State v. Covington , 248 N.C. App. 698 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1240
Filed: 2 August 2016
Alamance County, Nos. 12 CRS 56171, 13 CRS 609
STATE OF NORTH CAROLINA
v.
RISA COVINGTON
Appeal by defendant from judgment entered 5 March 2014 by Judge Reuben
F. Young in Alamance County Superior Court. Heard in the Court of Appeals 11
April 2016.
Roy Cooper, Attorney General, by Anne Goco Kirby, Assistant Attorney General,
for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
defendant-appellant.
DAVIS, Judge.
Risa Covington (“Defendant”) appeals from his convictions for breaking or
entering into a motor vehicle, misdemeanor larceny, injury to personal property, and
attaining the status of an habitual felon. On appeal, he contends that (1) the trial
court plainly erred by failing to instruct the jury on the lesser-included offense of
first-degree trespass; and (2) he received ineffective assistance of counsel. After
careful review, we conclude that Defendant received a fair trial free from error.
Factual Background
STATE V. COVINGTON
Opinion of the Court
The State presented evidence at trial tending to establish the following facts:
On the morning of 27 September 2012, Samuel King (“King”), the owner of King’s
Wheels and Tires (“King’s Tires”) located at 1625 North Church Street in Burlington,
North Carolina, arrived at his business and noticed trash strewn on the ground near
three cars parked in the parking lot behind the building. King walked toward the
vehicles in order to investigate further.
As he approached, he saw Defendant sitting in the driver’s seat of a blue Honda
Civic (the “Civic”), which was later established as the property of Catherine Woods
(“Woods”). He observed Defendant “prying on the dash” with what appeared to be a
screwdriver. King asked Defendant if the Civic belonged to him, and Defendant
responded by inaudibly mumbling under his breath. King told Defendant he was
calling the police at which point Defendant got out of the Civic and began walking
away from King down North Church Street.
King called 911 and informed the dispatcher of the events that had just
transpired. He also reported that Defendant was walking down North Church Street.
Officer Johnathan Khan (“Officer Khan”) with the Burlington Police Department
(“BPD”) was dispatched to North Church Street. Shortly thereafter, Officer Khan
located Defendant walking along Cobb Avenue one block away from North Church
Street.
-2-
STATE V. COVINGTON
Opinion of the Court
Officer Khan honked his patrol vehicle’s horn twice at which point Defendant
stopped, looked back in the direction of Officer Khan, and began walking towards
him. Upon seeing Defendant, Officer Khan recognized him from past encounters
between them. When Defendant reached the patrol vehicle, Officer Khan asked
Defendant if he had been “messing around [with] any cars over here by King’s Tire.”
Defendant denied having done so. Officer Khan detected an odor of alcohol on
Defendant’s breath and noticed that he was unsteady on his feet.
Officer Khan exited his vehicle and frisked Defendant for weapons. He felt a
large object in Defendant’s left sleeve as well as metal objects in his left front pockets
that he believed could be knives. He searched Defendant’s pockets and discovered a
pair of vice grip pliers, a ratchet socket, a vehicle oxygen sensor, an electronic device
with an attached USB cord, a library card issued in the name of Tiffany Neal, a
lighter, three boxes of cologne, lottery tickets, three silver earrings, and other
miscellaneous items.
While Officer Khan was in the process of searching Defendant, Officer Justin
Jolly (“Officer Jolly”) of the BPD went to King’s Tires. After speaking with King and
checking King’s Tires’ records, he determined that the owner of the Civic was Woods.
He then called her and informed her about the break-in, asking her to come to King’s
Tires. While Woods was en route, Officer Jolly drove to Officer Khan’s location and
-3-
STATE V. COVINGTON
Opinion of the Court
collected the items Officer Khan had recovered from Defendant. Officer Jolly then
returned to King’s Tires.
Woods subsequently arrived at King’s Tires, and upon speaking with Officer
Jolly she identified several of the items recovered from Defendant as her personal
property that she had left in her Civic when she dropped it off at King’s Tires
overnight for maintenance work. Officer Jolly radioed Officer Khan and instructed
him to arrest Defendant.
