Opinion
No. COA10-988
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgment entered 5 May 2010 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks, for the State. M. Alexander Charns for defendant-appellant.
Mecklenburg County Nos. 09 CRS 82214, 09 CRS 246645, 09 CRS 246646.
Defendant Timothy Darnell Cherry appeals his conviction of felony breaking and entering and felony possession of stolen goods. Defendant primarily contends that the trial court erred when it refused to give a jury instruction on the lesser included offense of misdemeanor breaking and entering. In order to be guilty of the felony offense, a defendant must have had the intent to commit a felony or larceny inside the building when he broke into the building. The misdemeanor offense does not require any specific intent. Because the evidence presented at trial would not have allowed the jury to conclude that defendant broke into the victim's house without the intent to steal, the trial court did not err in refusing to instruct the jury on misdemeanor breaking and entering.
Facts
The State's evidence tended to show the following facts. On 23 September 2009, Tanya Beamon returned home and discovered that her computer was missing. She ran out of her house to two police officers who were inside a police cruiser on the corner. They returned with her to the house. When they allowed her to go back inside, she discovered that other items were missing as well, including a keyboard, tapes, movies, a VCR, a DVD player, a mobile phone, her checkbook, and an ATM card.
When Ms. Beamon later learned that someone was selling her things at a nearby store, she called the police and then went to the store herself. The police ultimately found parts of Ms. Beamon's computer in the trunk of the car defendant was driving. Defendant had Ms. Beamon's checkbook in his pocket and her ATM card in an envelope. The police arrested defendant and charged him with felony breaking and entering, felony larceny, and felony possession of stolen goods. After defendant was arrested, he waived his Miranda rights and signed a written statement admitting that he broke into Ms. Beamon's house through her back door, stole her computer, and then tried to sell the computer.
At trial, after the State concluded its case, the trial court dismissed the felony larceny charge. Defendant then testified on his own behalf. Defendant denied having broken into Ms. Beamon's house and claimed that he only confessed in order to protect a friend. Defendant admitted that before Ms. Beamon moved into the house, he had gone inside, while it was still empty, to smoke crack. He knew Ms. Beamon because he had sold her DVDs in the past and, on that occasion, he had been able to look into her house and see what she had inside.
The jury found defendant guilty of felony breaking and entering and felony possession of stolen goods. Defendant then pled guilty to being a habitual felon and stipulated to the aggravating factor that he had been found in willful violation of probation. The trial court sentenced defendant to an aggravated-range term of 180 to 225 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court erred by not instructing the jury on the lesser included offense of misdemeanor breaking or entering. "`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. Ryder, 196 N.C. App. 56, 63, 674 S.E.2d 805, 811 (2009) (quoting State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002)).
"`Where there is no evidence to negate [the elements of the greater offense] other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense.]'" State v. Bass, 190 N.C. App. 339, 346, 660 S.E.2d 123, 128 (quoting State v. Reid, 175 N.C. App. 613, 623, 625 S.E.2d 575, 584 (2006)), appeal dismissed and cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008). "`The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.'" State v. Ledwell, 171 N.C. App. 328, 333, 614 S.E.2d 412, 415 (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)), disc. review denied, 360 N.C. 73, 622 S.E.2d 624 (2005).
Pursuant to N.C. Gen. Stat. § 14-54 (2009), the difference between felony breaking and entering and misdemeanor breaking and entering is whether the person has an intent to commit a felony or larceny inside the building:
(a) Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.
(b) Any person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.
Thus, a person who wrongfully breaks into a building without any intent to commit a felony or larceny is guilty of misdemeanor breaking and entering.
Here, defendant argues that "[t]he evidence is conflicting about whether [defendant] went in the prosecutrix's house, and if he did, why he went inside." Any conflict in the evidence as to whether defendant even entered Ms. Beamon's house is, however, irrelevant with respect to the lesser included offense issue. Defendant's evidence that he did not enter the house relates to whether there was any breaking or entering at all. In other words, that evidence amounts to a denial that defendant committed any offense and cannot support an instruction on the lesser included offense. See State v. Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757 ("Where the State presents evidence of every element of the offense, and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, then no lesser-included offense need be submitted."), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).
