State v. Martin

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1432 NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

STATE OF NORTH CAROLINA

v. Buncombe County No. 11 CRS 394-95, 55315 JACK MEREDITH MARTIN

Appeal by defendant from judgments entered 13 June 2013 by

Judge Mark E. Powell in Buncombe County Superior Court. Heard

in the Court of Appeals 27 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General Perry J. Pelaez, for the State.

Russell J. Hollers III for defendant.

HUNTER, Robert C., Judge.

Defendant appeals the judgments entered after a jury

convicted him of two counts of felonious breaking or entering,

larceny after breaking or entering, and second degree

kidnapping. On appeal, defendant argues that the trial court

erred by failing to instruct the jury on misdemeanor breaking or

entering in case no. 11 CRS 55315, failing to instruct the jury

on false imprisonment in case no. 11 CRS 395, and committing a -2- clerical error by incorrectly stating that defendant was

convicted of first degree kidnapping on the judgment sheet.

After careful review, we find no error in the trial court’s

refusal to instruct on misdemeanor breaking or entering and

false imprisonment. However, we remand the kidnapping judgment

sheet in case no. 11 CRS 395 to correct a clerical error.

Background

The incidents that gave rise to defendant’s convictions

occurred on two different days in 2011 at two separate hotels in

Asheville, North Carolina. The first incident occurred on 21

April 2011 at the Holiday Inn Express. Guests of the hotel use

plastic key cards to gain entry into their rooms. Mr. and Ms.

Frevert were staying at the hotel while visiting their son who

was looking for a home in Asheville. On the afternoon of 21

April, the Freverts went to dinner with their son. Prior to

leaving, Ms. Frevert put her jewelry into a duffel bag and left

it in the room. The next morning, Ms. Frevert noticed that the

jewelry was gone. The value of the jewelry was in excess of

$30,000.

Bipen Patel (“Bipen”), the owner of the Holiday Inn

Express, determined that a housekeeping key had been used twice

to enter the room while the Freverts were out. At trial, Bipen -3- claimed that the particular housekeeping key used was not one of

the ones in his possession. In addition, Bipen identified

defendant from the video surveillance system which showed

defendant entering the hotel’s rear entrance and leaving that

same way approximately one hour later. Entry through that door

required a key card. Apparently, Bipen had had several run-ins

with defendant back in 2004 after he caught defendant entering

his hotel several consecutive days even though defendant was not

a guest. When Bipen confronted him about it in 2004, defendant

claimed that he was an FBI agent; when defendant was showing

Bipen his drivers license, Bipen also saw 10-15 key cards in

defendant’s wallet.

The second incident happened on 6 May 2011 at the Country

Inn & Suites in Asheville. Neal Patel (“Neal”), the owner of

the Country Inn & Suites, saw defendant enter his hotel even

though defendant was not a guest. Neal observed defendant

walking on the second and third floors of the hotel before he

entered room 303 using a plastic key card. When defendant came

out of the room, Neal confronted him. According to Neal,

defendant told Neal to drop his cell phone and get on the floor;

defendant threatened to shoot him if he moved. When defendant -4- tried to reenter room 303, Neal ran to the front desk and called

police.

In May 2011, Bridgette Clark (“Ms. Clark”), a hotel

property manager, called police after seeing a newscast about

defendant. At trial, Ms. Clark testified that she recognized

defendant from when he was a guest at Value Place, an extended

stay hotel in Asheville, sometime in the fall of 2010. After

several incidents where defendant claimed that someone was

entering his hotel room and stalking him, he confronted Ms.

Clark and became furious. He screamed that he could make hotel

key copies “all day long” and threw several key cards at her.

Prior to asking defendant to leave, Ms. Clark inspected his room

and saw a square black box connected to defendant’s computer.

The box was similar to the one Value Place used to program its

hotel keys.

At trial, defendant admitted to being at both hotels on the

dates in question. However, he claimed that he gained access

both times using friends’ key cards; he declined to identify the

friends. Furthermore, defendant disputed Neal’s account of

their confrontation, claiming that he did not order Neal to lay

on the ground or threaten to shoot him. Instead, defendant -5- alleged that after Neal approached him and asked if he was a

guest, defendant refused to accompany Neal to the front desk.