On 28 January 2013, Defendant was indicted on charges of breaking and
entering into a motor vehicle, misdemeanor larceny, injury to personal property, and
attaining the status of an habitual felon. Beginning on 3 March 2014, a jury trial
was held before the Honorable Reuben F. Young in Alamance County Superior Court.
The jury found Defendant guilty of breaking or entering into a motor vehicle,
misdemeanor larceny, and injury to personal property. He subsequently pled guilty
to attaining the status of an habitual felon. The trial court consolidated Defendant’s
convictions and sentenced him to 50-72 months imprisonment.
On 3 March 2015, Defendant filed a petition for writ of certiorari with this
Court seeking review of his convictions despite the fact that he failed to properly enter
notice of appeal. On 20 March 2015, we granted Defendant’s petition.
Analysis
I. Instruction on Lesser-Included Offense
-4-
STATE V. COVINGTON
Opinion of the Court
Defendant’s first argument on appeal is that the trial court committed plain
error by failing to instruct the jury on the lesser-included offense of first-degree
trespass. Specifically, Defendant contends that he presented evidence at trial
showing that he lacked the felonious intent necessary to commit the offense of
breaking or entering into a motor vehicle, thereby entitling him to a jury instruction
on the lesser-included offense. We disagree.
Defendant failed to object at trial to the absence of an instruction on first-
degree trespass. Therefore, our review is limited to plain error. See N.C.R. App. P.
10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted at
trial and that is not deemed preserved by rule or law without any such action
nevertheless may be made the basis of an issue presented on appeal when the judicial
action questioned is specifically and distinctly contended to amount to plain error.”).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice — that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,
quotation marks, and brackets omitted).
It is well settled that a defendant is entitled to have
-5-
STATE V. COVINGTON
Opinion of the Court
a lesser-included offense submitted to the jury only when
there is evidence to support it. The test in every case
involving the propriety of an instruction on a lesser grade
of an offense is not whether the jury could convict
defendant of the lesser crime, but whether the State’s
evidence is positive as to each element of the crime charged
and whether there is any conflicting evidence relating to
any of these elements.
State v. Chaves, __ N.C. App. __, __, 782 S.E.2d 540, 542-43 (2016) (citation and
brackets omitted).
“The trial court is not obligated to give a lesser included instruction if there is
no evidence giving rise to a reasonable inference to dispute the State’s contention.”
State v. Lucas, 234 N.C. App. 247, 256, 758 S.E.2d 672, 679 (2014) (citation, quotation
marks, and ellipses omitted). “Where no lesser included offense exists, a lesser
included offense instruction detracts from, rather than enhances, the rationality of
the process.” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citation
and quotation marks omitted).
The elements of breaking or entering into a motor vehicle are “(1) there was a
breaking or entering by the defendant; (2) without consent; (3) into a motor vehicle;
(4) containing goods, wares, freight, or anything of value; and (5) with the intent to
commit any felony or larceny therein.” State v. Jackson, 162 N.C. App. 695, 698, 592
S.E.2d 575, 577 (2004) (citation and emphasis omitted). “First-degree trespass is a
lesser-included offense of felonious breaking or entering. Unlike felonious breaking
or entering, first-degree trespass does not include the element of felonious intent but
-6-
STATE V. COVINGTON
Opinion of the Court
rather merely requires evidence that the defendant entered or remained on the
premises or in a building of another without authorization.” Lucas, 234 N.C. App. at
256, 758 S.E.2d at 678-79 (internal citation omitted).
Defendant concedes that there was sufficient evidence to submit the offense of
breaking or entering into a motor vehicle to the jury. He argues, however, that
conflicting evidence existed as to his intentions for entering the Civic. In support of
this argument, Defendant speculates that he may have entered the Civic for the
purpose of sleeping because he was drunk, had been kicked out of his sister’s house
the previous night, and had occasionally broken into other vehicles and buildings in
the past when similarly intoxicated in order to find a place to sleep.
The fatal flaw with Defendant’s argument is that he unambiguously testified
at trial that he had no memory at all of the events surrounding his forced entry into
the Civic. Defendant testified as follows on direct examination:
Q. Okay. Risa, do you remember this night in question?
A. I don’t.
Q. Do you remember any of it at all?
A. None of it.
Q. Okay. Why don’t you remember, if you know?
A. I was drunk.
....
