An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA14-232 NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Johnston County Nos. 12 CRS 54938, 12 CRS 2809 CARLOS CRISP a/k/a CARLOS CHRISP
Appeal by Defendant from judgments entered 19 September
2013 by Judge Thomas H. Lock in Superior Court, Johnston County.
Heard in the Court of Appeals 26 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State.
Appellate Defender Staples S. Hughes, by William D. Spence, for Defendant.
McGEE, Chief Judge.
Defendant appeals his conviction of felony breaking or
entering, contending that (1) the trial court erred in denying
his motion to dismiss the felony breaking or entering charge for
insufficient evidence; (2) the jury’s verdict finding Defendant
guilty of felony breaking or entering is logically inconsistent
and mutually exclusive with its verdict finding Defendant not -2- guilty of larceny after breaking or entering; and (3) the trial
court erred in calculating Defendant’s prior record level during
sentencing. On the first two points, we disagree. On the
third, we find no prejudicial error.
I. Background
Sheeba Vamattan (“Ms. Vamattan”) was the manager of Town
Crest Apartments (“Town Crest”) in Johnston County on 11 August
2012, when the following events occurred. Sherman Howell, Jr.
(“Mr. Howell”) was a tenant of Town Crest.
Mr. Howell left his apartment at Town Crest around 10:00
a.m. Shortly thereafter, Ms. Vamattan noticed that the back door
to Mr. Howell’s apartment was open. She considered this unusual
because Mr. Howell exclusively used his front door. Ms.
Vamattan telephoned Mr. Howell and confirmed that he was not in
his apartment and that no one was supposed to be inside. Ms.
Vamattan then saw Carlos Crisp, later identified as Defendant,
exit Mr. Howell’s apartment through the open back door, carrying
a white T-shirt; Ms. Vamattan immediately recognized Defendant
as the cohabitating boyfriend of another Town Crest tenant. A
second man, who was standing at the rear of Mr. Howell’s
apartment, motioned to Defendant, and both of the men drove away
in a white van that had been parked nearby. Ms. Vamattan
recognized the van as belonging to Defendant. -3- Ms. Vamattan called 911, and a deputy sheriff soon arrived
at the scene. Upon closer inspection, the deputy sheriff
discovered that the glass in the back door of Mr. Howell’s
apartment had been broken with a piece of cinder block; Mr.
Howell’s couch had been moved to barricade the front door of his
apartment; and the master bedroom had been ransacked. Mr.
Howell later reported that some tennis shoes and a PlayStation 3
were missing.
Defendant was charged with felony breaking or entering,
felony larceny, and being an habitual felon. At trial,
Defendant testified that he had nothing to do with the break-in
of Mr. Howell’s apartment. Defendant’s counsel moved to dismiss
the felony breaking or entering charge at the close of the
State’s evidence, which the trial court denied. Counsel renewed
the motion at the close of all the evidence and again after the
jury returned its verdict. Both of these motions also were
denied.
A jury found Defendant guilty of felony breaking or
entering and of being an habitual felon, but not guilty of
larceny. Defendant gave notice of appeal in open court.
II. Defendant’s Motions to Dismiss
A. Standard of Review -4- This Court reviews the denial of a motion to dismiss for
insufficient evidence de novo. State v. Rouse, 198 N.C. App.
378, 381–82, 679 S.E.2d 520, 523 (2009).
B. Analysis
Defendant first assigns error to the trial court’s denial
of his motions to dismiss the felony breaking or entering
charge.
The rules governing motions to dismiss in criminal cases are well settled and familiar. When a defendant moves for dismissal, the trial judge must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the crime. The term “substantial evidence” is deceptive because, as interpreted by this Court in the context of a motion to dismiss, it is interchangeable with “more than a scintilla of evidence.”
State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991)
(citations and quotes omitted). Thus,
[w]hen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.
State v. Rouse, 198 N.C. App. 378, 381, 679 S.E.2d 520, 523
(2009) (citations and quotes omitted). -5- In his brief, Defendant correctly concedes that “[i]ntent
is a mental attitude seldom provable by direct evidence. It
must ordinarily be proved by circumstances from which it may be
inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506,
508 (1974), overruled in part on other grounds by State v.
Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). He also concedes
that intent to commit a larceny can be inferred through
“circumstances existing at the time of the alleged commission of
the offense.” State v. Bronson, 10 N.C. App. 638, 641, 179
S.E.2d 823, 825 (1971) (citation omitted). In spite of these
concessions, Defendant argues that there was not sufficient
evidence presented at trial for a jury to find, beyond a
reasonable doubt, that Defendant intended to commit a larceny
inside Mr. Howell’s apartment. Specifically, because the State
did not present any physical evidence connecting Defendant to
the crime, and because Defendant was not seen carrying “burglary
tools” out of Mr. Howell’s apartment, Defendant contends that
the State’s evidence established nothing more than his “mere
presence” at the crime scene.
