An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 September 2005
STATE OF NORTH CAROLINA
Nos. 03 CRS 56601
BRANDON M. CAPLES, 03 CRS 56607
STATE OF NORTH CAROLINA
Nos. 03 CRS 56792
CHRISTOPHER G. MITCHELL, 03 CRS 56793
Appeal by co-defendants from judgments signed 8 December 2003
by Judge Evelyn Hill in Alamance County Superior Court. Heard in
the Court of Appeals 9 March 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jonathan P. Babb, for the State (Caples appeal)
M. Alexander Charns for defendant Brandon M. Caples.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Abogast, for the State (Mitchell appeal)
Paul Pooley for defendant Christopher G. Mitchell.
Brandon M. Caples (Caples) and Christopher G. Mitchell
(Mitchell) (co-defendants), appeal judgments signed on 8 December
2003, entered consistent with jury verdicts finding them both
guilty of robbery with a dangerous weapon, breaking and entering,
felony larceny, and first-degree kidnapping.
Around 5:30 or 6:00 p.m. on 22 July 2003, Terrence Lamont
Brown was driving through Burlington, North Carolina, in his
father's truck with Jamal McCadden and William Herbin. As they
rode by eighty-year-old Violet Neese's (the victim's) house in
Burlington, they saw her car (a 1996 Chrysler LHS valued at
$7,000.00) in the carport of her home. Brown testified that he
said to McCadden, I liked the car and I wouldn't mind having it.
Brown returned to Latoya Burnette's residence and told Brandon
Caples, Christopher Mitchell, and Theodis Rice that he wanted to
take the victim's car. Brown testified: I told them that I saw a
car that I wouldn't mind getting and asked them would they ride
All six men got into Brown's truck, including defendants
Mitchell and Caples. Caples was driving instead of Brown, because
Brown had told them he was going to get the car. After driving to
the victim's street, Brown, Rice and Herbin got out and walked up
to the victim's house. Caples drove the truck to the next road.
Brown testified he parked the truck just up the street from the
house for them to wait there until we got the car. The plan for
getting the car was for one of the men to go to the door and see
if, they could get the keys to the car and then leave.
Rice went to the victim's door while Brown and Herbin remained
at the carport. Rice knocked on the door and the victim answered.
Herbin asked if the man of the house was home, and also inquired
about doing some yard work. The victim told him to wait until theman of the house came home to talk about yard work. At that point,
Herbin looked to Brown and Rice, who nodded their heads, and Herbin
pulled out his handgun. Herbin, Brown, and Rice forced their way
into the victim's house and told her to sit on the couch. Brown
took the keys to the victim's car, left the house, and started the
car. Herbin searched the victim's pocketbook while Rice pulled the
phone lines out of the walls. All three men then directed the
victim, at gun point, into the trunk and got into the car.
Brown drove the stolen car out of the driveway and moved
towards the truck. Brown drove past the truck and Caples (driving
the truck) followed right behind the stolen car all the way to
Burnette's house. At Burnette's house, they picked up DJ
(Dejaniero Gravely). Shortly thereafter, the group left, heading
towards Roxboro in both vehicles, with the stolen car in the lead.
As the group traveled on Highway I-85, the truck started slowing
down and Caples eventually pulled over to the side of the road.
The truck had run out of gas and was left on the side of the road.
Caples, Mitchell, and McCadden got into the stolen car with Herbin,
Brown and Rice and drove to Caples' house.
When they arrived at Caples' house, Caples, Mitchell,
McCadden, and Herbin stayed, intending to get a ride back to
Burlington with a friend of Caples. Brown, Rice, and Gravely drove
away in the victim's car, with the victim still in the trunk.
After driving to Reidsville, and making a brief stop at another
house, the victim was released at night on Narrow Gauge Road.
Narrow Gauge Road is a two-lane road in an area that is heavilywooded and sparsely populated. The victim was released at the
bottom of a hill, near a small bridge on Narrow Gauge Road. After
letting the victim out of the trunk, the three men saw headlights
coming over the hill towards them. The three men ran to get in the
stolen car and drove away.
