An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1161
            
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NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005


STATE OF NORTH CAROLINA

v .                             Chatham County
                                No. 97 CRS 5545
FREDRICK ELDRIDGE MARTIN

    Appeal by defendant from judgment entered 2 June 1998 by Judge Wade Barber in Chatham County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel D. Addison, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant.

    LEVINSON, Judge.

    Frederick Eldridge Martin (defendant) was charged with first- degree burglary, first-degree rape, felonious larceny, and misdemeanor injury to real property. A jury convicted defendant of second degree rape, misdemeanor breaking and entering, felony larceny, and misdemeanor injury to real property. From these convictions and judgment, defendant appeals. We find no error.
    The evidence presented at trial tended to show the following: At the time of the alleged offenses, the prosecuting witness, A.M., was the estranged wife of defendant. They were married in 1994 and had one child, born March 23, 1995. In November 1996 A.M. obtained a domestic violence protective order against defendant. The parties separated at that time and defendant moved to Angier, NorthCarolina. A.M. and their daughter remained in their mobile home. Defendant and A.M. executed a separation agreement granting A.M. primary custody of their daughter. Pursuant to the separation agreement, defendant had the right to visit their daughter and he agreed to execute any documents necessary for the transfer of ownership of the mobile home. He later executed a power of attorney in A.M. allowing her to convey the mobile home. On 19 September 1997, the date of the alleged offenses, defendant and A.M. had been separated for approximately ten months.
    A.M. testified she lives in the mobile home with her boyfriend and daughter. On the evening of 18 September 1997 A.M. left work, picked up her daughter from a sitter, and returned home. A.M. went to bed at approximately 1:00 a.m. Her boyfriend left for work at approximately 4:30 a.m.
    According to A.M., between 5:00 and 6:00 the morning of 19 September 1997, defendant climbed through their daughter's bedroom window. He picked up their daughter from her crib and carried her into A.M.'s bedroom. Seating himself on her bed, he woke A.M. by placing his hand on her thigh.
    A.M. told defendant she “did not want him there and that he needed to leave.” Defendant told her he was there to see their daughter. Defendant played with their daughter for awhile in the bedroom. Defendant asked to see A.M.'s gun. Defendant went to the closet, removed the gun and “put [the gun] in [her] face.” Defendant told A.M. “he didn't care if he blew my brains all overthe walls.” Then defendant put the gun in his mouth. A.M. pulled the gun away from him. Defendant put the gun back in the closet.
    A.M. again told defendant to leave. Defendant tried to kiss and hug her. Defendant said he was going to have intercourse with her. A.M. told him she did not want to have intercourse. Defendant then began touching her and rubbing her. He pulled her nightgown up and unbuttoned his pants. Defendant then took their daughter into the kitchen and shut the door. He returned and forced A.M. into the corner of the bedroom. Defendant held her down with his hands, choking her with her nightgown, placed his penis inside her vagina and ejaculated. “He kept on calling me a b---- and saying he hated me and I deserved it.”
    Afterwards, defendant ran out the backdoor with A.M. chasing him. A.M. wanted to detain defendant long enough for the police to arrive. Defendant jumped in her car, started it, and drove off. A.M. ran into the house and grabbed her gun. By the time she got back outside, defendant was gone. She fired the gun in the air hoping her aunt, who lived nearby, would hear her. A.M. then called 911. A.M. found the pane of glass from the window of her daughter's bedroom lying in the playpen in her daughter's room.
    Defendant testified. He stated he had walked to A.M.'s home in order to see his daughter. He had come through the woods because he was afraid of A.M.'s father who lived nearby. When he knocked at the backdoor, A.M. let him in. They sat down on A.M.'s bed together and talked. Defendant got their daughter from her bedroom, played with her for awhile in A.M.'s bedroom, and put herback to bed. He and A.M. smoked cigarettes together and talked about child support. Defendant asked A.M. whether they could “get back together.” Defendant and A.M. began hugging and kissing and then had sexual intercourse. Defendant denied that he raped A.M. After they had intercourse, defendant asked A.M. to drive him home. He disclosed to her that he might be facing charges for having stolen money from the McDonald's where he had been working. A.M. became upset with him. When defendant went to get his daughter ready for the drive back to Angier, he discovered a burn on her stomach. He questioned A.M. about it. A.M. became angry and threatened to call the police. A.M. began spitting on defendant so he pushed her out of his way, ran out the back door, and climbed into her car. A.M. came out and began hitting the windows of the car. Then she ran back into the house and returned, carrying her shotgun. This was the first time defendant had seen her gun. Defendant put the car in reverse and backed down the driveway. A.M. shot at him as he drove away. Defendant drove through “two steel gates.” Defendant drove to Angier in A.M.'s car.
    Once back in Angier, defendant was informed that the police in Dunn, North Carolina wanted to talk to him about money missing from McDonald's. Defendant drove himself to the Dunn police department in A.M.'s car. Defendant acknowledged to the police in Dunn that he had “got in some trouble in Chatham County.”
    Defendant testified, “Yes, I did steal the car. Yes, I did go through the gates, but I'm telling you I did not rape my former wife [A.M.]”    Defendant was found guilty of second degree rape, misdemeanor breaking and entering, felonious larceny, and misdemeanor injury to real property. He was given a consolidated sentence of 93 to 121 months in prison. From these convictions and judgment defendant appeals.
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    Defendant first argues that defense counsel's opening statement, in which he admitted defendant entered A.M.'s home through a bedroom window, was an admission of guilt for the lesser included offense of breaking and entering and, thereby, per se ineffective assistance of counsel under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985). For the reasons which follow, we disagree.
    A defense attorney's specific admission of a defendant's guilt as to the crime for which defendant is being tried, or a lesser included offense, absent the defendant's consent, is a per se violation of a defendant's constitutional right to effective assistance of counsel under the Sixth Amendment. Harbison, 315 N.C. at 180, 337 S.E.2d at 507. In Harbison, defense counsel told the jury, “I think you should find him guilty of manslaughter and not first degree [murder].” Id. at 178, 337 S.E.2d at 506.
        When counsel admits his client's guilt without first obtaining the client's consent, . . . [c]ounsel in such situations denies the client's right to have the issue of guilt or innocence decided by a jury.

