State v Gardner, (03-245) 11/18/2003

Appeal by defendant from judgment entered 17 December 2002 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 10 November 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State

Terry W. Alford for defendant-appellant.

LEVINSON, Judge.

    On 21 May 2001, defendant was indicted on two counts each of forgery and uttering, and one count of being an habitual felon. On 1 April 2002, defendant was indicted on charges of felonious breaking or entering and felonious larceny, as well as an additional charge of being an habitual felon. On 15 April 2002, defendant was indicted on charges of breaking or entering, possession of an implement of housebreaking and injury to real property. The substantive offenses for which defendant was indicted on 15 April 2002 were tried at the 23 September 2002 Criminal Session of Pitt County Superior Court and are the subjectof this appeal.
    The State presented evidence at trial which tended to show the following: On 20 March 2002, at approximately 3:52 a.m., Sergeant Maurice Patterson of the Ayden Police Department received a call that a silent alarm had been triggered at Leo Venters Motors. Sergeant Patterson drove to Leo Venters Motors and waited a few minutes for the owner, A. T. Venters, to arrive. After Venters arrived, he and Sergeant Patterson entered the business to check the alarm. The two men first entered the showroom, and then went to the garage and turned the lights on. As they were walking through the garage, Sergeant Patterson saw the defendant in a crawling position on the floor between two vehicles. Defendant was wearing dark clothes, a “blue color bandana on a piece of fabric around his face and neck area,” and work gloves. A red crowbar was found within defendant's reach. An examination of the premises revealed that two of the doors to the garage had been “damaged by a pry[-]like tool” such as a crowbar. Defendant was placed under arrest.
    Defendant was convicted by a jury on all three counts contained in the 15 April 2002 indictments related to Leo Venters Motors. Prior to entry of judgment, defendant pled guilty to three counts of being an habitual felon, two counts of forgery, and one count each of uttering, breaking and entering and larceny. The convictions were consolidated for judgment and defendant was sentenced to a single term of 168 to 211 months imprisonment.
    Defendant first argues that there was insufficient evidence toconvict him of breaking or entering, or possession of an implement of housebreaking. Defendant contends that both felonies require proof of an intent to commit a felony or larceny. Defendant asserts there was no such evidence, and thus the trial court should have dismissed the charges.
    After careful review of the record, briefs and contentions of the parties, we find no error. Defendant was charged with breaking or entering and possession of an implement of housebreaking. We address each offense in turn.
    One of the essential elements of breaking or entering is the “intent to commit any felony or larceny therein.” N.C.G.S. § 14- 54(a) (2001). This Court has stated that:
        The State may rely on circumstantial evidence to prove the State's prima facie case, as "the law makes no distinction between the weight to be given to either direct or circumstantial evidence." Moreover, in reviewing the denial of a motion to dismiss for insufficiency of the evidence, the trial court is required to view the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference to be drawn therefrom. An intent to commit larceny at the time of the breaking or entering may be inferred from the defendant's conduct and other circumstances shown by the evidence.

