Appeal by defendant from judgment entered 13 April 2000 by
Judge Benjamin G. Alford in Superior Court, Wayne County. Heard in
the Court of Appeals 8 November 2001.
Attorney General Roy Cooper, by Assistant Attorney General E.
Burke Haywood, for the State.
Adrian M. Lapas, for defendant-appellant.
McGEE, Judge.
Frederick Wayne Everett (defendant) was charged in a true bill
of indictment on 31 January 2000 with breaking and entering and
larceny after breaking and entering a building occupied by Anthony
R. Stovall, doing business as ArtWare; possession of stolen goods
owned by Anthony R. Stovall, doing business as ArtWare; first
degree burglary and larceny after breaking and entering a dwelling
occupied by Rajendra A. Amin; possession of stolen goods belonging
to Rajendra A. Amin; and breaking and entering a building occupied
by George A. Stewart, doing business as Antiquities.
The evidence for the State at trial tended to show the
following. Anthony Stovall testified that he entered his place of
business, ArtWare, in Goldsboro on the morning of 10 November 1999and saw that items were out of place and some pictures, clothing
and tools were missing. Mr. Stovall testified that he walked to
the back of the building and discovered that the top panel of the
ceiling between the first and second floors had been knocked down.
He saw that a door leading to the business next door that was
normally closed and locked was open with the lock securing the door
ripped out of the frame. Mr. Stovall entered the business next
door and spoke with the business owner. Mr. Stovall stated that he
saw a crowbar in the business next door that "was like a crowbar"
he kept on the second floor of his business.
Rejendra Amin, proprietor of the Budget Inn in Goldsboro,
testified that he, his wife, and children have resided at the
Budget Inn since 1984. He further testified that the family slept
in a bedroom behind the lobby and that a door led from the bedroom
into the lobby, which contained a sitting area and television.
From the lobby, a door opened to the outside of the building and
was kept locked twenty-four hours a day. He stated that to enter,
customers must ring a buzzer. Also from the lobby, a set of locked
glass doors opened into a restaurant that had been closed to the
public for several years.
Mr. Amin testified that a door from the restaurant area led to
a kitchen and both areas were sometimes used by his family for
cooking and other family purposes. The kitchen had a metal door
which opened to the outside and which Mr. Amin testified he kept
locked, as well as a screen door that was not locked. Adjacent to
the kitchen was a "burned out room" formerly used as a nightclub,which was no longer in use. The former nightclub had plate glass
windows that were broken, permitting entry into the room. The door
between the kitchen and the nightclub was nailed shut.
Mr. Amin testified that on the evening of 12 November 1999, he
and his family were in their bedroom. He testified that he heard
a noise at 2:15 a.m. from the "back kitchen," which he described as
a "big clash like something fall[ing] down from the ceiling"
followed by the "noise of pots and pans . . . falling down[.]" Mr.
Amin went to the lobby and looked inside the restaurant where he
saw a man coming towards the glass doors separating the restaurant
and lobby. The doors were locked so the man went out the back area
of the building after taking a bicycle belonging to Mr. Amin's son.
Mr. Amin testified that he grabbed a metal stick and chased the man
out the back door. At trial, Mr. Amin identified defendant as the
person who broke into his "house". After defendant left the
building, Mr. Amin saw that the ceiling fan in his kitchen, along
with six ceiling tiles, had fallen on "the ground." Prior to 12
November 1999, the ceiling had been damaged in a fire with two
holes burned in the ceiling tiles.
Officer James Lewis testified that he responded to a call from
the area of the Budget Inn. He saw a man with a stick chasing
another man on a bicycle. Officer Lewis approached the man
carrying the stick and determined he was the victim, Mr. Amin. Mr.
Amin told Officer Lewis that the man on the bicycle had stolen the
bicycle from "his residence." Officer Lewis then went after the
man on the bicycle who had ridden into an alleyway. In thealleyway, Officer Lewis stated that he saw the bike lying on the
ground and a pair of shoes behind a wall. Officer Lewis testified
he told the man to come out from behind the wall and at that point
a man Officer Lewis identified at trial as defendant stepped out
from behind the wall. Officer Lewis then handcuffed defendant and
took him to the police station where he read defendant his Miranda
rights. Defendant initialed each question signifying that he
understood his rights. Defendant later gave Officer Lewis two
conflicting statements concerning his presence at the motel.