On 11 July 2011, defendant was indicted for one count of

felonious breaking or entering and one count of larceny based on

the events that occurred at the Holiday Inn Express on 21 April

(case no. 11 CRS 394). On 11 July 2011 and 6 August 2012,

defendant was indicted for one count of first degree kidnapping

(case no. 11 CRS 395) with a sentence enhancement for committing

the felony while using a firearm pursuant to N.C. Gen. Stat. §

15A-1340.16A(c) and one count of felonious breaking or entering

(case no. 11 CRS 55315) based on the events at the Country Inn &

Suites.

The matter came on for trial on 10 June 2013. On 13 June

2013, in case no. 11 CRS 394, the jury found defendant guilty of

felonious breaking or entering and felonious larceny based on

the events that occurred at the Holiday Inn Express. In

addition, the jury convicted defendant of felonious breaking or

entering and second degree kidnapping based on the events at the

Country Inn & Suites in case nos. 11 CRS 55315 and 11 CRS 395,

respectively. However, the jury did not find that defendant

used, displayed, or threatened to use a firearm at the time he

committed the kidnapping. On 13 June 2013, the trial court -6- sentenced defendant to 25 to 39 months imprisonment for the

kidnapping conviction and 5 to 6 months imprisonment for the

remaining convictions, to be served consecutively. On 17 June

2013, defendant purportedly appealed these judgments when he

appealed “the judgment entered against him in district court on

the 13th day of June” to superior court.

Grounds for Appeal

Initially, it should be noted, and defendant concedes, that

his notice of appeal is technically deficient because it

improperly states that defendant is appealing the district court

judgments entered against him to superior court when, in fact,

he was attempting to appeal the superior court judgments to this

Court. Accordingly, defendant has filed a petition for writ of

certiorari in order for this Court to review the judgments

entered against him on 13 June 2013. Because defendant was

represented by counsel at the time his attorney filed the

deficient notice of appeal and should not be punished for his

counsel’s failure to properly appeal, we grant the petition and

address the merits of his appeal.

Arguments

Defendant first argues that the trial court committed plain

error in failing to instruct the jury on misdemeanor breaking or -7- entering in case no. 11 CRS 55315. Specifically, defendant

contends that there was evidence that he did not intend to

commit larceny when he entered room 303 at the Country Inn &

Suites, alleging that he was at the hotel visiting friends.

Furthermore, defendant argues that had the jury been provided

the instruction on the lesser-included offense, it probably

would have reached a different verdict. We disagree.

Since defendant failed to object when the trial court

refused to instruct the jury on misdemeanor breaking or

entering, defendant must show plain error:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

A trial court is required to give a jury instruction on a

lesser-included offense “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). The trial court must

consider the evidence in the light most favorable to the -8- defendant. State v. Broom, __ N.C. App. __, __, 736 S.E.2d

802, 810, disc. review denied, __ N.C. __, 739 S.E.2d 853

(2013). However, the trial court does not err in refusing to

instruct on a lesser-included offense when the State provides

evidence of each element of the greater offense and there is no

evidence to negate these elements other than the defendant’s

denial that he committed the offense. State v. Reid, 175 N.C.

App. 613, 623, 625 S.E.2d 575, 584 (2006).

N.C. Gen. Stat. § 14–54(a) (2013) provides that “[a]ny

person who breaks or enters any building with intent to commit

any felony or larceny therein shall be punished as a Class H

felon.” In contrast, “[a]ny person who wrongfully breaks or

enters any building is guilty of a Class 1 misdemeanor.” N.C.

Gen. Stat. § 14–54(b). “The lesser included offense of

misdemeanor breaking and entering must be submitted to the jury

if there is substantial evidence the defendant broke and entered

for some non-felonious reason other than that alleged in the

indictment.” State v. Merritt, 120 N.C. App. 732, 743, 463

S.E.2d 590, 596 (1995) (emphasis added).

Defendant is correct that there was no evidence introduced

at trial that he took anything from room 303 at the Country Inn

& Suites. However, the evidence does not support the trial -9- court instructing on a lesser-included offense because the jury

could have inferred felonious intent from defendant’s conduct,

and defendant failed to present substantial, credible evidence

that he broke and entered room 303 for a nonfelonious reason.

