An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 October 2005
STATE OF NORTH CAROLINA
v. Wake County
Nos. 03 CRS 44481
CINSEASON SYLVESTER McNEILL 03 CRS 44523
and TERRENCE ELLIS,
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.
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
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
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
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
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).
Motion to Dismiss First Degree Burglary Charge
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
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.
Motion to Suppress Identification of Defendant McNeill
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
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
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
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
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.
Motion for Appropriate Relief
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.
, 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.
, 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.
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
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
. We do not, therefore, reachdefendants' remaining assignments of error related to their
No error in part; remanded for a new sentencing hearing in
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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