Opinion
No. COA09-1635
Filed 17 August 2010 This case not for publication
Appeal by Defendant from judgment entered 27 August 2009 by Judge Bradley B. Letts in Superior Court, Jackson County. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas M. Woodward, for the State. Glenn Gerding, for the defendant-appellant.
Jackson County Nos. 07 CRS 2641, 07 CRS 50410, 07 CRS 50411, 07 CRS 50415.
"Where the trial court instructs on alternative theories, one of which is not supported by the evidence and the other which is, and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial." In the instant case, the trial court instructed the jury that it could find Defendant guilty of possession of housebreaking implements based on his possession, without lawful excuse, of either a screwdriver or a flashlight. Because our Supreme Court has held that a flashlight cannot be characterized as a housebreaking implement under the relevant statute and the record is unclear as to the theory under which the jury found Defendant guilty of possession of housebreaking implements, we are compelled to reverse Defendant's conviction therefor and remand for a new trial.
State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79 (citing State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990)), disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994).
Furthermore, as possession of housebreaking implements was the underlying felony used to support Defendant's convictions for felonious conspiracy and felonious breaking or entering, we likewise grant a new trial as to these charges. Accordingly we vacate the judgment upon which defendant was sentenced as a habitual felon. However, we find no error as to Defendant's conviction or sentencing for misdemeanor larceny.
On 21 February 2007, Sergeant Rollie James of the Jackson County Sheriff's Department was dispatched to investigate a suspicious vehicle parked near an unoccupied house located at 3895 Pine Creek Road in Cullowhee, North Carolina. Upon arrival, he observed a Ford Bronco in the driveway. Sergeant James approached the house and saw, through a window, that the interior of the house was in disarray. After knocking on the door with no response, Sergeant James retreated to a safe distance and called for backup.
Deputy Tim Rice and Deputy David Lovedahl arrived to assist Sergeant James. After ascertaining that the front door was locked, the officers went to the rear of the residence and discovered a broken window. As they approached, they observed a female, later identified as Amy Gravely, exiting the house through the broken window. After securing Gravely in a patrol car, the officers climbed through the broken window to search the residence.
Upon entering the house, Sergeant James observed a number of items "packed up by the window," including a light fixture, part of a bed frame, shelving units, and some ashtrays. The officers' search led them to the second floor of the house, where they found two bedrooms in disarray with drawers of furniture open and clothing on the floor. In one of the bedrooms, the officers observed two mattresses. In between the mattresses, the officers found Norman Coggins. Beneath the bottom mattress, the officers discovered Defendant Michael Keith Jarrett.
After placing the two men in custody, the officers continued their search. In the room where they discovered Defendant, the officers found a screwdriver and two flashlights. Defendant's initials were carved into the handle of one of the flashlights.
On 16 April 2007, a Jackson County grand jury returned true bills of indictment charging Defendant with "possession of burglary tools" and conspiracy to commit both felonious larceny and felonious breaking and entering. On 29 October 2007, another grand jury returned true bills of indictment charging Defendant with felonious breaking and entering as well as felonious larceny. The grand jury also returned an indictment on 29 October 2007 alleging that Defendant had attained the status of habitual felon.
Defendant's trial on these charges began on 24 August 2009. The officers that responded to the house testified as to the observations they made on the night of 21 February 2007. Kristine Moore ("Moore") testified that the house at 3895 Pine Creek Road belonged jointly to her and her sister as the beneficiaries of a trust established by their late father. Moore stated that she last visited the house in October 2006, at which time its contents were neatly arranged. By viewing pictures of the crime scene, Moore was able to identify the light fixture, a blanket rack, and bedframes as some of the objects Sergeant James had noticed near the broken window. Moore testified that these items had been moved from other locations in the house. Moore further testified that she had neither met Defendant nor given him permission to enter the house. At the end of the State's case in chief, the trial court granted Defendant's motion to dismiss the felony larceny charge because there was insufficient evidence presented as to the value of the items allegedly stolen from the house.
See N.C. Gen. Stat. § 14-72 (2009)(establishing, subject to statutory exceptions, that when the value of stolen property does not exceed $1,000 the offense is a Class 1 misdemeanor). Here, however, one of the statutory exceptions applies as larceny is a felony, without regard to the value of the property in question, when committed pursuant to a breaking and entering. N.C. Gen. Stat. § 14-72(b)(2) (2009). Thus, it appears to have been error for the trial court to have dismissed the felony larceny charge against Defendant; that issue, however, is not before us on appeal. See N.C. Gen. Stat. § 15A-1445 (2009) (prohibiting the State from appealing a "decision or judgment dismissing criminal charges" when "the rule against double jeopardy prohibits further prosecution"); see also State v. Murrell, 54 N.C. App. 342, 283 S.E.2d 173 (1981) (holding that the State could not appeal the dismissal of criminal charges based on a motion to dismiss for insufficiency of the evidence raised after a jury was empaneled because the dismissal was a decision on the merits involving a determination of guilt or innocence and further proceedings against defendant would be barred under the prohibition against double jeopardy), disc. review denied, 304 N.C. 731, 288 S.E.2d 804 (1982).
Defendant testified that he received permission to enter the house from Gregg Coggins, an ex-caretaker of the house who told him that someone was vandalizing the home and asked Defendant and Norman Coggins to "check it out." Defendant testified that he entered the house to see "if somebody [was] in there" so he could catch the vandal. He further testified that when he heard cars approaching the house he hid under the mattresses, planning to catch the intruders upon entry. However, according to Defendant, he was intoxicated and passed out under the mattresses instead.