Sherry Stone was driving the car the three men saw approaching
the scene. As she started going down a steep hill, she noticed a
car with no lights on parked at the end of the bridge. Stone felt
like something was not right and slowed down her approach. She saw
shadows walking around. She continued her approach and as she
got closer, the figures ran, jumped into the car, and drove away.
When Stone got to the bottom of the hill, she saw and heard a woman
on the side of the road yelling, Please help me. Help me.
Please, help me. Stone jumped out of her car and asked the victim
if she was okay. The woman pleaded with Stone, Just please help
me, please help me, I've been kidnapped. The victim got into
Stone's car, drove to her boyfriend's house, and called 911. Stone
estimated these events occurred sometime after 10:00 p.m.
The victim's car was later recovered, and both Brown and Rice
were arrested in Virginia. Two days later, Caples left for
Alabama. Caples testified that the purpose of his leaving was not
to evade the law, but rather to attend his father's wedding.
Caples testified that when he learned he was being sought by law
enforcement, he turned himself in to authorities in Alabama.
Caples testified he never heard anything about stealing the
victim's car, nor did he have any knowledge of what happened in thevictim's home. Caples testified he left in Brown's truck, after
dropping off Herbin, Brown, and Rice. Caples also testified that
after the truck ran out of gas, he got into the stolen car not
knowing the victim was in the trunk. Caples claimed he first knew
of the victim being in the trunk after the group split-up.
On cross-examination, Caples admitted telling the police about
a similar incident that occurred in Reidsville on 22 July 2003 (the
same day as the incident at issue). Specifically, while Caples,
Brown, Gravley, and Rice were riding around Reidsville in Brown's
truck, they saw a man (Alfred White) sitting in a truck. Brown
said let's get that truck. Rice, Gravely, and Caples jumped out
of Brown's truck and approached the man, asking for a light. Rice
told the man to get the f**k out of the truck. Before taking the
truck, sirens were heard by the men. At that point, the men jumped
in Brown's truck and drove away.
White testified for the State on rebuttal. White testified
that Caples approached him for a light, and as he fumbled for a
light, Rice, Gravely, and Caples drew guns on him, and Caples told
him it was a stickup. Two of the men took the contents of
White's pockets, and Caples got in White's truck and tried to drive
away. However, Caples did not release the parking brake properly
and could not get White's truck on to the street.
Mitchell testified he lived with his parents in Durham.
Mitchell had known Caples for about five years; Rice since the
beginning of the summer of 2003; and did not know Brown, McCadden,
Herbin, or Gravely before 22 July 2003. Mitchell went with Caples,Rice, and Brown, riding in Brown's truck, and eventually went to
Some hours later, Mitchell left in Brown's truck with Caples,
Brown, Rice, McCadden and Herbin. Mitchell claimed he did not know
why they were leaving or where they were going. Mitchell claimed
Brown's truck was his only means of transportation at that time.
Caples drove Brown's truck, and Brown sat in the bed of the truck
and gave directions. Mitchell heard Brown say, I want that car
and tell Caples to stop the truck. Mitchell claimed he did not
know what Brown was talking about.
The truck stopped and Herbin, Brown, and Rice walked down the
street. Caples parked Brown's truck down the street, and after a
short time returned to Burnette's house. Mitchell testified that
just after Caples and Mitchell arrived at Burnette's house, a
burgundy Chrysler pulled into the driveway behind Brown's truck.
Mitchell claimed he did not notice who was in the Chrysler, but saw
Gravely get in, and then the Chrysler left with Mitchell following
in Brown's truck.
Brown's truck broke down on the interstate and Mitchell got
into the Chrysler. On cross-examination, Mitchell admitted he knew
the Chrysler was stolen, but did not know anyone was in the trunk,
did not hear noise from the trunk, and never looked inside the
trunk. Mitchell got out of the Chrysler at Caples' house and
Gravely, Brown, and Rice left in the Chrysler. Mitchell never saw
the Chrysler again.
