An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-53


Filed: 18 January 2005


    v .                             Onslow County
                                No. 02 CRS 059492

    Appeal by defendant from judgments dated 17 July 2003 by Judge Gary E. Trawick in Onslow County Superior Court. Heard in the Court of Appeals 23 September 2004.

    Attorney General Roy Cooper by Assistant Attorney General David N. Kirkman, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    BRYANT, Judge.
    On 17 July 2003 a jury found Duane Lesha Baker (defendant)   (See footnote 1)  guilty of misdemeanor injury to property, felony first-degree burglary, felony discharging a weapon into occupied property and felony conspiracy to commit burglary.
    The State's evidence tended to show: on 5 September 2002, defendant, Curtis Mobley (Mobley) and Andre Lewis (Lewis) met at a nightclub in Jacksonville, N.C. Defendant told Mobley that Lewiswas planning to collect money from Charles H. Moore (Moore). Shortly thereafter, defendant, Mobley and Lewis drove with two other women to Moore's apartment. Upon reaching the apartment, Lewis handed Mobley a .22 caliber pistol. Lewis asked Mobley to help collect the money. Agreeing, Mobley asked what the gun was for, to which Lewis replied that “something might happen.” Lewis had a 9 millimeter pistol.
    Defendant, Mobley and Lewis got out of the car and approached Moore's apartment. Defendant kicked in the door, while Lewis ran inside and yelled “Police.” At that moment, defendant left the apartment entrance. Mobley then heard the sound of a gun being fired from within the apartment. Mobley returned fire into the apartment from the passageway outside the front door. Lewis fired twice from within the apartment, then ran out the front door. Lewis and Mobley fled the apartment building together. The two men got in the car with the women and Mobley handed the gun back to Lewis. They picked up defendant at a nearby church and the three men agreed to tell the police, if caught, that defendant “had nothing to do with it, and that we picked him up from a friend's house.”
    In response to Moore's 911 call, Officer Stacy A. Leyble (Leyble) observed Moore's front door had been kicked in, bullet holes were in the walls, and bullet casings belonging to a .22caliber and 9 millimeter gun were also found in the apartment. The police arrested defendant, Mobley and Lewis, finding them in their car driving away from the vicinity of the crime.
    At the police station, Mobley and Lewis were charged for the crimes. Based on their statements, defendant was released and not charged until several days later. A month before defendant's trial, Mobley agreed to testify against defendant.
    Defendant appeals.

    On appeal defendant raises the following issues: whether the trial court erred in (I) denying defendant's motion to dismiss the first-degree burglary charge; (II) denying defendant's motion to dismiss discharging a firearm into an occupied property charge; (III) refusing to dismiss charges because of a discovery violation; and (IV) failing to properly instruct the jury.
    In ruling on a motion to dismiss the trial court must determine whether there “is substantial evidence (1) of each essential element of the offense charged and (2) that the 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. Earnhardt, 307 N.C. 62, 66, 296S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 62, 66, 296 S.E.2d 164, 169 (1980)). In determining 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).
    Burglary is defined as the breaking and entering in the nighttime of a dwelling house which was actually occupied with the intent to commit a felony therein. State v. Person, 298 N.C. 765, 768, 259 S.E.2d 867, 868 (1979). Larceny is defined as the “taking and carrying away of the personal property of another without his consent, with felonious intent at the time of the taking to deprive the owner of his property and to appropriate it to the taker's use[.]” State v. Bronson, 10 N.C. App. 638, 641, 179 S.E.2d 823, 825 (1971).
    In his first assignment of error, defendant challenges whether the jury could reasonably conclude he intended to commit larceny after breaking and entering into Moore's apartment. As to first- degree burglary, the trial court instructed the jury as follows:
        The defendant has been charged with first degree burglary, which is breaking and entering the occupied dwelling house or apartment of another without his consent, in the nighttime, with intent to commit larceny. For you to find the defendant guilty of this offense, the State must prove six thingsbeyond a reasonable doubt: First, there was a breaking and entry by the defendant. Second, that there was a dwelling house or apartment that was broken into and entered. Third, that the breaking and entering was during the nighttime. Fourth, that at the time of the breaking and entering, the dwelling house or apartment was occupied. Fifth, that the owner or tenant did not consent to the breaking and entering, [a]nd sixth that at the time of the breaking and entering the defendant intended to commit larceny. For a person to be guilty of a crime, it is not necessary that he himself, do all of the acts necessary to constitute the crime. If two or more persons join together with a common purpose, to commit burglary, each of them, if actually or constructively present, is not only guilty of that crime if the other commits the crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, to commit burglary or as a natural or probable consequence thereof.

