STATE OF NORTH CAROLINA
v
.
Alamance County
No. 05 CRS 51162
RODNEY ALSTON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David J. Adinolfi, II, for the State.
Robert T. Newman, Sr., for defendant-appellant.
JACKSON, Judge.
On the night of 6 February 2005, Tele Richmond (“Richmond”)
went to the home of Tynisha Lee (“Lee”), and asked if she would
drive for him and indicated that he would pay her. Lee's friend
Crashonda Alston (Alston”) also was present, and went with Richmond
and Lee. The three got into Richmond's car, and joined Richmond's
girlfriend, Rodney Alston (“defendant”), and another man, who
already were in the car. After dropping off Richmond's girlfriend
at her home, Lee took over driving, and per Richmond's direction
drove to another house where Gary Lee Tate (“Tate”) was picked up.
Richmond then directed Lee to drive by a house on Rosenwald Street,
in Burlington, North Carolina later identified as the home of the
Zepeda family. Richmond referred to the other males in the car as“team” and told them that this was the house. He then directed Lee
to park several blocks from the house and that he would “chirp” her
via the walkie-talkie feature on their cell phones when he needed
her. Alston saw Richmond put a handgun in his coat pocket as he
got out of the car. Within a few minutes Richmond contacted Lee,
and she and Alston drove by the Zepeda home. At first they noticed
the four males trying to get into the chainlink fence surrounding
the home, and then saw them inside the fence on the home's front
porch. Lee and Alston then returned to their original parking
place.
During the early morning hours of 7 February 2005 Ismiel
Zepeda (“Zepeda”) was asleep in his home, along with his wife
Maria, son Andy, and daughter Anna. Zepeda and his wife were
awakened by the sound of their dog barking. As they started to get
out of their bed they heard someone breaking through the front
door. Maria Zepeda crawled over her husband and left the bedroom
to check on the children. Upon leaving the bedroom she encountered
two people coming towards her with one person pointing what she
thought to be a pistol at her. She immediately backed into her
bedroom and yelled to her husband that the intruders had a gun.
The couple shut the bedroom door, and as they held it closed, her
husband retrieved his gun from a bedside table and loaded it. The
Zepedas eased their pressure on the door and allowed it to open.
Zepeda then reached his gun outside the door and fired, hitting
someone. As this intruder fell to the floor in the hall, Zepeda jumped
over him and headed toward the front of the house and his son's
bedroom. Other intruders went into his son's room and shut the
door. The door was being held shut against Zepeda's attempts to
enter, but the pressure then eased and Zepeda opened the door. He
saw his son still in his bed and the lower half of an intruder
going out the window of his son's bedroom. Zepeda fired a shot
above the intruder and through the window.
Andy Zepeda had returned home about 11:30 p.m. on 6 February
2005. He locked the front gate of the chainlink fence surrounding
their house with a chain and padlock. After entering the house he
also locked the front door. He later went to sleep in his bedroom,
which is located just to the left of the front door. During the
early morning hours he was awakened by a loud bang at the front
door. He then saw a tall man standing at the door of his bedroom.
The man was dressed in black and aiming a gun at him. The man
identified himself as “police” and told Andy not to move. As Andy
remained in his bed, he heard someone trying to enter his parents'
bedroom, and he heard one gunshot. The man standing in the doorway
to Andy's bedroom then jumped across Andy's bed and started banging
on the bedroom window with his gun. Two more men rushed into the
room. As one man held the door closed the other two pushed the
window open and jumped out. The man holding the door turned,
yelled “wait for me,” ran to the window, and dove through it head
first. Andy's father pushed open the door, looked first at him and
then the window, and fired one shot. Andy immediately called 911 and reported the break-in. Upon
leaving his bedroom he saw a man crawling on his back toward the
front door of the house. The man told Zepeda that there was no
need to call the police. The man reached the front door, opened it
and crawled onto the porch. The police arrived within minutes of
the 911 call being placed, and found the intruder who had crawled
out the front door in the Zepeda's front yard. Zepeda informed the
police he had shot this intruder. The door of the Zepeda home
showed evidence of having been forced open and a window in the
first bedroom upon entering the house had a broken window with what
appeared to be blood on the mini blinds. The intruder found in the
front yard was transported to the hospital and later identified as
Richmond.
Shortly after returning to their original parking spot, Lee
and Alston were met at the car by defendant and Tate. Defendant
had a severely cut finger. Tate stated that he had felt a bullet
barely miss the top of his head, and Alston noticed a burn on the
back of defendant's head. When asked about Richmond, Tate stated
he heard Richmond say he had been hit.
The police recovered a cell phone from within the Zepeda home
that showed a record of a direct connect call having been made from
the phone to Lee at 1:33 a.m. on 7 February 2005. Swabs from the
suspect's vehicle, mini blinds and plastic covering from the
bedroom window of the Zepeda home, and the steps of defendant's
home gave chemical indications for the presence of blood. DNA
testing of the blood from the mini blinds, plastic window covering,and the steps of the Zepeda home matched the DNA of defendant. Lee
later identified the Zepeda residence for the police , and Tate
subsequently was arrested.