Defendant takes far too narrow a view of the circumstances
from which intent may be inferred in this case. The fact that a
couch was barricading the front door of Mr. Howell’s apartment,
the master bedroom had been ransacked, and some items were -6- reportedly taken from the apartment provided the jury with
sufficient circumstantial evidence from which it reasonably
could infer that whomever broke into Mr. Howell’s apartment
intended to commit a larceny therein. Considering the evidence
in the light most favorable to the State, the trial court did
not err in denying Defendant’s motions to dismiss.
III. Defendant’s Inconsistent Jury Verdicts Claim
A. Standard of Review
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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.
NO. COA14-232 NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Johnston County Nos. 12 CRS 54938, 12 CRS 2809 CARLOS CRISP a/k/a CARLOS CHRISP
Appeal by Defendant from judgments entered 19 September
2013 by Judge Thomas H. Lock in Superior Court, Johnston County.
Heard in the Court of Appeals 26 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State.
Appellate Defender Staples S. Hughes, by William D. Spence, for Defendant.
McGEE, Chief Judge.
Defendant appeals his conviction of felony breaking or
entering, contending that (1) the trial court erred in denying
his motion to dismiss the felony breaking or entering charge for
insufficient evidence; (2) the jury’s verdict finding Defendant
guilty of felony breaking or entering is logically inconsistent
and mutually exclusive with its verdict finding Defendant not -2- guilty of larceny after breaking or entering; and (3) the trial
court erred in calculating Defendant’s prior record level during
sentencing. On the first two points, we disagree. On the
third, we find no prejudicial error.
I. Background
Sheeba Vamattan (“Ms. Vamattan”) was the manager of Town
Crest Apartments (“Town Crest”) in Johnston County on 11 August
2012, when the following events occurred. Sherman Howell, Jr.
(“Mr. Howell”) was a tenant of Town Crest.
Mr. Howell left his apartment at Town Crest around 10:00
a.m. Shortly thereafter, Ms. Vamattan noticed that the back door
to Mr. Howell’s apartment was open. She considered this unusual
because Mr. Howell exclusively used his front door. Ms.
Vamattan telephoned Mr. Howell and confirmed that he was not in
his apartment and that no one was supposed to be inside. Ms.
Vamattan then saw Carlos Crisp, later identified as Defendant,
exit Mr. Howell’s apartment through the open back door, carrying
a white T-shirt; Ms. Vamattan immediately recognized Defendant
as the cohabitating boyfriend of another Town Crest tenant. A
second man, who was standing at the rear of Mr. Howell’s
apartment, motioned to Defendant, and both of the men drove away
in a white van that had been parked nearby. Ms. Vamattan
recognized the van as belonging to Defendant. -3- Ms. Vamattan called 911, and a deputy sheriff soon arrived
at the scene. Upon closer inspection, the deputy sheriff
discovered that the glass in the back door of Mr. Howell’s
apartment had been broken with a piece of cinder block; Mr.
Howell’s couch had been moved to barricade the front door of his
apartment; and the master bedroom had been ransacked. Mr.
Howell later reported that some tennis shoes and a PlayStation 3
were missing.
Defendant was charged with felony breaking or entering,
felony larceny, and being an habitual felon. At trial,
Defendant testified that he had nothing to do with the break-in
of Mr. Howell’s apartment. Defendant’s counsel moved to dismiss
the felony breaking or entering charge at the close of the
State’s evidence, which the trial court denied. Counsel renewed
the motion at the close of all the evidence and again after the
jury returned its verdict. Both of these motions also were
denied.
A jury found Defendant guilty of felony breaking or
entering and of being an habitual felon, but not guilty of
larceny. Defendant gave notice of appeal in open court.
II. Defendant’s Motions to Dismiss
A. Standard of Review -4- This Court reviews the denial of a motion to dismiss for
insufficient evidence de novo. State v. Rouse, 198 N.C. App.
378, 381–82, 679 S.E.2d 520, 523 (2009).
B. Analysis
Defendant first assigns error to the trial court’s denial
of his motions to dismiss the felony breaking or entering
charge.
The rules governing motions to dismiss in criminal cases are well settled and familiar. When a defendant moves for dismissal, the trial judge must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the crime. The term “substantial evidence” is deceptive because, as interpreted by this Court in the context of a motion to dismiss, it is interchangeable with “more than a scintilla of evidence.”
State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991)
(citations and quotes omitted). Thus,
[w]hen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.
