State v. Glover

Full title: STATE OF NORTH CAROLINA v. ANDRE DELEON GLOVER, JR.

Court: NORTH CAROLINA COURT OF APPEALS

Date published: Oct 16, 2012

NO. COA12-411 (N.C. Ct. App. Oct. 16, 2012)

Opinion

NO. COA12-411

10-16-2012

STATE OF NORTH CAROLINA v. ANDRE DELEON GLOVER, JR.

Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore for the State. James N. Freeman, Jr. for defendant-appellant.

STEELMAN

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

10 CRS 235005, 235007

Appeal by defendant from judgment entered 6 June 2011 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 September 2012.

Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore for the State.

James N. Freeman, Jr. for defendant-appellant.

STEELMAN, Judge.

There was sufficient circumstantial evidence presented by the State to support submission of the charge of felonious breaking or entering to the jury. The trial court did not err in admitting evidence of defendant's prior break-in in the same neighborhood for purposes of identity pursuant to Rule 404(b) of the North Carolina Rules of Evidence. Where the evidence was clear and positive that defendant forcibly entered the residence with the intent to commit larceny, the trial court did not err in refusing to charge the jury upon the lesser charge of misdemeanor breaking or entering. Where there was no evidence that defendant targeted the residence because of the presence of minor children or that he was aware of their presence, the trial court erred in submitting to the jury the aggravating factor that the victims were very young (N.C. Gen. Stat. § 15A-1340.16(d)(11)).

I. Factual and Procedural History

On 21 July 2010, Jeffrey Miller, an officer with the Charlotte-Mecklenburg Police Department, received a call reporting a break-in in north Charlotte. Upon arriving, he found that the front door of the residence had been kicked in. The residence was occupied by two minor children, ages 10 and 13, at the time of the break-in. Police obtained a description of a suspect from a neighbor, Jerry Lee Redfern (Redfern). Redfern described the suspect as an African-American male with dreadlocks and a tattoo on his left hand, driving a green Toyota Camry. A Nintendo Wii gaming system was missing from the residence.

Craig Vollman, another officer, observed the green Camry on a street leading out of the neighborhood where the break-in took place. Vollman pulled the vehicle over, but when he approached it, the Camry took off. He chased the vehicle up U.S. Highway 29, heading north. The vehicle traveled 95 miles per hour in a 55 mile per hour zone, ran a red light, and weaved in and out of traffic. The Camry finally stopped when it crashed into a Ford pickup truck. Andre Deleon Glover (defendant) was the driver, and only occupant, of the Camry. Redfern identified defendant as the man he observed at the break-in. The Wii gaming system was found near Love's Auto Parts along U.S. Highway 29, a location where police had lost sight of the Camry for several seconds.

On 9 August 2010, defendant was indicted for felonious breaking or entering and felonious speeding to elude arrest.

On 6 June 2011, defendant was found guilty of felonious breaking or entering and felonious fleeing to elude. The jury further found that the young age of one of the victims constituted an aggravating factor. The trial court sentenced defendant to consecutive, active sentences of 12 to 15 and 10 to 12 months, from the aggravated range.

Defendant appeals.

II. Sufficiency of the Evidence on Charge of Breaking or

Entering

In his first argument, defendant contends that the trial court erred in denying his motion to dismiss the charge of felonious breaking or entering. We disagree.

A. Standard of Review

"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).

"Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (emphasis in original) (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

B. Analysis

The elements of felony breaking or entering are that defendant (1) committed a breaking or entering, (2) of any building, (3) without consent, and (4) with intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54 (2011).

On appeal, defendant contends that the State failed to present sufficient evidence that the break-in was committed with the intent to commit a felony. Intent is seldom proved by direct evidence, but "may be inferred from the circumstances surrounding the occurrence." State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d 577, 580 (1982) (citations omitted). In Myrick, the State presented evidence that

defendant was aware that the day's receipts were hidden under a counter in the grill. There was evidence that defendant had unlocked the back door to the grill several times while assisting the manager in locking up. Defendant offered no explanation for breaking into the grill, nor did he offer evidence that he was acting with the manager's consent. Thus, there was substantial circumstantial evidence from which the jury could infer that defendant broke into the grill with the intent to commit larceny.

