Appeal by Defendant from judgment entered 15 January 2008 by
Judge A. Moses Massey in Superior Court, Forsyth County. Heard in
the Court of Appeals 12 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General
John A. Payne, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender David W. Andrews, for Defendant.
On 15 January 2008, a jury found Orrondo Nivel Blackburn
(Defendant) guilty of felonious breaking or entering. Defendant
then pled guilty to attaining habitual felon status. The trial
court sentenced Defendant to a term of 84 to 110 months in prison.
The evidence presented at trial tended to show the following:
William Hardy (Hardy) testified that on the morning of 23
April 2007, he observed Defendant open a window in the back of a
house located up the street from Hardy's house, and crawl through
the window. The house belonged to Sandra Caldwell (Ms.
Caldwell), Hardy's first cousin. When Hardy saw Defendantclimbing through the window, Hardy called Ms. Caldwell on her
mother's telephone and informed her of what he had seen. After he
called Ms. Caldwell, Hardy continued to watch Ms. Caldwell's house
from his window. Hardy did not see anyone come out of the house
after he saw Defendant go inside. Ms. Caldwell and a group of
family members, including Defendant's brother, Orlando Hawkins
(Hawkins), were gathered a few blocks away at the home of Ms.
Caldwell's mother, because Hawkins' father had passed away.
Approximately five minutes after receiving Hardy's call, Ms.
Caldwell and several other relatives arrived at Ms. Caldwell's
home. Hardy joined them and entered the home.
Hardy testified that he found the house in disarray with items
stacked by one of the windows like someone was gon' take it out,
you know. Hardy testified that several of his relatives were
walking through the house looking for an intruder, and that he saw
his nephew poking a stick into a pile of clothes in one of the
bedroom closets. Hardy next saw Defendant being escorted out of
the house by police. At that time, Hardy was able to recognize and
identify Defendant as the individual he saw crawling through the
window into Ms. Caldwell's house.
On cross-examination, Hardy testified that although the house
which he saw Defendant entering belonged to Ms. Caldwell, Ms.
Caldwell's daughter, Shauna Caldwell (Shauna), resided in the
house. Shauna is Hardy's second cousin. Hawkins was staying there
as well. Hardy testified he had never seen Defendant at Ms.
Caldwell's house prior to 23 April 2007. Ms. Caldwell testified that on 22 April 2007, the night before
the incident, she had secured the house by making sure all of the
doors and windows were locked because Shauna was in the hospital.
The next day, Ms. Caldwell received Hardy's call alerting her that
he had seen someone go into the back window of her house, and she
and several of her relatives rushed over to her house. When Ms.
Caldwell entered the house, she found the air conditioner on the
ground outside the window, two flat-screen televisions missing, and
some prescription medicines that had previously been in a night
stand scattered all over the bed. Ms. Caldwell testified that the
relatives who accompanied her to her house that morning climbed in
through the back window which was open at the time.
Ms. Caldwell testified further that Hawkins was with her at
her mother's house on the morning of 23 April 2007. Hawkins did
not accompany Ms. Caldwell and the relatives to Ms. Caldwell's
house at first, but he eventually did come to her house. Ms.
Caldwell testified that Hawkins stayed at her house with her
daughter occasionally. On the night of 22 April 2007, no one was
staying at Ms. Caldwell's home, and Shauna had given her the only
key. The first time Ms. Caldwell saw Defendant on 23 April 2007,
several of her relatives were on the floor in a room in the back of
the house punching Defendant.
Ms. Caldwell testified that she had never given Defendant
permission to enter her house. Ms. Caldwell described the house as
a two-bedroom home, and she stated that Shauna lived in the front
bedroom. The back bedroom was vacant, but Ms. Caldwelloccasionally slept there. Hawkins had also stayed at Ms.
Caldwell's house in the back bedroom off and on for approximately
two months. Although Hawkins stayed in the house occasionally, he
did not have a key. Ms. Caldwell had the only key to the house at
the time of the incident.
Officer Steven Richards (Richards) of the Winston-Salem
Police Department testified that he investigated the scene at Ms.
