State v Ross, 168 NC App 731 (04-595) 03/01/2005

Appeal by defendant from judgment entered 8 January 2004 by Judge Christopher M. Collier in Rowan County Superior Court. Heard in the Court of Appeals 3 January 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

Shelagh Rebecca Kenney for defendant-appellant.

ELMORE, Judge.

    A jury found defendant guilty of first-degree burglary but not guilty of robbery with a dangerous weapon. The trial court sentenced him for the burglary to an active prison term of 115 to 147 months. The transcript reflects defendant's timely notice of appeal from the judgment.
    State's witness Lashonda L. Taylor testified that in July of 2002, she was living with her two children in an apartment on East Lafeyette Street in Salisbury, North Carolina. Between 3:30 and 4:00 a.m. on 2 July 2002, she “heard somebody banging on my door real hard[,]” and got out of bed to investigate. Taylor went to the door and twice asked who was there but did not hear a response. When she unlocked the door and opened it “a little bit,” defendant forced his way through the door and into the apartment. Moving “right up on” Taylor, he brandished a “big butcher knife,” held it toward her and said, “If you scream again, I'll kill you.” In response to defendant's demand to “give him the money[,]” Taylor retrieved $150.00 from her purse. After taking Taylor's money, defendant ran from the apartment. Taylor called the police and her neighbor, Angie Robinson.   (See footnote 1) Taylor had previously seen defendant around the neighborhood “maybe two or three times” but had not spoken to him. On the night of 2 July 2002, she was shown a photographic lineup by Salisbury Police Officer Andy Bennett, and she selected defendant's photograph as depicting her assailant. Taylor also identified defendant in court as the person who “forced [his] way into [her] apartment and robbed [her] at knife point.”
    Bennett testified that he was dispatched to Taylor's apartment at 4:14 a.m. on 2 July 2002. Taylor gave Bennett an account of the incident consistent with her trial testimony. As Taylor was describing the intruder to Bennett, Robinson “said that sounds like -- by the description, thought that could possibly be Keith Ross. Keith Baron Ross.” Based on his investigation, Bennett compiled a lineup of six photographs, which he presented to Taylor at 9:40 p.m. She selected defendant's photograph in “less than ten seconds[,]” telling Bennett, “I'm sure it was . . . him.”
    On appeal, defendant claims the trial court erred in allowinginto evidence Taylor's out-of-court statement to Bennett on the morning of 2 July 2002, citing two factual discrepancies between Taylor's testimony and her prior statement. Defendant first contrasts Taylor's testimony that she “heard somebody banging on my door real hard[,]” with her statement to Bennett that “someone had tried to kick in her door and had been beating on her door.” Defendant also notes a distinction between Taylor's testimony that defendant “took the knife toward me” and “just held it up[,]” and her statement to Bennett that defendant held the “knife to her like towards her throat.” Based on these differences, defendant avers that Taylor's statement to Bennett did not corroborate her testimony and, therefore, was inadmissible hearsay. Having failed to raise a timely objection at trial, defendant contends that the admission of Bennett's testimony on this issue was plain error and was likely the difference between conviction and acquittal in this case. See N.C.R. App. P. 10(c)(4).
    We find defendant has failed to properly submit an assignment of plain error to this Court. In order to meet the heavy burden under the plain error standard, a defendant must affirmatively demonstrate “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Although defendant employs the term “plain error” in his assignments of error and in his appellant's brief, he neither articulates the applicable standard of review nor offers anysubstantive analysis thereunder. See State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). “[B]y simply relying on the words 'plain error' as the extent of his argument in support of plain error, defendant has effectively failed to argue plain error and has thereby waived appellate review.” State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44 (2002) (citing Cummings, 352 N.C. at 636-37, 536 S.E.2d at 61), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
    We further find no error by the trial court in allowing evidence of Taylor's prior consistent statement for the purpose of corroborating her trial testimony. See generally State v. Baity, 340 N.C. 65, 70, 455 S.E.2d 621, 624-25 (1995) (citing State v. McDowell, 329 N.C. 363, 384, 407 S.E.2d 200, 212 (1991)). Taylor's statement to Bennett was substantially similar to her testimony at trial and thus “tend[ed] to strengthen, confirm, or make more certain the testimony of [the] witness.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980) (citations omitted). Whether Taylor heard a loud “banging” or kicking on her door is immaterial, in light of her consistent claim of responding to a loud noise at her door and of defendant's subsequent forced entry into her residence. Likewise, the precise location of defendant's knife as he moved it toward Taylor and threatened her life had no bearing on the admissibility of her prior statement. “Such variations affect only the weight of the evidence which is for the jury to determine.” State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617(2001) (citation omitted).
