An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-12


Filed: 6 January 2004


v .                         Edgecombe County
                                    Nos. 01 CRS 8698;
                                01 CRS 50914-15;
                                01 CRS 50963-64

    Appeal by defendant from judgments entered 7 August 2002 by Judge Quentin T. Sumner in Edgecombe County Superior Court. Heard in the Court of Appeals 16 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State.

    John T. Hall, for the defendant-appellant.

    CALABRIA, Judge.

    Albert Earl Spearman (“defendant”) was convicted by a jury and sentenced as a habitual felon to the North Carolina Department of Correction for the following offenses: one count of attempted breaking and entering for which defendant received a sentence of 121 to 155 months; one count of possession of burglary tools for which defendant received a sentence of 107 to 138 months; two counts of breaking and entering for which defendant received sentences of 121 to 155 months and 151 to 191 months respectively for each sentence; and two counts of felony larceny for which defendant received sentences of 121 to 155 months and 151 to 191months respectively for each count. The sentences imposed would run consecutively. We find no error.
    Shortly after midnight on 1 May 2001, Officer Jeff Wenhart (“Officer Wenhart”), a patrolman for the Rocky Mount Police Department, apprehended defendant at the back of the Branch Street Grocery store after observing him use a screwdriver to pry the siding boards off the wall of the building. After defendant was placed in the car, Officer Wenhart identified him as the perpetrator of the burglary of the Midtown Grocery store, which had been recorded by video surveillance. Officer Wenhart transported him to the Rocky Mount Police Department.
    Upon arriving at the police department, Officer Wenhart advised defendant of his Miranda rights. Officer Wenhart went through each of the rights individually, and defendant acknowledged he understood each of the rights individually before he signed a “Waiver of Rights” form. In the interview, defendant admitted he was the perpetrator observed at the Branch Street Grocery store as well as the person appearing on the video which documented the Midtown Grocery store burglary. Because there had been a recent rash of similar burglaries, Officer Wenhart continued to question defendant. Defendant stated that he had recently gotten out of prison and became hooked on crack cocaine as a result of learning of family members' health problems. Defendant then informed Officer Wenhart that he had been “breaking into all kinds of things.” While defendant refused to list specific stores which he had broken into, he stated he would “break into anything. I wouldbreak into a bicycle.” Officer Wenhart concluded his interview to allow continued investigation of similar burglaries in the area by Detective G.D. Robinson (“Detective Robinson”) with the Rocky Mount Police Department.
    Detective Robinson again advised defendant of his Miranda rights and questioned defendant about other similar break-ins. Defendant reiterated he had broken into other locations but refused to specifically identify any of them. Although defendant explained his behavior was a result of his addiction to crack cocaine, State's evidence tended to show he was coherent during the questioning.
    On 3 May 2001, Detective S.R. Griffin (“Detective Griffin”) of the Rocky Mount Police Department arranged to transport defendant from the jail where he was incarcerated to the police station for further questioning and read him his rights while in the presence of another officer. Defendant stated he understood those rights. On the way to the police station, Detective Griffin responded to defendant's requests for food and family visitation by purchasing something for defendant to eat and contacting his family to arrange a visit during the interview. Detective Griffin stated he intended to make defendant “as comfortable as possible for [the] interview.” During transport, defendant conversed with Detective Griffin and told him, among other things, that he did not want to go back to prison, he did not have much time left to live, and he wanted to spend time with his family. Detective Griffin told defendant heknew someone from a prior case who had received help from a drug treatment program.
    After Detective Griffin and defendant arrived at the police station, Detective Griffin interviewed defendant and allowed him to spend some time with his aunt and sisters, who arrived after learning defendant wanted to see them. When the family members left to purchase some personal items for defendant, Detective Griffin resumed the interview. Unlike previous interviews with Officer Wenhart and Detective Robinson where defendant did not specifically identify other break-ins he had perpetrated, defendant admitted to Officer Griffin that he broke into both CC's Tavern and the Stop and Shop Food Mart. Moreover, defendant gave Detective Griffin details of what he had stolen and how he had gained admittance to both.
    At the conclusion of the interview, Detective Griffin memorialized defendant's statement in writing and read it to defendant. Defendant looked over the confession, made corrections, and then signed it. Defendant's aunt, who was present when the confession was read to defendant, witnessed the confession.