Mobley testified that while at the nightclub, defendant said that Lewis and defendant were going to get money owed to Lewis from Moore's apartment. While on the way to Moore's apartment, Lewis pulled out two guns, keeping one for himself and handing one to Mobley, saying “something might happen.” The defendant, alongside Mobley and Lewis, kicked in Moore's front door prior to Lewis rushing inside the apartment with a gun yelling “Police, get down.” The evidence clearly shows defendant went to Moore's apartment with Lewis and Mobley, after having informed Mobley of Lewis' plan, to take money from Moore with force if necessary. Viewed in the lightmost favorable to the State, the trial court properly denied defendant's motion to dismiss, concluding there was substantial evidence of each essential element of the crime of burglary with the intent to commit larceny once inside Moore's apartment. This assignment of error is overruled.
    Defendant next argues the trial court erred in denying defendant's motion to dismiss the charge of “discharging a firearm into occupied property.” Defendant does not challenge the jury instruction as given, only the sufficiency of the evidence to support the charge of discharging a firearm into occupied property based on the theory of acting in concert.
    In reviewing a denial of a motion to dismiss, the evidence presented at trial must be viewed in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime of discharging a firearm into occupied property. State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981). Discharging a firearm into occupied property is defined as:
        Any person who willfully or wantonly discharges or attempts to discharge: (1) Any barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second; or (2) A firearm into any building, structure, vehicle, aircraft, watercraft, orother conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.

N.C. Gen. Stat. § 14-34.1 (2004).
    The doctrine of acting in concert has been defined by our Supreme Court as follows:
        If 'two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'

State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280, 286 (1991) (quoting State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971)).
    Defendant asserts the State's evidence is insufficient to show he was acting in concert, arguing that at most, he is culpable of aiding and abetting. Defendant cites extensive caselaw in support of his theory that, rather than acting in concert, the jury could have found the defendant guilty as an aider or abettor because defendant neither possessed a firearm, nor shot a firearm into Moore's apartment and because he fled the scene after kicking in Moore's front door.
    We use the language of the court in State v. Williams, 299 N.C. 652, 657, 263 S.E.2d 774, 778 (1980), as it so clearlyillustrates not only the distinction between aiding and abetting and acting in concert, but is factually similar to the instant case:
        All of the evidence tended to show that [defendant] . . . was present at the scene of the crime and was acting together with his [co-defendant] pursuant to their common plan or purpose . . .  That the evidence tended to show it was [co-defendant] who actually pulled the trigger does nothing to mitigate the culpability of [defendant], nor does it change his role to that of an aider and abettor. The action of . . . defendants created one orchestrated sequence of events, with . . . defendants [commission of the crime]. There is absolutely no showing from the evidence that the defendant . . . merely aided and abetted his [co-defendant]. In this regard the case is clearly distinguishable from State v. Robinette,[33 N.C. App. 42, 47, 234 S.E.2d 28,31 (1977)]. . . [in which] the defendant was not present at a breaking and entering but merely drove a car which picked up other participants in the crime at a spot in front of the crime scene. The Court of Appeals . . . held that in such a case, an instruction on acting in concert was erroneous because the defendant was not present at the scene of the crime. Here the evidence overwhelmingly establishes [defendant]'s presence and participation. The trial court correctly submitted to the jury the theory of concerted action by the . . . defendants and did not err in failing to submit the theory of aiding and abetting.

