An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
STATE OF NORTH CAROLINA
Appeal by defendant from judgment entered 13 July 2004 by
Judge Dwight L. Cranford in Pasquotank County Superior Court.
Heard in the Court of Appeals 3 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Everett & Hite, L.L.P., by Stephen D. Kiess, for defendant.
Defendant Wendell Bennett appeals from judgment entered upon
his conviction of first degree burglary. We find no error.
Defendant was tried in July 2004 on charges of first degree
burglary, kidnaping, and robbery with a dangerous weapon. The
State's trial evidence is briefly summarized as follows: Cheryl
Hopson testified that in December 1999 she lived in the Hickory
Village mobile home park, in Pasquotank County, North Carolina. On
the night of 17 December 1999, Hopson was sleeping on her living
room couch and was awakened by a knock at the door from a person
identifying himself as Whop. Hopson opened her front door and an
intruder, whom she identified as the defendant, shoved his way intoher home. Once inside, the defendant pointed a gun at her and
demanded money. Hopson got her purse from a bedroom, and defendant
took $400 cash from her wallet. Before defendant left, he took
Hopson's cordless phone and threatened to kill her if she reported
the incident to the police. On cross-examination, Hopson testified
that in December 1999 she had been dating a man named Glen Mitchell
for about six years; that she had recognized defendant from seeing
him in local clubs; and that in December 1999 she did not know that
defendant and Mitchell had grown up together in New York.
Testimony from two law enforcement officers corroborated
Hopson's trial testimony. Mike Liebno testified that in December
1999 he was a patrol officer with the Elizabeth City Police
Department. On the night of 17 December 1999 he was dispatched to
Hopson's home. Hopson appeared nervous and shaken, and told Liebno
that she had been robbed at gunpoint by an intruder. Liebno's
recitation of his interview with Hopson generally corroborated
Hopson's trial testimony. She also told Liebno that she thought
Whop's last name might be Bennett. Sergeant John Young of the
Elizabeth City Police Department testified that he investigated the
robbery reported by Hopson, and that, in his interviews with her,
she told him pretty much the same thing as her trial testimony.
Hopson also told Young that she thought Whop's first name began
with a 'W' and that his last name might be Bennett. Based on this
information, Young assembled a photographic lineup that included
defendant's picture. Hopson immediately picked out defendant's
photo as the person who robbed her; Young testified that insixteen (16) years of police work, this was the quickest selection
that I have had.
The defendant testified that he was 34 years old, and that he
had known Hopson's boyfriend, Glen Mitchell, since they were both
children. On 17 December 1999 defendant called Mitchell and asked
to buy a large quantity of crack cocaine. Later that night,
Hopson drove to defendant's location and gave him the cocaine.
Defendant took the cocaine and went inside, promising to return
shortly with money to pay for it. Instead, he left by a side door
and never paid for the crack cocaine. Defendant denied owning a
gun, and denied going to Hopson's house on 17 December 1999 or
Following the presentation of evidence, the trial court
dismissed the charge of kidnaping. The remaining charges were
submitted to the jury, which acquitted defendant of armed robbery,
and convicted him of first degree burglary. Upon this conviction,
defendant was sentenced to an active prison term of seventy five
(75) to ninety eight (98) months' imprisonment. From this judgment
and conviction, defendant timely appealed.
Defendant argues first that the trial court erred by denying
his motion to dismiss the charge of first degree burglary on the
grounds that the evidence was insufficient as a matter of law to
submit the case to the jury. We disagree.
Upon a defendant's motion to dismiss for insufficiency of the
evidence, the trial court is to determine whether there issubstantial evidence (a) of each essential element of the offense
charged, or of a lesser offense included therein, and (b) of
defendant's being the perpetrator of the offense. If so, the
motion to dismiss is properly denied. The issue of whether the
evidence presented constitutes substantial evidence is a question
of law for the court. Substantial evidence is 'such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.' State v. Bumgarner, 147 N.C. App. 409, 412, 556
S.E.2d 324, 327 (2001) (quoting State v. Earnhardt, 307 N.C. 62,
65-66, 296 S.E.2d 649, 651-52 (1982)).
In the instant case, defendant challenges the sufficiency of
the evidence of first degree burglary. The elements of
first-degree burglary are: (i) the breaking (ii) and entering (iii)
in the nighttime (iv) into the dwelling house or sleeping apartment
(v) of another (vi) which is actually occupied at the time of the
offense (vii) with the intent to commit a felony therein. State
v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996) (citing
N.C. Gen. Stat. § 14-51 [(2003)]) (other citation omitted).
Defendant concedes the sufficiency of the evidence of the
first five elements; accordingly, we address only the sufficiency
of the evidence that, when defendant entered Hopson's home, he
intended to commit a felony. Hopson testified that as she started
to answer her door, the defendant forced his way past her and
immediately pointed a gun at her and demanded money. Clearly, this
is substantial evidence that at the time he entered Hopson's home,
the defendant intended to commit a felony. Defendant, however, contends that his acquittal of robbery
with a dangerous weapon necessarily means, as a matter of law, that
there was insufficient evidence that he intended to commit the
offense. Defendant misstates the relationship between evidence of
an intent to commit a felony, and evidence of commission of the
Intent . . . must ordinarily be proved by
circumstances from which it may be inferred.