Mitchell denied saying anything about shooting anyone. Mitchell admitted the .380 automatic pistol seized by the State was
his pistol. Mitchell admitted he was carrying the gun with him at
the time the victim was robbed and kidnapped. Mitchell denied he
loaned the gun to anyone to use in any crime.
On 18 August 2003, Caples and Mitchell were indicted on the
charges of robbery with a dangerous weapon, felony breaking and
entering, first-degree kidnapping, and felony larceny. These
matters came for jury trial at the 17 November 2003 criminal
session of Alamance County Criminal Superior Court with the
Honorable Evelyn W. Hill, presiding. On 8 December 2003, the jury
found Caples and Mitchell guilty as charged.
The trial court sentenced Caples to 125-159 months for first-
degree kidnapping, and 95-123 months for robbery with a dangerous
weapon, felony breaking and entering, and felony larceny, to begin
at the expiration of the sentence for kidnapping. The sole
aggravating factor for each sentence was that the victim was very
old pursuant to N.C. Gen. Stat. § 15A-1340.16(d)(11). No
mitigating factors were found. Caples appealed.
The trial court sentenced Mitchell to 92-120 months for first-
degree kidnapping. The trial court then sentenced Mitchell to 80-
105 months for robbery with a dangerous weapon, felony breaking and
entering, and felony larceny, to begin at the expiration of the
sentence for first-degree kidnapping. The sole aggravating factor
for each sentence was that the victim was very old pursuant to
N.C. Gen. Stat. § 15A-1340.16(d)(11). No mitigating factors were
found. Mitchell appealed.
Caples and Mitchell both present the following issues on
appeal: (I) whether their right to a fair trial was denied when
they were shackled and seated behind a tablecloth in the presence
of the jury; (II) whether the trial court erred by speaking in
German to a State's witness; and, as to sentencing, (III) whether
the trial court erred by finding an aggravating factor; and (IV)
whether the trial court committed reversible error by imposing
maximum terms of imprisonment after calling the co-defendants
(See footnote 1)
argue their right to a fair trial was denied when
they were shackled and seated behind a tablecloth in the presence
of the jury.
N.C. Gen. Stat. § 15A-1031 authorizes a trial court to order
the physical restraint of a defendant when the court finds it
reasonably necessary. The statute requires that the judge:
(1) Enter in the record out of the presence
of the jury and in the presence of the person
to be restrained and his counsel, if any, the
reasons for his action; and
(2) Give the restrained person an opportunity
to object; and
(3) Unless the defendant or his attorney
objects, instruct the jurors that the
restraint is not to be considered in weighing
evidence or determining the issue of guilt.
N.C.G.S. § 15A-1031 (2003). Where no constitutional grounds were
raised at trial, the trial court's decision is to be analyzed
pursuant to the abuse of discretion standard. State v. Holmes
N.C. 719, 727-30, 565 S.E.2d 154, 161-63 (2002).
Mitchell and Caples were tried jointly with two other co-
defendants. Prior to bringing in potential jurors to commence jury
selection, the trial court stated it was the court's intention to
have all of the defendants, including Mitchell and Caples, shackled
while seated at the defense table. The trial court ordered
defendants shackled by their legs, not their hands. The trial
court also directed the district attorney to secure tablecloths to
hide the presence of the shackles from the jury. After putting on
the record the decision to shackle the defendants and the reason
for the decision, the trial court asked if there were any motions
or other matters to take up before the jury was called. None of
the defendants voiced an objection.
Throughout the course of the trial, the defendants were
consistently brought into the courtroom prior to the jurors.