See generally State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d

577, 580 (1982) (noting that “[w]ithout other explanation for

breaking into the building or a showing of the owner’s consent,

[the defendant’s felonious] intent may be inferred from the

circumstances”). Instead, the evidence showed that defendant

was not a guest of the hotel but entered room 303 several times

with a plastic key card. Defendant offered no other explanation

for why he was in the hotel or had a key card to enter the hotel

other than he was meeting some friends whom he did not want to

identify. On cross-examination, defendant refused to provide

any information about the people he was visiting, including what

floor they were staying on and how he knew them. Instead,

defendant repeatedly told the prosecutor on cross-examination

that it was “none of [his] business” when asked about the

friends’ identities at trial. Furthermore, Ms. Clark’s

testimony shows that defendant had access to a machine that

programed key cards and that, as he boasted to her, he could

make key cards “all day long.” Taken as a whole, there is no -10- evidence that might convince a jury that defendant entered the

Country Inn & Suites hotel room with a plastic key card for some

reason other than larceny besides his unsubstantiated assertion

that he was visiting friends whom he refused to identify.

Therefore, because the State provided evidence of each element

for felonious breaking or entering and defendant’s only evidence

offered to negate these elements was his denial that he intended

to commit larceny, the trial court was not required to instruct

on the lesser-included offense. See generally Reid, 175 N.C.

App. at 623, 625 S.E.2d at 584. Accordingly, the trial court

did not err, much less commit plain error, in refusing to give

an instruction on misdemeanor breaking or entering.

Next, defendant argues that the trial court committed plain

error by failing to instruct the jury on false imprisonment, a

lesser-included offense of kidnapping. We disagree.

“The difference between kidnapping and the lesser included

offense of false imprisonment is the purpose of the confinement,

restraint, or removal of another person: the offense is

kidnapping if the purpose of the restraint was to accomplish one

of the purposes enumerated in the kidnapping statute.” State v.

Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 562 (1992). Here, as

discussed, a reasonable juror could have inferred felonious -11- intent based on the fact that defendant entered a hotel room

with a key card even though he was not a guest of the hotel.

Furthermore, Ms. Clark’s testimony showed defendant had, in the

past, access to a key card programming machine and the ability

to make any key card he wanted. “Intent is a condition of the

mind ordinarily susceptible of proof only by circumstantial

evidence. Evidence of a defendant’s actions following restraint

of the victim is some evidence of the reason for the restraint.”

State v. Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 128

(1993). Since the evidence indicated that defendant confined or

restrained Neal for the purpose of committing larceny in room

303 and there was no other credible evidence that defendant

acted for any other purpose, the trial court did not err, much

less commit plain error, in refusing to instruct on false

imprisonment.

Finally, defendant argues that this Court should remand the

judgment in case no. 11 CRS 395 for correction of a clerical

error. Specifically, defendant contends that the judgment sheet

incorrectly states that he was convicted of first degree

kidnapping even though the trial court instructed on second

degree kidnapping, the jury convicted him of second degree

kidnapping, and defendant was sentenced for second degree -12- kidnapping. Thus, defendant requests this Court remand for

correction of the judgment sheet. As this was clearly the

result of a clerical error, see State v. Taylor, 156 N.C. App.

172, 177, 576 S.E.2d 114, 117-18 (2003) (defining clerical error

as “an error resulting from a minor mistake or inadvertence,

esp. in writing or copying something on the record, and not from

judicial reasoning or determination”), we agree and remand for

the trial court to correct the judgment to show that defendant

was convicted of second degree kidnapping, a Class E felony,

N.C. Gen. Stat. § 14-39(b) (2013). See generally State v.

Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008)

(“When, on appeal, a clerical error is discovered in the trial

court’s judgment or order, it is appropriate to remand the case

to the trial court for correction because of the importance that

the record ‘speak the truth.’”).

Conclusion

Because the State presented evidence that defendant

intended to commit larceny at the Country Inn & Suites and the

only evidence negating this element was defendant’s claim that

he was visiting friends, the trial court did not err, much less

commit plain error, in refusing to instruct on misdemeanor

breaking or entering. Relatedly, because the evidence supported -13- a finding by the jury that defendant restrained or confined Neal

for the purpose of committing larceny in room 303, we find no

error in the trial court’s refusal to instruct on misdemeanor

false imprisonment. Finally, we remand the judgment in case no.

11 CRS 395 to correct the clerical error on the judgment sheet

to show that defendant was convicted of second degree

kidnapping, not first degree kidnapping.

NO ERROR IN PART; REMANDED IN PART TO CORRECT A CLERICAL ERROR.

Judges DILLON and DAVIS concur.

Report per Rule 30(e).