State v. Rouse, 198 N.C. App. 378, 381, 679 S.E.2d 520, 523
(2009) (citations and quotes omitted). -5- In his brief, Defendant correctly concedes that “[i]ntent
is a mental attitude seldom provable by direct evidence. It
must ordinarily be proved by circumstances from which it may be
inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506,
508 (1974), overruled in part on other grounds by State v.
Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). He also concedes
that intent to commit a larceny can be inferred through
“circumstances existing at the time of the alleged commission of
the offense.” State v. Bronson, 10 N.C. App. 638, 641, 179
S.E.2d 823, 825 (1971) (citation omitted). In spite of these
concessions, Defendant argues that there was not sufficient
evidence presented at trial for a jury to find, beyond a
reasonable doubt, that Defendant intended to commit a larceny
inside Mr. Howell’s apartment. Specifically, because the State
did not present any physical evidence connecting Defendant to
the crime, and because Defendant was not seen carrying “burglary
tools” out of Mr. Howell’s apartment, Defendant contends that
the State’s evidence established nothing more than his “mere
presence” at the crime scene.
Defendant takes far too narrow a view of the circumstances
from which intent may be inferred in this case. The fact that a
couch was barricading the front door of Mr. Howell’s apartment,
the master bedroom had been ransacked, and some items were -6- reportedly taken from the apartment provided the jury with
sufficient circumstantial evidence from which it reasonably
could infer that whomever broke into Mr. Howell’s apartment
intended to commit a larceny therein. Considering the evidence
in the light most favorable to the State, the trial court did
not err in denying Defendant’s motions to dismiss.
III. Defendant’s Inconsistent Jury Verdicts Claim
A. Standard of Review
This Court reviews a claim of inconsistent jury verdicts de
novo. State v. Blackmon, 208 N.C. App. 397, 403, 702 S.E.2d
833, 837-38 (2010).
Defendant next contends that the jury’s verdict finding him
guilty of felony breaking or entering is logically inconsistent
and mutually exclusive with its verdict finding him not guilty
of larceny after breaking or entering. It is neither.
“Under G.S. [§] 14-54, if a person breaks or enters one of
the buildings described therein with intent to commit the crime
of larceny, he does so with intent to commit a felony, without
reference to whether he is completely frustrated before he
accomplishes his felonious intent[.]” State v. Smith, 266 N.C.
747, 748–49, 147 S.E.2d 165, 166 (1966). “[A]ctual commission
of the felony, which the indictment charges was intended by the -7- defendant at the time of the breaking [or] entering, is not
required in order to sustain a conviction” of felony breaking or
entering. See State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d
269, 274 (1967), superseded by statute on other grounds as
stated in State v. Worsley, 336 N.C. 268, 279, 443 S.E.2d 68, 73
(1994) (reviewing a burglary conviction).
In the present case, the jury convicted Defendant of felony
breaking or entering because it found beyond a reasonable doubt
that Defendant had the intent to commit a larceny at the time he
broke into Mr. Howell’s apartment. The jury also had at least
reasonable doubt that Defendant committed a larceny within Mr.
Howell’s apartment and thus found him not guilty of larceny.
However, Defendant’s intent to commit a larceny inside Mr.
Howell’s apartment, concurrent with his breaking or entering
thereof, is all that is required to sustain the jury’s verdict
for felony breaking or entering. See id. As such, the jury’s
verdicts here are not inconsistent. Because the verdicts are
not inconsistent, neither can they be mutually exclusive.
Therefore, Defendant’s argument is without merit.
IV. Defendant’s Prior Record Level
This Court has stated that
[t]he determination of an offender's prior record level is a conclusion of law that is -8- subject to de novo review on appeal. It is not necessary that an objection be lodged at the sentencing hearing in order for a claim that the record evidence does not support the trial court's determination of a defendant's prior record level to be preserved for appellate review.
State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804
(2009).
Defendant contends that the trial court miscalculated his
prior record level during sentencing. Specifically, Defendant
was sentenced under prior record level II, based on four prior
record level points. However, both the State and Defendant
appear to be in agreement that Defendant should have been
sentenced based on three prior record level points, rather than
four.
A defendant is properly sentenced under prior record level
II if he has between two and five prior record level points.
See N.C. Gen. Stat. § 15A-1340.14(c) (2013). As such, whether
Defendant had three or four prior record level points would not
have affected the determination of his prior record level.
Where “the correct calculation of defendant's prior record
points does not affect the determination of his prior record
level, the error is harmless.” State v. Blount, 209 N.C. App. -9- 340, 347, 703 S.E.2d 921, 926 (2011). Therefore, this
miscalculation by the trial court did not prejudice Defendant.
No error in part; no prejudicial error in part.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).