Appeal by defendant from judgment entered 5 November 2002 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 21 August 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Angel E. Gray, for the State.
Don Willey for defendant-appellant.
HUNTER, Judge.
Michael Darrell Crawford (“defendant”) appeals from a judgment
entered 5 November 2002 consistent with a jury verdict finding him
guilty of first degree burglary. For the reasons stated herein, we
find defendant's judgment and conviction to be without error. The State's evidence tends to show that on 28 May 2001, Carla
Patterson, (“Carla”), her sister, Candace Patterson (“Candace”),
and their roommate, Christine Crawford (“Christine”), the sister of
defendant, received a call around 10:00 p.m. from defendant asking
what they were doing and if they were going to bed. Carla told
defendant that they would all be going to bed soon. Candace and
Christine went to bed shortly thereafter and Carla remained on the
sofa in the front room to watch television. The front door and
screen were closed but not locked at that time.
Another call was made at 1:00 a.m. on the morning of 29 May
2001, however, Carla did not answer it. Sometime thereafter, Carla
fell asleep on the sofa, but was awakened around 4:00 a.m. by a
bumping noise. Carla discovered that the screen door was propped
open and that both her and Candace's purses were missing. Carla's
purse contained personal identification, credit cards, a money
order, $400.00 to $500.00 in cash, identification for her father,
Charles Patterson, and her father's endorsed paycheck in the amount
of $391.00 from Holiday Pools to be cashed and used to pay his
bills. The women considered the possibility that defendant had
taken the purses, due to the earlier phone calls and the fact that
defendant had entered their residence in the night the week prior
to the break-in, and had awakened Candace by sitting on her bed.
On 31 May 2001, defendant attempted to cash a $391.00 paycheck
from Holiday Pools made out to Charles Patterson at the drive-thru
of a Wachovia bank. After the teller noted that the identification
was for a much older man than defendant, she instructed defendantto enter the bank. Defendant left the scene. The teller
positively identified defendant as the individual who attempted to
cash Charles Patterson's paycheck.
Two weeks following the break-in, Candace met her sister Jesse
Patterson (“Jesse”) at the Tee-Time bar, where she saw defendant
playing pool with his brother, Jason. Candace heard defendant say,
“I'm not worried about them bitches. I got them anyway.” Jesse
heard defendant say “I got you girls, I got your stuff.” Candace
threatened defendant with a pool cue, but was stopped by Jason, and
then left the bar.
Defendant offered no evidence.
The jury returned a verdict of guilty as to first degree
burglary and defendant was sentenced to 108 to 139 months in
prison. Defendant appeals.
I.
[1] Defendant first contends that the trial court erred in
refusing defendant's request to instruct the jury on the lesser-
included offense of misdemeanor breaking or entering. We disagree.
“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.”
State v. Smith, 351 N.C. 251, 267, 524
S.E.2d 28, 40 (2000). “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 other
than defendant's denial that he committed the offense, defendant isnot entitled to an instruction on the lesser offense.”
Id. at
267-68, 524 S.E.2d at 40.
“The essential elements of felonious breaking or entering are
(1) the breaking or entering (2) of any building (3) with the
intent to commit any felony or larceny therein.”
State v.
Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992);
see also
N.C. Gen. Stat. § 14-54 (2005). Defendant concedes that the
State's evidence was sufficient to submit the charge of first
degree burglary to the jury, but contends that, similar to the case
of
State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994), the
requested instruction as to the lesser-included offense of
misdemeanor breaking and entering should have been given. In
Barlowe, conflicting evidence was presented as to the intent of the
defendant to commit the felony of murder upon entering the home.
Id. at 378, 446 S.E.2d at 356-57. The defendant testified that he
loved the victim as a second mother and did not intend to injure
anyone when he went to the home in search of his wife, that his
rifle occasionally discharged accidentally, that he had activated
the safety, and that the gun accidentally discharged when he stuck
it through the door of the house.
Id. at 378, 446 S.E.2d at 356.
One of the State's witnesses corroborated that the defendant had
offered the same explanation moments after the shooting.
Id. at
378, 446 S.E.2d at 357.
Barlowe concluded that:
To determine whether this evidence is
sufficient for submission of the lesser
offense to the jury, we must view the evidence
in the light most favorable to defendant.
