An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 March 2006
STATE OF NORTH CAROLINA
Nos. 04 CRS 054015,
MICHAEL HIAWATHA MARTIN 04 CRS 016989
Appeal by defendant from judgments entered 2 December 2004 by
Judge W. Douglas Albright in Forsyth County Superior Court. Heard
in the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
Daniel F. Read for defendant appellant.
Defendant Michael Hiawatha Martin appeals from a conviction
for felonious breaking or entering and from a judgment sentencing
him as an habitual felon for this offense, and also from a
conviction and judgment for misdemeanor larceny. We hold that
defendant received a fair trial, free from prejudicial error, and
we affirm the trial court's judgments with exception of the order
of restitution. On the issue of restitution, we remand for
At approximately 11:00 a.m. on 30 March 2004, the owner of a
retail book store in Winston-Salem noticed a black male walk past
the house at 129 Wheeler Street, then turn around, run up to thehome, and jump into a window. The store owner called the police.
Officers Freeman and Bowens with the Winston-Salem Police
Department were dispatched to 129 Wheeler Street, and they called
for assistance. As Officer Freeman walked around the house, he
heard someone moving around inside and using obscenities. He then
saw a black male, whom he later identified as defendant, run out of
the house. Officer Freeman pursued this individual, and following
a struggle, apprehended him. A search of defendant's person
revealed that he was in possession of a piece of a table saw at the
time he was apprehended. Defendant told Officer Freeman that he
needed money to purchase crack and that he had gone into the house
to get money for himself and his girl. Another officer, Officer
Giles, also responded to the scene and noticed a table saw sitting
on a windowsill and protruding from a window to the home.
The house at 129 Wheeler Street was not occupied and was being
renovated by a home repairman named Michael Conrad. Conrad
informed Officer Giles that he kept his tools in the home and that
some of them were missing, including a nail gun, an air compressor,
a miter saw, a power drill, a jigsaw, a hammer, a screwdriver, a
kerosene heater, a fuel container, a portable heater, and other
hand tools. He identified the table saw protruding from the window
as his and the piece of the saw which had been found on defendant
as being part of the saw.
A Forsyth County jury convicted defendant of felonious
breaking or entering and misdemeanor larceny, and in a subsequent
proceeding, found that defendant was an habitual felon. The trialcourt sentenced defendant as an habitual felon for the breaking or
entering to a term of 144 to 182 months of imprisonment and
sentenced defendant to a consecutive term of 120 days of
imprisonment for the larceny. Defendant now appeals.
In his first argument on appeal, defendant contends that the
trial court erred by allowing a juror to ask a question of Officer
Robertson during the officer's testimony. Given the facts of the
instant case, we discern no prejudicial error arising from the
juror's questioning of the officer.
A juror may be permitted to ask a question of a trial witness
if a trial judge in his discretion so allows. State v. Howard, 320
N.C. 718, 725-26, 360 S.E.2d 790, 794 (1987). However, jurors are
likely to be unfamiliar with the Rules of Evidence and may ask
prejudicial questions, in which case the defendant is placed in
the untenable position of having to choose between not objecting
and letting the possibly prejudicial testimony in or objecting to
the question and risking offending the juror. Id. Accordingly,
our Supreme Court has noted that
the better practice is for the juror to submit
written questions to the trial judge who
should have a bench conference with the
attorneys, hearing any objections they might
have. The judge, after ruling on any
objections out of the presence of the jury,
should then ask the questions of the witness.
Questions should ordinarily be for
clarification and the trial judge should
exercise due care to see that juror questions
are so limited.
Id. at 726, 360 S.E.2d at 795.
In the instant case, the trial court permitted a juror to ask
the following questions of Officer Robertson:
[JUROR TWO]: At one time you said that [defendant]
jumped the front fence and you jumped over the fence
while he was trying to get up and you just pushed him
[OFFICER ROBERTSON]: Yes, ma'am.
[JUROR TWO]: But there was another time when you
said he jumped the front fence and headed around the
front of the house, and I was just wondering--
[OFFICER ROBERTSON]: No--no, ma'am, I did not say
that. He--he jumped the front fence; and when he went
over the fence, he fell down into the yard.
[JUROR TWO]: Okay. I misunderstood.
[OFFICER ROBERTSON]: Okay.
THE COURT: Does that answer your question?
JUROR TWO: Yes.
We reiterate that it would have been preferable for the trial court
to hold a brief bench conference regarding the question and then
ask the question of the witness himself. However, there was
nothing objectionable about the question posed by the juror.
Further, the question concerned the circumstances surrounding
defendant's capture and was unrelated to the substantive offenses
for which defendant was being tried. Accordingly, we are entirely
unpersuaded that defendant suffered any prejudice from the juror
posing the question to the officer.
Defendant also contends that the trial court erred by denying
his motion to dismiss the felony breaking or entering charge.
Specifically, defendant argues that there was no evidence that he
intended to commit a larceny. We disagree.
A trial court should deny a motion to dismiss if, considering
the evidence in the light most favorable to the State and giving
the State the benefit of every reasonable inference, there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
[T]he rule for determining the sufficiency of evidence is the same
whether the evidence is completely circumstantial, completely
direct, or both. State v. Wright, 302 N.C. 122, 126, 273 S.E.2d
699, 703 (1981).
