State v. Kapfhamer

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-734
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-734 NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 10 CRS 258879 10 CRS 258881 ROBERT ADAM KAPFHAMER

Appeal by Defendant from judgment entered 6 July 2012 by

Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 12 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State.

Irving Joyner, Esq., for defendant.

DILLON, Judge.

Robert Adam Kapfhamer (“Defendant”) appeals from a judgment

convicting him of felonious possession of stolen goods and of

misdemeanor breaking or entering, challenging the trial court’s

denial of his motion to dismiss. We find no error.

The evidence of record tends to show the following:

Defendant and Cody Dedischew rented separate bedrooms in a -2- boarding house in Mecklenburg County. On 25 November 2010, Mr.

Dedischew left the country to attend a funeral, leaving his

bedroom door locked, and giving no one permission to enter his

room.

On the night of 25 November 2010, Defendant called the

police to report a breaking and entering at the house. Randall

Jones, who owned the boarding house, discovered that the front

door and all of the bedroom doors had been kicked in. He said

that Defendant looked frazzled and very nervous and that

Defendant indicated he did not think anything had been stolen.

When Mr. Dedischew returned from the funeral, he discovered

that a television, a camera, and a Black and Decker drill were

missing from his bedroom. Approximately three months after the

break-in, police informed Mr. Dedischew that his drill had been

recovered from a local pawn shop and that the pawn ticket for

the drill indicated that it had been pawned by Defendant. When

police confronted Defendant with this evidence, Defendant

claimed that he had not been responsible for the break-in but

that he took advantage of the fact that the boarding house had

been broken into by taking and pawning Mr. Dedischew’s drill,

stating that he needed the money for gas. -3- On 27 June 2011, Defendant was indicted on two counts of

larceny after breaking and entering, and two counts felonious

breaking and entering, and one count of felonious possession of

stolen goods. After a trial on the merits, the jury returned

verdicts of guilty of felonious possession of stolen goods and

of misdemeanor breaking or entering. The trial court entered a

judgment consistent with the jury’s verdict, sentencing

Defendant to 7 to 9 months incarceration, which the trial court

suspended, subject to the condition that Defendant was placed on

30 months supervised probation. From this judgment, Defendant

appeals.

I: Motion to Dismiss

On appeal, Defendant contends the trial court erred by

denying his motion to dismiss the charges of felonious

possession of stolen property and of misdemeanor breaking or

entering. We disagree.

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). “‘Upon defendant’s motion for dismissal,

the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant’s -4- being the perpetrator of such offense. If so, the motion is

properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000) (citation and quotation marks omitted). “Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” State v. Smith,

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its

determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most

favorable to the State, giving the State the benefit of every

reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995)

(citation omitted).

A: Felonious Possession of Stolen Property

“The essential elements of felonious possession of stolen

property are: (1) possession of personal property, (2) which was

stolen pursuant to a breaking or entering, (3) the possessor

knowing or having reasonable grounds to believe the property to

have been stolen pursuant to a breaking or entering, and (4) the

possessor acting with a dishonest purpose.” State v. McQueen,

165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004), disc. review -5- denied, 359 N.C. 285, 610 S.E.2d 385 (2005) (citing N.C. Gen.

Stat. §§ 14-71.1, 14-72(c)) (citations omitted).

The indictment in this case charging Defendant with

felonious possession of stolen property alleged the following:

“[O]n or about the 29th day of November, 2010, in Mecklenburg

County, [Defendant] did unlawfully, willfully and feloniously

possess a drill, the personal property of Cody Dedischew, having

some value, which property was stolen property, knowing and

having reasonable grounds to believe the property to have been

feloniously stolen, taken, and carried away pursuant to a

violation of Section 14-54 of the General Statutes of North

Carolina.”

Defendant contends the State did not present substantial

evidence of Defendant’s “possession of personal property,” or of

Defendant’s “knowing or having reasonable grounds to believe the

property to have been stolen pursuant to a breaking or

entering.” McQueen, 165 N.C. App. at 459, 598 S.E.2d at 676.

We address each argument in turn.

The first element of possession of stolen goods is that a

defendant must have had the personal property in his possession.

“[P]ossession [of stolen goods] . . . may be either actual or

constructive. Constructive possession exists when the -6- defendant, while not having actual possession [of the goods], .

. . has the intent and capability to maintain control and

dominion over the[m].” State v. Szucs, 207 N.C. App. 694, 698,

701 S.E.2d 362, 365 (2010) (citation and quotation marks

omitted) (alterations in original). Defendant contends on

appeal there “was no evidence presented in this case that

[Defendant] was in possession of any property which belonged to

and had been stolen from Cody Dedischew on November 29, 2010.”

The State presented the following evidence tending to show

Defendant’s possession of the drill: Defendant admitted he took

the drill. Further, Defendant’s identification was presented to

the pawn shop operator when he pawned the drill, and the

operator testified that he checked the identification “[v]ery

closely” to be certain the identification was current and that

the identification matched the individual. Accordingly, we

believe there was substantial evidence to support the element of

possession.