Officer J.B. Clifford testified he had worked with the
Goldsboro Police Department for two and a half years and prior to
that was in law enforcement in Norfolk, Virginia for sixteen years.
Officer Clifford testified that he received a dispatch to the
Budget Inn in reference to a "break and entering" on 12 November
1999. He testified that the "ceiling had caved in and the fan was
[lying] on the ground." When asked his opinion of "how access was
gained to Mr. Amin's residence," Officer Clifford stated, over
defendant's objection, that he believed "the suspect came [in
through the] burned out area[,]. . . climbed up to the wall
[and] got into the crawl space between [the nightclub] and the
kitchen area. He was up on the ceiling and he fell through, at
which time he came in" the kitchen area.
At the close of the State's evidence, defendant moved to
dismiss all charges. The trial court granted defendant's motion as
to count seven of the indictment, breaking and entering a building
occupied by George A. Stewart, doing business as Antiquities. Defendant presented no evidence.
The jury found defendant guilty of the remaining counts. The
trial court determined defendant had a prior record level of three
and sentenced defendant on count one, first degree burglary of a
dwelling occupied by Rajendra A. Amin, within the presumptive range
to a minimum of 103 months and a maximum of 133 months in prison.
The trial court consolidated counts two and three, larceny after
breaking and entering a dwelling occupied by Mr. Amin and
possession of stolen goods belonging to Mr. Amin, and sentenced
defendant within the presumptive range to a minimum of ten months
and a maximum of twelve months in prison. The trial court
consolidated the remaining counts and sentenced defendant within
the presumptive range to a minimum of eight months and a maximum of
ten months in prison. Defendant appeals.
The State filed a motion to dismiss defendant's appeal for
alleged violations of the N.C. Rules of Appellate Procedure arguing
that defendant failed to timely file his brief in violation of
N.C.R. App. P. 27 and 28. We deny the State's motion to dismiss
and exercise our discretion under N.C.R. App. P. 2 to determine
defendant's case on its merits, and we allow defendant's motion to
deem his brief timely filed.
We note that in his brief to this Court, defendant failed to
address assignments of error numbers five and seven set forth in
the record on appeal. These assignments of error are therefore
deemed abandoned. N.C.R. App. P. 28(a) ("Questions raised by
assignments of error in appeals from trial tribunals but not thenpresented and discussed in a party's brief, are deemed
abandoned.").
I.
Defendant first argues that the trial court erred in entering
judgment upon verdicts of guilty on both counts of larceny as well
as both counts of possession of stolen goods. Defendant contends
that he is entitled to have the convictions for possession of
stolen goods vacated and the case remanded for a re-sentencing
hearing on the two counts of larceny. The State argues, however,
that the trial court did not err in its judgment because the
offenses of larceny and the offenses of possession of the stolen
property which was the subject of the larceny, "are two separate
and distinct offenses, and double jeopardy considerations therefore
do not prohibit punishment of the same person for both offenses."
The State argues there was no prejudice to defendant because the
two charges were consolidated and defendant was sentenced within
the presumptive range appropriate to either crime; defendant was
therefore not punished for both crimes.
Our Supreme Court held in
State v. Perry, 305 N.C. 225, 287
S.E.2d 810 (1982) that "though a defendant may be indicted and
tried on charges of larceny, receiving, and possession of the same
property, he may be convicted of only
one of those offenses."
Id.
at 236-37, 287 S.E.2d at 817 (emphasis added). Therefore, a
defendant's convictions for larceny and possession of the same
property he stole are "in contravention of the 'bright line' rule
of
Perry. Since the defendant can only be convicted of either thelarceny or the possession of stolen property, judgment must be
arrested in one of the two cases."
State v. Dow, 70 N.C. App. 82,
87, 318 S.E.2d 883, 887 (1984). To determine which judgment must
be arrested, "'the sentence which appears later on the docket, or
is second of two counts of a single indictment, or is the second of
two indictments, will be stricken.'"