    Because defendant in the instant case, like the defendant in Williams, was present and actively participated in the burglary, heis equally liable with Mobley for the crime of discharging a firearm into occupied property. Therefore the trial did not err in denying defendant's motion to dismiss.
    Defendant next argues the trial court abused its discretion by denying defendant's motion to dismiss all charges because of a discovery violation. Defendant's argument is based on the State's late production of the initial statements Mobley and Lewis made to the police in which they claimed defendant had not been involved in the burglary.
    With respect to discovery violations in a criminal trial, “[t]he decision as to which sanctions to apply, or whether to apply any sanctions at all, however, rests with the discretion of the trial court.” State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987). “A trial court will not be reversed on appeal absent a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Banks, 322 N.C. 753, 761, 370 S.E.2d 398, 404 (1988) (citations omitted). “[D]iscretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with discovery requirements.” State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). Dismissal of a charge is an extreme sanction whichshould not be routinely imposed. State v. Adams, 67 N.C. App. 116, 121, 312 S.E.2d 498, 500 (1984); N.C. Gen. Stat. § 15A-910 (a) (3b) (2003).
    On 11 April 2003 defendants filed a discovery motion pursuant to N.C. Gen. Stat. § 15A-903 (d) (2003) which provides in pertinent part:
        Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect and copy . . . documents . . . which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial. . . .
In his motion, defendant requested “any and all documents, . . . in whatever form which would tend to exculpate the defendant,. . . .” On 14 July 2003 the trial began. Two days into the trial, after the State had filed its “Answer to Request for Discovery,” Jacksonville Police Detective David Brown provided defense counsel with exculpatory statements from the co-defendants, Mobley and Lewis. Defense counsel moved to dismiss the charges against defendant for violating discovery; the trial court denied the motion.
    Defendant argues implication of his due process rights under the U.S. Constitution by the State's discovery violation. In Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963), theU.S. Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Our Supreme Court has added, “[f]avorable evidence is material if there is a 'reasonable probability' that its disclosure to the defense would result in a different outcome in the jury's deliberation.” State v. Canady, 355 N.C. 242, 252, 559 S.E.2d 762, 767 (2002) (citations omitted).
    The State's evidence tended to show Mobley, Lewis and defendant had planned and agreed to give police a contrived version of events, exonerating defendant. Although Mobley and Lewis initially gave false accounts of events to the police, Mobley later informed the police that defendant had been involved in the burglary. However, the earlier statements of defendant and co- defendants Mobley and Lewis were not turned over to the prosecutor until Detective Brown testified on the third day of trial. Defendant therefore had knowledge of the substance of the co- defendants' statements despite not having actual possession of the written statements. While the trial court was clearly unhappy with the State's discovery violation, denying defendant's motion to dismiss was not an abuse of discretion. Moreover, defense counsel, while indicating he had never before experienced a delay so severeas this one, nevertheless acknowledged he did not believe the prosecutor had intentionally failed to turn over the written statements. Mobley, a major witness for the State, was cross- examined extensively by defendant as to his different versions of the events. Because we find the trial court did not abuse its discretion, this assignment of error is overruled.
    In his final assignment of error, defendant argues that the trial court erred in failing to properly instruct the jury on all the elements of first-degree burglary.
    Defendant acknowledges he failed to object to the jury instructions of which he now complains. Defendant therefore failed to properly preserve this assignment of error at trial. However, we now review for plain error. State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1985); N.C. R. App. P. 10(b)(2).
    “The adoption of the 'plain error' rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant's failure to object at trial. To hold so would negate Rule 10(b)(2) which is not the intent or purpose of the 'plain error' rule.” State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (citing United States v. Ostendorff, 371 F.2d 729 (4th Cir.), cert. denied, 386 U.S. 982, 18 L. Ed. 2d 229 (1967)). The purpose of Rule 10(b)(2) is to encourage the parties to informthe trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial. State v. Odom at 659, 300 S.E.2d at 378.
    In the instant case, after the trial judge completed his original jury instructions on burglary and sent the jury to the jury room, the prosecutor noted the court had failed to give a sufficient instruction on the sixth and final element of burglary: the intent to commit a felony inside the dwelling. Since the trial judge had described the sixth element as 'larceny,' the prosecutor requested that the elements of larceny be enumerated for the jury. The jury was returned to the courtroom. The trial judge then instructed “[S]o you would have to find when they went in that night, broke and entered with the intention to commit larceny, the larceny would be as I've just defined it to you - the taking and carrying away of another person's property without their consent, knowing they are not entitled to take it and intending to deprive the person of its use permanently.” Defendant did not object to the instructions.
    After beginning deliberations, the jury asked to see items in evidence and requested the elements of the crimes charged. The judge complied; however, he omitted the fifth element of burglary. The prosecutor notified the judge who then re-stated the elementas: “Fifth one was the owner or tenant did not consent to the breaking and entering.” Again defendant did not object. On appeal, defendant claims the trial court gave conflicting instructions on the law to the jury such that he is entitled to a new trial. However, the record does not support defendant's claims. As indicated above, the jury instructions as eventually given were complete and given according to law. Further, defendant makes no showing that these purported errors prejudiced defendant or resulted in a miscarriage of justice.
    No error.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    Several documents in the record on appeal list defendant's middle name as 'Deshay'.

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