Converted WP file 040340-1

Appeal by defendants from judgments entered 15 December 2003 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 2 December 2004.

     Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton , for the State.

    William D. Spence for defendant-appellant McNeill.

    Thomas R. Sallenger for defendant-appellant Ellis.

GEER, Judge.

Defendants Cinseason McNeill and Terrence Ellis appeal from their convictions for first degree burglary. With respect to the trial, defendants argue primarily that the State failed to present sufficient evidence that any breaking and entering was with the intent of committing robbery and that, in any event, the jury's verdict of not guilty with respect to an accompanying armed robbery charge required that the burglary verdict be set aside. We hold that the record contains sufficient evidence to allow a reasonable juror to find that defendants intended robbery at the time of the break-in. Further, the finding by the jury that defendants werenot guilty of armed robbery is not necessarily inconsistent with the verdict that defendants, at the time they broke and entered, intended to commit an armed robbery. We conclude that defendants' remaining arguments regarding the trial are without merit. With respect to defendants' sentences, however, we hold they are entitled to a new sentencing hearing under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).

    The State's evidence tended to show the following. In the early morning hours of 26 May 2003, Calvin and Joann Robinson were about to go to bed when they heard a loud banging at their front door. As Mr. Robinson walked towards the door, he was met in the hallway by a man holding a shotgun and wearing a toboggan with a scarf around his face. The man told Mr. Robinson to get down, but instead Mr. Robinson went back into his bedroom and slammed the door shut.
    While Mr. and Mrs. Robinson tried to hold the bedroom door shut, Mrs. Robinson kept saying "that's Ellis, that's Ellis." Mr. Robinson had also recognized the masked man as defendant Terrence Ellis. Mr. Robinson had met Ellis on previous occasions through a mutual friend named Herman Lockley. Mrs. Robinson had met Ellis when he had been at their house. A day or two before, Ellis and Lockley had gotten into a dispute with Mr. Robinson when they had asked him for "weed" and Mr. Robinson had insisted that he wanted to keep what he had.     The bedroom door came off its hinges and Ellis entered the bedroom along with another man whose face was not disguised. Although the Robinsons got a clear view of the second man's face, they did not recognize him. Ellis pointed the shotgun at the Robinsons and ordered them to lie on the bed and not look at the two men. Ellis then yanked the phone cord out of the wall, asked Mr. Robinson where his weed was kept, and directed the second man to take Mr. Robinson to get the weed. While looking for the marijuana, the second man told Mr. Robinson not to do anything stupid because he would kill him. Mr. Robinson gave the man a box containing marijuana.
    Ellis remained in the bedroom and searched Mrs. Robinson's pocketbook for cash. When he found nothing inside the pocketbook but identification, Ellis demanded money from Mrs. Robinson. Mrs. Robinson said her money was in her pants, and Ellis ordered her to remove her pants, which she did.
    After the men took Mrs. Robinson's pants and the box of marijuana, they ordered Mr. and Mrs. Robinson to lie down again on the bed. Ellis and the second man then left by the backdoor. Mr. Robinson went to the window and saw a silver Oldsmobile Intrigue that looked similar to a vehicle owned by Lockley.
    When the Robinsons called the police, Officers Phillip Trivette and James Wright of the Rolesville Police Department came to their home. The Robinsons told the officers that one of the men who broke into their house was Terrence Ellis. They described thesecond man as about five feet ten inches tall and between 200 and 220 pounds, with "dark skin, [a] stocky [build], big lips."
    During the investigation, Officer Trivette received an anonymous tip from a woman, who was later determined to be Melissa Jones. Jones was dating defendant McNeill at the time of these events. She overheard McNeill, Ellis, and Lockley talking about going over to someone's house to rob him and take his weed. When the men left, Jones noticed they had taken a bandana and a toboggan. The next morning, the men told Jones that they had gone to the Robinsons' house, with Lockley driving the car, and had taken marijuana from the Robinsons.
    After receiving the tip from Jones, Officer Trivette obtained a picture of McNeill and asked the Robinsons to come down to the police station. When the Robinsons arrived, Trivette first asked them to again describe the second man who had broken into their house. The Robinsons gave essentially the same description that they had given on the night of the incident. Trivette then showed the Robinsons the picture of McNeill. Ms. Robinson jumped out of her chair, pointed at the picture, and said, "[T]hat's him, that's him." Mr. Robinson agreed that McNeill was the man that they had seen.
    Defendants Ellis and McNeill were arrested and charged with (1) robbery with a dangerous weapon, (2) first degree burglary, and (3) kidnapping. The case was tried before Judge Henry W. Hight, Jr. in Wake County Superior Court. At the close of the State's evidence, the trial judge dismissed the charge of kidnapping. On15 December 2003, the jury found both defendants not guilty of robbery with a dangerous weapon, but found them guilty of first degree burglary.
    During sentencing, the trial judge found as an aggravating factor that each defendant had "joined with more than one other person in committing the offense and was not charged with committing conspiracy." The judge then sentenced both defendants in the aggravated range to terms of 95 to 123 months imprisonment. Both defendants gave oral notice of appeal and, subsequently, filed separate motions for appropriate relief arguing that their sentences were unconstitutional under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).