Applying this standard, we cannot say as a
matter of law that the evidence does notpermit a reasonable inference that defendant
did not possess the requisite intent. The
credibility of the evidence and whether in
fact defendant did or did not possess the
requisite intent is for the jury to decide.
Id.
Here, unlike in
Barlowe, no conflicting evidence was offered
as to defendant's intent to commit a felony, in this case, first
degree burglary, upon entering the home. “The intent to commit the
felony must be present at the time of entrance, and this can but
need not be inferred from the defendant's subsequent actions.”
State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995).
The State presented clear evidence of each element of the crime,
including defendant's intent, as evidenced by defendant's
subsequent actions in attempting to cash Charles Patterson's check.
See Montgomery, 341 N.C. at 568, 461 S.E.2d at 740 (holding that
“the State's evidence that defendant stole money from a purse after
he entered the apartment was substantial evidence that he had the
intent to commit larceny when he entered the apartment” and finding
no error in the trial court's failure to submit the lesser-included
offense of misdemeanor breaking and entering to the jury).
As the State's evidence was sufficient to fully satisfy its
burden of proof on each element of the greater offense and no
evidence was offered to negate those elements, defendant was not
entitled to an instruction on the lesser-included offense, and the
trial court did not err in denying the request.
II.
[2] Defendant next contends that he was denied a fair
sentencing hearing as the trial court improperly based its
sentencing decision on defendant's rejection of a guilty plea. We
disagree.
A sentence within the statutory limit
will be presumed regular and valid. However,
such a presumption is not conclusive. If the
record discloses that the court considered
irrelevant and improper matter in determining
the severity of the sentence, the presumption
of regularity is overcome, and the sentence is
in violation of defendant's rights.
State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977).
Defendant contends that the trial court improperly considered
defendant's decision to reject a guilty plea in sentencing him,
based on the following remarks by the trial court prior to the
trial:
[THE COURT:] Now -- now, young man, just
want to make sure you understand this, a Class
D felony, you're a prior record Level IV. If
you were to plead before we start picking this
jury, [and] the Court sentence[d] you in the
mitigated range, you would be looking at five
years and eleven months, one month shy of six
years.
If we go to trial -- Mr. Crawford?
[DEFENDANT]: Yes, sir.
THE COURT: We go to trial and you're
convicted, you're going to be looking at
somewhere[] between 94 and 117 months. So,
you're looking between eight and close to ten
years versus six years. So, you [are]
guaranteed to be sentenced to at least two
more years if you're convicted by a jury of
first degree burglary versus whether you
plead.
All right. I just want to make sure you
understand that so in the event you areconvicted, I don't want you to think that no
one gave you an opportunity to mitigate your
losses. Okay?
Following defendant's jury trial, defendant was sentenced within
the presumptive range as a Level IV offender to 108 to 139 months.
Defendant contends that such a sentence was harsher than would
otherwise have been imposed, based on the trial court's remarks.
“A defendant has the right to plead not guilty, and 'he should
not and cannot be punished for exercising that right.'”
State v.
Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003) (citation
omitted).
“Where it can reasonably be inferred from the
language of the trial judge that the sentence
was imposed at least in part because defendant
did not agree to a plea offer by the state and
insisted on a trial by jury, defendant's
constitutional right to trial by jury has been
abridged, and a new sentencing hearing must
result.”
State v. Poag, 159 N.C. App. 312, 324, 583 S.E.2d 661, 670 (2003)
(citation omitted).
In
State v. Poag, this Court held that a trial court's
decision to state the terms of an accepted plea bargain was merely
“an effort to make the plea bargain more definitive and eliminate
any question that defendant might have about the resulting sentence
that the trial court would impose in its discretion.”
Id.
Poag
concluded that such statements, standing alone, failed to show that
the trial court's imposition of a harsher sentence following a jury
trial was punishment for rejection of the plea offer, particularly
as the trial court did not indicate at sentencing that it was
imposing such a sentence as a result of the defendant's rejectionof the plea.
Id.
Poag held that the trial court “was not limited
by the initial terms of the plea bargain and was free to impose a
fair and appropriate sentence after the jury returned a guilty
verdict.”
Id.
Defendant cites as authority this Court's decision in
State v.
Young, 166 N.C. App. 401, 602 S.E.2d 374 (2004),
disc. review
denied, 359 N.C. 326, 611 S.E.2d 851 (2005). In
Young, the trial
court stated following discussion of pre-trial motions, “'Now,
[defendant], if you pled straight up, I know the State is not going
to offer you any pleas, but
if you pled straight up I'd sentence
you at the bottom of the mitigated range. But that's--that's about
as good as we can get with these habitual felons[.]'”
