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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 February 2007
STATE OF NORTH CAROLINA
No. 04 CRS 054631
HAROLD CHADWICK WALKER
Appeal by defendant from judgment entered 1 November 2005 by
Judge William C. Gore, Jr., in Columbus County Superior Court.
Heard in the Court of Appeals 10 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
William L. Davis, III, for defendant-appellant.
Harold Chadwick Walker (defendant) appeals from judgment
entered after a jury found him to be guilty of felonious breaking
or entering and attempted felonious larceny. We find no error.
The State's evidence tended to show Brenda (Brenda) and
Grady (Grady) Nealey resided in a house (the Nealey home) in
Chadbourne, North Carolina. Brenda operated a tanning salon
located twelve feet behind the Nealey home. Defendant lived behind
the Nealey's home and tanning salon. Brenda has known defendant
since his birth. Defendant and the Nealey children grew up
together, visited each other at their families' homes, and often
entered each others families' homes without knocking. On 9 December 2004, Brenda was working in the tanning salon.
Brenda had locked the back door to the Nealey home, but had not
locked the deadbolt. At approximately 1 p.m., Brenda observed
defendant, twenty-five-years-old, walk in the direction of the
Nealey home. Defendant passed by the tanning salon, but did not
pass the Nealey home. Brenda was curious where defendant had gone
and decided to walk out of the tanning salon. As Brenda exited the
tanning salon, Brenda observed the backdoor to the Nealey home
Brenda entered the Nealey home to investigate. Brenda walked
into her bedroom and saw defendant standing in front of Grady's
dresser. Brenda testified Grady keeps his medicine, Xanax, on top
of his dresser. Upon seeing defendant inside her bedroom, Brenda
asked him, [W]hat are you doing? Defendant replied, Fixing to
get Grady's medicine. I've got to go to court this evening and I
need something. On 7 February 2005, defendant was indicted on
charges of felonious breaking and/or entering and felonious
Brenda testified: (1) defendant had not been invited to the
Nealey home on 9 December 2004; (2) it had been approximately one
year since defendant had regular access to the Nealey home; (3)
defendant did not have permission to take Grady's medication out of
the Nealey home; and (4) defendant did not have permission to be in
Brenda and Grady's bedroom. Defendant offered no evidence. On 1 November 2005, a jury found defendant to be guilty of
felonious breaking or entering and attempted felonious larceny.
Defendant contends: (1) the trial court erred by denying his
motions to dismiss the charges at the close of the State's evidence
and all the evidence; (2) the trial court erred by admitting
improper Rule 404(b) evidence and in instructing the jury on Rule
404(b) evidence; (3) the prosecutor committed reversible error by
asking improper Rule 404(b) or prior bad acts questions; (4) the
trial court committed reversible error by denying his motion for
mistrial based upon the State introducing improper Rule 404(b)
evidence; and (5) the trial court improperly instructed the jury on
the charge of attempted felonious larceny.
III. Defendant's Motions to Dismiss
Defendant moved to dismiss the charges against him at the
close of the State's evidence. The trial court granted defendant's
motion and dismissed the charge of felonious larceny, but found
sufficient evidence to submit attempted felonious larceny to the
jury. Defendant argues insufficient evidence of any charge was
presented to the jury.
A. Standard of Review
Our Supreme Court has stated:
Upon defendant's motion for dismissal, the
question for the Court is whether there is
substantial evidence (1) of each essential
element of the offense charged, or of a lesser
offense included therein, and (2) of
defendant's being the perpetrator of suchoffense. If so, the motion is properly
. . . .
The evidence is to be considered in the light
most favorable to the State; the State is
entitled to every reasonable intendment and
every reasonable inference to be drawn
therefrom; contradictions and discrepancies
are for the jury to resolve and do not warrant
dismissal; and all of the evidence actually
admitted, whether competent or incompetent,
which is favorable to the State is to be
considered by the court in ruling on the
State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117 (1980)
(internal citations omitted).
B. Defendant's Argument
Defendant asserts the trial court erred by denying his motion
to dismiss and argues: (1) he was an invitee and (2) insufficient
evidence was presented that he intended to commit a felony or
larceny in the Nealey home. We disagree.
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.
Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575, 577 (1986)
The essential elements of larceny are that defendant (1) took
the property of another; (2) carried it away; (3) without the
owner's consent; and (4) with the intent to permanently deprive the
owner of the property. State v. Coats, 74 N.C. App. 110, 112, 327
S.E.2d 298, 300 (citing State v. Perry, 305 N.C. 225, 287 S.E.2d
810 (1982)), cert. denied, 314 N.C. 118, 332 S.E.2d 492 (1985).Larceny is a felony, without regard to the value of the property in
question, if the larceny is committed in violation of N.C. Gen.
