Opinion
No. COA12–1358.
2013-06-4
STATE of North Carolina v. Jamareo Lavar CALDWELL.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
Appeal by defendant from judgment entered 25 January 2012 by Judge Kevin M. Bridges in Iredell County Superior Court. Heard in the Court of Appeals 10 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
BRYANT, Judge.
Where the trial court's jury instruction regarding the inference of an intent to commit larceny was proper, we find no error.
Facts and Procedural History
On 8 November 2010, defendant Jamareo Lavar Caldwell was indicted for first-degree burglary and attempted first-degree burglary. On 6 June 2011, defendant was indicted for having attained habitual felon status.
Defendant's case came on for trial during the 23 January 2012 criminal session of Iredell County Superior Court. The State presented the following evidence at trial: Amy Dixon (Dixon) testified that on the night of 8 June 2010 at about 11:30 p.m., she was at her apartment in Mooresville with her nine-month old son, and a friend. As they were sitting in the living room on the lower level of the apartment, she saw a silhouette in the window of the living room. Dixon opened the blinds on her window and saw “somebody's eyes looking back at” her. Dixon described the person she saw as a black male with dreadlocks, wearing a white T-shirt, and riding a BMX bike. Dixon went to her front door and opened it, but the man was gone. Dixon did not report the incident to authorities at that time.
Geraldine Winston, a neighbor of Dixon, testified that on 8 June 2010, she was at her apartment with her boyfriend Edwin Figueroa. At about 11:30 p.m., she and Figueroa were watching a movie in her living room when she heard her “back door swing open.” Winston testified that she saw a black male with his hair in dreadlocks, wearing a white shirt and dark pants, standing in her kitchen. His face was partially covered by his shirt which was pulled up to the bridge of his nose. Winston told Figueroa that there was a man in her house and Figueroa ran towards the man. Figueroa testified that he asked the man “what are you doing?” and the man fled out the back door. Meanwhile, Winston fled out of her front door and ran over to the home of her neighbor, Kristy Mercorella. Mercorella let her in, and while the two of them were standing in the living room, Winston testified that she heard the same man who had entered her home, attempting to get in through Mercorella's back door. Winston and Mercorella ran out Mercorella's front door and called the police. Winston testified that she saw the same black male with a white t-shirt and dreadlocks get on a bicycle and ride away.
Officer Randall Crowe of the Mooresville Police Department testified that on 8 June 2010, around 11:30 p.m., he responded to a breaking and entering call. The police dispatch had advised that a black male with dreads, wearing a white t-shirt, and riding a bike was a person of interest. While driving in the vicinity of the incident, Officer Crowe “encountered a black male with dreadlocks wearing a white T-shirt[,] riding a bicycle.” Officer Crowe stopped the man and questioned him. The man, later identified as defendant, was arrested.
Once defendant was transported to the police department to undergo processing, Captain Joseph Cooke, of the Mooresville Police Department testified, that he overheard defendant state the following to another officer:
What I remember about that was basically the Defendant was wanting to negotiate on what he was going to be charged with. He didn't want to be charged with a felony of first degree burglary. He wanted to negotiate to be charged with a lesser crime so he could plead guilty to the breaking and entering. He just didn't want the felony.
Defendant put on evidence through the testimony of his witness, Sabrina Aumick. Aumick testified that on the night of 8 June 2010, she was exchanging text messages with defendant. Aumick invited defendant to watch a movie at a friend's apartment off of South Main Street in Mooresville. Aumick told defendant that “the porch light would be on, just to come on in and come through the back.”
On 25 January 2012, a jury returned guilty verdicts against defendant for first-degree burglary and attempted first-degree burglary. Defendant pled guilty to having attained habitual felon status. Defendant was sentenced to two consecutive terms of 96 to 125 months.
Defendant gave oral notice of appeal in open court the next day, 26 January 2012.
Where defendant failed to file a written notice of appeal as required by our Rules of Appellate Procedure, his appeal is subject to dismissal. However, in our discretion, we grant defendant's petition for writ of certiorari and review defendant's appeal.
Defendant's sole issue on appeal is whether the trial court erred by giving the following jury instruction:
You may infer the intent to commit larceny when a Defendant enters a dwelling at night without consent and flees upon being discovered at the scene, and there are no other explanatory facts or circumstances, but you are not compelled to do so.
The foregoing instruction was requested by the State, and over the objection of defendant, the trial court judge gave the requested instruction. Therefore, “[w]here the defendant preserves his challenge to jury instructions by objecting at trial, we review ‘the trial court's decisions regarding jury instructions ... de novo[ .]” State v. Hope, ––– N.C.App. ––––, ––––, 737 S.E.2d 108, 111 (2012) (citation omitted). “We review jury instructions [ ] contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]” State v. Hall, 187 N.C.App. 308, 316, 653 S.E.2d 200, 207 (2007) (citation omitted).
In the instant case, defendant was charged with first-degree burglary. “The elements of first-degree burglary are: (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein.” State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996) (citations omitted). Defendant's challenge is in regards to the last element, and he argues that the trial court erred by instructing the jury that it could infer an intent to commit larceny.