Caldwell's house but was unable to find any fingerprints. Richards
noticed during his investigation that some electronic items were
placed on the bed and on the floor, and that the contents of a
night stand in one of the bedrooms were dumped onto the bed.
At the close of the State's evidence, Defendant moved to
dismiss all of the charges against him. The trial court granted
Defendant's motion as to the larceny after breaking or entering
charge, but denied Defendant's motion as to the breaking or
Defendant presented the testimony of one witness, Hawkins.
Hawkins testified that on 23 April 2007, he and his cousin, Shauna,
were living in Ms. Caldwell's house, although he did not have a key
to the house. Occasionally, when Hawkins needed to enter the house
and Shauna was not home to let him in, he entered through either
the back window or the side window. Hawkins testified that
Defendant had been inside Ms. Caldwell's house with Hawkins four or
five times, and that Defendant had spent the night in the house.
When Defendant spent the night, Hawkins told Defendant to come in
and lay his head down[,] and Defendant slept on either the flooror the bed. Hawkins testified that on 22 and 23 April 2007,
Defendant had Hawkins' permission to go into the house.
On 23 April 2007, Hawkins was at his aunt's house, located
approximately three houses from Ms. Caldwell's mother's house.
Hawkins eventually arrived at Ms. Caldwell's house where Ms.
Caldwell and the other relatives were gathered. Hawkins did not
inform the family members that Defendant had his permission to be
in the house, however, because he thought they would be mad at him.
Hawkins only told the relatives to stop hitting Defendant. Hawkins
also did not inform law enforcement that Defendant had his consent
at the time of Defendant's arrest, but Hawkins maintained in his
trial testimony that Defendant had his permission to be at the
house on 23 April 2007. Also, Hawkins stated that Hawkins was
[t]ore up by the loss of his father.
Recalled as a rebuttal witness, Ms. Caldwell testified that on
the day of the incident, Hawkins told the other relatives to stop
hitting Defendant. Ms. Caldwell also stated that Hawkins
repeatedly asked Defendant, Why'd you do this, man? Why'd you do
this? Defendant objected to this testimony, but his objection was
overruled by the trial court. Ms. Caldwell never told the officers
about the statements Hawkins made to Defendant before testifying at
trial. Lastly, Ms. Caldwell testified that she had not heard
Hawkins say he had given Defendant permission to be in the house
prior to his testimony at trial.
At the close of all the evidence, Defendant renewed his motion
to dismiss the charge of breaking or entering. The motion wasdenied. The jury found Defendant guilty of felonious breaking or
entering. Defendant then made a motion for a directed verdict,
which the trial court denied. Defendant pled guilty to attaining
habitual felon status. From the trial court's judgment and
commitment, Defendant appeals.
Lack of Consent to Enter Dwelling
In assignments of error four and five, Defendant argues the
trial court erred by denying Defendant's motion to dismiss because
the evidence was insufficient to show that Defendant lacked consent
to enter the house. We disagree.
In considering a motion to dismiss, the trial court must
determine whether there is substantial evidence of each element of
the offense charged and substantial evidence that the defendant is
the perpetrator giving the State the benefit of all reasonable
inferences which can be drawn. State v. Rasor
, 319 N.C. 577, 585,
356 S.E.2d 328, 333 (1987). Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion. State v. Olson
, 330 N.C. 557, 564, 411 S.E.2d 592,
595 (1992). Unless favorable to the State, the defendant's
evidence is not to be taken into consideration. State v. Young
__ N.C. App. __, __, 671 S.E.2d 372, 375 (2009). Any
contradictions or discrepancies in the evidence are for the jury to
resolve and do not warrant dismissal. Rasor
, 319 N.C. at 585, 356
S.E.2d at 334.
Any person who breaks or enters any building with intent to
commit any felony or larceny therein shall be punished as a ClassH felon. N.C. Gen. Stat. § 14-54(a) (2007). Thus, [t]he
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. Brooks
, 178 N.C.
App. 211, 214, 631 S.E.2d 54, 57 (2006), review denied by
, 361 N.C.