    Defendant was indicted on the charges previously set forth. Prior to trial, defendant moved to suppress all statements made to any law enforcement official on the grounds that they were obtained in violation of his constitutional rights. Specifically, defendant asserted that, while he was read his rights and signed a waiver of rights, the waiver was not freely and voluntarily made because he could not read or understand the statement he signed or theconsequences of his signature. Alternatively, defendant asserted he was told by the law enforcement officers that things “would be better” for him if he signed the confession and the “only way [to] get help for [his] drug addiction was if [he] admitted to all the crimes;” therefore, his statement, though voluntary, was inadmissible because the making of the statement was contingent upon the promises made to him by Detective Griffin. After the voir dire testimony, the trial court denied defendant's motions to suppress.
    Defendant was tried before a jury, and, at the close of the State's evidence, defendant moved to dismiss the charges against him, which the trial court denied. Defendant presented no evidence. The jury found defendant guilty of the following offenses: attempted breaking and entering, possession of implements of housebreaking, two counts of felonious breaking and entering, and two counts of felonious larceny. Defendant pled guilty to attaining the status of habitual felon.
    On appeal, defendant asserts the trial court erred by (I) denying defendant's motion to suppress his inculpatory statements, and (II) denying defendant's motion to dismiss the charge of attempted breaking and entering with intent to commit felony larceny.
I. Motion to Suppress
    Defendant contends the trial court erred in denying his motion to suppress his statement given on 3 May 2001 to Detective Griffin regarding his involvement in the break-ins in the instant case. Defendant advances two arguments in support of this contention: (1) Detective Griffin's statements to defendant deliberately induced a voluntary confession obtained through defendant's detrimental reliance on purposeful police deception, and (2) defendant's signing of the statement was not freely and voluntarily made because law enforcement officers failed to read the waiver of rights section when advising defendant of his rights and defendant, unable to read or write, did not know or understand the statement he was signing. We consider each of these arguments.
A. Detrimental Reliance
    Defendant argues on appeal he detrimentally relied on a police promise that he could receive treatment for his drug addiction only by admitting his involvement in all crimes charged. Defendant asserts his subsequent confession, although voluntary, is inadmissible because it was induced through deceptive police promises. State v. Sturgill, 121 N.C. App. 629, 469 S.E.2d 557 (1996) (holding that a defendant's constitutional due process rights required suppression of voluntary confessions induced by such tactics). Because defendant failed to present this argument to the trial court, we do not consider it on appeal.
    It is well established that “appellate courts will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court.” State v. Hudson, 281 N.C. 100, 105, 187 S.E.2d 756, 760 (1972) (emphasis added) (citing State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955) ; State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968);State v. Cumber, 280 N.C. 127, 185 S.E.2d 141 (1971)). Moreover, the duty of an appellate court in reviewing the trial court's ruling on a motion to suppress is to determine whether the findings of fact made by a trial judge are supported by competent evidence, and if they are, such findings are binding on appeal. State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002), cert. denied, ___ U.S. ___, 155 L.Ed. 2d 1074 (2003). This is so, and should be so, because the trial court hears the testimony, observes the demeanor of the witnesses, and is in a superior position to weigh and resolve any evidentiary conflicts. State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994). In the instant case, there are no findings of fact to review concerning this issue because it was not considered by the trial court.
    At the voir dire hearing defendant did not argue that his statement to Detective Griffin, though voluntary, should be suppressed on the grounds that it was procured through detrimental reliance on or improper inducement by police promises. On the contrary, defendant argued solely that, due to a number of factors, the statements made by defendant could not have been knowing or voluntary. This argument, that the confession was involuntary, is materially different than the claim recognized by Sturgill. Sturgill, 121 N.C. App. at 643, 469 S.E.2d at 566. In this case, the trial court made no findings of fact dealing with inducements, promises, or incentives communicated by Detective Griffin to defendant. In addition, after finding defendant was able to understand and validly waive the rights read to him, the courtrejected defendant's argument that the confession was involuntary. The trial court concluded defendant “knowingly, voluntarily, and understandingly made [the statement of 3 May 2001] and . . . waived his rights . . . .” Although the trial court had not addressed the issue of whether defendant was improperly induced by police promises to make a voluntary statement, defendant sought no clarification.
    In this procedural context, it becomes clear defendant presented and obtained a ruling only on whether the confession should be suppressed as involuntary. By arguing on appeal that the confession was voluntary but improperly induced, defendant attempts to resurrect a constitutional argument upon which the trial court made no findings or ruling. Accordingly, we do not consider it.