Next, Defendant argues the State did not present

substantial evidence of Defendant’s “knowing or having

reasonable grounds to believe the property to have been stolen

pursuant to a breaking or entering.” McQueen, 165 N.C. App. at

459, 598 S.E.2d at 676. According to Defendant, Mr. Jones saw -7- the drill in a common area of the house a few days after the

break-in had occurred, which supplied evidence from which the

jury could infer that the drill was not taken during the break-

in or that Defendant entered Mr. Dedischew’s room to take it.

However, there was also evidence that the drill was taken from

Mr. Dedischew’s bedroom. Specifically, Mr. Dedischew testified,

that he had left the drill on the floor of his room before

leaving for the funeral. Further, the jury could infer from the

evidence that Defendant was the sole perpetrator of the breaking

and entering into Mr. Dedischew’s room. We, therefore, believe

that the State presented substantial evidence from which a jury

could infer that of Defendant’s “knowing or having reasonable

grounds to believe the property to have been stolen pursuant to

a breaking or entering.” Id. at 459, 598 S.E.2d at 676.

Accordingly, we hold that the trial court did not err by denying

Defendant’s motion to dismiss on this ground. State v. Cox, __

N.C. __, __, 749 S.E.2d 271, 277 (2013) (stating that

“evidentiary contradictions and discrepancies are for the jury

to resolve and do not warrant dismissal”).

B: Misdemeanor Breaking or Entering

In Defendant’s next argument on appeal, he contends the

trial court erred by denying his motion to dismiss the charge of -8- misdemeanor breaking or entering. “Misdemeanor breaking or

entering, . . . is a lesser included offense of felonious

breaking or entering and requires only proof of wrongful

breaking or entry into any building.” State v. Johnson, 208

N.C. App. 443, 448, 702 S.E.2d 547, 551 (2010), disc. review

denied, 365 N.C. 84, 706 S.E.2d 247 (2011) (citing N.C. Gen.

Stat. § 14-54(b)) (additional citation omitted).

The indictment charged Defendant with felonious breaking

and entering; however, the jury convicted him of the lesser

included offense of misdemeanor breaking or entering.

Defendant’s argument on appeal is predicated on the

uncontroverted fact that Defendant and Mr. Dedischew each rented

separate private bedrooms and shared common areas in one house –

the house referenced in the indictment. On appeal, Defendant

contends essentially that there was not substantial evidence

presented that Defendant kicked in the door to Mr. Dedischew’s

locked bedroom, and that, the foregoing notwithstanding, a

locked room within a boarding house does not qualify as a

“building” for purposes of the application of N.C. Gen. Stat.

14-54(b). We find these arguments meritless.

We first address Defendant’s argument that the State did

not present substantial evidence that Defendant broke into Mr. -9- Dedischew’s bedroom. Assuming arguendo there was not

substantial evidence that Defendant broke into Mr. Dedischew’s

bedroom, to convict Defendant of a violation of N.C. Gen. Stat.

14-54(b), “it is sufficient if the State’s evidence shows either

a breaking or an entering; it need not show both.” State v.

O'Neal, 77 N.C. App. 600, 605, 335 S.E.2d 920, 923 (1985)

(emphasis added). In this case, there was evidence tending to

show that the drill was on the floor in Mr. Dedischew’s locked

bedroom, and that Defendant pawned the drill to get money for

gas. Even if the jury believed Defendant was not the

perpetrator responsible for kicking in Mr. Dedischew’s bedroom

door - but merely took advantage of the breaking and entering to

pawn the drill - there is evidence from which the jury could

infer that Defendant nonetheless entered Mr. Dedischew’s bedroom

to remove the drill.

Lastly, we address Defendant’s argument that a locked room

within a building does not satisfy the statutory requirement of

breaking and entering a “building” pursuant to N.C. Gen. Stat. §

14-54. N.C. Gen. Stat. § 14-54(c) defines “building” as

“include[ing] any dwelling, dwelling house, uninhabited house,

building under construction, building within the curtilage of a

dwelling house, and any other structure designed to house or -10- secure within it any activity or property.” Id. This Court has

previously held contrary to Defendant’s argument. In State v.

Clinton, 3 N.C. App. 571, 574, 165 S.E.2d 343, 345 (1969), in

the context of breaking and entering, we held that “a room in a

rooming house” is included “in the meaning of the term ‘dwelling

house.’” Id.; see also State v. Merritt, 120 N.C. App. 732,

736, 463 S.E.2d 590, 592 (1995), disc. review denied, 342 N.C.

897, 467 S.E.2d 738 (1996) (holding that “[t]here may be several

dwelling units in a single structure, as the rooms in an inn,

hotel or lodging house. In such case, each room is regarded as

a ‘dwelling house’ of its respective occupant”). As such, in

this case Mr. Dedischew’s room within the rooming house was

exclusively his “dwelling house” within the meaning of N.C. Gen.

Stat. § 14-54, and not that of Defendant.

For the foregoing reasons, we believe the trial court did

not err in denying Defendant’s motion to dismiss the charge of

breaking and entering.

NO ERROR.

Judge STROUD and Judge HUNTER, JR. concur.

Report per Rule 30(e).