STATE OF NORTH CAROLINA
v. New Hanover County
No. 04 CRS 69507
ERVIN CORNELL HARLEE
Attorney General Roy Cooper, by Associate Attorney General
Kathryne E. Hathcock, for the State.
William D. Spence for defendant-appellant.
LEVINSON, Judge.
At approximately 6:00 p.m. on 29 December 2004, Crystal
Jenkins (Jenkins) walked from her house, located in the Greenfield
Lake area of Wilmington, to her van parked in front of the house.
When Jenkins approached the driver's side door, she noticed a man
staring at her from inside her van. The man, who wore a dark gray
hat and a camouflage jacket, did not have permission to be inside
Jenkins' van
. Upon questioning, defendant stated that he was
sleeping. After the police were called, the man exited the van and
began walking down the street. Jenkins inspected the interior of
her van and noticed that the glove box was opened, her spare change
was missing, and the compact disk player was “hanging out” of itscompartment.
Four hours later, Wilmington Police Officer John Musacchio
responded to a dispatch call to investigate a suspicious person
pulling on car doors in the same residential area where Jenkins
lived. While Officer Musacchio checked the vehicles in the area,
he observed a man in a green Land Rover, “laying on the center
console.” Officer Musacchio banged on the window and asked the
man, later identified as defendant, to step out of the vehicle.
When Officer Musacchio asked defendant if the Land Rover belonged
to him, defendant initially answered that the vehicle was his, but
then said, “no, it's not.” Officer Musacchio patted defendant down
for weapons for safety reasons
. Under defendant's clothing,
Officer Musacchio found loose change consisting of 474 pennies, 41
nickels, 50 dimes, 17 quarters and one dollar bill; and a cigarette
box containing a ceramic pipe
and residue from a marijuana joint.
Malcolm Campbell, the owner of the Land Rover, told another officer
at the scene that he had not given the defendant permission to be
inside his Land Rover. Campbell testified that he inspected the
interior of his vehicle the next morning and noticed that spare
change that he kept in the console was missing
and that a “hard
pocket” that held maps was smashed and pulled out from the door
panel.
Defendant was transported to the police station and
interviewed. Defendant told Sergeant Mike Fanta that he went into
Campbell's vehicle “to sleep.”
Both Officer Musacchio and Sergeant
Fanta testified at trial that the ceramic pipe found on defendant'sperson was a “crack pipe.” Officer Musacchio noted that the
ceramic pipe had “burn marks where a lighter had been used to heat
the crack cocaine.”
Defendant did not present any evidence.
A jury found defendant guilty of breaking and entering the
motor vehicle of Malcolm Campbell and of possession of drug
paraphernalia. The trial court sentenced defendant to 9 to 11
months imprisonment for the breaking and entering conviction and
120 days for the drug paraphernalia conviction. Defendant appeals.
The sole issue on appeal is whether the trial court erred in
denying defendant's motion to dismiss based on insufficiency of the
evidence. The standard for ruling on a motion to dismiss “is
whether there is substantial evidence (1) of each essential element
of the offense charged and (2) that defendant is the perpetrator of
the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990) (citation omitted). Substantial evidence is that
relevant evidence which a reasonable mind might accept as adequate
to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50,
439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the
trial court must consider all of the evidence in the light most
favorable to the State, and the State is entitled to all reasonable
inferences which may be drawn from the evidence. State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any
contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant
dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237
(1996). To prevail on the charge of
breaking and entering into a motor
vehicle, the State must show “(1) a breaking or entering (2)
without consent (3) into any motor vehicle (4) containing . . .
anything of value (5) with the intent to commit any felony or
larceny therein.” State v. Riggs, 100 N.C. App. 149, 155, 394
S.E.2d 670, 673 (1990); N.C. Gen. Stat. § 14-56 (2005). Defendant
here only challenges the sufficiency of the element of intent to
commit any felony or larceny. “An intent to commit larceny at the
time of the breaking or entering may be inferred from the
defendant's conduct and other circumstances shown by the evidence.”
State v. Thomas, 153 N.C. App. 326, 334, 570 S.E.2d 142, 147
(2002).
When viewed in the light most favorable to the State, the
evidence tended to show that police discovered defendant in the
Land Rover without Campbell's permission; that defendant had a
great amount of loose change on his person; and that Campbell
noticed change missing from his vehicle. We conclude this evidence
was sufficient to justify submission of the issue of defendant's
intent to the jury.
Under N.C. Gen. Stat. § 90-113.21 (2005), “drug paraphernalia”
is defined as “all equipment, products and materials of any kind
that are used to facilitate, or intended or designed to facilitate,
violations of the Controlled Substances Act, including . . .
ingesting, inhaling, or otherwise introducing controlled substances
into the human body.” Further, drug paraphernalia includes:
(12) Objects for ingesting, inhaling, or
otherwise introducing marijuana, cocaine . . .into the body, such as:
a. Metal, wooden, acrylic, glass, stone,
plastic, or ceramic pipes. . . .
N.C. Gen. Stat. § 90-113.21(a)(12)a (2005). In order to sustain
a conviction under G.S. § 90-113.22, the State must prove both (1)
possession of drug paraphernalia and (2) “the intent to use [the
paraphernalia] in connection with controlled substances.” State v.
Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992).
Defendant again challenges the State's evidence on the element of
intent.
Viewing the evidence in the light most favorable to the State,
the evidence tended to show that police found the ceramic pipe
among defendant's layers of clothes. Officer Musacchio testified
that, through his experience as a police officer, a ceramic pipe is
“used to ingest crack cocaine” and that defendant's ceramic pipe
had “burn marks where a lighter had been used to heat the crack
cocaine.” Sergeant Mike Fanta also testified that it was apparent
to him that the pipe seized from defendant was a crack pipe. We
conclude that this evidence is substantial and supports an
inference of defendant's intent to use the ceramic pipe in
connection with controlled substances and, thus, sufficient for the
trial court to submit the issue to the jury. Accordingly, the
trial court properly denied defendant's motion to dismiss the
charges against him.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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