Id. at 411,
602 S.E.2d at 380. After a discussion of the likely admissibility
of the defendant's prior drug convictions, the trial court stated:
“Now, if you go to trial and he's convicted,
I'll be perfectly honest with you, I'm not
going to sentence him--I doubt I would
sentence him in the aggravated range. I may,
but it just depends upon how bad it is, but he
definitely would probably get a sentence in
the--he would definitely get a sentence in the
presumptive range. I probably wouldn't go
back to the mitigated range since I'm offering
this now prior to trial, but I'll let you
think about it, unless you already know that
he's not interested in it.”
Id. at 412, 602 S.E.2d at 380. Following the defendant's decision
to proceed to trial and conviction by jury, the trial court stated
at the sentencing conference, “'All right. [Defense counsel], you
care to be heard on behalf of your client? I believe I previously
indicated what the Court's position would be at sentencing, but
I'll still consider whatever you have to say.'”
Id. Although thedefendant made a brief argument for a mitigated sentence, the trial
court found no mitigating or aggravating factors and imposed a
sentence in the presumptive range.
Id. at 412, 602 S.E.2d at 380-
81. This Court found on the record in
Young, that the defendant's
sentence “was based, at least in part, on his refusal to plead
guilty and to instead pursue a jury trial,” and held that the
defendant was entitled to a new sentencing hearing.
Id. at 412-13,
602 S.E.2d at 381.
Here, similar to
Poag, the trial court's remarks prior to
trial served to clarify the terms of the offered plea bargain and
eliminate questions regarding a subsequent sentence. A review of
the record reveals that the trial court did not indicate at
sentencing that it was imposing a sentence in the presumptive range
as a result of defendant's rejection of the plea bargain. Unlike
in
Young, where no plea bargain had been offered, and the trial
court specifically referenced the pre-trial discussion during
sentencing and made reference to the trial court's previous stated
position on sentencing, here the trial court allowed both attorneys
to speak as to aggravating and mitigating factors without comment.
The State offered the aggravating factors that defendant took
advantage of a position of trust and that the sum of money stolen
was large. Defendant offered no mitigating factors. The trial
court then sentenced defendant in the presumptive range, stating:
“The Court will make no finding of mitigating nor aggravating
factors. Court will sentence the defendant to a minimum of 108 and
a maximum of 139 months in the North Carolina Department ofCorrections.” The trial court's statements, taken as a whole, do
not allow a reasonable inference to be drawn that defendant's
sentence was based on his refusal to plead guilty and to instead
pursue a jury trial.
As defendant failed to show the existence of a reasonable
inference that the trial court imposed a presumptive sentence as a
result of defendant's decision to exercise his right to a jury
trial, this assignment of error is without merit.
III.
[3] Defendant finally contends that the trial court erred in
sentencing defendant as a Level IV offender without proof by the
State of his prior record level. We disagree.
N.C. Gen. Stat. § 15A-1340.14(f) (2005) states that prior
convictions may be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
reliable.
Id. “'“While a stipulation need not follow any particular form,
its terms must be definite and certain in order to afford a basis
for judicial decision, and it is essential that they be assented to
by the parties or those representing them. Silence, under some
circumstances, may be deemed assent . . . .”'”
State v. Alexander,
359 N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (citations omitted). Prior to the commencement of the jury trial, during discussion
of the potential plea bargain, defendant's counsel volunteered to
the trial court that “[defendant] is a Level IV, Judge.” During
sentencing following defendant's conviction by the jury, the trial
court again asked if defendant was a prior record level IV, which
the State confirmed without objection by defendant. Defendant's
affirmative statement as to his prior record level constitutes a
stipulation for purposes of N.C. Gen. Stat. § 15A-1340.14(f). We
therefore find this assignment of error to be without merit.
As the trial court did not err in failing to give an
instruction as to the lesser-included offense of misdemeanor
breaking and entering, defendant failed to establish a reasonable
inference that his presumptive sentence was punishment for his
failure to take a plea bargain, and defendant's prior record level
was stipulated to by counsel, we find no error in defendant's
judgment and conviction.
No error.
Chief Judge MARTIN and Judge McCULLOUGH concur.
*** Converted from WordPerfect ***