Appeal by defendant from judgment entered 26 April 2006 by
Judge L. Todd Burke in Moore County Superior Court. Heard in the
Court of Appeals 11 September 2007.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General T. Lane Mallonee, for the State.
William D. Spence for defendant-appellant.
Alton Brady Mays (defendant) appeals from a judgment entered
on 26 April 2006 pursuant to a jury verdict finding him guilty of
felonious breaking and entering, felonious possession of stolen
goods, and felonious possession of a firearm by a felon. Defendant
was sentenced as a Class C Habitual Felon to a minimum of 122
months' and a maximum of 156 months' imprisonment. After careful
consideration, we find no prejudicial error.
On 23 June 2005, Deputy Dwayne Ledbetter of the Moore County
Sheriff's Department responded to a report of a possible breaking
and entering at the home of Frank and Georgia Layne (the Laynes)
in Carthage, North Carolina. Upon arriving at the residence, he
found that the back door had been kicked in or forced open withsomething and the home had been ransacked. Deputy Ledbetter was
unable to obtain any fingerprints from the scene. The Laynes
reported the following items missing: A television, VCR, satellite
receiver, two guitars, three dobros, a mandolin, a banjo, a .22
caliber rifle, a 30/30 rifle, a twelve-gauge shotgun, a nine-
millimeter pistol, and a .22 caliber pistol.
Moore County Detective Sergeant Bradley Whitaker was told by
Pinehurst Police Detective Darrell Bender that, during a vehicle
search, he noticed a mandolin in the possession of Mark Weaver
(Weaver). Detective Whitaker contacted Weaver. Weaver told
Detective Whitaker that defendant, Janice Campbell (Campbell),
and Joe Smith, Jr. (Smith), had brought the mandolin to his house
and left it. Weaver, after retrieving the mandolin from an
acquaintance, turned it over to Detective Whitaker. The Laynes
subsequently identified the mandolin as one of the instruments
stolen from their home.
Detective Whitaker then executed a search warrant of Weaver's
home, which revealed marijuana and a .22 caliber rifle which was
identified as being stolen from the Layne home. Weaver was charged
with drug offenses and possession of a stolen firearm. Weaver gave
a statement to police and later testified that defendant, Campbell,
and Smith brought the mandolin to his home. Weaver also stated
that he saw other firearms which defendant, Campbell, and Smith had
laid out on a bed downstairs. Weaver testified that defendant
brought the .22 caliber rifle to Weaver in his room and removed the
stock, but left the rifle with Weaver. Weaver also testified thatdefendant, prior to trial, asked him to change his statement to law
Smith was arrested and charged with breaking and entering,
larceny, and possession of stolen goods in connection with the
break-in of the Layne home. He pled guilty to possession of stolen
goods, and the other charges were dropped.
Smith testified at defendant's trial that he drove Campbell
and defendant to the Laynes' home. Upon arriving at the home,
Smith noticed that defendant took a large screwdriver from the car
and walked to the home's back door. Smith helped defendant and
Campbell load the car with a television, VCR, satellite receiver,
two handguns, two shotguns, two rifles, a watch, musical
instruments including guitars, a mandolin, and a banjo, and other
items in a pillow case. Upon exiting the home, Smith noticed that
the door casing was broken and splintered and the door had been
forced open. After the items were loaded, they went to Weaver's
home; the details of that visit are set out above.
Detective Medlin contacted defendant and Campbell on 28 June
2005. Defendant denied any involvement in the break-in but showed
Detective Medlin where some of the guns had been taken. Detective
Medlin was then able to locate some of the stolen items and return
them to the Laynes.
Mrs. Georgia Layne testified that Campbell was her niece and
had been in the home on several occasions and was aware of where
the stolen items were kept. Mrs. Layne, however, stated thatCampbell knew she was not welcome in the home, and that she did not
have permission to take anything from the home.