We must instead decide whether a jury could find that, assuming defendant broke into Ms. Beamon's home, he did so with the intent to commit a felony. This Court's decision in State v. Berry, 58 N.C. App. 355, 358, 293 S.E.2d 650, 652 (1982), aff'd per curiam, 307 N.C. 463, 298 S.E.2d 386 (1983), is controlling. The Berry Court noted that in cases in which "nothing was taken or disturbed inside the building" that was entered, "it could be inferred the defendants did not intend to take anything," thus supporting an instruction on misdemeanor breaking and entering. Id. In Berry, however, "all the evidence showed a television set had been moved from the den to the front door." Id. The Court therefore concluded: "All the evidence was to the effect that whoever broke into [the victim's] house intended to take the television set. This would make it a felonious breaking or entering. There was no evidence of a misdemeanor breaking or entering." Id.
Similarly, here, all the evidence indicated that whoever entered Ms. Beamon's home removed her computer, electronic equipment, and other property. There is no evidence that defendant or anyone else entered Ms. Beamon's home on the night at issue for any reason other than taking that property. See State v. Hamilton, 132 N.C. App. 316, 319, 512 S.E.2d 80, 83 (1999) ("If the evidence presents no other explanation for breaking into the building, and there is no showing of the owner's consent, intent to commit a felony inside may be inferred from the circumstances surrounding the occurrence." (internal quotation marks omitted)). Because the record contains no evidence that would permit the jury to find that defendant wrongfully entered Ms. Beamon's house without an intent to steal, the trial court did not err by refusing to instruct the jury on the lesser included offense.
Defendant further contends on appeal that "[a]round the time of the alleged offenses, Mr. Cherry testified that he had smoked crack, drank gin and beer. If he didn't have the specific intent to commit larceny inside, he'd be guilty of the misdemeanor breaking or entering." Defendant did not, however, make this argument at trial. "`[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.'" State v. Muhammad, 186 N.C. App. 355, 358, 651 S.E.2d 569, 572 (2007) (quoting State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002)), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008). Accordingly, we find no error in the trial court's denial of defendant's request for an instruction on misdemeanor breaking and entering.
II
Defendant next contends that he received ineffective assistance of counsel. He first argues that his defense attorney admitted during opening statements that defendant was guilty without first obtaining defendant's consent. Our Supreme Court has held that "ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent." State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied sub nom. North Carolina v. Harbison, 476 U.S. 1123, 90 L. Ed. 2d 672, 106 S. Ct. 1992 (1986). " Harbison applies when defense counsel concedes defendant's guilt to either the charged offense or a lesser included offense." State v. Alvarez, 168 N.C. App. 487, 501, 608 S.E.2d 371, 380 (2005).
Here, although the opening statements were not recorded, the trial court noted for the record that defendant's attorney "used words to the affect [sic] that the Defendant might be guilty of something but it's not what he's charged with." The trial court stated further that "I don't know that you said he's admitting he's guilty of anything but I think it was more worded to the affect [sic] that if he is guilty of anything it's not the felonies that he's charged with." The defense counsel agreed that the trial court had properly memorialized what was argued.
It is well established that such an argument does not implicate Harbison: "[A]n argument that the defendant is innocent of all charges, but if he is found guilty of any of the charges it should be of a lesser crime because the evidence came closer to proving that crime than any of the greater crimes charged, is not an admission that the defendant is guilty of anything, and the rule of Harbison does not apply." State v. Harvell, 334 N.C. 356, 361, 432 S.E.2d 125, 128 (1993). See also State v. Greene, 332 N.C. 565, 571-72, 422 S.E.2d 730, 733 (1992) (finding no Harbison error where during closing argument defense counsel "said that in his opinion the jury would not find that the defendant [was] not guilty and that it could easily find the `slap was negligent,' `harder than it ought to have been,' and `it was reckless disregard'"). The argument by defendant's attorney falls under Harvell and Greene, and, therefore, Harbison does not apply.
Defendant next contends that it was ineffective assistance of counsel for his trial counsel not to request recording of jury selection, opening statements, and closing arguments. In order to demonstrate ineffective assistance of counsel,
"the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)).
Defendant concedes that he is unable to show any prejudice based on the record and makes no attempt to argue that he could not have narrated the unrecorded portions of the trial. See N.C.R. App. P. 9(c)(1) (allowing narration as an alternative to filing a verbatim transcript). Our Supreme Court specifically held that the defendant in that case could not establish ineffective assistance of counsel when his trial counsel failed to request recordation of jury selection and bench conferences and the defendant did not attempt to reconstruct the transcript. See State v. Hardison, 326 N.C. 646, 661-62, 392 S.E.2d 364, 373 (1990). As defendant here made no attempt to reconstruct the transcript through narration, he cannot now contend that the failure to record the jury selection and opening and closing arguments was ineffective assistance of counsel.
No error.
Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).