State v Farris, (03-844) 05/04/2004

Appeal by defendant from judgment entered 14 March 2003 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy A. Cooper, III, by Special Deputy Attorneys General William P. Hart and William H. Borden, for the State.

Peter Wood for defendant-appellant.

HUNTER, Judge.

    On 3 September 2002, Jimmy Junior Farris (“defendant”) was indicted on charges of felonious breaking and entering, felonious larceny, and being an habitual felon. The case was tried at the 13 March 2003 Criminal Session of Durham County Superior Court.
    The evidence presented at trial tended to show the following: On 23 June 2002, Joseph Edward Boone, Jr. (“Boone”) went to a TROSA warehouse at 1101 Neville Street in Durham, North Carolina. TROSA is a nonprofit corporation providing a residential drug and alcohol program. Boone was employed by TROSA as a warehouse manager. There had been several break-ins at the warehouse, so Boone and two other men went to the warehouse to provide security.    Boone arrived at the warehouse at 8:00 p.m. and noticed that one of the roll-up doors was halfway open. Boone approached the building, and noticed defendant “bending over inside of the warehouse putting clothes inside of a bag.” Boone knew defendant because defendant had formerly been in the TROSA program. Boone called out to defendant, and defendant looked at Boone and then “took off in the warehouse.” Boone saw defendant approximately half an hour later. Defendant was in front of the building “crunched up . . . on the side of a dumpster” trying to hide. Boone called the police. Before the police arrived, Boone saw defendant hiding with a box. Boone asked defendant what he was doing and told him he was going to jail. Defendant responded “'I'm not going to jail and it's your fault because you're the one that put me out of the program.'”
    The box that was found with the defendant by the dumpster contained items from the warehouse including sports jerseys, leather gloves, shirts, shoe polish, toiletries and deodorant. It was determined that the warehouse had been entered from the roof. After an air conditioner had been pried away from the wall, the perpetrator had entered an office area, moved the ceiling tile and went up into the ceiling and into the building. Defendant was convicted of felonious breaking or entering and being an habitual felon and was sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.
    We first consider whether the trial court committed plain error when it failed to excuse a juror. During voir dire, counselasked prospective jurors: “If Mr. Farris exercises his right not to testify, is [that] something that you would hold against him in making your decision as to whether or not he's guilty or innocent?” In response, one of the prospective jurors answered yes. There was no further inquiry into the prospective juror's answer. Defense counsel did not use any of his peremptory challenges, nor did he ask that the juror be removed for cause. Defendant contends that the trial court should have dismissed the juror for cause, either during voir dire, or once it became clear that defendant would not testify. We disagree.
    First, no objection was ever made to the juror's presence on the jury. Although defendant argues that plain error analysis should be applied, plain error is not applicable here. “[P]lain error analysis applies only to instructions to the jury and evidentiary matters.” State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000).
    Additionally, “'[d]ecisions as to a juror's competency at the time of selection and his continued competency to serve are matters resting in the trial judge's sound discretion and are not subject to review unless accompanied by some imputed error of law.'” State v. McKenna, 289 N.C. 668, 680, 224 S.E.2d 537, 546 (citation omitted), vacated in part, 429 U.S. 912, 50 L. Ed. 2d 278 (1976). Here, the trial court instructed the jury that defendant had a privilege not to testify, and that his silence was not to influence the jury's decision in anyway. The juror agreed to abide by the law as instructed by the judge. Thus, even assuming arguendo thatthe issue has been preserved for appellate review, defendant has failed to show that the trial court abused its discretion.
    We next consider whether there was sufficient evidence to convict defendant of breaking or entering. Defendant contends that felony breaking or entering requires proof of an intent to commit a felony or larceny therein. Defendant asserts there was no evidence of any felonious intent here, 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. One of the essential elements is the “intent to commit any felony or larceny therein[.]” N.C. Gen. Stat. § 14- 54(a) (2003). This Court has stated that:
        The State may rely on circumstantial evidence to prove the State's prima facie case, as “[t]he 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 (2002) (citations omitted); see also State v. Salters, 65 N.C. App. 31, 34, 308 S.E.2d 512, 515 (1983) (“[i]n the absence of a confession or completion of the intended offense, intent is most often proven by circumstantial evidence”). In the case sub judice,defendant was found in the warehouse putting clothes into a bag. When confronted, defendant ran. “[P]ry tools” were found inside the warehouse where defendant had been seen, and the evidence demonstrated that the perpetrator had gained access to the warehouse by prying an air conditioner away from a wall. Defendant was later found trying to hide against the side of a dumpster, and a box containing items from the warehouse was found next to him. Defendant did not have permission to be inside the warehouse, and did not offer a lawful excuse for his presence. We conclude a jury could reasonably infer from this evidence that defendant was the one who broke into the warehouse, and he committed the offense with the intention to steal property from the warehouse.
    Defendant next argues that the trial court committed error when it allowed the State to introduce court documents from Chatham County to prove his habitual felon status without any foundation. Defendant claims that no attempt was made to authenticate the documents, and it was not clear if they were certified. However, defendant did not object to their admission at trial and, therefore, cannot assign as error that the documents were inadmissible because they were not properly authenticated. See State v. Terry, 329 N.C. 191, 196, 404 S.E.2d 658, 661 (1991). Further, we do not conclude that a different verdict would have been reached had the documents not been introduced thus, resulting in no plain error. See State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). Accordingly, the assignment of error is overruled.    Defendant next argues that the trial court should have dismissed the habitual felon indictment. Defendant contends that the State failed to establish that he committed any of the previous offenses underlying the habitual felon indictment, citing discrepancies in the underlying convictions regarding the spelling of his last name and his birthdate. We are not persuaded.
    When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994). Here, the name of defendant in one conviction was Jimmy Junior “Farrish” rather than “Farris.” In another conviction, defendant's birthdate was listed as “2-22- 74” rather than “2-22-79.” These minor discrepancies, likely mere clerical errors, were for the jury to consider, and went to the weight of the evidence and not its sufficiency. See, i.e., State v. Petty, 100 N.C. App. 465, 470, 397 S.E.2d 337, 341 (1990). Accordingly, we find no error.
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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