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. N.C. Gen. Stat. §
14-54(a) (2005); State v. Gray, 322 N.C. 457, 460, 368 S.E.2d 627,
629 (1988). Intent is a mental attitude seldom provable by direct
evidence. It must ordinarily be proved by circumstances from which
it may be inferred. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d
506, 508 (1974).
In the instant case, defendant stated that he was in the house
because he was trying to get money for crack, and a piece of atable saw that was being stored in the home was found on his
person. Based upon this evidence, the jury could permissibly infer
that defendant intended to commit a larceny when he entered the
home at 129 Wheeler Street. Accordingly, the trial court properly
denied defendant's motion to dismiss.
Defendant next contends that the trial court erred by granting
the prosecution's motion to correct the certification of the
felonies upon which defendant's habitual felon indictment was
premised. As defendant notes, a Stokes County Assistant Clerk of
Superior Court mistakenly indicated that the certification was
executed on 17 June 1904 when, in fact, the certification was
executed by the Assistant Clerk on 17 June 2004, and the trial
court corrected the certification to reflect the correct date.
[A] court of record has the inherent power and duty to make
its records speak the truth. It has the power to amend its records,
correct the mistakes of its clerk or other officers of the court,
or to [rectify] defects or omissions in the record. State v.
Broadway, 259 N.C. 243, 245, 130 S.E.2d 337, 338 (1963) (per
curiam). We discern no error in the trial court's decision to
exercise this power to correct the erroneous certification.
Defendant next contends that the trial court erred by granting
the prosecutor's motion to amend the habitual felon indictment to
include the correct date for defendant's prior felony convictions.
This Court has held that an habitual felon indictment may beamended to correct erroneously listed conviction dates because it
is the fact that another felony was committed, not its specific
date, which is the essential question in the habitual felon
indictment. State v. Hargett, 148 N.C. App. 688, 693, 559 S.E.2d
282, 286 (citing State v. Locklear, 117 N.C. App. 255, 260, 450
S.E.2d 516, 519 (1994)), disc. review improvidently allowed, 356
N.C. 423, 571 S.E.2d 583 (2002). Accordingly, the trial court did
not err by ordering the present defendant's habitual felon
indictment to be amended to include accurate conviction dates.
Defendant next contends that the trial court erred by
conducting an habitual felon hearing and by sentencing him as an
habitual felon, because at the time defendant pled guilty to the
most recent prior felony listed in the habitual felon indictment,
he was not informed that his guilty plea would expose him to
punishment as an habitual felon. Defendant's assertion is
inaccurate inasmuch as he avers that his plea of guilty to the most
recent felony listed in his habitual felon indictment exposed him
to punishment as an habitual felon. Rather, it was the felony
breaking or entering conviction at issue in the instant case that
exposed defendant to enhanced punishment as an habitual felon. Had
defendant committed no additional crimes after the felonies listed
in his habitual felon indictment, he would not have been exposed to
enhanced punishment. See N.C. Gen. Stat. § 14-7.2 (2005) (providing
that a person must be convicted of a felony after attaining the
status of an habitual felon to be punished as an habitual felon). Accordingly, we reject defendant's argument that he could not be
convicted of being, or sentenced as, an habitual felon unless he
was informed of this potential consequence at the time he pled
guilty to the most recent prior felony listed in his habitual felon
Defendant next contends that the sentence he received as an
habitual felon constituted cruel and unusual punishment in
violation of the federal and state constitutions. This argument
is contrary to the opinions of this Court affirming enhanced
sentences for habitual felons. See, e.g., State v. Clifton, 158
N.C. App. 88, 95-96, 580 S.E.2d 40, 45-46 (affirming a judgment
sentencing a defendant as an habitual felon where he had committed
a class H felony), cert denied, 357 N.C. 463, 586 S.E.2d 266-67
(2003). Accordingly, we reject defendant's argument that his
sentence was unconstitutionally severe.
In his final argument on appeal, defendant contends that the
trial court erred by ordering him to pay $2,560.00 in restitution
where the evidence did not support a finding as to this amount. We
[R]estitution is intended to compensate victims for loss or
damage, and not as a punitive measure against defendants. A trial
court's [restitution order] may easily fall into this latter . . .
[category] when there is no basis to support it. State v. Hunt,
80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). Accordingly, anorder of restitution must be supported by the evidence before the
trial court. Id.
In the instant case, the trial court merely accepted the
restitution worksheets prepared by the owner of the home at 129
Wheeler Street, whose windows had been damaged by defendant, and
repairman Michael Conrad, whose tools had been stolen by defendant.
The homeowner estimated that he was owed $260.00 in restitution,
and Conrad estimated that he was owed $2,300.00 in restitution.
However, the homeowner did not provide testimony or present an
affidavit detailing the value of the broken windows or the cost of
repair. Likewise, Conrad presented testimony as to the value of
only some of his stolen tools. Specifically, Conrad testified that
his table saw was worth approximately $200.00, that his jigsaw was
worth $50.00, that his miter saw was worth $220.00, that his air
compressor was worth approximately $240.00, that his nail gun was
worth approximately $79.00, and that he had lost numerous
miscellaneous tools for which he did not state a value. Even
considered in a favorable light, there was insufficient evidence to
justify a total award of restitution in the amount of $2,560.00.
The trial court's order of restitution is vacated, and this
case is remanded for resentencing on the issue of restitution.
We have reviewed the remaining assignments of error brought
forward in defendant's brief and have found them to be without
No error in defendant's trial; no error in part with respectto judgment; remanded for resentencing on the issue of restitution
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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