Defendant, who did not present evidence at trial, presents the
following issues for this Court's review: (1) whether the trial
court erred in denying defendant's motion to dismiss the felonious
breaking and entering charge; (2) whether the trial court erred in
denying defendant's motion to dismiss on the felonious possession
of stolen goods charge; (3) whether the trial court erred in
denying defendant's motion to dismiss on the possession of a
firearm by a felon charge; and (4) whether the trial court erred in
responding to the jury's questions after the charge.
The standard of review on appeal of the denial of a criminal
defendant's motion to dismiss for insufficient evidence is whether
the State has offered substantial evidence to show the defendant
committed each element required to be convicted of the crime
charged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d
619, 620 (2002). Substantial evidence is evidence that is
existing, not just seeming or imaginary. State v. Irwin, 304 N.C.
93, 97-98, 282 S.E.2d 439, 443 (1981). Upon a motion to dismiss
in a criminal prosecution, the trial court must view the evidence
in the light most favorable to the state, giving the state the
benefit of every reasonable inference that might be drawn
therefrom. State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673,
Defendant argues that there was insufficient evidence to find
that he intended to commit a felony when he entered the Layne home.
The elements of felonious breaking and entering are: (1) the
breaking or entering (2) of any building (3) with the intent to
commit any felony or larceny therein. N.C. Gen. Stat. § 14-54(a)
(2005); State v. Jones
, 151 N.C. App. 317, 328, 566 S.E.2d 112, 119
(2002). As to the element of intent, what a defendant does after
breaking and entering is evidence of his intent at the time of the
breaking and entering. State v. Gray
, 322 N.C. 457, 461, 368
S.E.2d 627, 629 (1988).
Taking the evidence in the light most favorable to the State,
the facts presented at trial are these: Defendant, Campbell, and
Smith drove to the Laynes' home for the purpose of removing
property. Defendant had a large screwdriver when he went to the
back of the home. The back door was later found to have been
forced or pried open. Defendant, Campbell, and Smith also carried
property out of the home, loaded it in a car, and transported it
away. Although defendant argues that this cannot establish intent,
the facts that the door was pried or forced open and that the items
were sold and/or hidden shortly after they were taken permit the
reasonable inference that defendant was aware that he did not have
permission to enter the home or remove any items from the home.
We find the cases relied on by defendant to be distinguishable
from the facts of this case. In State v. Cook
, 242 N.C. 700, 703,
89 S.E.2d 383, 385 (1955), our Supreme Court found no evidence ofintent where the defendant: (1) did not flee upon being
discovered; (2) did not remove any property; and (3) tip-toed out
of the room upon being requested to leave. In the instant case,
defendant was not discovered inside the home and was therefore
never requested to leave. Moreover, there is substantial evidence
that property was actually removed from the Layne home.
Accordingly, we find Cook
distinguishable from the instant case.
In State v. Lamson
, 75 N.C. App. 132, 135, 330 S.E.2d 68, 70
(1985), this Court found no evidence of intent to commit a larceny
on a first degree burglary charge. In that case, the State only
presented evidence that the defendant was standing outside of a
home, had opened a window, and may have attempted to enter through
the back door. Id
. at 132, 330 S.E.2d at 69. In the instant case,
there is evidence that defendant entered the home by using a
screwdriver, ransacked the Layne home, and removed items from it.
The facts of Lamson
fail to support defendant's argument that there
was insufficient evidence of intent in this case.
Defendant also relies on State v. Moore
, 62 N.C. App. 431,
433, 303 S.E.2d 230, 232 (1983), where this Court found no evidence
of intent to commit either a felonious assault or rape on a first
degree burglary charge because the State's evidence showed that the
defendant was coerced to enter the home. Here, there is no
evidence that defendant was coerced to enter the home. The
evidence presented by the State tends to establish that defendant
voluntarily exited Smith's vehicle with Campbell and removed itemsfrom the Layne home without permission. Thus, we find Moore
distinguishable from the case at bar.
Defendant also argues that the State cannot rely on the
uncorroborated testimony of Smith to establish the elements of
breaking and entering. We disagree.
