State v. Lucas

NO. COA13-784
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 11 CRS 65063
KALAN JOHN LUCAS,
Defendant
________________________________
STATE OF NORTH CAROLINA
v. Cumberland County
No. 11 CRS 65064
SHAQUILLE OQKWONE RICHARD,
Defendant
Appeal by defendants from judgments entered 27 March 2013
by Judge Reuben F. Young in Cumberland County Superior Court.
Heard in the Court of Appeals 11 December 2013.
Roy Cooper, Attorney General, by Richard H. Bradford,
Special Deputy Attorney General, and Susannah P. Holloway,
Assistant Attorney General, for the State.
Unti & Lumsden LLP, by Margaret C. Lumsden, for defendant-
appellant Lucas.
Guy J. Loranger for defendant-appellant Richard.
DAVIS, Judge.
Co-defendants Kalan John Lucas (“Lucas”) and Shaquille
Oqkwone Richard (“Richard”) (collectively “Defendants”) appeal
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from their convictions for second-degree burglary and conspiracy
to commit second-degree burglary. On appeal, Defendants argue
that the trial court erred in (1) denying their motions to
dismiss the second-degree burglary charges for insufficient
evidence; (2) failing to instruct the jury regarding the
definition of larceny and on the offense of first-degree
trespass; and (3) entering a restitution order that was not
supported by competent evidence. Defendants also contend that
their trial counsel provided ineffective assistance of counsel
by failing to request the above-referenced jury instructions.
After careful review, we vacate Defendants’ convictions for
second-degree burglary and remand for resentencing for felonious
breaking or entering. We also vacate the trial court’s
restitution orders and remand to the trial court for rehearing
on that issue.
Factual Background
The State presented evidence at trial which tended to
establish the following facts: On 27 November 2011 at
approximately 2:30 a.m., Nina Moore (“Mrs. Moore”) awoke to the
sound of “erratic knocking” and the doorbell ringing at the
front door of the home in Fayetteville, North Carolina that she
shared with her husband, Lynard Moore (“Mr. Moore”). From a
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window, Mrs. Moore observed a man wearing a dark-colored hooded
sweatshirt standing at the front door. Mrs. Moore also saw
another man sitting in the driver’s seat of a white car parked
outside their home. Mrs. Moore woke up Mr. Moore and informed
him that there was someone at the door and that she thought “he
needed to get his gun.” Mr. Moore retrieved a gun from their
safe, proceeded down the hallway, and saw that the front door
had been kicked open. Mr. Moore fired three or four shots into
the front entranceway. At that point, a man ran out of the
house and jumped into a white car, which Mr. Moore identified as
a Mercury Grand Marquis. The car then “sped away” out of the
Moores’ neighborhood.
Mrs. Moore called the police and informed them what had
occurred. Officer Leonard Honeycutt (“Officer Honeycutt”) of
the Fayetteville Police Department arrived at the Moores’ home,
took statements from Mr. and Mrs. Moore, and issued a “be on the
lookout” for a white Mercury Grand Marquis and a man wearing a
“dark hoody or toboggan” and dark tennis shoes. Shortly
thereafter, Officer Honeycutt received a dispatch regarding “a
suspicious white vehicle” parked in front of a residence on
Windlock Drive in a neighborhood approximately two miles away
from the Moores’ home.
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Steven Pavel (“Mr. Pavel”) was sitting on the front porch
of his home on Birchcreft Drive when he noticed a white sedan
approaching the corner of Birchcreft Drive and Windlock Drive.
The driver parked the car, and the vehicle’s two occupants
remained inside the vehicle for several minutes. Mr. Pavel then
witnessed two men exit the vehicle and approach “the first house
off from the corner.” Because Mr. Pavel believed that the men’s
actions seemed suspicious, he went inside and observed them
through his window. When the men “start[ed] to walk up to the
first house, casing the house and all,” Mr. Pavel called 911.
Mr. Pavel observed the men walk past the first home, which was
vacant, and attempt to open the door of a vehicle that was
parked in the next driveway.
The men then approached the second house, which was also
unoccupied due to the fact that the owners, Wesley Meredith and
Jennifer Meredith (collectively “the Merediths”), were out of
town. It appeared to Mr. Pavel that one of the men was trying
to strike the side patio door of the Merediths’ home.
