State v. Mutter

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1167
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 12CRS000495,
JASON LEE MUTTER, 12CRS053764-65,
Defendant. 12CRS054197
Appeal by defendant from judgments entered on or about 10
April 2013 by Judge Robert C. Ervin in Superior Court, Buncombe
County. Heard in the Court of Appeals 10 April 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Terence D. Friedman, for the State.
James W. Carter, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgments for felony possession of stolen
goods/property, possession of burglary tools, felony breaking
and/or entering, larceny after breaking and/or entering, and
obtaining the status of habitual felon. For the following
reasons, we find no error.
I. Background
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In the early afternoon of 3 April 2012, Mr. Shawn Hefner
saw a woman knocking on his neighbor’s door. When Mr. Hefner
began walking toward the woman, he saw defendant run from behind
his neighbor’s house carrying a black box. Both defendant and
the woman left in a “[g]reenish gray” Neon.
When Ms. Cheri Osteen, Mr. Hefner’s neighbor, returned
home, she found that her back door had been pried open and her
jewelry box containing most of her jewelry was missing from her
home. Two days later, law enforcement officers pulled over
defendant and his wife in a gray Neon; inside the car they found
defendant’s wife’s purse which contained Ms. Osteen’s jewelry.
In the trunk of the car, the officers found two two-way radios
and gloves.
Defendant was indicted for possession of burglary tools,
felony possession of stolen goods/property (“felony
possession”), felony breaking and/or entering (“felony B&E”),
larceny after breaking and/or entering (“larceny”), and
obtaining the status of habitual felon. A jury found defendant
guilty of all of the charges. The trial court arrested judgment
on defendant’s conviction for felony possession, dismissed the
conviction for possession of burglary tools, and sentenced
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defendant to a minimum of 120 months and a maximum of 156 months
imprisonment on the other convictions. Defendant appeals.
II. In-Court Identification
Both on direct and cross-examination Mr. Hefner identified
defendant as the individual he saw leaving his neighbor’s home
with the black box; defendant did not object to these in-court
identifications. Defendant contends Mr. Hefner’s description of
him improved from the time of the incident up until he
identified defendant during trial and that “[t]here is no good
explanation of how Mr. Hefner’s memory improved from the
incident on 3 April 2012, to the interview with the police on 4
April 2013, and his testimony at trial on 9 April 2013.”
Defendant argues that “the Trial Court should have applied the
Manson factors to Mr. Hefner’s statement” and due to its failure
to do so the trial court “committed plain error in allowing the
impermissibly suggestive in-court identification of . . .
[defendant] by Mr. Hefner.” (Original in all caps.); see State
v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993)
(“Due to defendant’s failure to object at trial, we must review
this objection under the plain error rule.”)
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
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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)
(citations, quotation marks, and brackets omitted). Furthermore,
our Supreme Court has established that “[a] prerequisite to our
engaging in a plain error analysis is the determination that the
instruction complained of constitutes error at all.” State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks
omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).
Turning to Manson v. Braithwaite, we note that the factors
defendant contends the trial court should have used are for the
trial court to use in considering the possibly “corrupting
effect of the suggestive identification” that happened out of
court. 432 U.S. 98, 114, 53 L.Ed. 2d 140, 154 (1977). For
instance, in Manson, the witness had previously seen a
photograph of the defendant prior to trial. Id. at 101, 53
L.Ed. 2d at 146. In Neil v. Biggers, the case Manson cites for
the factors, 432 U.S. at 114, 53 L.Ed. 2d at 154, the factors
were also used regarding a question about a suggestive showup
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that happened prior to the in-court identification. 409 U.S.
188, 34 L.Ed. 2d 401 (1972).
Here, there was no suggestive or corrupt out-of-court
identification of defendant and there was actually no evidence
of suggestion or corruption prior to or regarding the in-court
identification. In fact, there was no indication of any prior
out-of-court identification at all. As defendant himself states
in his brief, “Mr. Hefner could not remember giving any
statement on the day of the incident and did not talk to the
police again for over a year after the incident and never
participated in any identification procedure to identity the
people he saw at the Osteen’s home.” Since there was no prior
out-of-court identification, the factors in Manson are not
applicable. Compare Manson, 432 U.S. 98, 53 L.Ed. 2d 140;
Biggers, 409 U.S. 188, 34 L.Ed. 2d 401. Defendant is actually
attempting to challenge the credibility of the witness, but the
“[d]etermination of [a] witness’s credibility is for the jury.”
State v. Espinoza–Valenzuela, 203 N.C. App. 485, 494, 692 S.E.2d
145, 153, disc. review denied, 364 N.C. 328, 701 S.E.2d 238(2010). We find no error in admission of the evidence of the
in-court identification of defendant.
III. List of Property Recovered
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Defendant next contends that during his trial a law
enforcement officer “read into evidence an inventory list of a
search warrant he executed on 5 April 2013 at Room 306 of Motel
6.” The list “included jewelry, a tool box and a large screened
TV.” Defendant did not object to the list being read or
admitted into evidence. Defendant argues that “the trial court
. . . committed plain error in admitting an irrelevant list of
property recovered at a motel when there was no connection
between . . . [defendant] and the room.” (Original in all
caps.) As defendant failed to object to the list, we review for
plain error. Harding, 110 N.C. App. at 161, 429 S.E.2d at 420.
