STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 00 CRS 143443
REGINALD WRIGHT 00 CRS 027236
THOMAS, Judge.
Defendant, Reginald Wright, appeals a conviction of felonious
breaking or entering a motor vehicle. Following his guilty plea to
habitual felon status, he was sentenced to a minimum term of 80
months and a maximum term of 105 months. For the reasons discussed
herein, we find no error.
The State presented evidence tending to show that at
approximately 1:30 a.m. on 28 June 2000, a 2000 Nissan Frontier
crew cab truck was parked at Smokey Joe's, a Charlotte nightclub,
when the security alarm of the vehicle sounded. Robert Kevin Quan,
Jr., who was employed as a security guard by the nightclub,
responded to the alarm and found a man, whom Quan identified as
defendant, rummaging inside the truck. The rear window of thetruck had been broken out. Quan asked defendant whether the truck
belonged to him and defendant responded in the negative. Defendant
jumped out of the truck and lunged at Quan. Quan then sprayed
defendant with red pepper spray.
Joseph Anthony Pullano, a manager of the nightclub, then
arrived to assist Quan. Defendant fled. Approximately two hours
later, Quan and Pullano received a report that a person who had
been pepper sprayed was seeking treatment at a local hospital. The
two men went to the hospital and identified defendant as the man
they found inside the truck.
The owner of the vehicle testified that he kept pocket change
in a dashboard console and some compact discs in the vehicle. Some
of the pocket change had been strewn on the floorboard, the
driver's seat and the ground. Approximately $5.00 was missing. He
did not know defendant and did not give him permission to enter his
truck or to take anything.
Defendant testified that he was making a telephone call at the
First Stop store when a white girl came out of the nightclub and
asked him where she could purchase some cocaine. As he spoke to
her, “about five white dudes” sprayed him with Mace and struck him
with a pipe. The white girl assisted him to his sister's house.
His sister brought him to the hospital.
By defendant's first assignment of error, he argues the trial
court erred by refusing to submit an instruction indicating that
the “mere presence” of defendant in the vicinity of the parking lot
would not make him guilty of the crime charged. We disagree. A trial judge must give a requested jury instruction at least
in substance if the instruction is a correct statement of law and
is supported by evidence in the record. State v. Corn, 307 N.C.
79, 86, 296 S.E.2d 261, 266 (1982). The “mere presence” doctrine
posits that the mere fact the defendant is present at the scene of
a crime does not make him guilty of the offense. State v. Cheek,
351 N.C. 48, 74, 520 S.E.2d 545, 560 (1999), cert. denied, 530 U.S.
1245, 147 L. Ed. 2d 965 (2000). Therefore, the court was required
to give the instruction in the present case if there is evidence
that defendant was “merely present” as a bystander at the scene of
the breaking and entering of the truck. State v. Ligon, 332 N.C.
224, 242, 420 S.E.2d 136, 146 (1992). Here, the State's evidence
positively shows that defendant actively participated in the
commission of the offense. Defendant's evidence, on the other
hand, did not place him at the scene of the breaking and entering
but at the First Stop store. Because there is no evidence that
defendant was “merely present” at the scene, the court did not err
in refusing to submit the instruction. We reject defendant's
argument.
By defendant's second assignment of error, he argues the trial
court committed plain error by failing to submit the issue of
misdemeanor breaking or entering to the jury. We disagree.
Plain error may be found only in the rare and exceptional case
in which “it can be said the claimed error is a 'fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done' . . . or it can be fairly said 'theinstructional mistake had a probable impact on the jury's finding
that the defendant was guilty.'” State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676
F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L.
Ed. 2d 513(1982)). When the State's evidence is clear and positive
as to each element of the charged offense and there is no evidence
to show commission of the lesser offense, the refusal to submit the
lesser offense to the jury is not error. State v. Peacock, 313
N.C. 554, 558, 330 S.E.2d 190, 193 (1985).
Breaking into a motor vehicle with the intent to commit
larceny in violation of N.C. Gen. Stat. § 14-56 is a felony
regardless of whether the intended larceny would be a felony or
misdemeanor. State v. Kirkpatrick, 34 N.C. App. 452, 456, 238
S.E.2d 615, 618 (1977). This is true even if the items contained
in the vehicle are of trivial value. State v. McLaughlin, 321 N.C.
267, 270, 362 S.E.2d 280, 282 (1987). Here, the evidence is
uncontradicted that the vehicle contained items of value. There is
no evidence that defendant broke into the vehicle with any intent
other than to commit larceny or a felony. Under these
circumstances, the court did not commit error, plain or otherwise.
We thus reject defendant's argument.
By defendant's third assignment of error, he argues the trial
court erred by denying his motion to dismiss for insufficient
evidence. We disagree.
A motion to dismiss requires the court to determine whether
there is substantial evidence (1) of each essential element of thecharged offense and (2) of perpetration of the offense by the
defendant. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980). The evidence must be viewed in the light most favorable to
the State, giving it the benefit of every reasonable inference that
may be drawn from the evidence. State v. Benson, 331 N.C. 537,
544, 417 S.E.2d 756, 761 (1992). The court is to determine only
whether the evidence is sufficient to allow the jury to draw a
reasonable inference of the defendant's guilt of the crime charged.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
The crime of breaking or entering a motor vehicle in violation
of N.C. Gen. Stat. § 14-56 is proved by evidence establishing the
defendant (1) broke or entered (2) without the owner's consent (3)
a motor vehicle (4) containing goods, freight, or anything of value
(5) with the intent to commit any felony or larceny therein. State
v. Riggs, 100 N.C. App. 149, 155, 394 S.E.2d 670, 673 (1990). The
evidence in this case is sufficient to establish all of the above
elements. This assignment of error is therefore rejected.
Finally, as a “preservation issue,” defendant argues that the
Habitual Felon Act violates the equal protection clauses of the
North Carolina and United States Constitutions. It does not appear
that defendant raised this constitutional issue in the trial court.
An appellate court is not required to pass upon a constitutional
issue unless it affirmatively appears in the record that the issue
was presented to and decided by the trial court. State v. Creason,
313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985). Moreover, our Supreme
Court has previously rejected a prior challenge made on due processand equal protection grounds to the constitutionality of the
habitual felon statute. State v. Todd, 313 N.C. 110, 117-118, 326
S.E.2d 249, 253 (1985). Accordingly, this assignment of error is
dismissed.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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