Stat. § 14-54. N.C. Gen. Stat. § 14-72(b)(2) (2005). Defendant
was charged with committing larceny pursuant to a violation of N.C.
Gen. Stat. § 14-54, felonious breaking or entering. The elements
of an attempt to commit a crime are (1) an intent to commit the
crime, (2) an overt act done for that purpose, going beyond mere
preparation, (3) but falling short of the completed offense.
State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993).
The State introduced substantial and uncontroverted evidence
that: (1) defendant was inside the Nealey home on 9 December 2004;
(2) defendant had not been invited to the Nealey home on 9 December
2004; (3) approximately one year had passed since defendant had
regular access to the Nealey home; (4) defendant did not have
permission to be in Brenda and Grady's bedroom; and (5) defendant
did not have permission to take Grady's medication out of the
The State also introduced substantial and uncontroverted
evidence tending to show defendant entered the Nealey home with the
intent to take Grady's medication. When Brenda confronted
defendant about his actions, defendant responded he was, Fixing to
get Grady's medicine. I've got to go to court this evening and I
Substantial evidence of each essential element of felonious
breaking and/or entering and attempted felonious larceny was
presented. Powell, 299 N.C. at 98, 261 S.E.2d at 117. The Statealso presented substantial evidence that defendant was the
perpetrator of these offenses. The trial court properly denied
defendant's motions. Id. This assignment of error is overruled.
IV. Rule 404(b) Evidence
Defendant's assignments of error two, three, and four all
argue the trial court erred by allowing inadmissible Rule 404(b)
evidence of prior bad acts. Defendant contends the trial court
erred by: (1) admitting improper Rule 404(b) evidence; (2)
instructing the jury on Rule 404(b) evidence; and (3) denying his
motion for a mistrial based on the State improperly introducing
Rule 404(b) evidence.
A. Improperly Admitted Rule 404(b) Evidence
Defendant contends the trial court erred by admitting Rule
404(b) evidence to show propensity or a pattern of behavior by him.
Defendant argues that allowing Brenda to testify, he went in my
building one time before and took a check out, was error. We
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides, in
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
During defendant's trial the following exchange occurred:
Q. Did you have concerns about an abuse
problem on behalf of [defendant]?
Defense Counsel: Well, objection, your Honor.
Defense Counsel: Motion to strike.
Court: Strike this question, ladies and
gentlemen; do not consider it.
Q. Why did you say, Son, this can't go on?
Defense Counsel: Objection.
A: He had went in my building one time before
and took a check out.
Defense Counsel: Objection. Motion to
Court: Sustained. Ladies and gentlemen,
strike the answer; do not consider it.
Defense Counsel: Your Honor --
Court: Yes, sir.
Defense Counsel: I would like to be heard
outside the presence of the jury.
At this point in the trial, the jurors were excused from the
courtroom and defense counsel moved for a mistrial. The trial
court denied defendant's motion. Defense counsel argued the jury
had been unduly prejudiced against defendant. The State argued
Brenda's answer was admissible Rule 404(b) evidence. The jury
returned to the courtroom and the trial court gave further
instructions to the jury regarding the admissibility of Rule 404(b)
The State never repeated the stricken question and answer to
the witness. Brenda's answer, that defendant had went in mybuilding one time before and took a check out, was never admitted
The jury is presumed to follow the trial court's instructions
in a criminal case. State v. Jennings, 333 N.C. 579, 618, 430
S.E.2d 188, 208, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602
(1993). Defendant has failed to show the jury disregarded the
trial court's instructions to strike Brenda's answer. This
assignment of error is overruled.
B. Instructing the Jury on Rule 404(b) Evidence
Defendant contends the trial court erred in instructing the
jury on Rule 404(b) evidence. Defendant argues the trial court's
instructions were prejudicial because the trial court expressed an
opinion that he committed the alleged prior bad acts. We disagree.
Defendant failed to object to the jury instructions at trial.
Our Supreme Court has stated:
Where no action was taken by counsel during
the course of the proceedings, the burden is
on the party alleging error to establish its
right to review; that is, that an exception,
by rule or law was deemed preserved or taken
without any such action, or that the alleged
error constitutes plain error.