B. Involuntariness
    Defendant asserts, in the alternative, the trial court erred in denying his motion to suppress on the grounds that the statement was not freely and voluntarily made. Defendant advances four contentions in support of this argument: (1) Detective Griffin did not read the waiver of rights portion to defendant, although he did advise him of his Miranda rights; (2) defendant could not read and did not know or understand the statement he was signing; (3) Detective Griffin testified he could not say defendant knew his rights at the time he was read the Miranda rights; and (4) the State never presented into evidence a signed waiver of rights. These arguments were previously rejected by the trial court.    According to our standard of review, we examine the record to determine whether there is competent evidence supporting the trial court's findings on the motion to suppress. Barden, 356 N.C. at 332, 572 S.E.2d at 120-21. We find the record replete with competent evidence indicating defendant understood and knowingly waived his rights. Defendant's affidavit in support of his motion to suppress stated that each time he was questioned, including when he was questioned by Detective Griffin, he was read his rights and signed a waiver of rights. Defendant indicated his understanding of his rights no fewer than four separate times. Defendant never asserted he was unable to read and never requested clarification. Moreover, we note defendant looked over, corrected, and initialed the corrections on his written inculpatory statement.
    While Detective Griffin testified he could not say whether defendant actually knew his rights, he did specifically testify that defendant stated he understood his rights. This testimony is in accord with Officer Wenhart's testimony that he advised defendant of his rights prior to Detective Griffin's questioning of defendant and that defendant acknowledged he understood each of those rights individually and signed a waiver of rights. While no signed waiver of rights from Detective Griffin was presented into evidence, we have previously held that “the State [is] not required to produce a signed written waiver of rights in order to make [a] confession admissible.” State v. Monroe, 27 N.C. App. 405, 407, 219 S.E.2d 270, 271 (1975). Based on the evidence in the record, we hold the trial court's findings of fact are amply supported bycompetent evidence in the record. This assignment of error is overruled.
II. Motion to Dismiss
    Defendant asserts the trial court erred in denying his motion to dismiss the charge of attempted breaking and entering with intent to commit felony larceny for the Branch Street Grocery store break-in due to insufficiency of the evidence. Specifically, defendant contends there is a lack of evidence concerning intent to commit any felony in the business property or, alternatively, defendant is guilty only of damage to real property.
    “A motion to dismiss on the ground of sufficiency of the evidence raises . . . the issue 'whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.'” Barden, 356 N.C. at 351, 572 S.E.2d at 131 (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). “The existence of substantial evidence is a question of law for the trial court, which must determine whether there is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. “The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Evidence may be direct, circumstantial, or both. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
    “The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with theintent to commit any felony or larceny therein.” State v. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575, 577 (1986) (citing N.C. Gen. Stat. § 14-54(a)). “The elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense.” State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996). In the instant case, defendant challenges only the third element of felonious breaking or entering: intent to commit any felony or larceny therein. Defendant contends finding him at the back of a business using a screwdriver to remove the building's siding is insufficient evidence to show an intent to commit a felony or larceny in the building.
    “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.” State v. Salters, 65 N.C. App. 31, 34, 308 S.E.2d 512, 515 (1983) (citing State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887); State v. Hill, 38 N.C. App. 75, 247 S.E.2d 295 (1978)). “[U]sually cases in which intent is inferred from circumstantial evidence involve stores or occupied dwellings . . . .” Id. In the instant case, Officer Wenhart testified he found defendant shortly after midnight using a screwdriver to pry the siding boards off the wall of the business and “digging a hole [in the back of the business] trying to makeentry where there was none before.” When defendant saw Officer Wenhart, “he stopped digging in the wall and took off running.” Despite the fact that Officer Wenhart identified himself as a police officer and ordered defendant to stop, defendant continued to flee. We find these facts to be squarely controlled by existing precedent regarding the evidence necessary to show intent regarding felonious breaking and entering. Accordingly, this assignment of error is overruled.
    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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