Id. (quoting
State v. Pagon,
64 N.C. App. 295, 299, 307 S.E.2d 381, 384 (1983)).
In applying the "bright line" rule of
Perry to this case
,
because the two counts of possession of stolen goods were
consolidated for sentencing with the two counts of larceny, the
sentences as to the possession of stolen goods must be vacated and
the two larceny convictions remanded for re-sentencing. Although
the trial court sentenced defendant within the presumptive range in
each consolidated judgment, we cannot infer that the trial court
did not consider all counts in determining an appropriate sentence.
See State v. Brown, 350 N.C. 193, 513 S.E.2d 57 (1999) and
State v.
Gilley, 135 N.C. App. 519, 522 S.E.2d 111 (1999). We remand the
non-vacated larceny convictions to the trial court for re-
sentencing
.
II.
Defendant next argues that the trial court erred in denying
his motion to dismiss with respect to the charge of first degree
burglary because the State failed to produce sufficient evidence to
support all elements of the charge.
Upon a defendant's motion to dismiss
all of the evidence, whether competent or
incompetent, must be considered in the lightmost favorable to the state, and the state is
entitled to every reasonable inference
therefrom. Contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal. In considering a motion to
dismiss, it is the duty of the court to
ascertain whether there is substantial
evidence of each essential element of the
offense charged. 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)
(citations omitted).
A defendant is guilty of first degree burglary
[i]f the crime be committed in a dwelling
house, or in a room used as a sleeping
apartment in any building, and any person is
in the actual occupation of any part of said
dwelling house or sleeping apartment at the
time of the commission of such crime[.]
N.C. Gen. Stat. § 14-51 (1999).
A "dwelling-house" is defined in Black's Law Dictionary as
"[t]he house or other structure in which a person lives; a
residence or abode." Black's Law Dictionary, 524 (7th ed. 1999).
Additionally, the law protects
"not only the house in which [a person]
sleeps, but also all the other appurtenances
thereto[.] . . . Thus the kitchen, [and] the
laundry . . . are within its protection, for
they are . . . used as parts of one whole,
each contributing, in its way, to the comfort
or convenience of the place, as a mansion or
dwelling. . . . But when it is proved that
they are used for other purposes, as for
labor, as a workshop--for vending goods, as a
store-house, this destroys the presumption.
It then appears that they are there for
purposes unconnected with the actual dwelling-
house[.] . . . The house, as a dwelling, is
equally as comfortable and convenient without
as with them. Their contiguity to the
dwelling may afford convenience or comfort tothe occupant as a mechanic, or laborer, or
shop-keeper, but none to him as a house-
keeper."
State v. Merritt, 120 N.C. App. 732, 737-38, 463 S.E.2d 590, 593
(1995),
disc. review denied, 342 N.C. 897, 467 S.E.2d 738 (1996)
(quoting
State v. Jenkins, 50 N.C. 430, 431-32 (1858)).
Defendant contends the trial court erred in denying his motion
to dismiss because the structure defendant allegedly broke and
entered into was neither a "dwelling house" nor a "sleeping
apartment." Defendant contends that the structure in which the
Amins resided was a commercial structure utilized as a motel and,
because of the commercial nature of the structure, this case is
controlled by our Supreme Court's decision in
State v. Foster, 129
N.C. 704, 40 S.E. 209 (1901).
The Court stated in
Foster that
"such buildings, as store-houses and other houses in which there is
a sleeping apartment, are [not] regarded as dwelling-houses,
[because the burglary statute makes] a clear distinction . . .
between . . . dwelling-houses [and sleeping apartments]."
Id. at
709-10, 40 S.E. at 211. Defendant "does not dispute that the
victims in the present case resided in a room off of the lobby in
the motel." However, he contends that because these rooms were
partitioned with locked doors leading to the restaurant, and with
a door leading from the lobby to the outside that was kept locked,
the entire sleeping apartment of the victims consisted only of the
bedroom and lobby. Therefore, defendant contends that because he
did not break into the Amin family's occupied sleeping apartment,
and because the building is not a "dwelling house," he cannot beguilty of first degree burglary.
The State argues, however, that the issue before the jury was
whether defendant entered a "dwelling house," not whether he
entered a "sleeping apartment." Considering the evidence in a
light most favorable to the State, we agree with the State that the
trial court did not err in denying defendant's motion to dismiss.