Id. In the instant case, the State's evidence showed that defendant was seen "prying at" the window of the residence; that defendant's boot print was found on the door that had been kicked in; that defendant fled from police; that there was an item stolen from the residence; and that the stolen item was recovered along the path of defendant's flight.

In addition to Redfern, another neighbor, Shawndra Kent, testified that she saw an African-American man, with dreadlocks, a white t-shirt, and red shorts, at the house. She further testified that she saw him "prying" at a window in the back of the house.

We hold that this constituted substantial circumstantial evidence from which the jury could infer defendant's intent to commit a felony at the time of the break-in.

This argument is without merit.

III. Evidence Under Rule 404(b)

In his second argument, defendant contends that the trial court erred in allowing testimony of his prior conduct. We disagree.

A. Standard of Review

Rule 404(b) is a "general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original). "To effectuate these important evidentiary safeguards, the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity." State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).

Though this Court has not used the term de novo to describe its own review of 404(b) evidence, we have consistently engaged in a fact-based inquiry under Rule 404(b) while applying an abuse of discretion standard to the subsequent balancing of probative value and unfair prejudice under Rule 403. For the purpose of clarity, we now explicitly hold that when analyzing rulings applying Rules 404(b) and 403, we conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.

State v. Beckelheimer, __ N.C. __, __, __ S.E.2d __, __ (June 14, 2012) (No. 175PA11) (citations omitted).

The admissibility of evidence at trial is a question of law and is reviewed de novo. State v. Wilkerson, 363 N.C. 382, 434, 683 S.E.2d 174, 206 (2009).

B. Analysis

In the instant case, the State presented evidence regarding a prior alleged break-in by defendant. Timothy Jones testified that, on 15 July 2010 (six days earlier), he had seen two African-American males, one with dreadlocks, standing beside a green Camry in the driveway of a house on nearby Reigate Road. It appeared to him that they were attempting to break in, and as he watched, they entered the house. The owner of the house, Aliya Boss, testified that her house had been broken into and several items stolen, although she did not see the perpetrator. After defendant's arrest, Jones identified defendant as one of the two he had seen entering the house.

Overruling defense's objection, the trial court found the events to be

sufficiently similar both in terms of the day of the week, time of the morning, the closeness in time, six days apart. Both are residences. They were half a mile from each other. Same neighborhood. Both instances involved the theft of a Nintendo Wii. Both instances involved a green Toyota Camry. Both instances involve a situation where the suspect first attempted to enter through a window and then does gain entry by kicking in a door. Both instances involve the same crime.

The court allowed the testimony, giving the jury a limiting instruction that it be considered solely for the purpose of identifying defendant. The trial court properly admitted the testimony of Jones and Boss to show identity, a permitted purpose under Rule 404(b).

In addition, defendant failed to argue that the admission of this evidence was prejudicial.

A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2011) (emphasis added). Defendant has not argued that, had the testimony not been admitted, a different result would have been reached at trial. Defendant has therefore failed to meet his burden under N.C. Gen. Stat. § 15A-1443(a).

This argument is without merit.

IV. Lesser Included Offense

In his third argument, defendant contends that the trial court erred in declining to charge the jury on the lesser included offense of misdemeanor breaking or entering. We disagree.

A. Standard of Review

"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 measuring the sufficiency of the evidence to support submission of a charged offense, "all evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and resolving in its favor any contradictions in the evidence." State v. Williams, 334 N.C. 440, 447, 434 S.E.2d 588, 592 (1993) judgment vacated on other grounds, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994). A defendant's motion to dismiss "is properly denied if the evidence, when viewed in the above light, is such that a rational trier of fact could find beyond a reasonable doubt the existence of each element of the crime charged." Id.

State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994).

B. Analysis

"The intent to commit the felony must be present at the time of entrance, and this can but need not be inferred from the defendant's subsequent actions." State v. Crawford, 179 N.C. App. 613, 616, 634 S.E.2d 909, 912 (2006) (quoting State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995)). Our Supreme Court has held that "[o]nly when the 'evidence is clear and positive as to each element of the offense charged' and there is no evidence supporting a lesser included offense may the judge refrain from submitting the lesser offense to the jury." Montgomery, 341 N.C. at 567, 461 S.E.2d at 739 (citations omitted). In Montgomery, for example, the Court held that "evidence that defendant stole money from a purse after he entered the apartment was substantial evidence that he had the intent to commit larceny when he entered the apartment." Montgomery, 341 N.C. at 568, 461 S.E.2d at 740 (citations omitted). This case affirms that a charge of misdemeanor breaking or entering is not required to be submitted to the jury where there is clear and positive evidence of felonious intent.