Mr. Pavel remained on the phone with the 911 dispatcher and
related that the men had walked back down the driveway and
reentered their car. After sitting in the car for several
minutes, the men exited the vehicle again and walked around to
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the back of the Merediths’ house. A few minutes later, Mr.
Pavel saw both men “running around from the back of the house.”
The men then jumped into their car and sat there for several
minutes. Officer Honeycutt and Officer Michael Tackema
(“Officer Tackema”) arrived at the scene and apprehended the two
men. At trial, Officers Honeycutt and Tackema identified these
men as Defendants.
Officers Honeycutt and Tackema detained and searched both
Defendants, and Officer Honeycutt found tube socks in their
vehicle, which he noted were “very common for breaking and
entering artists and thieves to put on their hands” because they
were less conspicuous than gloves. Officers Honeycutt and
Tackema then proceeded to inspect the area surrounding the home.
They observed that the outer pane of a double-pane sliding glass
door on the side of the house had been shattered. A fire pit
bowl and two concrete landscaping bricks were lying on the
ground near a back bedroom window that was also shattered.
Several similar bricks were lying on the floor inside the
bedroom where the window had been broken. There was soot
covering the fire pit bowl and the back bedroom window, and the
blinds hanging from that window were “somewhat ajar.” The
officers did not detect any soot on Defendants or their vehicle
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but did locate a shard of glass on Lucas’s person that appeared
to be similar to the glass found at the scene.
Defendants were subsequently charged with first-degree
burglary and conspiracy to commit first-degree burglary at the
Moores’ residence and second-degree burglary and conspiracy to
commit second-degree burglary at the Merediths’ residence. The
matter came on for a jury trial on 25 March 2013 in Cumberland
County Superior Court. On 27 March 2013, the jury returned
verdicts finding Defendants (1) not guilty of first-degree
burglary or conspiracy to commit first-degree burglary; and (2)
guilty of second-degree burglary and conspiracy to commit
second-degree burglary. The trial court entered judgments on
the jury’s verdicts, sentencing Defendants to a presumptive-
range term of 13 to 16 months imprisonment for second-degree
burglary and a consecutive presumptive-range term of 6 to 8
months imprisonment for conspiracy to commit second-degree
burglary. Defendants gave notice of appeal in open court.
Analysis
I. Motion to Dismiss
Defendants first argue that the trial court erred in
denying their motion to dismiss the second-degree burglary
charges. Specifically, Defendants contend that the evidence
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presented at trial was insufficient to show the elements of (1)
entry; and (2) intent to commit a felony.
A trial court’s denial of a defendant’s motion to dismiss
is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). On appeal, this Court must determine
“whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant’s being the perpetrator . . . .”
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455
(citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150(2000). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980). Evidence must be viewed in the light most
favorable to the State with every reasonable inference drawn in
the State’s favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d
211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818(1995).
To survive a defendant’s motion to dismiss a charge of
second-degree burglary, the State must provide substantial
evidence that the defendant committed a (1) breaking (2) and
entering (3) of an unoccupied dwelling house or sleeping
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apartment of another (4) in the nighttime (5) with the intent to
commit a felony therein. State v. Brown, ___ N.C. App. ___,
___, 732 S.E.2d 584, 586-87 (2012); N.C. Gen. Stat. § 14-51(2013). Because Defendants only challenge the sufficiency of
the evidence regarding entry and intent to commit a felony, we
limit our analysis to those two elements. See State v. Davis,
198 N.C. App. 146, 151, 678 S.E.2d 709, 713-14 (2009)
(explaining that where defendant challenges sufficiency of
evidence as to some elements “but does not challenge the State’s
evidence of the other elements of the crime,” this Court
examines only the sufficiency of the evidence concerning the
challenged elements).
[E]ntry, for the purposes of burglary, is
committed by the insertion of any part of
the body for the purpose of committing a
felony. Thus, an entry is accomplished by
inserting into the place broken the hand,
the foot, or any instrument with which it is
intended to commit a felony . . . .
State v. Bumgarner, 147 N.C. App. 409, 415, 556 S.E.2d 324, 329
(2001) (citation, quotation marks, and brackets omitted).