State v. Thomas, 153 N.C. App. 326, 334, 570 S.E.2d 142, 146-47 (quoting State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390 (2000)), disc. review denied, 356 N.C. 624, 575 S.E.2d 759 (2002) (citations omitted); see also State v. Salters, 65 N.C. App. 31, 34, 308 S.E.2d 512, 515 (1983) (“In the absence of a confession or completion of the intended offense, intent is most often proven by circumstantial evidence.”)     In the case sub judice, the evidence established that just before 4 a.m. on 20 March 2002, defendant was found inside the garage premises of Leo Venters Motors after a silent alarm was tripped. Defendant was found dressed in dark clothes, his face and neck partially hidden by a bandana, and a crowbar was recovered within his reach. Damage was found to the door frames of the garage consistent with them being pried open with a crowbar. The garage where defendant was found was dark until Sergeant Patterson and Mr. Venters turned on the lights, and defendant did not immediately reveal his presence. Upon a search of the garage, defendant was discovered on the floor between two cars in a crawling position. Defendant did not have permission to be inside the business at night, and had no lawful excuse for his presence. See Salters, 65 N.C. App. 31, 308 S.E.2d 512 (evidence tending to show an unexplained breaking or entering into a dwelling at night, accompanied by flight when discovered, is sufficient under the law to support the inference that the breaking or entering was done with the intent to steal or commit a felony.) We conclude a jury could reasonably infer from this evidence that defendant intended to steal or commit a felony.
    The offense of possession of an implement of housebreaking is defined as follows: “If any person . . . shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking . . . such person shall be punished as a Class I felon.” N.C.G.S. § 14-55 (2001). “G.S. 14-55 defines three separate offenses, and the part of the statutejust quoted is a separate offense.” State v. Godwin, 269 N.C. 263, 265-66, 152 S.E.2d 152, 154 (1967). “Upon indictment for [possession of an implement of housebreaking] under G.S. 14-55, the State has the burden of proving the following two things: (1) that the defendant was found to have in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute and (2) that such possession was without lawful excuse.” State v. Beard, 22 N.C. App. 596, 598, 207 S.E.2d 390, 391 (1974). Prosecution for possession of an implement of housebreaking “does not require proof of any specific intent to break into a particular building at a particular time and place.” State v. Bagley, 300 N.C. 736, 740-41, 268 S.E.2d 77, 79-80 (1980). Rather, “the burden rests on the State to show beyond a reasonable doubt that the defendant possessed the article in question with a general intent to use it at some time for the purpose of facilitating a breaking.” Id.
    Thus, possession of an implement of housebreaking is not, as defendant argues, a specific intent crime. Moreover, on the basis of the evidence just recited, we conclude that a jury could reasonably infer from this evidence that defendant possessed the crowbar for the purpose of using it to facilitate a breaking. Accordingly, the assignment of error is overruled.
    Defendant next argues that the trial court erred by sustaining the State's objection regarding a conversation between defendant and the defendant's witness, Sharon Sutton. Ms. Sutton was askedif she had a discussion with defendant regarding someone named Kareem. Counsel then asked Ms. Sutton:
        And in this discussion was it your understanding that someone had left some property in a vehicle being serviced at Leo Venters [Motors]; is that your understanding of the conversation you had with my client?

The State objected and the court sustained the objection. After a brief bench conference, defendant's attorney stated: “Your Honor, to comply with your ruling, the defendant has no further questions.” Defendant contends no grounds were given for the objection, and the court did not state the grounds for sustaining the objection. Defendant argues that it was error for the court not to allow the question. Defendant asserts that he was denied his right to present his version of the facts. We find no error.
    The question asked by counsel was clearly a leading question because it suggested the desired response from Ms. Sutton, and could easily be answered with a “yes” or “no.” See State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996) (citing State v. Mitchell, 342 N.C. 797, 805, 467 S.E.2d 416, 421 (1996)). “Whether to allow a leading question on direct examination clearly falls within the discretion of the trial court.” State v. York, 347 N.C. 79, 90, 489 S.E.2d 380, 386-87 (1997) (citing State v. Shoemaker, 334 N.C. 252, 261, 432 S.E.2d 314, 318 (1993)).
    Moreover, the leading question called for a response which was inadmissible hearsay. “Hearsay is defined as an out-of-court declaration offered for the purpose of proving the truth of the information contained in the declaration.” State v. Jones, 347N.C. 193, 216, 491 S.E.2d 641, 655 (1997) (citing G.S. § 8C-1, Rule 801(c)). The leading question asked by counsel was intended to prove the truth of the matter asserted within the statements, i.e, that defendant had an excuse for being in the building. See id. Defendant has provided no exception to the hearsay rules which would be grounds for admitting the statement sought to be elicited by the leading question, and none is evident.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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