STATE OF NORTH CAROLINA
No. 03 CRS 53866
COREY D. DUNN
Attorney General Roy Cooper, by Assistant Attorney General
Lisa H. Graham, for the State.
Office of the Appellate Defender, by Appellate Defender Staples Hughes and Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.
Corey D. Dunn (defendant) was convicted of second-degree trespassing in Lenoir County District Court on 21 August 2003. Defendant appealed his conviction, and the case was heard in Lenoir County Superior Court on 28 April 2004. Defendant appeared pro se. The jury found defendant guilty of second-degree trespassing. From the judgment entered 28 April 2004, defendant appeals.
The State's evidence at trial tended to show that Donna Louise Jordahl (Jordahl) lived in Willow Wisp apartment complex as a listed lessee. Defendant also lived in Willow Wisp with another listed lessee, Faneka Blackwell (Blackwell). Prior to this trespassing incident, defendant made unwelcome romantic advancestowards Jordahl. Jordahl refused such advances and told defendant not to come on her property. On four prior occasions, Jordahl reported defendant to the apartment manager. Both the apartment management and a resident police officer told defendant to stay away from Jordahl.
On 27 July 2003 at approximately 9:00 p.m., Jordahl was sitting on the stoop she shared with an adjacent apartment when defendant exited out of the apartment he shared with Blackwell. Defendant was followed by Blackwell and another man. Defendant said to Blackwell and this man, That bitch is out there. At about this time, another man named Rodney arrived to see Jordahl. Defendant asked Rodney, What are you doing with that psycho bitch? During this exchange defendant was holding a beer and appeared to be drunk. Jordahl told defendant to stay off her property and not to bother her. Defendant cursed and threatened Jordahl while standing on her porch and banging on her door. Defendant stayed on the porch for approximately ten minutes after Jordahl told him to leave. Defendant, Blackwell, and the other man left only after Jordahl began screaming and swinging at defendant.
Defendant presented some evidence attempting to show that he did not go inside Jordahl's apartment or the surrounding premises. His version of the facts was that the encounter with Jordahl did not take place on her stoop. Instead, he testified that the incident took place while he and Blackwell were standing at Blackwell's truck in the parking lot of the apartment complex. According to this version of the facts, the verbal exchange was between Jordahl and Blackwell, and defendant never stood on Jordahl's stoop. Blackwell also testified on defendant's behalf; she testified that the words were exchanged between herself and Jordahl, and that defendant was not involved.
By his first assignment of error, defendant challenges the sufficiency of the evidence. As defendant failed to make a motion to dismiss at the close of all the evidence, he has failed to preserve this issue for appeal. See N.C.R. App. P. 10(b)(3); State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 492 (1987). Nonetheless, given defendant's decision to appear pro se at trial, we will consider defendant's assignment of error within our discretion under Rule 2 in order to prevent manifest injustice. See N.C.R. App. P. 2.
N.C. Gen. Stat. .14-159.13(a)(2003) provides that
[a] person commits the offense of second degree trespass if, without authorization, he enters or remains on the premises of another . . . [a]fter he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person[.]
Defendant argues that the State did not produce sufficient evidence that defendant was on Jordahl's premises. He contends that the stoop, the alleged place where the altercation took place, was a common area separate from Jordahl's premises.
Defendant cites State v. McNeill, 78 N.C. App. 514, 516, 337 S.E.2d 172, 173 (1985); State v. Napier, 149 N.C. App. 462, 464, 560 S.E.2d 867, 869 (2002); and State v. Locklear, 121 N.C. App.355, 359, 465 S.E.2d 61, 63-64 (1996), as support for his contention that a porch within an apartment complex cannot be a person's premises. However, these cases do not concern the definition of premises in the context of trespassing. Instead, the Court in these decisions interpreted N.C. Gen. Stat. . 14- 415.1, governing the legality of a felon's possession of a firearm, as it applies to an area outside of the defendant's home. Section 14-415.1 prohibits a convicted felon from possessing a firearm but creates an exception for a felon's possession within his own home. See N.C. Gen. Stat. . 14-415.1(a) (2003). In McNeill, this Court held that the exception does not extend to common areas of an apartment building because the Legislature clearly expressed its intent to limit the applicability of the exception to the confines and privacy of the convicted felon's own premises[.] McNeill, 78 N.C. App. 514 at 516, 337 S.E.2d at 173. The reasoning of the Court was specific to the Legislature's purpose in enacting this statute. See id.; see also Napier, 149 N.C. App. at 464, 560 S.E.2d at 869; Locklear, 121 N.C. App. at 359, 465 S.E.2d at 63-64.
In order to be convicted of second-degree trespass under N.C. Gen. Stat. § 14-159.13, it is not necessary that the defendant actually enter the interior of a dwelling, as the offense is complete once the defendant remains upon privately owned property after being asked to leave by the owner or a lawful occupant. Thus, the platform or stoop adjacent to the door of a private dwelling may constitute premises of another under Section 14-159.13. In determining whether there was substantial evidence, the Court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Here, the evidence as seen in the light most favorable to the State shows that defendant stood on the stoop while banging on the door of Jordahl's apartment and cursing at her, and that he failed to obey Jordahl's orders to leave. Defendant's evidence that the incident took place away from the stoop contradicts the State's evidence and may not be considered by the Court. See State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995) (on a motion to dismiss, contradictions in evidence are for the jury to resolve). The State presented substantial evidence that defendant entered and remained upon Jordahl's premises without authorization, and we therefore overrule defendant's assignment of error.
Next, defendant contends that the trial court committed plain error by admitting Jordahl's testimony concerning defendant's alleged abuse of Blackwell. Under plain error review, the defendant has the burden of showing that a different result probably would have been reached but for the error or that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial. State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135, cert. denied, ___ U.S. ___, 160 L. Ed. 2d 500 (2004). Defendant argues that Jordahl's testimony about defendant abusing Blackwell was irrelevant, inflammatory, and likely to confuse the jury. Defendant asserts that such testimony prevented him from having a fair trial because it undermined Blackwell's testimony in that the jury may have thought that defendant had undue influence over her. Since evidence of bias was also supplied by Blackwell's testimony regarding her ongoing romantic relationship with defendant (despite her knowledge of problems between defendant and Jordahl, resulting in complaints to the apartment manager), we cannot conclude that Jordahl's testimony was such that the jury would likely have reached a different result in its absence.
Judges CALABRIA and GEER concur.
Report Per Rule 30(e).
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