STATE OF NORTH CAROLINA Guilford County
No. 05 CRS 76050
v . 05 CRS 76051
05 CRS 76037
DWIGHT LAMONTE JEFFRIES
Attorney General Roy Cooper, by Assistant Attorney General V.
Lori Fuller, for the State.
William B. Gibson, for defendant.
Dwight Lamonte Jeffries (defendant) appeals judgments entered upon his convictions for attempted first degree burglary, possession of implements of housebreaking, and possession of a handgun by a felon. We find no error.
The pertinent facts may be summarized as follows: On 23 April 2005 Tamara Slaughter's husband was away on business. Slaughter and her three sons were asleep in their home in Greensboro, North Carolina. Slaughter heard the front doorbell ring and because she was not comfortable home alone with three children, not knowing who's at the door . . . at 3:30 a.m., Slaughter called 911. After a few moments, Slaughter heard a sound at the back door as someone attempted to turn the doorknob, which was followed by the sound ofsomeone prying at the door. Slaughter called 911 again and stayed on the line with the dispatcher. Slaughter then heard the individual go to the screened back porch and attempt to pry open that door. Slaughter later discovered additional pry marks on a nearby window. Slaughter never caught sight of the individual responsible for these noises, as she sought to stay out of view.
Officer Theodore Douglas of the Greensboro Police Department arrived and heard noises that sounded as if someone was scraping on the back door of the Slaughter home. Douglas turned on his flashlight and illuminated an individual wearing all black standing at the back door about ten to fifteen feet away from him. After being illuminated, the individual fled toward the street. When the suspect ran around the corner of the house toward the front yard, Douglas lost sight of him for a brief second. Douglas successfully apprehended the suspect after a brief foot pursuit. Upon apprehension, the suspect was identified as defendant, Dwight Lamonte Jeffries. Officer J.P. Sullivan soon arrived to assist Douglas. The officers searched defendant and found a screwdriver next to him and a flashlight in his jacket pocket. Defendant was dressed in dark clothing, with black gloves and a do rag on his head.
The investigating officers obtained a warrant to search defendant's vehicle, a Ford Taurus registered to defendant, parked approximately five blocks from Slaughter's residence. Officer Kyle Davis discovered a loaded Ruger pistol underneath the front passenger seat of the vehicle. There was a round in the gun'schamber and additional rounds in its magazine. Detective E.J. Bruscino discovered several screwdrivers, a flashlight and a blue bandanna under the passenger seat.
After being taken into custody, Douglas testified, defendant told him, I f[-----] up. I had something on my mind. And I need some help. Detective Bruscino interviewed defendant at 11:35 a.m. and testified that defendant told him, I messed up and My life is over. I'm going to get one hundred years for this. Defendant told Bruscino that his car had recently been stolen. The officers confirmed that a stolen vehicle report was filed 22 January 2005, and that the vehicle was recovered 3 February 2005. Additionally, according to Bruscino, defendant made a telephone call while in custody and stated, My car was stolen in January. I don't know anything about a gun. Whatever was in the car, I'm not responsible for. I haven't looked through it . . . . I'm familiar with the flashlight and screwdrivers, but not the gun. Officer Patrina Caviness, who recovered the stolen vehicle, testified that there was not a gun in the car at the time it was recovered and returned to defendant on 3 February 2005.
Defendant testified. On the night of 23 April 2005, his vehicle broke down. On three or four occasions since it was recovered after its theft, he had taken the vehicle for repairs due to electrical failures. Defendant further testified that he was wearing gloves because the car would shock him if he touched it barehanded. Defendant stated that when he was unable to restart the vehicle, he began walking through a residential neighborhood tofind a telephone. At one point, a dog approached him and he used his mini-flashlight and the screwdriver to scare the animal away. He observed a house with a light on at the back. He approached the house to see whether someone there would allow him to use a telephone. It was at this time that he observed a black male with dreadlocks who took off running by him. Then, about ten minutes later, defendant heard a police officer instructing him to lay down on the ground. He did not know there was a gun in his car, and he did not try to break into the Slaughter residence.
The parties stipulated that a .45-caliber Ruger handgun, six
live rounds, and a Ruger magazine were recovered from the defendant's Ford Taurus; these items were examined for latent fingerprints but none were found. The parties further stipulated that defendant had a prior felony conviction in Guilford County on 19 February 1998.
Defendant was convicted of attempted first degree burglary, possession of implements of housebreaking, and possession of a handgun by a felon. He pled guilty to unrelated offenses, and the court entered judgments accordingly. Defendant now appeals.
In defendant's first argument on appeal, he contends the trial court lacked jurisdiction to try and enter judgment against him for attempted first degree burglary because the indictment was fatally defective. Specifically, defendant argues the indictment failed to allege an essential element of the crime charged _ that the attempted burglary was done without consent. We disagree.