Likewise, the jurors left the courtroom before the defendants were
removed. When Mitchell and Caples testified in their own defense,
the trial court had their shackles removed, out of the presence of
the jury, before they assumed the witness stand. The jury was
excused after Mitchell testified and again after Caples testified
so that the jury would not observe the defendants returning to the
defense table and having the shackles reattached. Consequently,
the record is void of any instance where the jury was able toobserve defendants Mitchell or Caples shackled.
In State v. Tolley
, 290 N.C. 349, 368, 226 S.E.2d 353, 368
(1976), our Supreme Court stated factors to be considered in
deciding to impose restraints during trial, including: (1) the size
of the court facilities and resources available, (2) nature of the
offenses, and (3) mood of the audience. Here, we uphold the
discretion of the trial court to impose restraints because: (1) of
the seriousness of the charged offenses; (2) there were four
defendants being tried together; (3) three co-defendants were
expected to testify against the defendants; (4) there were a large
number of interested persons present to observe the trial; (5) the
victim was over 80 years old; and (6) only three uniformed deputies
were available to provide security, therefore restraints were
necessary to ensure the safety and security of the jurors,
witnesses, and persons in the audience. In addition, the trial
court took measures to ensure the jurors could not view the
There is no showing the jurors were affected by Mitchell or
Caples being shackled or even aware of the restraints. See State
, 153 N.C. App. 807, 809-10, 571 S.E.2d 274, 276 (2002).
Defendants have failed to demonstrate any abuse of discretion by
the trial court in imposing the use of restraints. This assignment
of error is overruled.
Defendants next argue the trial court erred by speaking in
German to a State's witness who was on the stand at the time. Specifically, defendants argue, by speaking in German to the
witness, the trial court essentially vouched for the witness'
credibility, which constituted an impermissible and prejudicial
expression of opinion in the presence of the jury.
The trial court may not express during any stage of the
trial, any opinion in the presence of the jury on any question of
fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222
The law imposes on the trial [court] the duty
of absolute impartiality. The trial [court]
also has the duty to supervise and control a
defendant's trial, including the direct and
cross-examination of witnesses, to ensure fair
and impartial justice for both parties.
Furthermore, it is well recognized that [the
trial court] has a duty to question a witness
in order to clarify his testimony or to elicit
overlooked pertinent facts.
In evaluating whether a [trial court's]
comments cross into the realm of impermissible
opinion, a totality of the circumstances test
State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732 (1999)
(internal quotations and citations omitted). [U]nless it is
apparent that such infraction of the rules might reasonably have
had a prejudicial effect on the result of the trial, the error will
be considered harmless. Andrews v. Andrews, 243 N.C. 779, 781, 92
S.E.2d 180, 181 (1956).
The statutory prohibitions against expressions of opinion by
the trial court contained in N.C.G.S. § 15A-1222 . . . are
mandatory. [Moreover, a] defendant's failure to object to alleged
expressions of opinion by the trial court in violation of thisstatute does not preclude his raising the issue on appeal. State
v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989).
Here, the State called Rudolf Muehl as a witness. After
taking the stand, the following exchange occurred:
THE WITNESS: Muel [sic]. It's German. I
hope you understand my German
THE COURT: (Court speaking in German).
THE WITNESS: (Witness speaking in German.)
THE COURT: Is it Rudolph with a PH?
THE WITNESS: No. It's F. The German way.
THE COURT: And will you spell your last
THE WITNESS: M-U-E-H-L.
THE COURT: Madam Court Reporter, I know
that you become somewhat
irritated with the Court when
the Court breaks into a foreign
language. You may simply
indicate in the official record
that I spoke to the witness in
German and said to him, I
speak German. That's all I
said. Is that right?
THE WITNESS: That's correct.
Shortly thereafter, during this same witness' testimony, the trial
court attempted to slow down the pace at which the witness was
THE COURT: Of course. Would you be so
kind as to indulge us by
speaking very slowly as if you
had been born in the south of
the United States.
THE WITNESS: You mean down yonder here in
with a southern drawl?
THE COURT: Not that fast. Can't drawl at
100 miles per hour because our
court reporter also has to take
it and you have such a
beautiful accent we will be
able to enjoy listening to you.
