Opinion of the Court
a broken window next to the front door, which was unlocked. He entered the home
and discovered that every room had been ransacked. Officer Glenn locked the front
door and filed a report regarding the incident.
The next day, CMPD Officer John Van Hemel (“Officer Van Hemel”) responded
to a 911 call reporting a break-in at the same residence. Officer Van Hemel met with
Stephen Belk (“Belk”), the owner of the residence, who had been away and reported
the break-in upon his return. They walked through the house together, and Officer
Van Hemel noticed red substances in two locations.
CMPD crime scene search investigator Mark Wilson (“Wilson”) investigated
the break-in at Belk’s residence. Wilson collected samples of what appeared to be
blood from three locations: a cushion on a sofa in the living room, a light switch in the
master bedroom, and a comforter which was located in a front bedroom, near the
broken window. Blood was present in two of the samples, and the DNA from those
samples was subsequently matched to Defendant, who was Belk’s next door neighbor.
Defendant was arrested on 31 October 2012. When he was then interviewed
by CMPD Detectives David Dickinson and Daniel Cunius, Defendant claimed a man
named “Cut Throat” broke into Belk’s home and then requested Defendant’s help in
removing items. Defendant moved a laptop computer and keyboard to a home across
the street for Cut Throat in exchange for four rocks of crack cocaine.
-2-
Defendant was indicted for felony breaking or entering, felony larceny, and
attaining the status of an habitual felon. Beginning 6 May 2014, he was tried by a
jury in Mecklenburg County Superior Court. At the close of the evidence, the trial
court dismissed the larceny charge. During the subsequent jury charge conference,
the trial court stated that it was “inclined to give [an instruction on] misdemeanor
breaking and entering,” a lesser included offense. However, the court did not
ultimately give that instruction. On 7 May 2014, the jury returned a verdict finding
Defendant guilty of felony breaking or entering. Defendant was then found not guilty
of attaining the status of an habitual felon. The trial court sentenced Defendant to a
term of 18 to 31 months of imprisonment. Defendant gave oral notice of appeal.
Analysis
Defendant’s sole argument on appeal is that the trial court erred by failing to
instruct the jury on the lesser included offense of misdemeanor breaking or entering.
We disagree.
“An instruction on a lesser-included offense must be given only if the evidence
would permit the jury rationally to find defendant guilty of the lesser offense and to
acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771
(2002). When properly preserved at trial, “[arguments] challenging the trial court’s
decisions regarding jury instructions are reviewed de novo by this Court.” State v.
Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). But when a Defendant
-3-
“neither request[s] the instruction nor object[s] to the court's failure to give the
instruction, we review the [argument] under the plain error standard.” State v.
Davis, 177 N.C. App. 98, 102, 627 S.E.2d 474, 477 (2006).
In this case, the trial court informed counsel of its intended instructions and
asked if there were any requested additions. The following colloquy ensued:
[DEFENSE COUNSEL]: Your Honor, [Defendant] said he went in. Cut Throat asked him to help him. He never said, “I went in there to steal, I broke in there to steal.”
THE COURT: But he obviously knew, or at least there was an inference that he knew, since this place had been broken into, that the items were being stolen. And so to the extent he assisted him, he’s charged with knowledge. I had a client years ago, he helped a guy load tires at a tire place after hours. The guy himself worked there, and he claimed he was just helping the guy out, thought he had the right to. The jury found him guilty of felony larceny on the theory of acting in concert. So I don’t think there’s any evidence to say he knew –- that he didn’t know that the guy was stealing property.
[DEFENSE COUNSEL]: I’m also asking the Court not to give the acting in concert theory. There’s no evidence except for what he said, that Cut Throat asked him to come in and remove some items. There’s no other evidence of an agreement or a conspiracy.
[THE STATE]: That is the evidence, Your Honor, that he acted with Cut Throat, which obviously the State doesn’t give much credence to, but he wants to have both sides of that coin. I think he has to –- I think the jury has sufficient evidence that if they want to they can find that he acted in concert. That was his evidence, that was his statement, I should say, our evidence. So I would ask for that.