Moore testified that Gregg Coggins was a neighbor who had been formerly employed as a caretaker; however, she further testified that he was not employed in that capacity in February 2007.
The jury convicted Defendant of felony breaking and entering, misdemeanor larceny, felony conspiracy, and possession of burglary tools. The jury subsequently convicted Defendant of having attained the status of habitual felon. The trial court sentenced Defendant to three concurrent active sentences of 121 to 155 months for each of the felony charges and a concurrent active sentence of 120 days for the misdemeanor larceny charge. Defendant gave oral notice of appeal on 27 August 2009.
Defendant contends on appeal that the trial court improperly instructed the jury as to the crime of possession of housebreaking implements in a manner that deprived him of his right to a unanimous jury. Although Defendant mischaracterizes the error in the jury instruction as presenting a unanimity problem, his actual argument alleges error on different grounds which we conclude entitle him to relief.
Defendant cites State v. Hughes, 114 N.C. App. 742, 443 S.E.2d 76, disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994), in which we stated that "[w]here the trial court instructs on alternative theories, one of which is not supported by the evidence and the other which is, and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles defendant to a new trial." Id. at 746, 443 S.E.2d at 79 (citing State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990)). Here, the trial court repeatedly intimated that the State could prove the felony of possession of housebreaking implements upon a showing that Defendant possessed "an implement such as a screwdriver or a flashlight, and that there was no lawful excuse for the defendant to possess the screwdriver or flashlight."
To sustain a conviction for possession of housebreaking implements when the tool possessed by the defendant is not listed in the statute and is capable of legitimate use, there must be evidence that the tool was "capable of being used for the purpose of housebreaking." State v. Bagley, 300 N.C. 736, 740, 268 S.E.2d 77, 79 (1980) (emphasis omitted). Our Supreme Court has previously stated that a flashlight is "[o]bviously" not a tool subject to characterization as a housebreaking implement. State v. Morgan, 268 N.C. 214, 220, 150 S.E.2d 377, 381 (1966)("Burglars may commonly carry them on their burglarious expeditions to furnish light . . . while they are breaking into buildings, but they do not use them for breaking."). Thus, there was no evidentiary support for the theory that Defendant was guilty of possession of housebreaking implements based on his possession of a flashlight.
Furthermore, our review of the record does not clarify which of the two tools the jury believed Defendant possessed on the night in question. Indeed, if anything, the record suggests a higher likelihood that the jury found Defendant guilty based on possession of the flashlight, which would be impermissible. See State v. Williams, 235 N.C. 429, 430, 70 S.E.2d 1, 2 (1952)("Any ambiguity in a verdict will be construed in favor of the defendant.").
Neither of the tools was found on Defendant's person. Instead, because the tools were found in the room where Defendant was discovered, the jury was instructed as to the constructive possession thereof.
Defendant admitted to bringing the flashlight into the house. Also, the flashlight had Defendant's initials carved into it.
Because precedent establishes that possession of a flashlight cannot be the basis of a conviction for housebreaking implements, the trial court erred by instructing the jury to the contrary. The record is devoid of any indication as to whether the jury convicted Defendant on the basis of this erroneous theory or instead under the theory that he possessed a screwdriver. As such, we are required to award Defendant a new trial on the charge of possession of housebreaking implements. Hughes, 114 N.C. App. at 746, 443 S.E.2d at 79.
We further note that the same error calls into question Defendant's convictions for felonious breaking and entering and felonious conspiracy. The conspiracy charge was submitted to the jury on the theory that Defendant and others conspired to commit felonious breaking or entering; the trial judge instructed that to sustain a conviction on the conspiracy charge, the State had to show that Defendant conspired to break into the house with the intent to commit "the felony of possession of implements of housebreaking." Likewise, the felonious breaking or entering charge was submitted to the jury with the instruction to convict only upon finding that Defendant broke into the house and "intended to commit the felony of possession without lawful excuse of an implement of housebreaking." Because the trial court defined the felony underlying both the conspiracy and breaking or entering charges as "possession of an implement such as a screwdriver or a flashlight [without a] lawful excuse for the defendant to possess the screwdriver or flashlight," there was, as above, a possibility that the verdicts rendered as to these charges were improper. As such, the same reasoning employed above leads us to the conclusion that Defendant is entitled to a new trial on these offenses as well.
Furthermore, because we order a new trial as to each of the felonies for which Defendant was convicted, we are compelled to vacate the judgment under which Defendant was sentenced as a habitual felon. See State v. Smith, 186 N.C. App. 57, 67, 650 S.E.2d 29, 36 (2007) (vacating judgment under which defendant was sentenced as a habitual felon because new trial ordered as to defendant's felony charge); see also State v. Allen, 292 N.C. 431, 433-34, 233 S.E.2d 585, 587 (1977)("[T]he proceeding by which the state seeks to establish that defendant is an habitual felon is necessarily ancillary to a pending prosecution for the `principal,' or substantive, felony.").
To summarize, we hold that Defendant is entitled to a new trial as to the charges for possession of housebreaking implements, felonious breaking or entering, and felonious conspiracy. In so holding, we are further compelled to vacate the judgment under which Defendant was sentenced as a habitual felon. However, we find no error in Defendant's conviction or sentencing for misdemeanor larceny.
Because we hold that Defendant is entitled to a new trial on the grounds stated above, we need not reach Defendant's additional arguments related to his felony convictions.
New trial in part; vacated in part; no error in part.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).
Judge WYNN concurred in this opinion prior to 9 August 2010.