So just as slowly as you can
make yourself do it.
The statements by the trial court in German, and the trial
court's attempt to reduce the speed at which a witness was talking
so the witness could be understood and have his testimony properly
recorded, do not express an opinion as to any fact to be decided by
the jury. In addition, Rule 614(b) of the North Carolina Rules of
Evidence provides, [t]he court may interrogate witnesses, whether
called by itself or by a party. N.C. Gen. Stat. § 8C-1, Rule
614(b) (2003). It is well recognized that a trial court may
question a witness to clarify his testimony. State v. Ramey, 318
N.C. 457, 464, 349 S.E.2d 566, 571 (1986); accord State v. Geddie,
345 N.C. 73, 93, 478 S.E.2d 146, 156 (1996) (holding that the trial
court's question to a witness was proper to clarify street
vernacular). When the trial [court] questions a witness to
clarify his testimony or to promote an understanding of the case,
such questioning does not amount to an expression of the trial
[court's] opinion as to defendant's guilt or innocence. State v.
Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978).
In the instant case, the trial court merely attempted to slow
the pace at which the witness was speaking. The fact that the
trial court commented on a witness' accent while trying to direct
the witness to speak more slowly while testifying is not reversibleerror per se. This assignment of error is overruled.
Defendants next argue the trial court erred by finding an
aggravating sentencing factor which was not set forth in the
indictment nor determined by the jury beyond a reasonable doubt.
In the instant case, the trial court found a factor in
aggravation (the victim was very old
), without stipulation or
admission by the defendant, or without being reflected in the
jury's verdict, and sentenced defendant in the aggravated range.
Pursuant to this Court's mandate in State v. Allen
, 166 N.C. App.
139, 147-48, 601 S.E.2d 299, 305 (2004), aff'd in part and modified
, 2005 N.C. LEXIS 695 (N.C., July 1, 2005), citing Blakely
, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), these cases
are remanded for resentencing.
(See footnote 2)
In their final joint argument, defendants contend the trial
court committed reversible error by sentencing defendants to the
maximum terms of imprisonment after referring to defendants as
cowards; babies; little, tiny cowards and chickens; wimps of the
world; group of thugs and punks; band of little boys; and
wishing somebody would commit the same crime to one of [their]
Here, defendants are essentially arguing, the trial court
erred in finding an aggravating factor and imposing sentences inthe aggravated range based upon the court's personal opinions of
defendants. Because this Court supra Issue III has determined
defendants are entitled to resentencing pursuant to our decision in
Allen, it is unnecessary to address this issue.
Caples also individually argues: (V) the trial court committed
plain error by allowing into evidence, testimony concerning a prior
robbery; (VI) the trial court erred by denying Caples' motion to
dismiss the charges; and (VII) he received ineffective assistance
Caples contends the trial court committed plain error by
allowing into evidence testimony concerning a prior attempted
robbery with a dangerous weapon against Alfred White.
In State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), our
Supreme Court adopted the following test for plain error:
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
Odom, 307 N.C. at 660, 300 S.E.2d at 378 (internal quotations andcitations omitted, omission and modifications in original).
In State v. Cummings, 352 N.C. 600, 536 S.E.2d 36 (2000), the
Court stated: Defendant has the burden of showing. . . (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. Cumminqs, 352
N.C. at 636, 536 S.E.2d at 61 (internal quotations and citations
Here, the evidence presented was admissible under Rule 404(b)
of the North Carolina Rules of Evidence to show intent and absence
of mistake. Rule 404(b) states:
Other crimes, wrongs, or acts. -- Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake,
entrapment or accident. Admissible evidence
may include evidence of an offense committed
by a juvenile if it would have been a Class A,
B1, B2, C, D or E felony if committed by an
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Our Supreme Court has
repeatedly held that Rule 404(b) is a rule of inclusion, with the
single exception being that such evidence must be excluded if its
only probative value is to show that defendant has the propensity
or disposition to commit the offense charged. State v. Berry, 356
N.C. 490, 505, 573 S.E.2d 132, 143 (2002); State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Caples testified he had no idea of the plans to rob thevictim. However, Caples had admitted to police that he and other
co-defendants attempted to take a truck from a man (Alfred White)
in Reidsville earlier that same day. The evidence submitted to the
jury was proper under Rule 404(b) as the evidence showed intent and
absence of mistake. Accordingly, this assignment of error is
Caples next argues the trial court erred in denying his motion
to dismiss the charges due to insufficiency of the evidence.