It is well-established that the uncorroborated testimony of
an accomplice will sustain a conviction so long as the testimony
tends to establish every element of the offense charged. State v.
, 297 N.C. 674, 679, 256 S.E.2d 710, 714 (1979). While
defendant argues that Smith's testimony was not believable because
he admitted to being a heavy drug user, the credibility of a
witness is a matter for the jury rather than the trial court. See
This general rule does not apply where the only testimony
justifying submission of the case to the jury is inherently
incredible and in conflict with the physical conditions established
by the State's own evidence. State v. Miller
, 270 N.C. 726, 732,
154 S.E.2d 902, 905-06 (1967). That case, however, involved
whether it was physically possible, given the undisputed facts of
the cases, for the witness to have seen the defendant well enough
to identify him. Id
. Such is not the case here. Smith was
actually present during the alleged break-in, and there is no
question that he was in close enough proximity to positively
identify defendant. Accordingly, defendant's assignments of error
as to this issue are rejected.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of felonious possession of stolen
property. We disagree.
The essential elements of possession of stolen property are:
(1) possession of personal property; (2) which has been stolen; (3)
the possessor knowing or having reasonable grounds to believe the
property to have been stolen; and (4) the possessor acting with a
dishonest purpose. State v. Perry
, 305 N.C. 225, 233, 287 S.E.2d
810, 815 (1982) (footnote omitted). In the instant case, defendant
contends that the State failed to present evidence which tended to
show that he knew or had reasonable grounds to believe that the
items removed from the Layne home were stolen.
The evidence taken in the light most favorable to the State
shows that defendant had reasonable grounds to believe that the
items were stolen. The door to the home was pried open, the home
had been ransacked, and defendant, with the assistance of others,
hid and/or sold the goods after taking them out of the home. The
fact that the door to the home was pried open, taken in the light
most favorable to the State, tends to negate any inference that
defendant was in the home with permission. Defendant ultimately
showed police where he had put some of the musical instruments. In
his own statement, he admitted to helping sell the guitars. This
evidence is sufficient to submit to the jury that defendant knew,
or had reasonable grounds to believe, that the items in his
possession were stolen. Accordingly, defendant's assignment of
error as to this issue is rejected.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of possession of a firearm by a
felon. We disagree.
It is unlawful for a felon to possess any firearm or any
weapon of mass death and destruction as defined in G.S. 14-
288.8(c). N.C. Gen. Stat. § 14-415.1(a) (2005). In this case,
the indictment alleged that defendant was in possession of, inter
, a .22 caliber Marlin rifle. Defendant argues that the only
evidence presented at trial puts him in possession of a .22 caliber
rifle, not the .22 caliber Marlin rifle alleged in the indictment.
Accordingly, defendant argues that there is a variance between the
offense charged and the offense established by the evidence and
thus, the State has failed to establish the charged offense. See
State v. Picken
, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997)
('[a] variance between the criminal offense charged and the
offense established by the evidence is in essence a failure of the
State to establish the offense charged') (citation omitted).
Contrary to defendant's contention, however, the .22 caliber
rifle defendant delivered to Weaver and later confiscated by
Detective Whitaker in a search of the Weaver home was identified by
Detective Whitaker as a .22 caliber Marlin rifle. Moreover, Weaver
testified that defendant was in possession of this rifle and had
brought it up to his room. We hold that this is substantial
evidence sufficient to submit the charge to the jury. Defendant argues that this Court's decision in State v.
, 173 N.C. App. 194, 618 S.E.2d 253 (2005), mandates a
different result. In that case, the State had alleged that the
defendant was in possession of a handgun. Id
. at 196, 618 S.E.2d
at 255. The evidence presented at trial, however, tended to show
that the defendant was actually in possession of a sawed-off
. This Court found a fatal variance between the
criminal offense charged and the offense established by the
evidence in that case because we were interpreting a previous
version of N.C. Gen. Stat. § 14-415.1. Id
. at 197, 618 S.E.2d at
256-57. The prior 2003 version distinguished between a handgun
and other firearm[s.] See
N.C. Gen. Stat. § 14-415.1(a) (2003).