On 7 March 2005, defendant was indicted for first degree
burglary, first degree kidnapping, attempted robbery with a
dangerous weapon, and assault by pointing a gun. At the conclusion
of defendant's trial, the State dismissed the charges of first
degree kidnapping and assault by pointing a gun. A jury found
defendant guilty of first degree burglary, and not guilty of
attempted robbery with a firearm. Defendant was sentenced to a
term of imprisonment with the North Carolina Department of
Correction, and now appeals from his conviction.
Defendant first contends the trial court erred in instructing
the jury that it need not find that a gun was involved in order to
convict defendant of first degree burglary. Defendant argues the
trial court's instruction in response to a question from the jury
was an improper statement of the law.
The standard of review for jury instructions is
well-established, and we review jury instructions
“contextually and in its entirety. The charge
will be held to be sufficient if 'it presents
the law of the case in such manner as to leave
no reasonable cause to believe the jury was
misled or misinformed . . . .' The party
asserting error bears the burden of showing
that the jury was misled or that the verdict
was affected by [the] instruction. 'Under
such a standard of review, it is not enough
for the appealing party to show that error
occurred in the jury instructions; rather, it
must be demonstrated that such error was
likely, in light of the entire charge, to
mislead the jury.'”State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253
(2005) (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d
841, 847 (2002)).
In the instant case, the jury initially requested a “more
defined definition of armed robbery.” When requested to write down
their specific question, the jury submitted the following question
to the trial court: “Does a gun have to be involved for first
degree burglary to convict?” Specifically, the jury had confusion
over what “armed” meant in conjunction with the first degree
burglary instructions. Defendant requested the trial court to re-
instruct the jury that while a gun is not specifically required for
the offense of first degree burglary, the intent to commit an armed
robbery must be present. After much discussion with counsel over
whether or not the jury was requesting clarification on the
elements of attempted armed robbery or the sixth element of first
degree burglary, the trial court instructed the jury as follows:
Ms. Foreperson, members of the jury, your
question was, does a gun have to be involved
for first degree burglary to convict.
The response of the Court is the answer is,
no. Members of the jury, on the sixth element
of first degree burglary the issue is whether
or not the defendant, along with those for
whom he was acting in concert with a common
purpose, intended to commit a robbery; that
is, to take and carry away the personal
property from that person or his presence
without his consent knowing that he, the
defendant, or those with whom he was acting in
concert, were not entitled to take it
intending to deprive that person of its use,
that means the property, permanently.
It is not necessary that the defendant, along
with those for whom he was acting in concert,actually use the weapon to complete the
robbery.
For this element of the offense to be proven
it is only necessary that the State prove
beyond a reasonable doubt that the defendant,
or those with whom he was acting in concert,
either by himself or along with others,
intended to commit an armed robbery at the
time of the breaking and entering. The actual
use of the firearm is not required under this
element of first degree burglary.
Defendant contends the jury's request for clarification went to the
issue of whether or not the jury had to find that defendant had a
gun during the alleged attempted robbery with a firearm, as this
offense served as the underlying felony for the first degree
burglary charge.
In view of the jury's specific request for a clarification on
whether or not a gun had to be involved in order to find that
defendant committed a burglary, we hold the trial court's re-
instruction to the jury, in light of all of the trial court's
instructions, did not mislead or misinform the jury. A weapon,
specifically a gun, is not a required element of the offense of
first degree burglary. See State v. Singletary, 344 N.C. 95, 101,
472 S.E.2d 895, 899 (1996); see also N.C. Gen. Stat. § 14-51
(2005). As such, the trial court properly responded to the jury's
specific question and instructed the jury in accord with the law,
and defendant's assignment of error is overruled.
Finally, defendant contends the trial court erred in
submitting the charge of first degree burglary to the jury, as
there was an insufficiency of the evidence to prove the crime
charged. At trial, the State dismissed defendant's charges offirst degree kidnapping and assault by pointing a gun. Defendant
then made a motion to dismiss only the charge of attempted robbery
with a firearm. The trial court denied defendant's motion. At no
time did defendant make a motion to dismiss the charge of first
degree burglary.
Rule 10(b)(3) of our appellate rules provides that “[a]
defendant in a criminal case may not assign as error the
insufficiency of the evidence to prove the crime charged unless he
moves to dismiss the action . . . at trial.” N.C. R. App. P.
10(b)(3) (2006). Our Supreme Court has held that “a defendant who
fails to make a motion to dismiss at the close of all of the
evidence may not attack on appeal the sufficiency of the evidence
at trial.” State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370
(1988). Therefore, we decline to address this assignment of error,
as defendant has failed to properly preserve the issue for
appellate review.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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