A motel room is generally recognized in this State as a "sleeping
apartment," and we agree with defendant that there is no evidence
defendant entered into the Amins' bedroom or into the lobby.
See
State v. Hobgood, 112 N.C. App. 262, 264, 434 S.E.2d 881, 883
(1993) (citing
State v. Nelson, 298 N.C. 573, 597, 260 S.E.2d 629,
646 (1979)),
disc. review denied, 335 N.C. 772, 442 S.E.2d 523
(1994). However, whether defendant entered a "sleeping apartment"
is not at issue in this case. Rather, the issue is whether
defendant broke and entered an occupied dwelling. The bedroom,
lobby, restaurant and kitchen contribute to the "comfort or
convenience" of the Amin family "as a . . . dwelling."
Jenkins, 50
N.C. at 431. As Mr. Amin testified, his family resided mainly in
the bedroom, but also had a sitting area in the lobby which had a
television, and the family used the restaurant and kitchen for
cooking and "family purposes." Although customers are permitted
in the lobby, and the building is dedicated to a business purpose
as a motel, the portions of the building the Amin family used for
"family purposes" are private and the public may enter only after
ringing a buzzer. Based on the evidence in the record, we find
there is sufficient evidence that defendant did break and enter anoccupied dwelling.
Defendant's first and eighth assignments of error are
overruled.
III.
Defendant, by his third argument, contends the trial court
erred in allowing the State's motion to join the offenses set forth
in the indictment.
"Two or more offenses may be joined in one pleading or for
trial when the offenses . . . are based on the same act or
transaction or on a series of acts or transactions connected
together or constituting parts of a single scheme or plan." N.C.
Gen. Stat. § 15A-926(a) (1999). In determining if a transactional
connection exists between offenses, the courts take into
consideration "such factors as the nature of the offenses charged
. . . and the unique circumstances of each case[.]"
State v.
Herring, 74 N.C. App. 269, 273, 328 S.E.2d 23, 26,
disc. review
denied, 314 N.C. 671, 335 S.E.2d 324 (1985),
aff'd, 316 N.C. 188,
340 S.E.2d 105 (1986).
Thus, "[a] defendant is not prejudiced by
the joinder of two crimes unless the charges are 'so separate in
time and place . . . as to render the consolidation unjust and
prejudicial to defendant.'"
State v. Howie, 116 N.C. App. 609,
615, 448 S.E.2d 867, 871 (1994) (citations omitted). We note that
public policy favors consolidation because it
"expedites the administration of justice,
reduces the congestion of trial dockets,
conserves judicial time, lessens the burden
upon citizens who must sacrifice both time and
money to serve upon juries and avoids the
necessity of recalling witnesses who wouldotherwise be called upon to testify only
once."
State v. Boykin, 307 N.C. 87, 91-92, 296 S.E.2d 258, 261 (1982)
(citations omitted). In light of these policy considerations, the
decision to consolidate offenses "is a matter which lies within the
sound discretion of the trial judge, and his ruling will not be
disturbed absent a showing that joinder would hinder or deprive
defendant of his ability to present his defense."
State v. Newman
and State v. Newman, 308 N.C. 231, 236, 302 S.E.2d 174, 179 (1983)
(citing
State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978) and
State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978)).
Defendant contends there is no transactional connection
between the offenses in this case because they involve different
victims, they occurred on different dates, and at different
locations. As a consequence of the joinder of offenses, defendant
argues he was
prejudiced by the "'overload' effect of [the]
joinder" because he "intended to offer alternative defenses to the
charged crimes[.]” We disagree.
The offenses in this case occurred within a two-day period and
within three blocks of each other and are therefore closely
connected in time and place. Further, as the State contends, both
crimes were "second floor jobs" and demonstrate a similar
modus
operandi because defendant gained access through the ceilings of
both buildings. The trial court did not abuse its discretion in
joining the two offenses for trial. We find no error. Defendant's
fourth assignment of error is overruled.
IV.
Defendant next argues the trial court erred in allowing
Officer Clifford to give opinion testimony, in violation of N.C.
