Opinion
No. COA10-1583
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgments entered 1 September 2010 by Judge Anderson D. Cromer in Stokes County Superior Court. Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant.
Stokes County Nos. 09 CRS 52221-22, 52224.
Procedural History and Evidence
This case came on for trial at the 30 August 2010 criminal session of Stokes County Superior Court, upon indictments charging Defendant Reginald Lewis Pratt with first-degree burglary, maiming without malice, assault on a female, assault with a deadly weapon, and injury to personal property. Defendant moved to dismiss the charges at the close of the State's evidence and again at the close of all evidence. The trial court denied both motions. The jury found Defendant not guilty of assault on a female, but guilty of first-degree burglary, maiming without malice, simple assault, and injury to personal property. After determining that Defendant's prior record level was III, the trial court sentenced him to a prison term of 103 to 133 months for the burglary conviction and ordered that he pay $3,110.00 in restitution to the Crime Victims Association and $609.00 to Hattie Manning, the owner of the home where the burglary occurred. The trial court consolidated the remaining convictions and sentenced Defendant to a consecutive term of 34 to 50 months. Defendant appeals.
The evidence at trial tended to show the following: On the afternoon of 17 October 2009, Stokes County Sheriff's Deputy Patty Collins responded to a call of a possible breaking and entering. Dusty Manning met Deputy Collins at the door. Manning and Defendant were "friends with benefits" and had been in an "on-and-off" sexual relationship since 2001. Manning reported that, on the previous day, Defendant had confronted her friend, Carl West, who was at Manning's home. Defendant had grabbed West tightly around the shoulders and stated, "[Manning] is my girl. Don't come back over here." Despite Defendant's warning, West had spent the night at Manning's home.
The evidence was conflicting about what occurred next. Manning told Officer Collins that she was sitting on the toilet when West entered the bathroom and placed his hands on her breasts. She stated that she and West had only been talking when she looked up and saw Defendant coming through the bathroom window. As Defendant came through the window, he knocked Manning off the commode. Manning felt groggy, but heard West screaming for help. She crawled out of the bathroom and saw West lying bloody on the floor with Defendant on top of him. In the struggle, Defendant bit off part of West's ear. Manning screamed for Defendant to get off West, and Defendant asked her where the condoms were and flipped up her bed frame, breaking it. Manning told Defendant that she had called the police and Defendant then picked up a large porcelain cat and smashed it onto West's head before fleeing. Manning did not call police until hours later because her sister Shannon, who was in the home at the time, was "running from a bond forfeiture" and did not want to be arrested. Manning testified that she was not Defendant's "girl" but admitted that she had become pregnant by him about one month after the incident involving West.
When Deputy Collins arrived at the home, West was not there, though he returned shortly thereafter. West told the officer that Defendant had attacked him, bitten his ear, hit him with the porcelain cat, and taken his truck keys. Deputy Collins noted mini-blind pieces and blood in Manning's bedroom and signs of disturbance around the bathroom window. The officer saw no signs of the bed frame being broken or disturbed.
When contacted by Deputy Collins, Defendant first claimed that he had arrived at Manning's residence by her invitation. However, at trial, he testified that, during the early morning hours of 17 October, he drove past Manning's home and saw West's truck parked nearby. Defendant parked, and he and his 12-year-old son began walking around Manning's home, looking in windows. Defendant testified that he heard Manning call out, "Hey Carl, come here. I want you to eat my monkey." When Defendant looked into the bathroom window, he witnessed Manning, his "girl," performing oral sex on West. Defendant then blacked out and could not remember what happened next, except that he recalled being struck in the head with a hammer, requiring nine stitches.
Discussion
Defendant brings forward three issues on appeal: that the trial court erred in (I) denying his motion to dismiss the first-degree burglary charge, and committed plain error in failing (II) to answer the jury's questions on a point of law, and (III) to intervene ex mero motu during the State's cross-examination of Defendant.
Motion to Dismiss
Defendant first argues that the trial court erred in denying his motion to dismiss the first-degree burglary charge. We disagree.