Id. at 180, 337 S.E.2d at 507 (citing Wiley v. Sowders, 647 F. 2d 642, 649-50 (6th Cir. 1981)).    While defense counsel's admission of guilt, made without the defendant's consent, is a per se violation of the defendant's Sixth Amendment right to effective assistance of counsel, counsel may admit facts and circumstances surrounding the crime charged without making a legal admission of guilt. See State v. Srickland, 346 N.C. 443, 454, 488 S.E.2d 194, 200 (1997). Defense counsel's admission of a fact, which does not remove the determination of guilt or innocence of the crime charged from the purview of the jury, is not a per se violation of a defendant's right to effective assistance of counsel. See State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991).
    In Thomas, defendant was on trial for first degree murder and the sexual offense of inserting a telephone receiver into the victim's vagina. Id. at 426, 407 S.E.2d at 144. Defense counsel, without defendant's consent, admitted to the jury that defendant had inserted the receiver into the victim's vagina. Id. at 439, 407 S.E.2d at 151-52. Because a sexual offense can only be committed against a living person, and because defense counsel's theory, in accordance with some of the evidence, was that the victim had died before defendant inserted the telephone receiver, defense counsel's statement was held not to be an admission of guilt. Id. at 442, 407 S.E.2d at 153. In that case, our Supreme Court concluded:
        [D]efense counsel . . . did not admit defendant's guilt to first-degree sexual offense or to any lesser included offense. Rather, defense counsel held the State to its burden of proof on one element of the sexual offense charge: the issue of a continuouschain of events beginning while the victim was alive.

Id.
    In the instant case, prior to jury selection, in open court, defendant addressed the trial court concerning a conflict with his attorney. Defendant wanted certain evidence introduced which his attorney said he was not planning to offer for reasons of trial strategy. The court instructed defendant that he would not be able to introduce any evidence until after the State rested its case. At that time defendant could make a decision on how to proceed. If he and defense counsel continued to have a conflict, then defendant could choose to represent himself.
    Later, midway through the presentation of State's evidence, defendant again addressed the trial court, this time asking that his appointed counsel be removed. Defendant was angry that his attorney had gone against his express wishes and made an opening statement to the jury that defendant had entered the mobile home through the bedroom window and handled A.M.'s gun. Defendant maintained that he had never done these things, that defense counsel knew defendant disagreed with counsel making these statements, and that counsel knew this opening statement would contradict defendant's testimony. The trial court allowed defense counsel to be removed, but retained him as “standby counsel” for defendant. The trial court informed the jury that defendant had chosen to represent himself.    Defense counsel, in his opening statement, told the jury defendant had entered A.M.'s home by climbing through a bedroom window and had handled A.M.'s gun:

        When he got to the trailer, he knocked on the door; there was no answer. . . . He went around to the other door of the trailer, knocked again, and still did not receive an answer, did not get an answer.

        He then went around to the end of the trailer, which is where his daughter's bedroom is, and looked through the window and saw his daughter in her bed in the - in the bedroom. His daughter saw him and began to cry.

        He could not get an answer from the door when he was knocking, so he went in through the bedroom window and picked his daughter up and he carried her into the bedroom where [A.M.] was asleep.

        . . . .

        At one point she told him that her father had bought her a shotgun that she kept in the closet. He went to the closet; he took the shotgun out of the closet to see if it was loaded, determined it was not loaded, put the gun back in the closet where it remained.

        . . . .