Considering Mr. Hefner’s identification of defendant as the man
who came from behind his neighbor’s house carrying a black box,
Mr. Hefner’s description of a gray Neon at the crime scene, Ms.
Osteen’s testimony regarding her missing jewelry box, and
defendant later being pulled over in a gray Neon with a purse
which contained Ms. Osteen’s jewelry, any alleged error
regarding the list of property did not have “a probable impact
on the jury’s finding that the defendant was guilty.” Lawrence,
365 N.C. at 518, 723 S.E.2d at 334.
IV. Jury Instructions
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Defendant next challenges part of the jury instruction
regarding his conviction for felony possession. However,
because judgment was arrested on this conviction, we will not
address any issues regarding it on appeal. See State v. Moore,
339 N.C. 456, 468, 451 S.E.2d 232, 238 (1994) (“This argument is
moot since we have arrested judgment[.]”)
V. Motion to Dismiss
Defendant next contends that the trial court erred in
denying his motion to dismiss the charges of felony B&E,
larceny, and felony possession based upon the insufficiency of
the evidence.
The standard of review for a motion to
dismiss is whether there is substantial
evidence of each essential element of the
crime and whether the defendant was the
perpetrator of the crime. Substantial
evidence is such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion. In reviewing
challenges to the sufficiency of evidence,
we must view the evidence in the light most
favorable to the State, giving the State the
benefit of all reasonable inferences.
Contradictions and discrepancies do not
warrant dismissal of the case but are for
the jury to resolve.
State v. Braswell, ___ N.C. App. ___, ___, 729 S.E.2d 697, 701-
02, review denied and appeal dismissed, 366 N.C. 412, 735 S.E.2d
338 (2012) (citations and quotation marks omitted).
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“The essential elements of felonious breaking or entering
are (1) the breaking or entering (2) of any building (3) with
the intent to commit any felony or larceny therein. The breaking
or entering must be without the consent of the owner or
occupant.” State v. Johnson, 208 N.C. App. 443, 448, 702 S.E.2d
547, 550 (2010) (citation and quotation marks omitted); see N.C.
Gen. Stat. § 14-54(a) (2011). “To convict a defendant of
felonious larceny, it must be shown that he: (1) took the
property of another, (2) with a value of more than $1,000.00,
(3) carried it away, (4) without the owner’s consent, and (5)
with the intent to deprive the owner of the property
permanently.” State v. Owens, 160 N.C. App. 494, 500, 586
S.E.2d 519, 523-24 (2003); see N.C. Gen. Stat. § 14-72(b)(2).
Mr. Hefner observed defendant running from the back of Ms.
Osteen’s home carrying a black box. Thereafter, Ms. Osteen
returned home to find the door of her home pried open and her
jewelry box containing most of her jewelry, valued at over
$1,000, missing. This constitutes sufficient evidence of felony
B&E and larceny. See Johnson, 208 N.C. App. at 448, 702 S.E.2d
at 550; Owens, 160 N.C. App. at 500, 586 S.E.2d at 523-24.
Furthermore, as the judgment for felony possession has been
arrested, any arguments regarding this conviction on appeal are
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moot. See Moore, 339 N.C. at 468, 451 S.E.2d at 238. As such,
these arguments are overruled.
VI. Ineffective Assistance of Counsel
Lastly, defendant contends that his attorney was
ineffective because he failed to object to the in-court
identification, the admission of the list of recovered property,
and a jury instruction regarding felony possession.
The United States Supreme Court
has enunciated a two-part test for
determining whether a defendant
received ineffective assistance of
counsel. Under the Strickland
test, for assistance of counsel to
be ineffective:
First, the defendant must show
that counsel’s performance was
deficient. This requires showing
that counsel made errors so
serious that counsel was not
functioning as the counsel
guaranteed the defendant by the
Sixth Amendment. Second, the
defendant must show that the
deficient performance prejudiced
the defense. This requires showing
that counsel’s errors were so
serious as to deprive the
defendant of a fair trial, a trial
whose result is reliable.
This test was adopted by the North
Carolina Supreme Court in State v. Braswell,
. . . . The first element requires a showing
that counsel made serious errors; and the
latter requires a showing that, even if
counsel made an unreasonable error, there is
a reasonable probability that, but for
counsel’s errors, there would have been a
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different result in the proceedings.
State v. Cameron, ___ N.C. App. ___, ___, 732 S.E.2d 386, 389
(2012).
As we have already noted, the in-court identification of
defendant was not error. We have already determined that
exclusion of the list of property would not have changed the
outcome, considering the eyewitness identification; evidence
that defendant was found in a vehicle matching the description
of the car in which the man who took the box left Ms. Osteen’s
residence; and that this car contained a purse in which Ms.
Osteen’s jewelry was found. See id. Lastly, the jury
instruction is not reviewable on appeal as the judgment was
arrested for felony possession. See Moore, 339 N.C. at 468, 451
S.E.2d at 238.
VII. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges HUNTER, JR., Robert N. and DILLON concur.
Report per Rule 30(e).