-7-
STATE V. COVINGTON
Opinion of the Court
Q. Do you remember speaking to Officer Kahn [sic]?
A. No. No, sir.
Q. Okay. Do you remember walking down Church Street?
A. No.
Q. Do you remember where you were coming from before
8:30 that morning?
A. No, sir.
Q. What’s the first thing that you remember?
A. Nothing really. When I got down here, I got in the
holding cell, went to sleep. When I woke up I realized I was
in jail.
Q. Didn’t know how you got there?
A. No.
....
Q. . . . So you don’t remember going to King’s that day?
A. No, sir.
Because (1) Defendant was unable to remember how or why he entered the
Civic; and (2) no witnesses observed him actually sleeping in the vehicle, no evidence
was presented at trial tending to support Defendant’s hypothesis that he may have
broken into the Civic in order to sleep. Indeed, the only evidence relating to
Defendant’s actions while in the vehicle came from King, who testified that when he
-8-
STATE V. COVINGTON
Opinion of the Court
first noticed Defendant inside the Civic, Defendant was attempting to pry open the
vehicle’s front dashboard with a screwdriver.
Thus, the only support for Defendant’s argument on this issue is his own pure
conjecture, which is insufficient to entitle him to a lesser-included instruction on first-
degree trespass. See Leazer, 353 N.C. at 240, 539 S.E.2d at 926 (“A defendant is not
entitled to an instruction on a lesser included offense merely because the jury could
possibly believe some of the state’s evidence but not all of it. Further, mere
speculation as to the rationales for defendant’s behavior is not sufficient to negate
evidence of premeditation and deliberation.” (internal citations, quotation marks, and
brackets omitted)).
While Defendant attempts to rely on State v. Worthey, 270 N.C. 444, 154 S.E.2d
515 (1967), and State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985), on this issue,
his reliance on these cases is misplaced. In Worthey, the defendant was charged with
felonious breaking and entering into a building, and on appeal he argued that the
trial court erred by failing to give a jury instruction on the lesser-included offense of
non-felonious breaking or entering. He testified that upon being discovered by police
officers exiting a manufacturing plant he was not authorized to enter, he had told the
officers that he went “inside to meet an employee of [the plant] named ‘Robert’ who
was going to give him a ride, and that he used the toilet facilities while inside.”
Worthey, 270 N.C. at 445-46, 154 S.E.2d at 515-16. Our Supreme Court awarded the
-9-
STATE V. COVINGTON
Opinion of the Court
defendant a new trial based on the above-referenced testimony, holding that “[t]he
evidence as to defendant’s intent was circumstantial and did not point unerringly to
an intent to commit a felony; the jury might have found defendant guilty of a
misdemeanor upon the evidence.” Id. at 446, 154 S.E.2d at 516.
Similarly, in Peacock, the defendant was charged with, among other offenses,
first-degree burglary and requested an instruction on the lesser-included offense of
breaking and entering. His request was denied by the trial court. Peacock, 313 N.C.
at 557, 330 S.E.2d at 192-93. The defendant had told officers that he broke into his
landlady’s apartment at his boarding house while he was “trip[ping] on . . . acid” so
that he could talk to her about his rent. He further related that only after breaking
into the apartment did he consider robbing her. He then killed the landlady, stole a
“money pouch” from her, and left the premises. Id. at 556, 330 S.E.2d at 192.
Our Supreme Court held that
Defendant’s statement that he “was standing there [in the
living room] thinking about robbing Mrs. Frye” is at best
ambiguous with regard to the question of when he formed
an intent to commit larceny. We note, however, that
Detective Hill, who transcribed defendant’s oral statement,
testified on cross-examination that defendant told him that
it was after he was inside that he decided to rob Mrs. Frye.
Detective Hill’s interpretation of what defendant said lends
credence to defendant’s argument that a juror might also
infer that he broke and entered without an intent to
commit larceny.
- 10 -
STATE V. COVINGTON
Opinion of the Court
Id. at 559-60, 330 S.E.2d at 194. The Court then held that the defendant was entitled
to a new trial based on the trial court’s failure to instruct the jury on the lesser-
included offense of breaking and entering. Id. at 561-62, 330 S.E.2d at 195.
