STATE OF NORTH CAROLINA
v. Wake County
Nos. 05 CRS 30584, 73730
TONY LAMONT BRITT
Attorney General Roy Cooper, by Associate Attorney General
Catherine F. Jordan, attorney for the State.
Kathryn L. Vandenberg, attorney for defendant.
ELMORE, Judge.
Tony Lamont Britt (defendant) appeals from his conviction by
a jury of breaking and entering a motor vehicle, attempted larceny,
and being an habitual felon. At trial, the State introduced
evidence tending to show the following:
On the afternoon of 8 August 2005, Eric Chapman (Chapman)
parked his car before attending a college class. Before leaving
his car, Chapman locked the car doors and cracked the driver's side
rear window and the passenger's side front window approximately one
inch. Chapman's car stereo had a detachable faceplate that was
secured to the dashboard when he left. Upon walking back to his car after class, Chapman heard his
car alarm sound, which is triggered either when a locked door is
opened without a key or certain pressure points on the car are
touched. Chapman ran toward his car and called the police on
his cellular telephone. As he approached his car, Chapman saw
defendant and another man standing around his car. Defendant was
standing on the driver's side and the second man stood on the
passenger's side. Both men were peering into the car. Chapman
also observed defendant's accomplice closing the passenger's side
car door.
When Chapman asked the men what they were doing, they did not
respond and walked away. When Chapman looked into his car he did
not see the detachable faceplate on his car stereo. Chapman began
following the men on foot and, when he confronted them, defendant
slapped Chapman in the face. Chapman continued to follow the men
and, after the men separated, Chapman followed defendant for
approximately one mile.
When defendant began to run, Chapman was unable to continue
his pursuit. However, Chapman then met the law enforcement officer
who had responded to his call and, together, they proceeded in the
officer's patrol car in the direction defendant had run.
Approximately one minute later, Chapman and the police officer
spotted defendant and defendant was arrested.
After defendant's arrest, Chapman and the officer returned to
inspect Chapman's car. They found all four doors unlocked, thestereo faceplate lying on the floor of the car and the glove box
open.
Following a jury trial, defendant was convicted of all
charges. Defendant now appeals.
In his first assignment of error, defendant contends that
there was insufficient evidence to support his conviction for
breaking and entering. When reviewing a motion to dismiss, we view
“the evidence in the light most favorable to the State, giving the
State the benefit of all reasonable inferences.” State v. Morgan,
359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546
U.S. 830, 163 L. Ed. 2d 79 (2005). If we find that “substantial
evidence exists to support each essential element of the crime
charged and that defendant was the perpetrator, it is proper for
the trial court to [have denied] the motion.” Id. “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
The elements of breaking and entering a motor vehicle are set
out in N.C. Gen. Stat. § 14-56, which provides, in relevant part:
If any person, with intent to commit any
felony or larceny therein, breaks or enters
any . . . motor vehicle . . . containing any
goods, wares, freight, or other thing of value
. . . that person is guilty of a Class I
felony.
N.C. Gen. Stat. § 14-56 (2005). Further, we have held that “the
language of G.S. 14-56 does not require the actual larceny of
anything in order to convict of felonious breaking or entering.”
State v. Kirkpatrick, 34 N.C. App. 452, 455, 238 S.E.2d 615, 617(1977). “It is the breaking or entering with intent to commit
larceny that is proscribed.” Id. In addition, with respect to the
element that the vehicle broken or entered must contain “goods,
wares, freight, or other thing of value,” we have held that
evidence of items of even trivial value is satisfactory. See State
v. Goodman, 71 N.C. App. 343, 349-50, 322 S.E.2d 408, 413 (1984).
Defendant contends that the State presented insufficient
evidence that there was a breaking or entry into Chapman's car,
that the car contained “things of value,” or that defendant acted
in concert with the other man who was observed standing on the
passenger's side of the vehicle. We disagree.
Here, the State presented evidence that Chapman had left the
car locked, that the car alarm was triggered, that one of the
triggers of the alarm was the opening of a door, and that after the
incident the car doors were unlocked, the stereo faceplate had been
detached, and the glove compartment was open. We conclude that
this evidence is sufficient on the element of breaking or entering.
Defendant also contends that there was insufficient evidence
to prove that the car contained “things of value.” However,
Chapman testified that the car contained a car stereo with a
detachable faceplate and books. Such items are sufficient to
constitute “things of value” for the purposes of N.C. Gen. Stat. §
14-56. See Goodman, 71 N.C. App. at 349-50, 322 S.E.2d at 413
(addressing a registration card and hubcap key); see also
Kirkpatrick, 34 N.C. App. at 456, 238 S.E.2d at 618 (addressing aC.B. radio); State v. Quick, 20 N.C. App. 589, 591, 202 S.E.2d 299,
301 (1974) (addressing papers, cigarettes, and a shoe bag).
Finally, defendant asserts that the evidence was insufficient
to show that defendant acted in concert with the unidentified man.
Again, we disagree.
A defendant can be found guilty of a crime under a theory of
acting in concert where “he is present at the scene and acting
together with another or others pursuant to a common plan or
purpose to commit the crime.” State v. Taylor, 337 N.C. 597, 608,
447 S.E.2d 360, 367 (1994). Here, Chapman testified that he saw
both men looking into his car, that they both walked away together
as he approached them, that they walked at a quick pace as Chapman
followed them on foot, and that when he caught up to the two men
and confronted them again, defendant slapped him in the face. This
evidence is sufficient to demonstrate that defendant was acting in
concert with the unidentified accomplice. In sum, we conclude that
the State presented sufficient evidence to submit the charge of
breaking and entering to the jury.