Our standard of review on a motion to dismiss is
whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. . . . Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom.
State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
"First-degree burglary is the breaking or entering of an occupied dwelling at night with intent to commit a felony therein." State v. Montgomery, 331 N.C. 559, 568, 417 S.E.2d 742, 747 (1992). Here, Defendant contends that the trial court erred in denying his motion to dismiss because no substantial evidence was offered that, at the time he broke into Manning's residence, he intended to commit the felony of maiming without malice.
Although an indictment for first-degree burglary need not specify the felony a defendant intended to commit at the time of the breaking and entering, see State v. Worsley, 336 N.C. 268, 280, 443 S.E.2d 68, 74 (1994) (an "indictment for first-degree burglary . . . satisfies the requirements of N.C.G.S. § 15A-924(a)(5), [even if] it does not specify the felony the defendant intended to commit. . . ."), here, the indictment did specify the felony, "to wit: MAIMING OR [sic] NOSE, LIP, EAR, OR LIMB."
Criminal intent at the time a defendant enters a dwelling can be inferred from the acts he commits after entering. State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992).
"Intent being a mental attitude, it must ordinarily be proven, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be inferred." State v. Smith, 211 N.C. 93, 95, 189 S.E. 175, 176 (1937). "[E]vidence of what a defendant does after he breaks and enters a house is evidence of his intent at the time of the breaking and entering." State v. Gray, 322 N.C. 457, 461, 368 S.E.2d 627, 629 (1988).
State v. Clagon, ___ N.C. App. ___, ___, 700 S.E.2d 89, 92 (2010). For example, in Montgomery, "[t]he indictment against the defendant alleged he had the intent to commit larceny at the time of the breaking or entering." Montgomery, 331 N.C. at 568, 417 S.E.2d at 747. We held that "[t]he State's evidence tending to show that the defendant stole money from a pocketbook after he entered the apartment was substantial evidence that he had the intent to commit larceny when he entered the apartment." Id. at 568-69, 417 S.E.2d at 747.
Here, as Defendant concedes in his brief, the evidence tended to show that he broke and entered the apartment when he removed the screen from the bathroom window and reached his arm inside to grab Manning. Defendant testified that, on the night of the robbery, he was walking around Manning's house when he heard her say, "Hey Carl, come here. I want you to eat my monkey." This caused Defendant to look into the bathroom window where he saw West rubbing Manning's breasts as she performed oral sex on West. This caused Defendant to black out in "raging anger" as he entered the bathroom window. Once Defendant climbed in through the window, he came at West saying, "I'm going to mark you up, white boy." No evidence was presented that Defendant was armed with any weapon when he entered the bathroom to "mark up" West. Once Defendant was in the bathroom, West ran out and returned with a hammer, with which he struck Defendant. Defendant, in turn, struggled with West and then grabbed his ear and bit it. In the light most favorable to the State, and giving the State the benefit of all favorable inferences, this evidence could support a conclusion by a reasonable juror that Defendant entered Manning's home in a jealous rage, unarmed, but intending to attack West and "mark [him] up" by maiming his nose, lip, ear or limb. This argument is overruled.
Jury Questions
Defendant next argues that the trial court erred in failing to answer the jury's questions on a point of law. We disagree.
The decision to give additional instructions to the jury is discretionary under our State's General Statutes:
(a) After the jury retires for deliberation, the judge may give appropriate additional instructions to:
(1) Respond to an inquiry of the jury made in open court; or
(2) Correct or withdraw an erroneous instruction; or
(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law which should have been covered in the original instructions.
N.C. Gen. Stat. § 15A-1234 (2009) (emphasis added). Further, "the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions." State v. Prevette, 317 N.C. 148, 164, 345 S.E.2d 159, 169 (1986).
Here, during deliberations, the jury sent the trial court a note which stated:
1. "If we believe the defendant went through the window with the intent to cause harm to one of the people in the home, but we have concerns regarding whether the intent was to deliberately bite off the ear, does this constitute intent to commit the felony of maiming without malice?"