In a ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence of each element of
the offense charged. See State v. Bullard, 312 N.C. 129, 160, 322
S.E.2d 370, 387 (1984). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980). When reviewing the evidence, the trial court must
consider all evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference. See State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). If the trial court determines that a reasonable
inference of the defendant's guilt may be drawn from the evidence,
it must deny the defendant's motion and send the case to the jury
even though the evidence may also support reasonable inferences of
the defendant's innocence. State v. Smith, 40 N.C. App. 72, 79,
252 S.E.2d 535, 540 (1979).
Acting in Concert
A defendant acting with another in accordance with a common
purpose to commit a crime may be held guilty of another crime
committed in pursuit of that common purpose even though the
defendant did not personally commit the other crime. See State v.
Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004). [U]nder
the acting in concert doctrine a defendant may be held guilty not
only for the crime originally intended but also for 'any other
crime committed by the other in pursuance of the common purpose.'
Id. (quoting State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71
N.C. Gen. Stat. § 14-39(a) provides:
Any person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person, or any
other person under the age of 16 years without
the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if
such confinement, restraint or removal is for
the purpose of:
. . .
(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person . . . .
N.C.G.S. § 14-39(a) (2003). If the person kidnapped either was
not released by the defendant in a safe place or had been seriously
injured or sexually assaulted, the offense is kidnapping in the
first degree . . . . N.C.G.S. § 14-39(b) (2003). In State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338,
351-52 (1978), the North Carolina Supreme Court recognized the
possibility that two or more criminal offenses may arise from the
same course of action. Our Supreme Court also held that a
conviction of kidnapping does not violate the constitutional
prohibition against double jeopardy when the restraint involved
constitutes a separate act independent of and apart from the other
felony. Fulcher, 294 N.C. at 524, 243 S.E.2d at 352.
Robbery With a Dangerous Weapon
In North Carolina, robbery with a dangerous weapon is defined
(a) Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night
. . . shall be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2003).
Felony Breaking and Entering
To obtain a conviction of felony breaking and entering, the
State must show: (1) a breaking or entering; (2) into a building;
(3) with an intent to commit a felony or larceny therein. N.C.
Gen. Stat. § 14-54(a) (2003). The requisite intent for felony
breaking and entering need not be directly proved [if] it may be
inferred from the circumstances. State v. Roberts, 135 N.C. App.
690, 696, 522 S.E.2d 130, 134 (1999).
[T]o constitute larceny there must be a wrongful taking and
carrying away of the personal property of another without his
consent, and this must be done with felonious intent to deprive the
owner of his property and to appropriate it to the taker's use
fraudulently. State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11,
14 (1968). Furthermore, [t]he crime of larceny is a felony,
without regard to the value of the property in question, if the
larceny is: (1) From the person; or (2) Committed pursuant to a
violation of [N.C.G.S. § 14-54 (felony breaking and entering)] . .
. . N.C. Gen. Stat. § 14-72(b) (2003).
Commission of the offense of felony larceny is proved when the
State produces evidence that the value of the stolen goods is more
than one thousand dollars ($1,000.00). N.C.G.S. § 14-72(a) (2003).
