State v Medlin, (02-1522) 06/03/2003

Appeal by defendant from judgment entered 30 July 2002 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 26 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

James M. Bell, for defendant-appellant.

CALABRIA, Judge.

    Defendant was charged with breaking and entering a motor vehicle and misdemeanor larceny. In a separate bill of indictment defendant was charged with attaining the status of habitual felon.
The State's evidence tended to show that on 20 October 2001, Stacy Mangum (“Mangum”) drove her minivan to South Hills Mall to buy a birthday present for her brother-in-law. Mangum parked her minivan in a parking space near the Sew Unique Fabric store where few cars were parked. Her minivan had a driver's side door, a passenger door, sliding doors on either side of the van and a hatch back door. Magnum had removed the bench seat immediately behind the driver's seat to allow easier access to the bench seat in the back. Before exiting her vehicle, Mangum checked her wallet and noted that she had one $100 bill, one $50 bill, a couple of $20 bills and a couple of $1 bills.     Mangum got out of her van, opened the sliding door on the driver's side and placed her pocket book, which contained her wallet, behind the driver's seat. She then climbed into the van, knelt on the back bench seat and leaned over it to look for a bag she had been trying to match. After less than a minute, Mangum turned around and saw that her purse was missing from behind the driver's seat. Mangum exited her minivan, looked around and saw Kerri Thorpe (“Thorpe”) and Casey Adams (“Adams”), sitting on a curb that runs beside the mall. The two women were taking a break from a class at Mitchell's Beauty School located in the mall and had noticed defendant standing beside the open door of the minivan.
    When Mangum ran up to the women and asked, “Has anybody been around my van?,” they responded, “Oh, that's your van . . . we thought it was that gentleman's van going that way.” Thorpe and Adams told Mangum that the gentleman was a “black male walking that way with black clothing and a black hat.” Mangum immediately jumped into her minivan and drove around the parking lot in the direction Thorpe and Adams had indicated. While Adams went inside the mall to get a Cary Police Officer, Thorpe saw defendant come around a brick wall that hid the mall dumpsters and proceed toward Burlington Coat Factory.
    Mangum did not see anyone matching defendant's description and drove her minivan back to Thorpe, who told Mangum, “He's going intoBurlington Coat Factory.” Mangum parked her van in front of Burlington Coat Factory and exited her vehicle. A man opened the door for Mangum and she hurried inside. She did not see anyone inside so she exited the store and ran into Thorpe. Thorpe told Mangum, “[t]hat's him. He opened your door.” Mangum ran back into the store and confronted defendant, who was wearing black clothes and a black hat. Defendant tried to get away from Mangum, but she eventually got defendant outside where Cary Police Officer William Saunders (“Officer Saunders”) and Adams were waiting. Magnum described her purse and its contents to Officer Saunders.
    In the meantime, Thorpe went to the brick wall area where she saw defendant earlier, looked into the dumpsters behind the brick wall and found Mangum's purse. Thorpe went to the Burlington Coat Factory entrance and advised Officer Saunders that she found it in the dumpster. During a pat-down of defendant, Officer Saunders found a pack of cigarettes in defendant's right front pocket and several folded bills of U.S. currency in defendant's hand. Defendant possessed one $100 bill, one $50 bill, two $20 bills, one $5 bill and five $1 bills.
    A jury found defendant guilty of breaking or entering a motor vehicle and misdemeanor larceny. Defendant subsequently pled guilty to being an habitual felon. The trial court sentenced defendant to 90 to 117 months imprisonment. Defendant appeals.
    In his sole argument on appeal, defendant contends the trial court erred by denying his motion to dismiss based on insufficiency of the evidence. The standard for ruling on a motion to dismiss"is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). In ruling on a motion to dismiss, the trial court must consider all of the evidence “in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
    The elements of the crime of breaking or entering into a motor vehicle under N.C. Gen. Stat. § 14-56 (2001) are: (1) a breaking or entering (2) without consent (3) into any motor vehicle (4) containing goods, freight, or anything of value (5) with the “intent to commit any felony or larceny therein[.]” Leaning into a vehicle through an open door such that the upper part of the body is actually in the vehicle is sufficient evidence for submitting the question to the jury whether an “entry” had been committed by the defendant. State v. Sneed, 38 N.C. App. 230, 247 S.E.2d 658 (1978). Larceny is the taking and carrying away of the personalproperty of another, without the consent of the owner, with the intent to deprive the owner of his property permanently. State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992).
    Here, Mangum testified that she put her purse behind the driver's seat and that after she entered the vehicle to retrieve a piece of fabric her purse was missing. She further testified that neither defendant nor anyone else had authority to enter her minivan and remove her purse. Thorpe and Adams testified that they saw defendant hanging around the minivan and assumed it was his. Defendant then emerged from behind a brick wall, which hides the mall dumpsters and walked towards the mall. Mangum's purse was subsequently found in a mall dumpster behind the brick wall, and defendant had on his person the amount of U.S. currency closely matching the amount of money and the denominations Mangum reported having in her purse. In a light most favorable to the State, this evidence was sufficient to show each of the elements of the crimes charged. Accordingly, the trial court properly denied defendant's motion to dismiss.
    Defendant has failed to bring forward his remaining assignment of error regarding his habitual felon conviction, and it is therefore deemed abandoned. N.C.R. App. P. 28(b)(6) (2003).
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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