As counsel discussed this note and the possible response to it, the jury sent out a second note, stating: "2. Can he be guilty of Count I [first-degree burglary] and not of Count II [maiming without malice]?" The trial court responded to the first question by instructing the jury to "[f]ollow the instructions and continue with [its] deliberations." It responded to the second question in virtually the same words, a response specifically approved of by defense counsel. However, this Court has held that the failure to object in these circumstances does not waive a defendant's right to pursue his appeal. State v. Tucker, 91 N.C. App. 511, 516, 372 S.E.2d 328, 331 (1988).
Defendant contends that the trial court abused its discretion in failing to give additional instructions to clarify the jury's confusion on a point of law. Defendant cites State v. Hockett, 309 N.C. 794, 802, 309 S.E.2d 249, 253 (1983), for the proposition that the "failure of the trial court to answer the questions of the jury on an important point of law [is] prejudicial error" and requires a new trial. The question asked by the jury in Hockett was, "`Is the threat of harm or force with a deadly weapon the same as actually having or using a weapon?'" Id. at 800, 309 S.E.2d at 252. The Supreme Court reasoned:
We interpret the question to be "If one threatens to blow another's head off but does not actually have a gun — is he guilty to the same degree as if he did actually have a gun?". This is a clear indication that the jury had questions about the legal difference; i.e. the difference in the elements between first degree sexual offense and second degree sexual offense and between robbery with a dangerous weapon and common law robbery.
Id. at 801, 309 S.E.2d at 252-53. Thus, "the trial court should have at least reviewed the elements of the offenses if it was not going to directly answer the question as defense counsel had requested." Id. at 802, 309 S.E.2d at 253; accord, State v. Moore, 339 N.C. 456, 465, 451 S.E.2d 232, 236 (1994). Instead, the "court advised the jury that it should continue with its deliberations, if possible, and try to recall the charge which had been given." Hockett, 309 N.C. at 801-02, 309 S.E.2d at 253.
We find Hockett distinguishable. Here, the jury's questions were also on important legal points; namely, the nature of intent required to support a first-degree burglary conviction and whether a maiming without malice conviction was required for a first-degree burglary conviction. However, unlike in Hockett, the jury had written copies of the jury instructions to which it could refer as directed by the trial court. We believe this to be the equivalent of the trial court "review[ing] the elements of the offenses" despite not directly answering the jury's questions. Id. at 802, 309 S.E.2d at 253. Thus, we discern no abuse of discretion in the trial court's response to the jury's questions, and we overrule this argument.
Cross-examination
Finally, Defendant argues that the trial court committed plain error in failing to intervene ex mero motu during the State's cross-examination of Defendant. Specifically, Defendant contends that the State's reference to charges pending against him stemming from a separate assault on Manning was plain error. We disagree.
Plain error review is only available for consideration of evidentiary rulings and jury instructions. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999).
Defendant did not object to the State's first several references to the pending charges. Once Defendant did object, the trial court sustained the objection. Thus we review the references for plain error.
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (emphasis in original), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
Defendant concedes that the evidence that he entered Manning's home and "bit [] West's ear was undisputed." Those undisputed facts were central to the charges for which Defendant was found guilty: simple assault, first-degree burglary, and maiming without malice. We fail to see how the references to pending charges for an unrelated assault on Manning could have changed the jury result given these undisputed facts. Indeed, the jury found Defendant not guilty of assaulting Manning in this case, the charge most directly related to the State's allegedly improper references. We conclude that Defendant has failed to show the prejudice required to establish plain error. This argument is overruled.
Defendant also argues that his trial counsel's failure to object immediately to the State's improper cross-examination constituted ineffective assistance of counsel. We conclude that the record here is insufficient to enable our Court to rule on this claim. Therefore, we dismiss it without prejudice to Defendant's right to file a motion for appropriate relief on this ground. See State v. Hyatt, 355 N.C. 642, 668, 566 S.E.2d 61, 78 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART; DISMISSED IN PART.
Judges STEELMAN and HUNTER, Jr., ROBERT N. concur.
Report per Rule 30(e).