222, 642 S.E.2d 708 (2007) (internal quotations marks and citation
omitted). In order for an entry to be punishable under N.C. Gen.
Stat. § 14-54(a), the entry must be without the owner's consent.
State v. Boone
, 297 N.C. 652, 655, 256 S.E.2d 683, 685 (1979).
[A]n entry with consent of the owner of a building, or anyone
empowered to give effective consent to entry, cannot be the basis
of a conviction for felonious entry under [N.C. Gen. Stat. §]
at 659, 256 S.E.2d at 687.
A person entering a residence with the good faith belief that
he has the consent of the owner or occupant or his authorized agent
is not chargeable with the offense of breaking and entering.
State v. Tolley
, 30 N.C. App. 213, 215, 226 S.E.2d 672, 674, disc.
, 291 N.C. 178, 229 S.E.2d 691 (1976). In Tolley
Court held that [the defendant] could not have reasonably believed
that [the homeowners' son] had authority to permit defendant to
enter his parents' residence for the purpose of stealing valuables
which belonged to his parents, and not to [the homeowner's son].
Thus, the defendant in Tolley
could not have had a good faith
belief that he had consent to enter the house. Id.
Here, Defendant argues the State failed to offer substantial
evidence that Defendant lacked consent or that he lacked a goodfaith belief that he had consent to enter Ms. Caldwell's house.
However, giving the State the benefit of all reasonable
inferences, the evidence presented at trial tended to show that
Defendant neither had consent nor believed he had consent to enter
Ms. Caldwell's house. Ms. Caldwell, the owner of the house and
mother of the occupant of the house, testified that she had not
given Hawkins _ from whom Defendant's purported consent arose _
consent to be in her house. Ms. Caldwell testified that Hawkins
did not live in the house and did not have a key. Ms. Caldwell
also testified that Hawkins only stayed at the house occasionally,
and he could only get inside the house when Shauna was home to let
him inside. Accordingly, there was substantial evidence that
Hawkins was not a tenant or a person with a legitimate claim of
right to the house that would empower him to grant consent to third
parties to enter. See State v. Young
, __ N.C. App. __, __, 671
S.E.2d 372, 375 (2009) (
A breaking or entry is wrongful when it is
without the consent of the owner or tenant or other claim of
right). Therefore, Hawkins could not have granted consent for
Defendant to enter the house, as Hawkins was not empowered to grant
Furthermore, Defendant's own actions indicate that Defendant
did not believe he had consent to enter the house. Defendant
entered the house when no one else was on the premises _ a fact of
which Defendant was likely aware because of the death of Hawkins'
father, since Hawkins is Defendant's brother. Defendant entered
the house through a window, which gives rise to an inference thathe had not been granted permission to enter the house.
Furthermore, Hardy testified that his relatives searched for
Defendant inside Ms. Caldwell's house. From this testimony, it is
reasonable to infer that Defendant did not readily present himself
to the others, as someone with consent to be inside the house most
likely would have done. Defendant's actions of climbing in through
a window at a time he knew no one to be on the premises, and then
not presenting himself to Ms. Caldwell and her relatives, amount to
substantial evidence that Defendant did not believe he had consent
to enter the house. Thus, we hold the State presented substantial
evidence that Defendant had neither consent nor a good faith belief
that he had consent to enter the house. These assignments of error
Next, in assignments of error ten and eleven, Defendant argues
the trial court erred by admitting Ms. Caldwell's testimony on
rebuttal that Hawkins said, Why'd you do this, man? Why'd you do
this? upon finding Defendant in the house. Defendant argues that
the State had prior knowledge of Ms. Caldwell's testimony, and
failed to produce this statement during discovery.