In so doing, a party must, prior to arguing
the alleged error in his brief, (a) alert the
appellate court that no action was taken at
trial level, and (b) establish his right to
review by asserting in what manner the
exception is preserved by rule or law or, when
applicable, how the error amounted to a plain
error or defect affecting a substantial right
which may be noticed although not brought to
the attention of the trial court.
State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983).
Defendant has not argued plain error. Defendant failed to preserveor to argue plain error to obtain appellate review and we may not
consider the alleged defects in the jury instructions. State v.
Bright, 78 N.C. App. 239, 241, 337 S.E.2d 87, 88 (1985), disc. rev.
denied, 315 N.C. 591, 341 S.E.2d 31 (1986). This assignment of
error is dismissed.
C. Denial of Defendant's Motion for Mistrial
Defendant contends the trial court erred by denying his motion
for a mistrial for improper direct examination questions by the
State. Defendant argues the State's questions presented improper
prior bad acts by him which resulted in substantial and irreparable
prejudice to him. We disagree.
Our Supreme Court has stated:
The trial court is required to declare a
mistrial upon a defendant's motion if there
occurs during the trial . . . conduct inside
or outside the courtroom, resulting in
substantial and irreparable prejudice to the
defendant's case. It is within the trial
court's discretion to determine whether to
grant a mistrial, and the trial court's
decision is to be given great deference
because the trial court is in the best
position to determine whether the degree of
influence on the jury was irreparable.
State v. Hill, 347 N.C. 275, 296-97, 493 S.E.2d 264, 276 (1997)
(internal quotation and citation omitted), cert. denied, 523 U.S.
1142, 140 L. Ed. 2d 1099 (1998).
Here, after each inappropriate question by the State,
defendant objected and moved to strike the question or testimony.
After each objection and motion, the trial court sustained
defendant's objection, granted defendant's motion to strike, and
further instructed the jury regarding Rule 404(b) evidence. Defendant has failed to show the trial court abused its discretion
in denying defendant's motion for a mistrial. This assignment of
error is overruled.
V. Attempted Felonious Larceny Jury Instruction
Defendant contends the trial court erred in its instructions
to the jury regarding the attempted larceny charge. Defendant
argues the trial court erred in instructing the jury that he had
attempted to take prescription drugs, when the original
indictment referenced [a]ssorted [m]edications. Defendant
objected to the instruction and requested the trial court to re-
instruct the jury. The trial court denied defendant's request to
re-instruct the jury and took judicial notice, outside the presence
of the jury, that Xanax is a prescription drug.
Defendant argues the trial court violated N.C. Gen. Stat. §
8C-1, Rule 201(e) and (g), and argues: (1) he was not given an
opportunity to be heard by the trial court and (2) the trial court
failed to instruct the jury that it may, but is not required to,
accept as conclusive the judicially noticed fact. We disagree.
This Court has stated:
On appeal, this Court reviews jury
instructions contextually and in their
entirety. If the instructions present the law
of the case in such a manner as to leave no
reasonable cause to believe the jury was
misled or misinformed, then they will be held
to be sufficient. The appealing party must
demonstrate that the error in the instructions
was likely to mislead the jury.State v. Crow, 175 N.C. App. 119, 127, 623 S.E.2d 68, 73 (2005)
(internal quotations and citations omitted) (emphasis supplied),
disc. rev. denied, 360 N.C. 485, 632 S.E.2d 485 (2006).
Here, defendant has failed to argue or demonstrate that . .
. [any] error in the instructions was likely to mislead the jury.
Id. This assignment of error is overruled.
The State presented substantial evidence of each essential
element of felonious breaking and/or entering and attempted
felonious larceny. Powell
, 299 N.C. at 98, 261 S.E.2d at 117. The
State also presented substantial and uncontested evidence tending
to show defendant was the perpetrator of these offenses. The trial
court properly denied defendant's motions to dismiss the charges
The trial court did not admit improper Rule 404(b) evidence
against defendant. Defendant failed to object to the trial court's
limiting instruction regarding Rule 404(b) evidence. Defendant
failed to assign or argue plain error. Defendant failed to
preserve this error for appellate review. [W]e may not consider
the alleged defects in the jury instructions. Bright
, 78 N.C. at
241, 337 S.E.2d at 88. The trial court did not abuse its
discretion in denying defendant's motion for a mistrial.
Defendant failed to demonstrate any error by the trial court
during jury instructions was likely to mislead the jury. Crow
175 N.C. App. at 127, 623 S.E.2d at 73. Defendant received a fairtrial, free from prejudicial errors he preserved, assigned, and
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).
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