    Defendants assign error to the trial court's denial of their motions to dismiss the charge of first degree burglary. When considering a motion to dismiss, a trial court must determine if the State has presented substantial evidence of each essential element of the offense and that defendant is the perpetrator of the offense. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.'" Id. (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)). When considering whether the State has presented substantial evidence, the court must view all of the evidence presented "in the light most favorable to the State, giving theState the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
    Defendants in this case were charged with first-degree burglary. "The elements of first-degree burglary are: (1) breaking, (2) and entering, (3) at night, (4) into the dwelling, (5) of another, (6) that is occupied, (7) with the intent to commit a felony therein." State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721-22 (2001), overruled in part on other grounds by State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005); see also N.C. Gen. Stat. § 14-51 (2003) (defining first and second degree burglary). Defendants contest only the sufficiency of the evidence pertaining to the element of intent to commit a felony.
    Felonious intent usually cannot be proven by direct evidence, but rather must be inferred from the defendant's "'acts, conduct, and inferences fairly deducible from all the circumstances.'" State v. Wright, 127 N.C. App. 592, 597, 492 S.E.2d 365, 368 (1997) (quoting State v. Accor, 227 N.C. 65, 73-74, 175 S.E.2d 583, 589 (1970)), disc. review denied, 347 N.C. 584, 502 S.E.2d 616 (1998). Evidence of what a defendant did after he broke and entered may be considered evidence of his intent at the time of the break-in, although a defendant need not succeed in committing a felony to have the requisite felonious intent. State v. Sawyer, 283 N.C. 289, 298, 196 S.E.2d 250, 255 (1973).             After reviewing the evidence in the light most favorable to the State, we hold that the trial court properly denied the motions to dismiss because there was sufficient evidence that defendants intended to commit robbery. The State offered evidence that Jones heard defendants and Lockley discuss a plan to rob someone of marijuana. Defendant Ellis was disguised and armed with a shotgun when he arrived at the Robinsons' house in the middle of the night; defendants entered the house without permission and forced open the bedroom door to reach the Robinsons; Ellis used his gun to threaten the Robinsons; defendants demanded money and marijuana immediately after entering; and defendants left with the money and marijuana.
    This evidence was sufficient to permit a jury to find that defendants intended to commit robbery at the time they broke into the Robinsons' house. See Wright, 127 N.C. App. at 597, 492 S.E.2d at 368 (evidence was sufficient to support burglary charge when the defendant entered the house at night and took the victim's property after a struggle inside the victim's house); State v. White, 84 N.C. App. 299, 301, 352 S.E.2d 261, 262 (finding evidence that the defendant told a friend that he went to a house he thought was a drug dealer's and that he intended to rob that drug dealer was sufficient evidence of intent to commit a larceny), cert. denied, 321 N.C. 123, 361 S.E.2d 603 (1987). The trial court, therefore, properly denied defendants' motions to dismiss.