N.C. Gen. Stat. § 15A-903(a) requires that upon motion by
Defendant, the State must
[m]ake available to the defendant the complete
files of all law enforcement and prosecutorial
agencies involved in the investigation of the
crimes committed or the prosecution of the
defendant. The term file includes the
defendant's statements, the codefendants'
statements, witness statements, investigating
officers' notes, results of tests andexaminations, or any other matter or evidence
obtained during the investigation of the
offenses alleged to have been committed by the
N.C. Gen. Stat. § 15A-903(a) (2007). The State has a continuing
duty to disclose discoverable material throughout the trial should
the State discover or decide to use additional evidence or
witnesses. N.C. Gen. Stat. § 15A-907 (2007). If the trial court
determines there has been a discovery violation, the trial court
may: (1) Order the party to permit the discovery or inspection, or
(2) Grant a continuance or recess, or (3) Prohibit the party from
introducing evidence not disclosed, or (3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without prejudice, or (4) Enter
other appropriate orders. N.C. Gen. Stat. § 15A-910(a) (2007).
[T]he remedy for failure to provide discovery rests within the
trial court's discretion. As such, its ruling is not reviewable on
appeal absent an abuse of discretion. State v. Dukes
, 305 N.C.
387, 390, 289 S.E.2d 561, 563 (1982).
At trial, Defendant presented the testimony of Hawkins, which
included Hawkins' statement that he had given Defendant consent to
enter Ms. Caldwell's house. After Hawkins' testimony, the State
introduced rebuttal testimony that Ms. Caldwell had not heard
Hawkins state he had given Defendant consent prior to Hawkins'
testimony at trial. Ms. Caldwell's testimony on rebuttal included
the following exchange:
Q. Good morning, Ms. Caldwell.
A. Good morning.
Q. Now, you've just heard the testimony ofOrlando Hawkins.
Q. Do you know him?
Q. Now, was he there at 2059 Cherry Street
when your family members were _ were
punching on [Defendant]?
Q. And what, if anything, did he say to
A. He told us to stop hitting his brother.
Q. Did he say anything else?
A. And he kept asking his brother, Why'd
you do this, man? Why'd you do this?
Q. And you were there for that conversation.
. . . .
Q. When was the first time, ma'am, Ms.
Caldwell, that you've heard from Orlando
Hawkins saying that he had given
[Defendant] permission to be in that
A. At _ at _ in this hear _ just a moment
Defendant argues that the State had advance knowledge of Ms.
Caldwell's statements, and thus violated N.C. Gen. Stat. §§ 15A-
903(a) and 15A-907. Defendant argues that because the State only
asked Ms. Caldwell six questions and asked no further questions
once eliciting this testimony, it appears the State had advance
knowledge of Ms. Caldwell's statements. Also, Defendant argues the
State did not claim to be surprised by Ms. Caldwell's testimony. The State, however, argues that it had no advance notice of
Ms. Caldwell's statements. The State claims Ms. Caldwell's
testimony was only intended to rebut Hawkins' testimony that he had
provided consent to Defendant, which Ms. Caldwell had heard for the
first time at trial. Prior to trial, Defendant renewed his
discovery motion to disclose all prior statements, and the State
said, As far as I know, every prior statement that I have has been
disclosed at this point. The State did not use Ms. Caldwell's
statements during its opening statement. In his testimony, Hawkins
admitted that he had not told the police he had provided consent
prior to testifying at trial. Thus, the State claims it did not
learn of Hawkins' statement until trial, at which point it
introduced Ms. Caldwell's rebuttal testimony in response to
There is no violation of N.C. Gen. Stat. § 15A-903(a) when the
State had no prior knowledge of the statement at issue. See State
, 336 N.C. 499, 506-07, 444 S.E.2d 206, 210 (1994)
(holding the State did not violate discovery rule where witness had
not previously revealed the statement at issue to the State, and
thus, the State could not have been expected to relate a statement
of which it had no knowledge). Here, the record and trial
transcript do not contain conclusive evidence as to whether the
State had notice of Ms. Caldwell's rebuttal testimony in advance of
Hawkins' testimony, and the evidence is, thus, insufficient to show
that any discovery violation occurred in this matter. We hold the
trial court did not abuse its discretion in admitting Ms.Caldwell's statement. Accordingly, these assignments of error are
Defendant did not argue his remaining assignments of error,
and they are deemed abandoned. N.C. R.App. P. 28(b)(6).
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***