For the purposes of N.C. Gen. Stat. § 14-72(a), value is the fair
market value of the goods at the time of the theft. State v. Shaw,
26 N.C. App. 154, 157, 215 S.E.2d 390, 392 (1975). The retail
price established by a merchant is evidence of fair market value
sufficient to survive a motion to dismiss. State v. Williams, 65
N.C. App. 373, 375, 309 S.E.2d 266, 267 (1983).
Facts Relevant to the Charges
In the present case the State presented evidence showing that:
(1) co-defendant Brown saw a car we wouldn't mind getting; (2)
Brown told Caples, Mitchell and Rice that he wanted to take the
victim's car and asked them to ride with him; (3) Caples was one
of the six men to get in Brown's truck right after thisconversation; (4) Caples was the driver of Brown's truck, and
Caples was driving because Brown had told Caples that he (Brown)
was going to get the car; (5) after Brown, Rice and Herbin got
out of the truck and approached the victim's house on foot, Caples
waited with the truck just up the street, in sight of the three men
on foot; (6) after Brown, Rice and Herbin forced their way into the
victim's home at gunpoint, took her car keys, stuffed her into the
trunk of her own car and drove away in the victim's car, they drove
the stolen car past where the truck was waiting; (7) Caples
followed the stolen car in the truck; (8) Caples rode in the stolen
car, while the victim was still in the trunk; and (9) Caples went
to Alabama shortly after the incident. In addition, the victim's
car was a 1996 Chrysler LHS valued at approximately $7,000.00
This evidence was sufficient, taken in the light most
favorable to the State, to show defendant committed the offenses of
robbery with a dangerous weapon, breaking and entering, felony
larceny and kidnapping either directly or under the theory of
acting in concert. Therefore, the trial court did not err in
denying Caples' motion to dismiss the charges. This assignment of
error is overruled.
Caples lastly argues he received ineffective assistance of
counsel (IAC), as his counsel at trial did not file a Bruton
motion, object to damaging hearsay testimony, nor request a
complete recording of bench conferences, jury selection, opening or
closing arguments. Attorney conduct that falls below an objective
standard of reasonableness and prejudices the
defense denies the defendant the right to
effective assistance of counsel. An IAC claim
must establish both that the professional
assistance defendant received was unreasonable
and that the trial would have had a different
outcome in the absence of such assistance.
State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001)
(internal citations omitted). The reviewing 'court need not
determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies[, for t]he object of an ineffectiveness
claim is not to grade counsel's performance.' State v. Braswell,
312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (quoting Strickland
v. Washington, 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699-700
Defendant cites no authority in support of his IAC claim based
on the failure of trial counsel to file a Bruton motion or object
to hearsay evidence. It is defendant's burden to show prejudice
from any alleged substandard conduct. See State v. Poindexter, 359
N.C. 287, 290-91, 608 S.E.2d 761, 764 (2005). Here defendant shows
no such prejudice. In addition, defendant must show prejudice from
failure to record proceedings. See State v. Blakeney, 352 N.C.
287, 307, 531 S.E.2d 799, 814 (2000) ([I]t is the trial court's
evidentiary rulings, and not the arguments of counsel during a
bench conference, that facilitate effective appellate review.)
This assignment of error is overruled.
Mitchell lastly argues the errors committed by the trial
court, in the aggregate, deprived him of his right to a fair trial.
As our Supreme Court has stated in State v. May, 354 N.C. 172,
183, 552 S.E.2d 151, 158 (2001), when there is no merit to the
individual alleged errors, there can be no cumulative error. Based
on our conclusions supra in Issues I-IV, this assignment of error
is summarily overruled.
No error at trial; remanded for resentencing.
Judge McGEE and STEELMAN concur.
Report per Rule 30(e).
Defendant Caples' motion to incorporate Mitchell's argument
and to be heard on this issue was allowed by the Court. The
State's Motion to Adopt State's Argument I From Its Brief In
Mitchell Case was also allowed.
Caples also filed a Motion for Appropriate Relief regarding
this issue. Accordingly, Caples' motion is granted and this matter
is remanded for resentencing as mandated by Blakely
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