Defendants next argue that the jury's verdicts of guilty on the charge of burglary but not guilty on the charge of robbery witha dangerous weapon constituted inconsistent verdicts and that the trial court erred in not setting the burglary verdicts aside. We disagree.
The jury's verdicts were not necessarily inconsistent. Defendants' argument is grounded in their incorrect belief that commission of a felony _ in this case robbery _ is an element of burglary. With respect to the burglary charge, the question for the jury was whether defendants had the intent to commit robbery at the time of the break-in, not whether they actually committed robbery. State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d 269, 274 (1967) ("[A]ctual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary."). As our Supreme Court has explained, "if a person breaks or enters . . . with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent . . . ." State v. Smith, 266 N.C. 747, 748-49, 147 S.E.2d 165, 166 (1966). Thus, even if the jury found that the State had failed to prove all the elements of robbery, the jury could still find that defendants intended _ but failed _ to commit a robbery inside the Robinsons' residence prior to breaking and entering. Id. An acquittal on the robbery charge does not mean a defendant did not intend to commit a robbery. Accordingly, the trial court properly refused to set aside the guilty verdicts. Moreover, "[i]t is well established in North Carolina that a jury is not required to be consistent and that incongruity alone will not invalidate a verdict." State v. Rosser, 54 N.C. App. 660, 661, 284 S.E.2d 130, 131 (1981). See also State v. Brown, 36 N.C. App. 152, 153, 242 S.E.2d 890, 891 (1978) ("Inconsistent verdicts do not require a reversal."). The United States Supreme Court has held that "[t]he fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable." United States v. Powell, 469 U.S. 57, 66, 83 L. Ed. 2d 461, 469, 105 S. Ct. 471, 477 (1984). We, therefore, overrule defendants' assignments of error.

    Defendant McNeill assigns error to the trial court's denial of his motion to suppress the in-court identification of McNeill by the Robinsons. "Our review of a denial of a motion to suppress by the trial court is 'limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.'" State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). Because defendant McNeill has not assigned error to the trial court's specific findings of fact but rather has included only a broadside assignment of error,those findings of fact are binding on appeal and the sole question for this Court is whether the trial court's findings of facts support its conclusion of law. State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965, 120 S. Ct. 2694 (2000).
    Defendant McNeill argues that the pre-trial identification procedure _ in which the officer showed the Robinsons a single photograph _ was so suggestive as to require exclusion of the Robinsons' in-court identification of him. The trial court agreed with defendant that the pre-trial identification procedure was impermissibly suggestive. See State v. Powell, 321 N.C. 364, 368, 364 S.E.2d 332, 335 (holding that an identification should be "suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification"), cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60, 109 S. Ct. 83 (1988).
    Nonetheless, even if a pre-trial identification procedure is found to be impermissibly suggestive, a subsequent in-court identification may be admitted if there is sufficient evidence that the "witness' identification was independent of the pretrial procedure." Id. at 369, 364 S.E.2d at 336. As the Supreme Court stated in State v. Yancey, 291 N.C. 656, 660, 231 S.E.2d 637, 640 (1977):
            The overwhelming weight of authority is that the in-court identification of a witness who took part in an illegal pretrial confrontation must be excluded unless it is first determined by the trial judge on clear and convincing evidence that the in-courtidentification is of independent origin and thus not tainted by the illegal pretrial identification procedure.

Thus, even if a pre-trial identification is unnecessarily suggestive "due process is not violated by the admission of [subsequent] identification evidence when the total circumstances show the identification to be reliable." Id. at 661, 231 S.E.2d at 641. Factors to be considered in determining the independence of the in-court identification include: "(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation." Powell, 321 N.C. at 368, 364 S.E.2d at 335.
    In denying defendant's motion to suppress, the trial court concluded that the in-court identification of defendant McNeill by the Robinsons was admissible because it was based on what the Robinsons saw the night of the burglary and was independent of the impermissibly suggestive showing of the photograph. The court based its conclusion that the in-court identification had an independent origin upon its findings that (1) Mr. and Mrs. Robinson had an ample and sufficient opportunity to observe and gain a reliable impression of defendant McNeill and his physical characteristics at the scene, (2) the Robinsons' attention was strong and focused on defendant McNeill during the crime, (3) their descriptions of defendant McNeill were consistent with previousdescriptions given to the police and matched defendant McNeill's characteristics, and (4) the degree of certainty in the witnesses' identification was high.
    These findings of fact, which are binding on this Court and parallel the factors set out in Powell, support the trial court's conclusion that the in-court identification was of an independent origin and not tainted by the suggestive pre-trial procedure. See id. at 369-70, 364 S.E.2d at 336 (upholding denial of motion to suppress when trial court found that witness had ample opportunity to observe the person committing the crime, that she had paid attention to him, and that she was able to describe him to the police); State v. McMillian, 147 N.C. App. 707, 711, 557 S.E.2d 138, 142 (2001) (in-court identification was properly admitted, despite an improper and suggestive pre-trial procedure, when the witness had ample opportunity to view the defendant, the witness gave an accurate description of the defendant, and the witness was certain of his identification), disc. review denied, 355 N.C. 219, 560 S.E.2d 152 (2002); State v. Green, 129 N.C. App. 539, 555, 500 S.E.2d 452, 462 (1998) (in-court identification was sufficiently reliable, despite impermissible photo identification, when the witness had ample opportunity to view the defendant and his attention was primarily on defendant during the robbery; the witness gave a generally accurate description shortly after the crime; the witness' level of certainty was strong although not unequivocal; and the time lapse between the crime and the pre-trial identification procedure was not so long as to diminish thewitness' ability to make a reliable identification), aff'd per curiam, 350 N.C. 59, 510 S.E.2d 375, cert. denied, 528 U.S. 846, 145 L. Ed. 2d 100, 120 S. Ct. 118 (1999). Accordingly, we overrule this assignment of error.