Under the newer version of N.C. Gen. Stat. § 14-415.1, however, the
distinction between firearms and handguns has been removed.
N.C. Gen. Stat. § 14-415.1 (2005). Instead, the statute now
bars a felon from possessing any firearm or any weapon of mass
death and destruction[.] Id
. Accordingly, in this case, the
State needed only to put on evidence that defendant was in
possession of a firearm in order to avoid a fatal variance. The
State did so at trial, and we thus find no variance between
defendant's indictment and the evidence presented at trial.
Defendant again argues that Smith's testimony should not have
been believed as to the issue of possession of a firearm and that
the trial court should have dismissed the charge on that ground.
For the reasons stated in section I of this opinion, we againreject defendant's argument. Accordingly, defendant's assignments
of error as to this issue are rejected.
Defendant's final argument is that the trial court erred in
responding to certain questions asked by the jury and that the
response violated the statutory mandates in N.C. Gen. Stat. §§ 15A-
1222 and 15A-1232 (2005). We disagree.
Under N.C. Gen. Stat. § 15A-1222, the trial judge may not
express during any stage of the trial, any opinion in the presence
of the jury on any question of fact to be decided by the jury.
Under N.C. Gen. Stat. § 15A-1232, the trial judge, when instructing
the jury, shall not express an opinion as to whether or not a fact
has been proved and shall not be required to state, summarize or
recapitulate the evidence, or to explain the application of the law
to the evidence. Although both the State and defendant argue that
the standard of review on this issue is plain error, the standard
is not so clear.
Our Supreme Court has refused to apply plain error review in
this situation and held that the statutory prohibitions are
mandatory and [a] defendant's failure to object to alleged
expressions of opinion by the trial court in violation of those
statutes does not preclude his raising the issue on appeal. State
, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (citing State
, 314 N.C. 28, 331 S.E.2d 652 (1985); State v. Bryant
N.C. 112, 126 S.E. 107 (1925)). Our Supreme Court has also held,
however, that a defendant must show prejudice by a trial judge'sremarks in order to receive a new trial. State v. Weeks
, 322 N.C.
152, 158, 367 S.E.2d 895, 899 (1988). Even assuming trial court
error, because we find that defendant invited any error that
occurred in this case, the standard is not material to the
disposition of this appeal.
During deliberations, the jurors sent a note to the trial
judge with the following questions: Does riding in a car where
you know there are guns in the trunk constitute possession? Does
being in a house with displayed guns constitute possession? The
trial judge proposed answering the questions as follows:
And I would say riding in a car where you
know there are guns in the trunk constitute[s]
possession, generally speaking, I would say no
unless that is your car. If that's your car,
then that is possessing. But if it's not your
car, then no would be the answer to that
Does being in a house with displayed guns
constitute possession? If it's your home,
yes, it's possession. It's constructive, if
not actual, possession. But if it's - if
you're just at someone's home and they happen
to have guns in it and you don't live there,
that wouldn't be possession.
The State requested that the trial court re-read the
instructions on actual and constructive possession instead of
giving the proposed response. Defense counsel objected to the re-
instruction but agreed with the trial court's proposed responses to
the jury questions.
Even assuming error, where counsel specifically requests the
trial court to do something, any error occurring as a result of the
requested action will be considered invited error and will not beheard on appeal. State v. Patterson
, 332 N.C. 409, 415, 420 S.E.2d
98, 101 (1992). Here, when defense counsel requested that the
trial judge give the proposed response to the jury's questions, he
invited any error that occurred as a result of that response.
Accordingly, defendant's assignment of error as to this issue is
In summary, we hold that the trial court did not err in
denying defendant's motion to dismiss the charges brought against
defendant. We also hold that any error committed by the trial
court with regards to its response to jury questions was invited
error and is not reviewable on appeal. Accordingly, we find that
defendant's trial was free of prejudicial error.
No prejudicial error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***