Gen. Stat. § 8C-1, Rule 701, as to how defendant may have entered
the motel.
Rule 701 states that
[i]f the witness is not testifying as an
expert, his testimony in the form of opinions
or inferences is limited to those opinions or
inferences which are (a) rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (1999).
Defendant contends that Officer Clifford's opinion testimony
with respect to how defendant entered the motel went beyond the
purview of Rule 701 because a proper foundation or basis was not
laid for Officer Clifford's opinion and
no evidence was presented
as to his training or prior case experience, except that he had
been a law enforcement officer for eighteen and one-half years.
Defendant argues that "[f]or all we know, Officer Clifford could
have been a traffic cop for [these] years and this is his first
breaking and entering case."
Defendant further argues that allowing the officer's opinion
testimony at trial prejudiced defendant because defendant gave two
conflicting statements to the police as to how he entered the
motel. Defendant continues, "[a]s such, with defendant's statement
in evidence that he fell through the roof, it is prejudicial to
allow Officer Clifford to assert, without proper foundation, how
defendant may have gained access into the building." As Rule 701 requires, Officer Clifford's opinion testimony was
rationally based on his perception of what he saw at the motel
during his investigation of the crime scene. Also, his opinion
testimony could certainly be helpful to the jury in determining how
the ceiling fell to the floor. The record includes substantial
physical evidence to support Officer Clifford's theory of entry.
Mr. Amin testified at trial that on the night of the robbery, he
heard a "big clash" from
his bedroom, and that he noticed the
ceiling fan and "about six [ceiling] tiles" had fallen on the
kitchen floor, and that they were not on the floor before that
night. Additionally, defendant produced no evidence that Officer
Clifford's eighteen and one-half years of experience in law
enforcement was insufficient experience on which to base his
opinion.
Defendant's sixth assignment of error is overruled.
V.
By his final argument, defendant contends the trial court
erred in denying his motion to dismiss because a fatal variance
existed between the indictment and proof presented at trial.
"
A defendant must be convicted, if convicted at all, of the
particular offenses charged in the bill of indictment. The
allegations and the proof must correspond. A fatal variance may be
taken advantage of by motion to dismiss."
State v. Bost, 55 N.C.
App. 612, 614, 286 S.E.2d 632, 634 (1982) (citing
State v.
Muskelly, 6 N.C. App. 174, 169 S.E.2d 530 (1969) and 4 Strong's
N.C. Index 3d
Criminal Law § 107 (1976)). Defendant argues that "the indictment is fatally defective"
because it "alleges that defendant broke into a dwelling but the
evidence clearly indicates that defendant broke into a building in
which a sleeping apartment is present[.]" Because we have
determined that substantial evidence was presented at trial that
defendant broke into a "dwelling house" for purposes of the
burglary statute, this argument is without merit.
Defendant further argues that although the indictment states
that "the 'dwelling' belonging to the victim consisted of Room 133
of the Budget Inn[,] [t]he evidence clearly . . . demonstrates that
defendant broke and entered into a portion of the commercial
structure that was not Room 133." "[A]n indictment for burglary is
fatally defective if it fails to identify the premises broken and
entered with sufficient certainty to enable the defendant to
prepare his defense and to offer him protection from another
prosecution for the same incident."
State v. Coffey, 289 N.C. 431,
438, 222 S.E.2d 217, 221 (1976). We find there was a sufficient
description in the indictment in the case before us to withstand
defendant's motion to dismiss. The indictment charged defendant
with breaking and entering "a dwelling of Rajendra A. Amin" and did
not state this dwelling
consisted of Room 133 as defendant
contends. Defendant was fully apprised that he was being charged
with first degree burglary for the breaking and entering of "a
dwelling." The evidence at trial was sufficient to support this
count in the indictment. We hold there was not a fatal variation
between the allegations in the indictment and the proof at trial. Defendant's second assignment of error is overruled.
No error in defendant's conviction for first degree burglary.
No error in defendant's convictions on the two counts of breaking
and entering an occupied building. Defendant's convictions on the
two counts of possession of stolen goods are vacated. The two
counts of larceny after breaking and entering a dwelling are
remanded for re-sentencing
.
No error in part, vacated in part and remanded for re-
sentencing.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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