Our Supreme Court has further explained that “entry is the
act of going into the place after a breach has been effected,”
State v. Gibbs, 297 N.C. 410, 418, 255 S.E.2d 168, 174 (1979)
(citation and quotation marks omitted and emphasis added), and
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that “the least entry with the whole or any part of the body,
hand, or foot, or with any instrument or weapon, introduced for
the purpose of committing a felony, is sufficient to complete
the offense,” State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d
753, 756 (2008) (citation and quotation marks omitted).
In State v. Watkins, ___ N.C. App. ___, 720 S.E.2d 844,
disc. review denied, ___ N.C. ___, 724 S.E.2d 509 (2012), the
defendant argued that the evidence presented at trial showing
that he and his accomplice used the end of a shotgun to break a
townhouse window, heard movement within the residence, and
immediately fled the scene was insufficient to establish the
entry element of burglary. We agreed, explaining that the entry
element requires the defendant to “either physically enter the
residence, however slight, or commit the burglary by virtue of
[an] instrument.” Id. at ___, 720 S.E.2d at 849 (citation,
quotation marks, and brackets omitted). We further noted that
to constitute an entry through the use of an instrument, the
instrument itself must be “used to commit a felony within the
residence” rather than merely to make an opening into the
residence. Id. at ___, 720 S.E.2d at 849. Consequently, our
analysis of North Carolina case law as well as leading treatises
on criminal law led us to conclude that
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the fact that defendant broke a window of
the residence in the nighttime with an
instrument — even if the instrument itself
crossed the threshold — is not sufficient to
find him guilty of burglary. . . . [V]iewing
the evidence in the light most favorable to
the State, it appears only that defendant
broke a window of the residence with an
instrument to facilitate a subsequent entry.
Such evidence does not support the trial
court’s submitting a case of burglary to the
jury.
Id. at ___, 720 S.E.2d at 850.
We believe that the evidence in the present case compels
the same result. At trial, the State introduced circumstantial
evidence tending to show that Defendants used landscaping bricks
and a fire pit bowl to break a back window of the Merediths’
home. Although there was soot covering the fire pit bowl and
the broken window, law enforcement officers did not find soot on
the person of either Defendant or within the interior of the
home. Several landscaping bricks were found inside the bedroom
where the window had been broken, but there was no evidence that
anything within the home had been tampered with or was missing.
While Officer Honeycutt testified that the blinds hanging
from the broken window were “somewhat ajar” and “parted enough
that entry could have been made with a hand or body part,” the
State neither offered evidence that Defendants had actually
crossed the threshold of the home nor introduced evidence
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permitting a reasonable inference of such actual entry. The
lack of evidence on this issue distinguishes the present case
from State v. Salters, 137 N.C. App. 553, 528 S.E.2d 386, cert.
denied, 352 N.C. 361, 544 S.E.2d 556 (2000), in which we held
that evidence of a splintered door frame and broken lock in the
residence at issue coupled with testimony that a suitcase
discovered to be missing from inside the residence was seen in
the defendant’s possession was sufficient to allow the inference
that the defendant had entered the home. Id. at 557, 528 S.E.2d
at 390.
Nor did the State provide evidence that the landscaping
bricks found inside the home were used for a purpose beyond
creating an opening in the window. See Watkins, ___ N.C. App.
at ___, 720 S.E.2d at 849 (“[W]here the State’s evidence seeks
to establish an entry by the defendant’s use of an instrument,
the defendant can only be guilty of burglary if the instrument
that crossed the threshold was itself used to commit a felony
within the residence.”). Although a shard of glass was
discovered on Lucas’s person, we cannot agree with the State’s
contention that this amounted to substantial evidence of entry
where law enforcement officers testified that there was glass
“all over the ground” outside the Merediths’ residence.
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As such, we believe that this evidence failed to raise more
than a mere suspicion or conjecture that Defendants entered the
home. See State v. McDowell, ___ N.C. App. ___, ___, 720 S.E.2d
423, 424 (2011) (“A motion to dismiss should be granted . . .
when the facts and circumstances warranted by the evidence do no
more than raise a suspicion of guilt or conjecture since there
would still remain a reasonable doubt as to defendant’s guilt.”
(citation and quotation marks omitted)). Accordingly, we vacate
Defendants’ convictions for second-degree burglary.