In the case sub judice, the indictment provided that: the defendant named above unlawfully, willfully and feloniously did attempt during the nighttime hours to break and enter the dwelling house of Tamara Slaughter, located at 2206 Granville Road, Greensboro, North Carolina. At the time of the attempted breaking and entering, the dwelling house was actually occupied by Tamara Slaughter. The defendant attempted to break and enter with the intent to commit a felony therein, larceny.
N.C. Gen. Stat. § 15A-924 (2005) sets forth the requirements for an indictment:
A criminal pleading must contain . . . a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
It is generally held that the language in a statutorily prescribed form of criminal pleading is sufficient if the act or omission is clearly set forth so that a person of common understanding may know what is intended. State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984) (citing 41 Am. Jur. 2d, Indictments and Informations § 68 (1968)). An indictment charging a statutory offense must allege all of the essential elements of the offense. State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996).
N.C. Gen. Stat. § 14-51 (2005) provides in pertinent part that:
If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling houseor sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree.
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). Additionally, [t]he elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense. State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996).
Here, the indictment alleged all of the essential elements of the crime of attempted first degree burglary. It was therefore sufficient to allege this offense, and this assignment of error is overruled.
In defendant's second argument on appeal, he contends that the trial court erred by denying his motion to dismiss the charge of attempted first degree burglary because there was insufficient evidence to prove that defendant attempted to break and enter the residence with the intent to commit a felony therein. We disagree.
When ruling on a motion to dismiss, the trial court must determine only whether 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). Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (internal citations and quotation marks omitted). [T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both. State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (2005)(quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)).
In the instant case, defendant only challenges the sufficiency of the evidence that he intended to commit a felony inside the Slaughter residence. Here, the evidence shows that, after no one responded to the doorbell at 3:30 a.m., defendant attempted to pry open the back door and a nearby window. When approached by police, defendant ran. When he was apprehended, defendant was wearing all black clothing and was in possession of a flashlight and screwdriver. Taken in the light most favorable to the State, this is sufficient evidence of an intention to commit a felony inside the residence. Accord State v. Goodman, 71 N.C. App. 343, 346-47, 322 S.E.2d 408, 411 (1984)([T]he usual and reasonable inference of an intent to steal is no less under the circumstances of an attempted burglary than of a successful burglary itself. Therefore, the attempted breaking and entering of an occupied dwelling by defendant based upon evidence that he loosened the corner of a window screen during the nighttime coupled with his flight upon discovery constitutes substantial evidence that defendant attempted to commit a felony therein.). This assignment of error is overruled.
In defendant's third argument on appeal, he contends that the trial court erred by denying his motion to dismiss the charge of possession of implements of housebreaking because the State failed to present substantial evidence that defendant possessed a screwdriver without lawful excuse or for the purpose to attempt housebreaking. We disagree.
The offense of possession of an implement of housebreaking is defined as follows: If any person . . . shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking . . . such person shall be punished as a Class I felon. N.C. Gen. Stat. § 14-55 (2005). Upon indictment for [possession of an implement of housebreaking] under G.S. § 14-55, the State has the burden of proving the following two things: (1) that the defendant was found to have in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute and (2) that such possession was without lawful excuse. State v. Beard, 22 N.C. App. 596, 598, 207 S.E.2d 390, 391 (1974). Prosecution for possession of an implement of housebreaking does not require proof of any specific intent to break into a particularbuilding at a particular time and place[.] State v. Bagley, 300 N.C. 736, 740, 268 S.E.2d 77, 79-80 (1980). Rather, the burden rests on the State to show beyond a reasonable doubt that the defendant possessed the article in question with a general intent to use it at some time for the purpose of facilitating a breaking. Id. at 740-41, 268 S.E.2d at 79-80.
The evidence supporting a conclusion that defendant had the intent to commit a felony inside the Slaughter residence also supports a conclusion that defendant possessed the screwdriver for the purpose of using it to facilitate a breaking. Accordingly, this assignment of error is overruled.
In defendant's fourth argument on appeal, he contends the trial court erred by denying his motion to dismiss the charge of possession of a handgun by a felon because the State failed to present substantial evidence that defendant had constructive possession of the firearm. We disagree.
N.C. Gen. Stat. § 14-415.1 (2005) provides, in pertinent part, that [i]t shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm . . . . Possession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item. A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted). In the instant case, after defendant was arrested, Officer Kyle discovered a loaded Ruger pistol underneath the front passenger seat of a vehicle registered to defendant. Although defendant's vehicle had been reported stolen, the officer who recovered the vehicle testified there was no gun in it at the time it was returned to defendant on 3 February 2005. In addition, the evidence demonstrated that defendant was the sole driver of his vehicle during the early morning of 23 April 2005. Taken in the light most favorable to the State, a jury could reasonably infer that defendant had the power and intent to control the disposition of the Ruger handgun found under the passenger seat of his vehicle. This assignment of error is overruled.
We have carefully evaluated defendant's remaining assignment of error and conclude that it is without merit.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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