Because here, conversely, Defendant’s total lack of memory rendered him
unable to offer any alternative explanation beyond utter conjecture as to why he
entered the Civic, Worthey and Peacock are inapposite. Thus, in light of his inability
at trial to present evidence indicating that he lacked the intent to commit larceny at
the time he broke into the Civic, we hold that the trial court did not err at all — much
less commit plain error — by failing to instruct the jury on the lesser-included offense
of first-degree trespass. See Lucas, 234 N.C. App. at 257, 758 S.E.2d at 679 (“Thus,
in the absence of any evidence disputing the State’s theory that Defendants ‘cased’
the neighborhood and shattered the Merediths’ window in the hope of stealing from
the home, Defendants have not demonstrated that the trial court’s failure to instruct
the jury regarding first-degree trespass was error much less plain error.”).1
II. Ineffective Assistance of Counsel
1 The versions of Lucas available online through Westlaw and LexisNexis contain the full
sentence quoted above. The South Eastern Reporter, 2d Series also contains this full sentence. The
slip opinion available online likewise contains the full sentence. However, a portion of the sentence is
missing from the North Carolina Court of Appeals Reports. The North Carolina Court of Appeals
Reports contains only the following incomplete sentence: “Thus, in the absence of any evidence
disputing the State’s theory that Defendants ‘cased’ the neighborhood and shattered the Merediths’
window in the hope of stealing from the home.” Lucas, 234 N.C. App. at 257.
- 11 -
STATE V. COVINGTON
Opinion of the Court
Defendant’s final argument on appeal is that he received ineffective assistance
of counsel. Specifically, he contends that his trial counsel’s failure to request an
instruction on the lesser-included offense of first-degree trespass constituted
ineffective assistance of counsel. We disagree.
“In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. Deficient performance may be established by
showing that counsel’s representation fell below an objective standard of
reasonableness. Generally, to establish prejudice, a defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” State v. Edgar, __ N.C. App. __,
__, 777 S.E.2d 766, 770-71 (2015) (internal citations and quotation marks omitted).
In general, claims of ineffective assistance of counsel
should be considered through motions for appropriate relief
and not on direct appeal. It is well established that
ineffective assistance of counsel claims brought on direct
review will be decided on the merits when the cold record
reveals that no further investigation is required, i.e.,
claims that may be developed and argued without such
ancillary procedures as the appointment of investigators or
an evidentiary hearing. Thus, when this Court reviews
ineffective assistance of counsel claims on direct appeal
and determines that they have been brought prematurely,
we dismiss those claims without prejudice, allowing
defendants to bring them pursuant to a subsequent motion
for appropriate relief in the trial court.
- 12 -
STATE V. COVINGTON
Opinion of the Court
State v. Turner, __ N.C. App. __, __, 765 S.E.2d 77, 83 (2014) (internal citations,
quotation marks, and brackets omitted), disc. review denied, __ N.C. __, 768 S.E.2d
563 (2015). However, “[i]n considering ineffective assistance of counsel claims, if a
reviewing court can determine at the outset that there is no reasonable probability
that in the absence of counsel’s alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel’s performance was
actually deficient.” Id. at __, 765 S.E.2d at 84 (citation and brackets omitted).
Here, as discussed above, Defendant was not entitled to a jury instruction on
first-degree trespass. Therefore, it would have been futile for his trial counsel to
request one. Accordingly, we hold that Defendant has failed to establish an
ineffective assistance of counsel claim. See Lucas, 234 N.C. App. at 258-59, 758
S.E.2d at 680 (“A successful ineffective assistance of counsel claim based on a failure
to request a jury instruction requires the defendant to prove that without the
requested jury instruction there was plain error in the charge. Here, we have already
determined that the trial court did not commit plain error in its instructions to the
jury . . . . Accordingly, we cannot conclude that their trial counsel’s failure to request
these instructions constituted ineffective assistance of counsel.” (internal citation and
quotation marks omitted)).
Conclusion
- 13 -
STATE V. COVINGTON
Opinion of the Court
For the reasons stated above, we conclude that Defendant received a fair trial
free from error.
NO ERROR.
Chief Judge McGEE and Judge STEPHENS concur.
- 14 -