However, because we conclude, for the reasons discussed
below, that there was sufficient evidence to establish
Defendants’ intent to commit a felony, we remand to the trial
court for entry of judgment on felonious breaking or entering.
“To support a conviction for felonious breaking [or] entering
under N.C. Gen. Stat. § 14-54(a), there must exist substantial
evidence of each of the following elements: (1) the breaking or
entering, (2) of any building, (3) with the intent to commit any
felony or larceny therein.” State v. Jones, 188 N.C. App. 562,
564-65, 655 S.E.2d 915, 917 (2008) (citation, quotation marks,
and brackets omitted); see Watkins, ___ N.C. App. at ___, 720
S.E.2d at 850 (“For conviction of felonious breaking or
entering, a violation of G.S. 14-54(a), it is not necessary that
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the State show both a breaking and an entering; proof of either
is sufficient if committed with the requisite felonious
intent.”); State v. Barnett, 113 N.C. App. 69, 75-76, 437 S.E.2d
711, 715 (1993) (concluding that although evidence was
insufficient to sustain burglary conviction, jury — in
convicting defendant of burglary — “necessarily found facts
which establish felonious breaking [or] entering, i.e., the
breaking [or] entering of a building with intent to commit any
felony or larceny therein”).
“Intent is a mental attitude seldom provable by direct
evidence. It must ordinarily be proved by circumstances from
which it may be inferred.” State v. Baskin, 190 N.C. App. 102,
109, 660 S.E.2d 566, 572 (citation and quotation marks omitted),
disc. review denied, 362 N.C. 475, 666 S.E.2d 648 (2008).
Intent to commit a felony may be inferred from the defendant’s
acts and conduct during the subject incident. State v. Allah,
___ N.C. App. ___, ___, 750 S.E.2d 903, 907 (2013).
Here, the State offered testimony from Mr. Pavel describing
Defendants’ behavior during the incident. Mr. Pavel explained
that Defendants were “casing” the neighborhood and “pull[ing] on
the door handles” of cars that were parked in driveways. Mr.
Pavel testified that he described their conduct as “casing” to
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the 911 dispatcher because “it’s just not normal activity for
someone to be walking from house to house to see if it’s
occupied or not” or to try to open the doors of various cars
parked in the driveways.
A “fundamental theory” in the context of both burglary and
breaking or entering is that absent “evidence of other intent or
explanation for breaking and entering . . . the usual object or
purpose of burglarizing a dwelling house at night is theft.”
State v. Hedrick, 289 N.C. 232, 236, 221 S.E.2d 350, 353 (1976)
(citation and quotation marks omitted); see State v. McBryde, 97
N.C. 393, 396, 1 S.E. 925, 927 (1887) (“The intelligent mind
will take cognizance of the fact that people do not usually
enter the dwelling of others in the night-time, when the inmates
are asleep, with innocent intent. The most usual intent is to
steal, and, when there is no explanation or evidence of a
different intent, the ordinary mind will infer this also.”).
Although — as discussed above — the State failed to prove
that either Defendant actually entered the home, we do not
believe that this in any way detracts from the sufficiency of
the evidence regarding Defendants’ intent to commit a felony
within the residence. Because a reasonable juror could infer
from Defendants’ conduct that they broke the back bedroom window
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with the intent to commit the felony of larceny once inside, we
hold that there was substantial evidence of felonious intent and
that the entry of judgment on felonious breaking or entering is
appropriate. As such, we remand to the trial court “for the
pronouncement of a judgment as upon a verdict of guilty of
felonious breaking or entering.” Watkins, ___ N.C. App. at ___,
720 S.E.2d at 850 (citation, quotation marks, and brackets
omitted).1
II. Jury Instructions
In its charge to the jury, the trial court gave
instructions regarding second-degree burglary, felonious
breaking or entering, and misdemeanor breaking or entering. The
1
In addition to challenging his conviction for second-degree
burglary, Defendant Richard also argues that the trial court
erred in denying his motion to dismiss the charge of conspiracy
to commit second-degree burglary based on the insufficiency of
the evidence regarding entry and intent to commit a felony.