-4-
THE COURT: I’m going to give it, and I’m inclined to give misdemeanor breaking and entering. All right. Let’s bring the jury in and let the State rest, let the Defendant rest.
[DEFENSE COUNSEL]: I wanted to ask for interested witness, also.
THE COURT: All right. I’ll give that.
When the trial court subsequently instructed the jury, it did not include instructions
on the lesser included offense of misdemeanor breaking and entering. Defense
counsel did not object to this omission after the instructions had concluded.
Since Defendant did not request an instruction on misdemeanor breaking and
entering or object to that instruction not being given, our review is limited to plain
error. See id. However, because “defendant did not ‘specifically and distinctly’ allege
plain error as required by North Carolina Rule of Appellate Procedure 10(c)(4),
defendant is not entitled to plain error review of this issue.” State v. Dennison, 359
N.C. 312, 312-13, 608 S.E.2d 756, 757 (2005) (citing N.C. R. App. P. 10(c)(4)).
Accordingly, this argument must be overruled.
Nonetheless, Defendant contends that this issue is preserved by virtue of the
trial court’s statement that it was “inclined to give misdemeanor breaking and
entering.” See State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988) (“[A]
request for an instruction at the charge conference is sufficient compliance with the
rule to warrant our full review on appeal where the requested instruction is
subsequently promised but not given, notwithstanding any failure to bring the error
-5-
to the trial judge’s attention at the end of the instructions.”). Even assuming,
arguendo, that the trial court’s statement could be construed as a promise sufficient
to preserve this issue for appellate review, there was no error in the trial court’s
failure to give the lesser included instruction.
“The 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. Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993).
Misdemeanor breaking or entering is a lesser-included offense and entails the
breaking or entering of a building without the intent to commit a felony or larceny.
State v. Dozier, 19 N.C. App. 740, 742, 200 S.E.2d 348, 349 (1973). If an indictment
alleges a defendant broke and entered a building with the intent to commit larceny,
and if there is no evidence of any non-felonious or non-larcenous purpose for the
breaking and entering, an instruction as to misdemeanor breaking and entering is
not required. State v. Merritt, 120 N.C. App. 732, 743, 463 S.E.2d 590, 596 (1995).
During his interrogation by CMPD, Defendant repeatedly denied breaking into
Belk’s home. Instead, he told the detectives that an individual named Cut Throat
broke the glass and then came to Defendant’s house seeking his assistance with
removing items from Belk’s residence. Defendant took a laptop computer and a
keyboard and brought them to Cut Throat in exchange for four rocks of crack cocaine.
-6-
Defendant contends that his actions do not establish that he had the intent to
commit a larceny because
[t]he evidence supported that [Defendant] helped someone that, as far as [Defendant] knew, had the right to move those things. Some people help friends move in exchange for beer and pizza. [Defendant] apparently helped Cut Throat move in exchange for four rocks of crack cocaine, but the friendly and neighborly principle is the same.
Contrary to Defendant’s contention, we do not believe a jury could rationally have
found Defendant guilty of misdemeanor breaking and entering based upon the
extraordinarily implausible scenario posited by Defendant. The evidence
demonstrated that Defendant knew Cut Throat, whom he referred to as a drug dealer
from the neighborhood, had broken into the home of Defendant’s neighbor and then
asked Defendant to help him remove items from the home in exchange for drugs.
There was no evidence that Defendant believed that Cut Throat had the right to enter
Belk’s home or that he could give permission to Defendant to do so. Since nothing
presented at trial would have allowed a jury to infer that Defendant did not have the
intent to commit larceny when he entered Belk’s home, the trial court did not err
when it did not instruct the jury on the lesser included offense of misdemeanor
breaking and entering. See id. Defendant received a fair trial, free from error.
NO ERROR.
Judges STROUD and DAVIS concur.
Report per Rule 30(e).
-7-