    In a second evidentiary claim, defendant faults the trial court for allowing Bennett to offer testimony of Robinson's out-of- court statement naming defendant as a possible suspect. Again, however, defendant failed to object to Bennett's testimony at trial and has only perfunctorily assigned plain error on appeal. By merely asserting that the challenged evidence “constituted inadmissible hearsay that was material to the prosecution's case and harmful to the [d]efendant[,]” he has waived appellate review under Rule 10(c)(4). We observe, however, that an out-of-court statement is not hearsay under N.C.R. Evid. 801(c) “[w]hen offered to explain the subsequent conduct of the person to whom the declaration was made[.]” State v. Jones, 347 N.C. 193, 216, 491 S.E.2d 641, 655 (1997) (citing State v. Reid, 335 N.C. 647, 661, 440 S.E.2d 776, 784 (1994)). Robinson's statement to Bennett was admissible to explain Bennett's subsequent conduct of presenting Taylor with a photographic lineup that contained defendant's photograph. See State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002). Moreover, Taylor's positive identification of defendant both in the photographic lineup and at trial rendered any error harmless.
    To the extent defendant separately asserts a denial of his right to cross-examine Robinson under the Confrontation Clause, we note that “[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.” Gainey, 355 N.C. at 87, 558 S.E.2d at 473 (citing State v. Benson,323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)).
    In his final argument on appeal, defendant contends the trial court erred in denying his motion to dismiss at the conclusion of the evidence. In reviewing the denial of a motion to dismiss, we must examine the evidence in the light most favorable to the State to determine if there is substantial evidence of each essential element of the offense charged and of defendant's identity as the perpetrator. See State v. Jacobs, 128 N.C. App. 559, 563, 495 S.E.2d 757, 760-61, disc. review denied, 348 N.C. 506, 510 S.E.2d 665 (1998). Our courts have defined “substantial evidence” as evidence that would permit a reasonable juror to find a fact at issue beyond a reasonable doubt. See State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987). For purposes of our review, the State is entitled to all favorable inferences which reasonably arise from the evidence. See State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). The “[d]etermination of any witness' credibility is for the jury, and contradictions and discrepancies in the evidence are resolved in favor of the State.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001) (citations omitted).
    “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.” Lucas, 353 N.C. at 581, 548 S.E.2d at 721-22 (2001); N.C. Gen. Stat. § 14-51 (2003). In the instant case, the indictment charged that defendant broke into Taylor's residencewith the intent to commit robbery, a forcible, non-consensual taking of property from the person or presence of another. State v. Rinck, 303 N.C. 551, 566, 280 S.E.2d 912, 923 (1981). “The criminal intent of the defendant at the time of breaking or entering may be inferred from the acts he committed subsequent to his breaking or entering the building.” State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992), (quoted in State v. Lawrence, 352 N.C. 1, 25, 530 S.E.2d 807, 822-23 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001)). Nothing else appearing, a jury may reasonably infer that a defendant who commits a nocturnal breaking or entering of a dwelling harbors an intent to steal. State v. Williams, 308 N.C. 47, 65, 308 S.E.2d 335, 347, cert. denied, 404 U.S. 865, 78 L. Ed. 2d 177 (1983).
    The trial court properly denied defendant's motion to dismiss. Evidence that defendant forced his way through Taylor's partially- opened door into her apartment was sufficient to establish a breaking and entering into her occupied dwelling. See State v. Wilson, 289 N.C. 531, 538-39, 223 S.E.2d 311, 316 (1976). Bennett testified that “[i]t was dark” when he was dispatched to Taylor's residence at 4:14 a.m., thus placing the incident in the night- time. Armed with a large butcher knife, defendant threatened to kill Taylor and demanded her money. He fled the apartment immediately after obtaining the money from Taylor's purse, an act suggesting the attainment of his purpose. Defendant's conduct gives rise to a reasonable inference that he entered the apartment intending to commit a robbery. To the extent defendant cites hisacquittal on the robbery charge as inconsistent with a finding of such intent, we note that “[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); accord State v. Black, 14 N.C. App. 373, 378, 188 S.E.2d 634, 637 (“[A] verdict of guilty on one count and not guilty on the other, when the same act results in both offenses, will not be disturbed.”), appeal dismissed, 281 N.C. 624, 190 S.E.2d 467 (1972).
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1