Defendant first directs us to the holding in State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887). The defendant in McBryde entered a bedroom at 2:00 a.m. where two women were sleeping. One of the women awoke to find the defendant sitting on the foot of the bed. She screamed and the defendant immediately ran and jumped out of an open window. There was some evidence that clothing in the women's bedroom had been displaced. The McBryde defendant offered no evidence to explain his intent. Id. at 397, 1 S.E. at 927–28. The McBryde Court provided the following:
The intelligent mind will take cognizance of the fact that people do not usually enter the dwellings of others in the night-time ... with innocent intent. The most usual intent is to steal; and, when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the night-time, accompanied by flight when discovered, is some evidence of guilt, and, in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent.
Id. at 396–97, 1 S.E. at 927.
Defendant argues that the McBryde inference only applies when there is no explanation or evidence of a different intent. Defendant relies on the testimony of his witness, Aumick, for his contention that he rebutted the McBryde inference. Based on Aumick's testimony, defendant argues that there was evidence that he entered Winston and Figueroa's apartment, not to commit larceny, but to meet with Aumick.
Defendant contends that our Court “has repeatedly held that the McBryde inference does not apply when the defendant presents evidence of some other intent for entering a dwelling” by citing to the following authorities: State v. Lamson, 75 N.C.App. 132, 330 S.E.2d 68 (1985); State v. Humphries, 82 N.C.App. 749, 348 S.E.2d 167 (1986); and State v. Moore, 62 N.C.App. 431, 303 S.E.2d 230 (1983).
In Lamson, there was some evidence that the defendant entered a home at night that was similar in appearance to the immediately adjacent home of defendant's acquaintance. The defendant had been to the acquaintance's home several times to visit a friend who was staying there. Lamson, 75 N.C.App. at 136, 330 S.E.2d at 71. Our Court held that because there was no evidence supporting a finding that the defendant entered a home with intent to commit larceny, but rather evidence of other intent or explanatory facts and circumstances, the McBryde inference of felonious intent was not applicable. Id. at 135,330 S.E.2d 68, 330 S.E.2d at 70. In Humphries, our Court held there was insufficient evidence to support the co-defendants' convictions for second-degree burglary where the intended felony alleged was larceny. Humphries, 82 N.C.App. at 750–51, 348 S.E.2d at 168. Our Court held that evidence presented by both defendants and the State “indicates that each defendant believed the apartment to be the dwelling of the other's girlfriend” and that “[e]ach defendant presented evidence that he believed the other defendant had permission to enter the apartment.” Nothing in the apartment had been disturbed by the defendants. Therefore, our Court held that this was evidence of other intent or explanatory facts and circumstances sufficient to preclude application of the McBryde inference. Id. at 751,348 S.E.2d 167, 348 S.E.2d at 169. In Moore, the defendant, who was convicted of first-degree burglary, testified that he entered a home only after a man threatened him with a knife and forced him to enter the home. Moore, 62 N.C.App. at 433, 303 S.E.2d at 232. Once discovered in the house, the defendant did not flee but stayed until the police arrived. Id. Our Court held that the facts and circumstances “support the inference that [the] defendant entered the home because he was coerced and rebut the inference that [the] defendant entered with the intent to steal. Pursuant to the McBryde rule, we conclude that there was insufficient evidence to sustain a verdict of felonious breaking or entering.” Id. at 434,303 S.E.2d 230, 303 S.E.2d at 232.
The facts of the instant case, however, are distinguishable from Lamson, Moore, and Humphries. In Lamson, Moore, and Humphries there was no evidence of the defendant entering a home with the intent to commit larceny. The evidence in these cases could only support a finding of other intent or explanatory facts and circumstances and, therefore, the McBryde inference was not applicable. Here, the evidence that would allow an inference of intent to commit larceny was substantial. Defendant was first seen, about 11:30 p.m., standing outside the living room window near the front door of Dixon's apartment. Defendant then entered Winston's home through the back door with his t-shirt pulled up to the bridge of his nose to cover his face. Upon being discovered and confronted, defendant ran out the back door. Defendant then attempted to enter Mercorella's apartment through her back door which was locked. At that point, defendant fled on his bicycle. When arrested shortly after the incidents occurred and being told he was being charged with burglary, defendant immediately tried to negotiate the charges, saying he would plead guilty to breaking and entering but not to burglary.
The challenged jury instruction allowed the jury to infer an intent to commit larceny if there were no other explanatory facts or circumstances but emphasized that they were “not compelled to do so.” Although Aumick's testimony could possibly have provided some evidence of a possibility of the existence of other intent or explanatory facts and circumstances, it was insufficient to rebut the inference that defendant entered the victim's apartment with the intent to commit larceny. It is well established that “intent or absence of it may be inferred from the circumstances surrounding the occurrence, but the inference must be drawn by the jury.” State v. Keitt, 153 N.C.App. 671, 675, 571 S.E.2d 35, 38 (2002) (citation omitted). Based on the foregoing, we hold that the trial court did not err in giving the challenged jury instruction. Defendant's argument is overruled.
No error. Judges HUNTER, JR., ROBERT N., and McCULLOUGH concur.
Report per Rule 30(e).