        I'd ask you to keep an open mind, not make up your mind. And when you hear all the evidence that is presented to you, listen to all the questions that are asked, whether they're on the direct examination or whether they're on cross examination, and once you have heard everything, I am convinced that you will find that the State has not proven beyond a reasonable doubt that a rape occurred, that a first degree rape occurred, or that a burglary occurred. And I will ask you to find Fred Martin not guilty.
    During defendant's motion for nonsuit at the close of the State's evidence, the trial court considered whether, because the mobile home was still owned jointly by defendant and A.M. at the time of the offense, despite the domestic violence order and separation agreement, defendant had a right to enter the home. There was evidence that the mobile home was owned jointly by defendant and A.M. Indeed, A.M. recited a provision of the separation agreement during her direct examination:
        The parties hereto own a 1995 Palm Harbor mobile home. The husband agrees to execute whatever documents may be necessary to transfer exclusive ownership of this property to the wife. The wife agrees to be responsible for the existing mortgage of the mobile home.

    Defense counsel's admission that defendant entered the home through the bedroom window was not the equivalent of admitting defendant committed any crime. The State was still held to its burden of proof on one element of breaking and entering: that defendant entered the mobile home “wrongfully.” See N.C.G.S. § 14- 54(b) (2003)(“Any person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.”). Therefore, defense counsel's statement did not constitute per se ineffective assistance of counsel under Harbison. See Thomas, 329 N.C. at 442, 407 S.E.2d at 153.
    Defendant further argues that, although his counsel's statements might not have constituted ineffective assistance of counsel per se, defense counsel's tactical decisions to make these statements, in direct opposition to defendant's express wishes andcontrary to defendant's testimony, constituted deficient representation. Defendant contends defense counsel's statements created sufficient prejudice to defendant to afford him a new trial under Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694 (1984).
    We conclude defendant's claims of general ineffective assistance of counsel, in violation of defendant's constitutional rights, have been prematurely asserted and cannot be determined without further development of the record. Accordingly, while this Court's opinion disposes of defendant's specific claim of a per se constitutional violation under Harbison, defendant's general claim of ineffective assistance of counsel is dismissed without prejudice. See State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001)(“[S]hould the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent MAR proceeding.”)(citations omitted).
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    Defendant next argues that the trial court erred by allowing the State to cross-examine defendant concerning the underlying facts of defendant's prior convictions for assault and communicating threats. We disagree.
    “'Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof[.]'” State v. Syriani, 333 N.C. 350, 378, 428 S.E.2d 118, 132 (1993)(quoting State v. Hudson, 331N.C. 122, 154, 415 S.E.2d 732, 749 (1992)). Evidence of prior violent acts by a defendant is admissible to explain or rebut evidence introduced by the defendant himself. Id.; State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991).
    In the instant case defendant testified on direct:
        I'm telling you I did not rape my former wife [A.M.]. I was with this lady for four years. She is the mother of my child. There is no way I would do this woman like this. I done things to hurt her, but I would never go to this extent to hurt her.

(emphasis added).
    At the conclusion of defendant's direct testimony, the trial court ruled that the State could cross-examine defendant about the underlying facts of defendant's prior convictions for communicating threats against, and assault on, A.M. Defendant had been convicted on 17 November 1996 of assault on a female against A.M., by striking her in the face, and in March 1997, of communicating threats against her by saying that she and her father would “pay” for having sent defendant to jail.
    The trial court did not err in allowing the State to cross- examine defendant as to the underlying facts of these two prior convictions. Defendant's statements that he had “done things to hurt her” and that he would “never go to this extent to hurt her” leads to an inescapable inquiry of what he had done in the past to harm her. Defendant therefore opened the door to such questioning by the prosecutor. This assignment of error is overruled.

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    Defendant's final argument is that the trial court erred in failing to instruct the jury on unauthorized use of a conveyance as a lesser included offense of felonious larceny of an automobile. We disagree.
    Unauthorized use of a motor vehicle may be considered a lesser included offense of larceny if there is evidence to support the lesser charge. See State v. McRae, 58 N.C. App. 225, 229, 292 S.E.2d 778, 780 (1982)(“Unauthorized use of a motor vehicle . . . is considered a lesser included offense of larceny, . . . where there is evidence to support the charge.”)(citation omitted).
        A defendant is entitled to have a lesser included offense submitted to the jury only when there is evidence to support that lesser included offense. . . . If the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements. . . defendant is not entitled to an instruction on the lesser offense.

State v. Smith, 351 N.C. 251, 267-68, 524 S.E.2d 28, 40 (2000)(citations omitted). Our appellate courts have held that, in the absence of conflicting evidence as to a defendant's intent to permanently deprive the owner of possession of his or her vehicle, it is proper for a trial court to instruct on the greater offense of larceny alone. State v. Jackson, 75 N.C. App. 294, 298, 330 S.E.2d 668, 670 (1985).
    In the instant case, at the conclusion of defendant's visit to A.M.'s home, defendant ran to A.M.'s car, climbed in, and drove away. At trial defendant testified that “he did steal [A.M.'s] car.” When summoned for questioning, defendant drove himself tothe police station in A.M.'s car. But there was no evidence that, at the time defendant drove away from her home, he did not intend to deprive A.M. of the use of her car permanently. Therefore, the trial court did not err in failing to instruct the jury on the lesser included offense of unauthorized use of a conveyance. This assignment of error is overruled.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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