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.
LEVINSON, Judge.
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.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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