However, he offers no argument that the State failed to prove
that there was an agreement or understanding between him and
Lucas to commit second-degree burglary. See State v. Dalton,
122 N.C. 666, 672, 471 S.E.2d 657, 661 (1996) (“A criminal
conspiracy is an agreement between two or more people to commit
a substantive offense.”); State v. Rozier, 69 N.C. App. 38, 52,
316 S.E.2d 893, 902 (“It is well established that the gist of
the crime of conspiracy is the agreement itself, not the
commission of the substantive crime.”), cert. denied, 312 N.C.
88, 321 S.E.2d 907 (1984). Because he does not challenge the
sufficiency of the evidence of such an agreement between him and
Lucas and because completion of the substantive offense is not
necessary for a conviction of conspiracy to commit second-degree
burglary, Defendant Richard’s argument on this issue is
overruled.
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trial court did not instruct the jury on the offense of first-
degree trespass, and Defendants contend that the failure to give
such an instruction constituted error. Defendants also assert
that the trial court erred by failing to expressly define the
crime of larceny when it instructed the jury that second-degree
burglary is the breaking and entering into an unoccupied
dwelling house without the consent of the owners during the
nighttime with the intent “to commit a felony or larceny
therein.” Defendants acknowledge that they did not object to
the trial court’s instructions and are, therefore, limited to
plain error review on appeal. Under plain error review,
Defendants bear the burden of showing that “the instructional
mistake had a probable impact on the jury’s finding that the
defendant was guilty.” State v. Lawrence, 365 N.C. 506, 517,
723 S.E.2d 326, 333 (2012) (citation and quotation marks
omitted).
A. Failure to Instruct on First-Degree Trespass
First-degree trespass is a lesser-included offense of
felonious breaking or entering. State v. Owens, 205 N.C. App.
260, 266, 695 S.E.2d 823, 828 (2010). Unlike felonious breaking
or entering, first-degree trespass does not include the element
of felonious intent but rather merely requires evidence that the
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defendant entered or remained on the premises or in a building
of another without authorization. N.C. Gen. Stat. § 14-159.12(2013).
A trial court “must submit a lesser-included offense to the
jury when, and only when, there is evidence from which the jury
can find that the defendant committed the lesser-included
offense.” State v. Liggons, 194 N.C. App. 734, 742, 670 S.E.2d
333, 339 (2009) (citation, quotation marks, 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. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84
(1999). In Hamilton, this Court concluded that the trial court
was not required to submit the lesser-included offense of first-
degree trespass to the jury in the defendant’s trial for
felonious breaking or entering because the defendant “did not
testify or present any evidence that he broke or entered for any
non-felonious purpose.” Id. at 321, 512 S.E.2d at 85.
As in Hamilton, the evidence in the present case does not
permit a reasonable inference that would dispute the State’s
contention that Defendants intended to commit a felony. There
was no evidence presented that supported an alternative
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explanation for Defendants’ presence at the Merediths’ home.
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.
B. Failure to Define Larceny
Citing State v. Foust, 40 N.C. App. 71, 251 S.E.2d 893(1979), Defendants contend that the trial court committed plain
error by failing to define larceny to the jury given that the
State’s case identified larceny as the specific felony that
Defendants intended to commit. In State v. Simpson, 299 N.C.
377, 261 S.E.2d 661 (1980), however, our Supreme Court held that
this Court’s ruling in Foust — that the trial court’s failure to
define larceny in a burglary prosecution premised on intent to
commit larceny was prejudicial and required a new trial — was
“too broad” and that “[t]he extent of the definition [of
larceny] required depends upon the evidence in the particular
case.” Id. at 384, 261 S.E.2d at 665.
In this case, the evidence established that in the early
morning hours of 27 November 2011, Defendants were “casing”
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houses and attempting to gain entry into vehicles in various
driveways. Defendants’ behavior, as witnessed by Mr. Pavel,
indicated that they were examining the homes and vehicles so
that they could steal property from them. No evidence was
offered to suggest that Defendants’ conduct was motivated by
some other purpose or plan or that Defendants were looking for
property to which they had some bona fide claim of right. See
id. at 384, 261 S.E.2d at 665 (“In the case before us, there was
no necessity for any definition or explanation of the word
‘larceny’ because there was no evidence suggesting that the
[stolen property] was borrowed, or taken for some temporary
purpose, or otherwise negating a taking with felonious intent to
steal.”). Thus, because there was evidence presented at trial
permitting the inference that Defendants intended to steal
property and there was no evidence suggesting that Defendants
intended to merely borrow the property, we are satisfied that
“the jury did not need a formal definition of the term ‘larceny’
to understand its meaning and to apply that meaning to the
evidence.” Id. (concluding that term “larceny” may be used as
shorthand statement of its definition, i.e., to steal or to take
and carry away goods of another with intent to permanently
deprive owner of those goods where there is no “direct issue as
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to the intent or purpose of the taking” (citation and quotation
marks omitted)).