In the instant case, defendant contends that the trial court erred in declining to instruct the jury on the lesser included offense of misdemeanor breaking or entering. This charge differs from felony breaking or entering in that it does not require the State to show defendant had intent to commit a felony. See N.C. Gen. Stat. § 14-54 (2011).

Under Montgomery, a trial court need not submit a lesser charge to the jury if there is clear and positive evidence to support the greater charge, and no evidence to support the lesser. Id. at 567, 461 S.E.2d at 739. In the instant case, the trial court found that defendant had attempted to pry into the residence through the window; that defendant kicked the door in; and that defendant departed the residence with the Wii system. All of these facts, taken together, support the charge of felony breaking or entering. None of the evidence presented supports a charge of misdemeanor breaking or entering. Defendant's mere speculation that he lacked intent is not sufficient.

This argument is without merit.

V. Age of Victim as Aggravating Factor

Defendant finally contends that the trial court erred in submitting the aggravating factor of the victim's young age to the jury. We agree.

A. Standard of Review

"[We review alleged sentencing errors for] 'whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'" State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp. 1996)).

Denial of a motion to dismiss an aggravating factor is a question of sufficiency of the evidence. Such an issue is a question of law which is reviewed de novo. See State v. Bagley, 183 N.C.App. 514, 526, 644 S.E.2d 615, 623 (2007). Evidence is sufficient to sustain a denial of a motion to dismiss
"when, viewed 'in the light most favorable to the State' and giving the State 'every reasonable inference' therefrom, there is substantial evidence 'to support a [jury] finding[.]' " Id. at 525-26, 644 S.E.2d at 621 (quoting State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).

State v. Rivens, 198 N.C. App. 130, 135, 679 S.E.2d 145, 149 (2009).

B. Analysis

The aggravating factor based on the youth or age of the victim is applicable if the defendant either targets the victim specifically due to the vulnerability of his age, or takes advantage of that age during the commission of the crime charged. Deese, 127 N.C. App. at 540, 491 S.E.2d at 685.

"[A]fter [Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403, 413 (2004)], trial judges may not enhance criminal sentences beyond the statutory maximum absent a jury finding of the alleged aggravating factors beyond a reasonable doubt." State v. Blackwell, 361 N.C. 41, 45, 638 S.E.2d 452, 455 (2006). Responding to Blakely, the North Carolina General Assembly on 30 June 2005 passed the Blakely Act, which amended North Carolina structured sentencing law to provide that "only a jury
may determine if an aggravating factor is present in an offense." N.C. Gen.Stat. § 15A-1340.16(a1) (2005).

State v. Wilson, 181 N.C. App. 540, 543, 640 S.E.2d 403, 406 (2007).

However, to be subject to aggravating factors, defendant must be aware of the victim's presence and age when he commits the charged offense. In State v. Styles, we held that the victim's age was improperly found to be an aggravating factor, as there was no evidence that defendant knew the age of the occupants of the house he burglarized, nor that the victim was particularly more vulnerable or harmed than another might have been, nor that she was taken advantage of. State v. Styles, 93 N.C. App. 596, 607, 379 S.E.2d 255, 262 (1989).

Although the instant case deals with a breaking or entering, and not a burglary, these principles are controlling. There was no evidence that defendant targeted this home due to the presence of young children, nor that defendant was even aware of the presence of children prior to his entry. There is no evidence that the children, ages 10 and 13, were particularly harmed or vulnerable. Even when viewed in a light most favorable to the State, there was insufficient evidence to support a finding of aggravating factors. The trial court erred in submitting the victims' ages as an aggravating factor to the jury.

VI. Conclusion

The trial court properly denied defendant's motion to dismiss the charge of felonious breaking or entering. The trial court did not err in admitting evidence pursuant to Rule 404(b) of the North Carolina Rules of Evidence. The trial court did not err in declining to charge the jury on the lesser included offense of misdemeanor breaking or entering. The trial court erred in submitting an aggravating factor to the jury.

NO ERROR AS TO TRIAL. REMANDED FOR RE-SENTENCING.

Judges HUNTER and BRYANT concur.

Report per Rule 30(e).