     Defendant McNeill also argues that the trial court erred in allowing the State to conduct a live demonstration before the jury using defendant Ellis as a model. During cross-examination of Mr. Robinson, defendant Ellis' attorney conducted a demonstration on himself with a bandana across his face in an attempt to argue that it would have been difficult for Mr. Robinson to identify Ellis if he had a bandana covering his face. Subsequently, the trial court allowed the State's request to perform the same demonstration on Ellis himself. Neither defendant objected to the State's demonstration and defendant Ellis does not challenge it on appeal. Defendant McNeill, however, asserts that this demonstration improperly bolstered Mr. Robinson's identification of both defendants.
    Because defendant McNeill did not object at trial to the demonstration, he asks us to review the admission of the demonstration under the plain error doctrine. Plain error is defined as "a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . ." State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). The plain error rule should be applied cautiously and only in exceptional cases where the error denies a fundamentalright to the defendant. State v. Walters, 357 N.C. 68, 84-85, 588 S.E.2d 344, 354, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003).
    Defendant McNeill argues that the demonstration should have been excluded under N.C.R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. A trial court's weighing of the probative value of the evidence against its potential for causing unfair prejudice is evaluated on appeal under an abuse of discretion standard. State v. Prevatte, 356 N.C. 178, 250, 570 S.E.2d 440, 480 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681, 123 S. Ct. 1800 (2003). Accordingly, we may only disturb the trial court's ruling if we find it to be "so arbitrary that it could not have been based on reason." Id.
    In State v. Perry, 291 N.C. 284, 291-92, 230 S.E.2d 141, 145 (1976), the Supreme Court upheld a demonstration where the defendant was required to put on a stocking mask over his face and look towards the jury. The Court permitted the demonstration because its purpose "was not to identify the defendant as the perpetrator of the crimes charged, but to enable the jury to determine the correctness of his contention" that it would be difficult or impossible for the witness to see the perpetrator's features and make a positive identification. Id. Likewise, in this case, the State's demonstration, using Ellis, was for the purpose of answering Ellis' contention that it would have been difficult for Mr. Robinson to identify Ellis if his face wascovered with a bandana. Accordingly, we hold that the trial court did not abuse its discretion in allowing the demonstration.

    While their cases were pending on appeal, both defendants filed motions for appropriate relief arguing that their sentences, based on a judicially-found aggravating factor, violated Blakely v. Washington, 542 U.S. 26, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). The State argues in response that defendants failed to object at trial and that any error was harmless.
    Our Supreme Court addressed the impact of Blakely in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt." Id. at 437, 615 S.E.2d at 265 (citing Blakely, 542 U.S. at __, 159 L. Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362 (2000)). The failure to do so constitutes structural error and is reversible per se. Id. at 449, 615 S.E.2d at 272. This rule applies to "'cases that are now pending on direct review.'" Id. at 427, 615 S.E.2d at 258 (quoting Lucas, 353 N.C. at 598, 548 S.E.2d at 732).
    Because the trial court based defendants' sentences on an aggravating factor that it, rather than a jury, had found, we must vacate the sentences and remand for a new sentencing hearing in accordance with Blakely and Allen. We do not, therefore, reachdefendants' remaining assignments of error related to their sentences.

    No error in part; remanded for a new sentencing hearing in part.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

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