As such, we conclude that “[t]he use of the word ‘larceny’
as it is commonly used and understood by the general public was
sufficient in this case to define for the jury the requisite
felonious intent needed to support a conviction” and that
“[t]here is no reasonable possibility that [the] failure to
define ‘larceny’ contributed to defendant’s conviction or that a
different result would have likely ensued had the word been
defined.” Id. Consequently, Defendants have failed to meet
their burden of establishing plain error.
III. Restitution
Defendants next contend that the trial court erred in
ordering them to pay restitution in the amount of $575.00
without sufficient evidence to support the award. It is well
established that “[t]he amount of restitution ordered by the
trial court must be supported by competent evidence presented at
trial or sentencing.” State v. Mauer, 202 N.C. App. 546, 551,
688 S.E.2d 774, 777 (2010). On appeal, this Court reviews de
novo whether the restitution ordered by the trial court is
supported by competent evidence. State v. McNeil, 209 N.C. App.
654, 667, 707 S.E.2d 674, 684 (2011).
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The State concedes error on this issue, acknowledging that
there was no evidence presented regarding the monetary value of
the property damage caused by Defendants. Restitution “is not
intended to punish defendants but to compensate victims,” and
the amount ordered must be based on “something more than a guess
or conjecture.” State v. Daye, 78 N.C. App. 753, 758, 338
S.E.2d 557, 561, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576(1986). Accordingly, we vacate the trial court’s restitution
orders and remand for a rehearing on this issue. See Mauer, 202
N.C. App. at 552, 688 S.E.2d at 778 (vacating restitution order
and remanding for rehearing where no evidence was introduced at
trial or sentencing to support amount of restitution ordered).
IV. Ineffective Assistance of Counsel
Finally, Defendants claim that their defense counsel’s
failure to request a jury instruction defining larceny and an
instruction on first-degree trespass constitutes ineffective
assistance of counsel. We disagree.
“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.” State v. Pratt, 161 N.C.
App. 161, 165, 587 S.E.2d 437, 440 (2003). Here, we have
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already determined that the trial court did not commit plain
error in its instructions to the jury because (1) the trial
court was not required to expressly define larceny under the
facts of this case; and (2) Defendants were not entitled to an
instruction regarding first-degree trespass. Accordingly, we
cannot conclude that their trial counsel’s failure to request
these instructions constituted ineffective assistance of
counsel. See State v. Land, ___ N.C. App. ___, ___, 733 S.E.2d
588, 595 (2012) (holding that “[s]ince the trial court did not
commit plain error when failing to give the instructions at
issue, defendant cannot establish the necessary prejudice
required to show ineffective assistance of counsel for failure
to request the instructions”), aff’d per curiam, 366 N.C. 550,
742 S.E.2d 803 (2013).
Conclusion
For the reasons stated above, we conclude that Defendants’
second-degree burglary convictions and the trial court’s
restitution orders must be vacated. We remand to the trial
court for entry of judgment and resentencing as to each
Defendant on the charges of felonious breaking or entering and
for rehearing on the issue of restitution.2
2
We also note that the judgments entered by the trial court
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NO ERROR IN PART; VACATED AND REMANDED IN PART.
Judges STEELMAN and STEPHENS concur.
mistakenly list Defendants’ conspiracy offenses as conspiracy to
commit breaking or entering of a building rather than conspiracy
to commit second-degree burglary. While the judgments reflect
the correct class of felony for conspiracy to commit second-
degree burglary (Class H), the trial court should amend the
offense descriptions upon remand so that the record may “speak
the truth.” State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d
695, 696 (2008) (citation and quotation marks omitted).