'The intent with which an accused broke and
entered may be found by the jury from evidence
as to what he did within the house. . . .
However, the fact that a felony was actually
committed after the house was entered is not
necessarily proof of the intent requisite for
the crime of burglary. . . . Conversely,
actual 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.'
State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974)
(citing State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473 (1965), and
State v. Gammons, 260 N.C. 753, 133 S.E. 2d 649 (1963), and quoting
State v. Tippett, 270 N.C. 588, 594, 155 S.E. 2d 269, 274 (1967)).
Defendant cites no authority for the proposition that his acquittal
of robbery with a deadly weapon negates proof of his earlier intent
to commit the offense, and we find none. This assignment of error
In a related argument, defendant contends that, because he was
acquitted of armed robbery, the trial court committed reversible
error by entering judgment on defendant's conviction of first
degree burglary. Defendant argues that his conviction of first
degree burglary is inconsistent with his acquittal of armedrobbery. As discussed above, the jury was free to believe that
when defendant entered Hopson's home he intended to commit a
felony, regardless of their verdict on his actual commission of the
offense. See, e.g., State v. Freeman, 307 N.C. 445, 451, 298 S.E.2d
376, 380 (1983) (jury's acquittal of defendant on attempted rape
charge held not inconsistent with guilty verdict on charge of first
degree burglary). This assignment of error is overruled.
Defendant next argues that the trial court erred by excluding
evidence of Glen Mitchell's involvement in the sale of drugs.
Defendant cites two occasions during trial when the trial court
sustained the prosecutor's objection to defendant's attempted
questioning of a witness. However, defendant failed to make an
offer of proof to show what the excluded testimony or evidence
would have been. Therefore, defendant has failed to preserve this
issue for appellate review under the standard set forth in N.C.
Gen. Stat. § 8C-1, Rule 103(a)(2). State v. Williams, 355 N.C.
501, 534, 565 S.E.2d 609, 629 (2002). This assignment of error is
Defendant argues next that the trial court erred by
instructing the jury that the defendant was presumed innocent
until the jury was convinced of his guilt, rather than unless
it was convinced. We conclude, however, that defendant failed to
preserve this issue for review. [D]efendant did not object to the instructions as given at
trial and, thus, must satisfy the plain error standard of review.
To demonstrate plain error, a defendant 'must show that the
instructions were erroneous and that absent the erroneous
instructions, a jury probably would have returned a different
verdict.' State v. Roache, 358 N.C. 243, 305, 595 S.E.2d 381,
420-21 (2004) (quoting State v. Barden, 356 N.C. 316, 383, 572
S.E.2d 108, 150 (2002) (internal quotation marks omitted)).
Defendant assigned plain error to the trial court's instructions in
his assignment of error number five (5). However, he failed to
present any argument on plain error in his appellate brief, and
thus waived review of this issue:
Although defendant alleges plain error in the
. . . [assignment of error] he provides no
explanation, analysis or specific contention
in his brief supporting the bare assertion
that the claimed error is so fundamental that
justice could not have been done. . . .
Defendant's empty assertion of plain error,
without supporting argument or analysis of
prejudicial impact, does not meet the spirit
or intent of the plain error rule. By simply
relying on the use of 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
State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000).
This assignment of error is overruled.
Defendant also argues that the trial court erred by denying
his request for an instruction limiting the jury's consideration of
evidence of defendant's involvement with illegal drugs. Defendanttestified that on 17 December 1999 he asked Mitchell to sell him a
large quantity of crack cocaine, and later that night took the
cocaine without paying for it. Defendant offered this evidence as
a possible motive for Hopson (Mitchell's girlfriend) to invent the
charges against him. He asked for a limiting instruction informing
the jury that evidence of his drug use and drug theft could not be
considered as evidence of his guilt of the charged offenses, and
argues on appeal that the trial court's denial of his request was
At trial, defendant failed to raise any issue pertaining to
the constitutionality of the court's ruling on his motion for a
limiting instruction. However, he asserts on appeal that the trial
court's ruling deprived him of his constitutional right to a fair
trial[.] Constitutional issues not raised and passed upon at
trial will not be considered for the first time on appeal. State
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (citation
omitted). Thus, we do not address defendant's constitutional
Under N.C. Gen. Stat. § 15A-1443(a) (2003), [a] defendant is
prejudiced by errors relating to rights arising other than under
the Constitution of the United States when there is a reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises. The burden of showing such prejudice under this
subsection is upon the defendant. In the instant case, the
defendant fails to argue on appeal that the trial court's denial ofhis request was prejudicial as defined by N.C. Gen. Stat. § 15A-
1443. We conclude that, even assuming arguendo
that the court's
ruling was in error, the defendant failed to meet the burden of
demonstrating prejudice. This assignment of error is overruled.
For the reasons discussed above, we conclude that the
defendant had a fair trial, free of reversible error.
Judges McCULLOUGH and ELMORE concur.
Report per rule 30(e).
*** Converted from WordPerfect ***