, and cell phone, which were taken from the victim’s
    residence without her permission at night while she was asleep in her home.
    Defendant’s possession of the stolen property near the victim’s home at 2:00 a.m.
    shortly after the burglary and larceny occurred raised the presumption that
    defendant was guilty of the larceny and the burglary pursuant to the recent
    possession doctrine. The evidence presented at trial relating to Doggett was almost
    identical but for the property in Doggett’s possession. No additional evidence relating
    to Doggett was presented to tip the scales in favor of the jury’s decision to convict
    defendant under a theory of acting in concert. Accordingly, defendant has failed to
    establish prejudicial error as a result of the trial court’s purported erroneous acting
    in concert instruction.
    c.) Felony Breaking or Entering (
    N.C. Gen. Stat. § 14-54
    (a))
    Defendant argues the trial court erred by failing to instruct the jury on felony
    breaking or entering, a lesser-included offense of first degree burglary. Assuming
    arguendo it was error for the trial court to fail to instruct on the lesser-included
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    STATE V. ROBERTSON
    Opinion of the Court
    offense, defendant invited any such error. Accordingly, we dismiss this argument on
    appeal.
    Pursuant to N.C. Gen. Stat. § 15A–1443(c) (2013), “[a] defendant is not
    prejudiced by the granting of relief which he has sought or by error resulting from his
    own conduct.” Thus, “a defendant who invites error has waived his right to all
    appellate review concerning the invited error, including plain error[.]”       State v.
    Spence, __ N.C. App. __, __, 
    764 S.E.2d 670
    , 677 (2014) (citation and quotation marks
    omitted).
    Here, defendant’s attorney specifically objected to the instruction on the lesser-
    included offense of felonious breaking or entering:
    THE COURT: [N]o one’s asking the charge on felonious
    breaking or entering as a lesser included of the first degree
    burglary.
    PROSECUTOR: I guess to be safe then, Your Honor, I
    would ask for that.
    DEFENSE ATTORNEY: And, Your Honor, we would object
    to that.
    THE COURT: All right. You’d asked for the first degree
    burglary and the felonious breaking or entering as a lesser
    included.
    PROSECUTOR: Yes.
    Despite the State’s request that the trial court instruct the jury on felony breaking or
    entering, defendant’s attorney specifically opposed such an instruction. As such,
    defendant cannot argue on appeal that he was prejudiced by the trial court’s decision
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    STATE V. ROBERTSON
    Opinion of the Court
    not to include an instruction on the lesser-included offense of felony breaking or
    entering when he specifically sought such an outcome at trial. See State v. Hope, __
    N.C. App. __, __, 
    737 S.E.2d 108
    , 113 (2012) (holding the defendant waived his right
    to appellate review of a purported erroneous jury instruction when “defendant invited
    the [error] . . . by objecting to the correct instruction, requesting the incorrect
    instruction, and by choosing to forgo . . . [the] instruction when given the option”).
    Accordingly, we dismiss this argument on appeal.
    d.) Ineffective Assistance of Counsel
    In anticipation that we might rule defendant invited error with regard to the
    previous issue, defendant contends his trial counsel’s failure to concur with the
    State’s request for an instruction on felony breaking or entering amounted to
    ineffective assistance of counsel. We disagree.
    “The accepted practice is to raise claims of ineffective assistance of counsel in
    post-conviction proceedings, rather than direct appeal.” State v. Dockery, 
    78 N.C. App. 190
    , 192, 
    336 S.E.2d 719
    , 721 (1985). Should this Court rule that an ineffective
    assistance of counsel claim has been brought prematurely by a direct appeal, we shall
    dismiss the claim “without prejudice to the defendant’s rights to reassert [the claim]
    during a subsequent MAR proceeding.” State v. Stroud, 
    147 N.C. App. 549
    , 554, 
    557 S.E.2d 544
    , 547 (2001) (citation and quotation marks omitted).
    Although defendant raises questions regarding his trial counsel’s handling of
    the lesser-included jury instruction, we are unable to find ineffective assistance of
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    STATE V. ROBERTSON
    Opinion of the Court
    counsel per se from the face of the record. As such, defendant prematurely asserted
    his ineffective assistance of counsel claim by requesting we review this issue directly
    on appeal. Thus, we dismiss defendant’s claim without prejudice to his right to file
    appropriate motions in the trial court. See State v. Ware, 
    125 N.C. App. 695
    , 697, 
    482 S.E.2d 14
    , 16 (1997) (dismissing the defendant’s appeal where the issues could not be
    determined from the record and concluding that “[t]o properly advance these
    arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415[ ]
    and G.S. 15A–1420[ ]”).
    III. Conclusion
    In sum, the trial court did not err by denying defendant’s motion to dismiss the
    burglary and larceny charges. Even if the trial court erred by providing the jury with
    the acting in concert instruction, any such error was non-prejudicial. Additionally,
    defendant invited any purported error arising from the trial court’s failure to instruct
    on the lesser-included offense of felony breaking or entering.     Finally, we dismiss
    defendant’s premature ineffective assistance of counsel claim without prejudice.
    No prejudicial error.
    Judges GEER and INMAN concur.
    Report per Rule 30(e).
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