Opinion
NO. COA12-261
10-16-2012
STATE OF NORTH CAROLINA v. KELLY OMAR DOUGLAS
Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State. Marie H. Mobley for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
Nos. 11 CRS 12431, 200440
Appeal by Defendant from judgment entered 14 October 2011 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State.
Marie H. Mobley for Defendant.
STEPHENS, Judge.
On 3 January 2011, two Charlotte-Mecklenburg police officers responded to a report of a suspicious car parked in front of an unoccupied house. When the officers arrived, the rear doors of the car were open and window screens from the house were inside the car. The officers found Defendant Kelly Omar Douglas and another person inside the house removing wire from the walls. After being placed under arrest, Defendant admitted that he entered the house without the owner's permission for the purpose of removing scrap metal.
In a voluntary written statement to the police, Defendant also asserted:
I saw the house, the door was open, cracked open, the furnaces were out front, screen door was on the porch, it was abandoned like they were remodeling or something so we went in to get the scrap metal.A representative of the company that owned the property testified that Defendant had not been hired to do work at the house and did not have permission to be there. Another witness who was familiar with the area testified that she saw a sign on the property advertising it was available for "leasing development."
A jury found Defendant guilty of felonious breaking and entering and non-felonious larceny, and Defendant pled guilty to having attained habitual felon status. The trial court arrested judgment on the non-felonious larceny verdict and imposed a prison term of 80 to 105 months for the breaking and entering and habitual felon convictions. Defendant appeals.
In his sole argument on appeal, Defendant contends the trial court abused its discretion by denying his motion to set aside the felonious breaking and entering verdict because there was insufficient evidence of his intent to commit larceny at the time of the entry. We disagree.
"A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the trial judge's discretion and is not reviewable on appeal, in the absence of evidence of abuse of discretion." State v. Powell, 74 N.C. App. 584, 586, 328 S.E.2d 613, 614 (1985) (citation omitted). "An abuse of discretion will be found where the ruling was so arbitrary that it cannot be said to be the result of a reasoned decision." State v. Tuck, 191 N.C. App. 768, 771, 664 S.E.2d 27, 29 (2008).
"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. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575, 577 (1986) (citation omitted); N.C. Gen. Stat. § 14-54(a) (2011). "The requisite intent is seldom provable by direct evidence; it ordinarily must be proved by circumstances from which it may be inferred . . . . In the absence of a showing of a lawful motive, an intent to commit larceny may be reasonably inferred from an unlawful entry." State v. Quilliams, 55 N.C. App. 349, 351, 285 S.E.2d 617, 619 (citations omitted), cert. denied, 305 N.C. 590, 292 S.E.2d 11 (1982). Although "property which has been abandoned by the owner cannot be the subject of larceny," the party asserting the affirmative defense of abandonment must prove by "clear, unequivocal, and decisive evidence" that the owner intended to permanently terminate his or her ownership of the property. State v. Hall, 57 N.C. App. 544, 546, 291 S.E.2d 873, 875 (1982) (citations omitted).
In this case, Defendant contends he did not have the intent to commit larceny because he believed the house was abandoned. However, in Defendant's written statement to police, he stated he believed the house "was abandoned like they were remodeling or something[.]" Defendant's statement that he thought the house was being remodeled contradicts his claim that he believed the owner had abandoned all rights to the property. Additionally, a representative of the company that owns the property testified that Defendant did not have permission to enter the house, and another witness testified that a sign was present advertising the property for "leasing development." Thus, Defendant's evidence fails to establish by clear and unequivocal proof that the house was abandoned. Id. Because Defendant's claim of abandonment fails, his intent to commit larceny may be inferred from his unlawful entry. See Quilliams, 55 N.C. App. at 351, 285 S.E.2d at 619. Accordingly, we find
NO ERROR.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).