In his next assignment of error, defendant contends that the
trial court inappropriately questioned a witness outside of the
jury's presence and then permitted the State to reopen its direct
examination of the witness on the subject. Specifically, defendant
contends that the trial court's questioning inappropriately
influenced Chapman's testimony resulting in a change to his
testimony when the State was permitted to later re-examine Chapman. Pursuant to North Carolina Rule of Evidence 614(b), “[t]he
court may interrogate witnesses, whether called by itself or by a
party.” N.C. Gen. Stat. § 8C, Rule 614(b) (2005). “The court may
also question a witness for the purpose of clarifying a witness'
testimony and for promoting a better understanding of it.” State
v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337, 339 (1990)
(citing State v. Whittington, 318 N.C. 114, 347 S.E.2d 403 (1986)).
“Such examination must be conducted with care and in a manner which
avoids prejudice to either party.” Id. (citing State v. Colson,
274 N.C. 295, 163 S.E.2d 376 (1968)).
During the State's direct examination of Chapman, the State
elicited equivocal responses as to whether he saw the passenger
door being closed as he approached. When asked to describe what
the two men were doing near his car, Chapman stated that they were
“[a]ppearing [sic] in the windows maybe shutting doors.” (Emphasis
added). He later stated that it “looked like he was shutting a
door” and when the State asked him if he could see whether or not
the door was open, Chapman stated that he “assumed it was because
the alarm was going off . . . .” Later in his testimony, Chapman
again agreed that “it appeared that someone was shutting [the]
door.” (Emphasis added).
After the State concluded its direct examination of Chapman,
the trial court excused the jury and proceeded to question Chapman
as follows:
The Court: All right. Let the record show
I've sent the jury out because I wanted to ask
the witness a couple of questions for my
understanding, and I didn't want to do this in front of the jury.
Examination by the Court:
Q. Mr. Chapman, did I understand you to say
that on the date in question, August 8th, 2005,
that you were coming back to your car and you
heard an alarm, and you recognized that to be
the alarm on your car?
A. Correct.
Q. And that when you could see, you saw two
black males, I believe you said hovering over
your vehicle?
A. Correct.
Q. And at that point did you see anyone in
your vehicle?
A. I did not.
Q. And that you indicated, at least for my
clarification, that it appeared that the
passenger door was opened?
A. I thought so. That's the only way my alarm
goes off is if the lock is popped or if the
door is opened.
Q. Well, it's important for my clarification,
did you or did you not see the passenger door
open?
A. I believe I saw it being shut.
Q. All right, then it appeared that someone
was shutting your passenger door?
A. Yes, sir.
Q. , [sic] did I understand you to say that
there was one individual at the driver's door
or driver's side and one at the passenger
side?
A. Right.
Q. And did I understand you to say that the
defendant, Mr. Britt, was the one at the
driver's side?
A. I believe so, yes.
It is clear from this colloquy that the trial court was
attempting to clarify Chapman's prior responses regarding whether
he saw the passenger door open, saw it being closed, or had merely
assumed it had been opened because his car alarm was sounding. Not
only was this examination of Chapman a careful and appropriate
attempt by the trial court to clarify an important fact in this
case, it was not done in the presence of the jury. Consequently,
defendant's challenge of the trial court's questioning is without
merit.
Nevertheless, defendant continues his argument by asserting
that following the trial court's examination, the State was
impermissibly allowed to reopen its direct examination of Chapman
during which the State again asked Chapman, “Did you ever see any
doors open or being shut on the passenger side?” Chapman responded
“Yes.” Defendant characterizes this response as different from
Chapman's earlier answers, thereby indicating the trial court's
inappropriate influence on Chapman's testimony. We disagree.
As an initial matter, defendant has failed to properly
preserve this issue for appellate review. Defendant failed to
object to either the State's re-opening of direct examination or to
the State's submitting the question to Chapman after it had already
been answered in the presence of the jury. By failing to object at
trial, defendant has waived our review of this issue. See N.C.R.
App. P. 10(b)(1) (2007). Notwithstanding any waiver, defendant asserts that no
objection was necessary because the trial court committed “plain
error” in allowing the State to continue questioning on the issue.
Under the plain error rule, a defendant must demonstrate “'not only
that there was error, but that absent the error, the jury probably
would have reached a different result.'” State v. Roseboro, 351
N.C. 536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan, 333 N.C.
431, 440, 426 S.E.2d 692, 697 (1993))
.
As we concluded above, the trial court appropriately
questioned Chapman for the purpose of clarifying his testimony. In
addition, by conducting its examination outside the presence of the
jury, and then permitting the State, rather than the trial court,
to revisit the issue when the jury returned, the trial court
eliminated any potential prejudice that might have resulted from
the trial court performing the questioning. Consequently, we find
no error in the trial court's actions.
Even were we to find error, we would nevertheless additionally
conclude that there is no probability that the jury would have
reached a different verdict. Chapman's responses, on the whole,
consistent in communicating that he believed that he saw the car
door being shut as he approached. Moreover, defendant was later
afforded an opportunity to again clarify Chapman's testimony on
cross-examination. Defense counsel asked Chapman, “[d]id you ever
see a car door open?” to which Chapman responded, “I believe the
passenger side. It was just being shut as I approached the car.”
We find that this response is consistent with Chapman's earlierresponses during the State's initial direct examination, thereby
undermining defendant's assertion that the trial court's
questioning of Chapman influenced his later testimony.
Moreover, as discussed above, there was additional sufficient
evidence from which the jury could have determined that the door
had been opened, including, for example, the removal of the stereo
faceplate and the opening of the glove box. Consequently,
defendant has failed to demonstrate either error or plain error.
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
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