Opinion
No. COA13–7.
2013-08-6
STATE of North Carolina v. Jerry Willie McGRIFF, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State. Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney, for Defendant-appellant.
Appeal by defendant from judgment entered 7 August 2012 by Judge Lindsay R. Davis, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 8 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Christine A. Goebel, for the State. Glenn, Mills, Fisher & Mahoney, P.A., by Carlos E. Mahoney, for Defendant-appellant.
ERVIN, Judge.
Defendant Jerry Willie McGriff, Jr., appeals from a judgment entered based upon his convictions for felonious breaking or entering, misdemeanor larceny, and having attained the status of an habitual felon. On appeal, Defendant argues that the trial court erred by denying his request that the jury be instructed concerning the issue of his guilt of the lesser included offenses of misdemeanor breaking or entering and first degree trespass and in calculating the amount of jail fees that should be assessed against him. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that, while there is no basis for disturbing Defendant's convictions, this case should be remanded to the Forsyth County Superior Court for correction of the amount of jail fees assessed against Defendant.
I. Background
A. Substantive Facts
As of 10 November 2010, Foster Wood had owned the property located at 5895 Pine Hall Road in Walkertown for approximately twenty years and had lived across the road from the Pine Hall Road property for the last four or five years of his life, which ended when he died on 4 October 2010. Having been a beekeeper for the last thirty to forty years of his life, Mr. Wood had used a house and shed located on the Pine Hall Road property for beekeeping-related activities. After Mr. Wood died, his daughter, Geraldine Berry, assumed responsibility for managing and taking care of the Pine Hall Road property in her capacity as the executor of Mr. Wood's estate.
At around 12:45 p.m. on 10 November 2010, Deputy J.D. Webster of the Forsyth County Sheriff's Department was dispatched to the Pine Hall Road property in order to respond to a report of “a house break in in progress.” When he reached the property, Deputy Webster saw that a white pickup truck “somewhat obscured from the road” had been “backed in next to the house.” As he approached the house, Deputy Webster saw that the door was open and “heard a crashing noise” emanating from the shed behind the house. After walking around the house to the shed, Deputy Webster saw Defendant and another man “in the shed pulling a piece of scrap metal” out of that structure. As soon as Deputy Webster announced his presence, both men lay on the ground with their hands raised. A few minutes later, Deputy J.R. Snyder of the Forsyth County Sheriff's Department arrived at the Pine Hall Road property and placed Defendant in handcuffs. The investigating officers identified the two men discovered on the Pine Hall Road property as Defendant and David Dotson, and determined that the truck was owned by Mr. Dotson's father.
After being informed about the incident at the Pine Hall Road property, Mr. Wood's brother, John Wood, went to that location. Upon his arrival, which occurred after Defendant and Mr. Dotson had been handcuffed, John Wood observed that the pickup truck which had been backed up to the house was “completely loaded” with items that he recognized as having belonged to his late brother and that had been kept inside the house. According to John Wood, these items, which included a honey extractor, a wood burning stove, and another stove, had been inside the house about a week earlier, which was the last occasion on which he had been at the Pine Hall Road property. According to John Wood, Defendant and Mr. Dotson appeared to have taken “everything out of the house.”
In response to a call from John Wood, Ms. Berry came to the Pine Hall Road property. At the time that she arrived, Ms. Berry saw items that she “had seen ... many, many times” inside the house, including items that had always been kept inside the house and had never been taken out into the yard. Ms. Berry did not know either Defendant or Mr. Dotson and had not given either of them permission to remove items from the house.
B. Procedural History
A warrant for arrest charging Defendant with felonious breaking or entering and felonious larceny was issued on 10 November 2010. On 7 March 2011, the Forsyth County grand jury returned bills of indictment charging Defendant with felonious breaking or entering, felonious larceny, and having attained the status of an habitual felon. The charges against Defendant came on for trial before the trial court and a jury at the 6 August 2012 criminal session of the Forsyth County Superior Court. On 7 July 2012, the jury returned verdicts finding Defendant guilty of felonious breaking or entering and misdemeanor larceny. After a separate proceeding conducted for the purpose of addressing the habitual felon allegation, the jury returned a verdict finding Defendant guilty as charged. At the conclusion of the ensuing sentencing hearing, the trial court consolidated Defendant's convictions for judgment, sentenced Defendant to a term of 101 to 131 months imprisonment, and ordered Defendant to pay $8,664.50 in costs and related fees, an amount which included $6,010.00 in jail fees. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Lesser Included Offenses
At the jury instruction conference held at the guilt-innocence phase of this case, Defendant unsuccessfully requested the trial court to instruct the jury concerning the issue of his guilt of the lesser included offenses of misdemeanor breaking and entering and first degree trespass. In his brief, Defendant argues that the court erred by denying this request on the grounds that the record contained evidence from which the jury might reasonably have inferred that, even if he broke into or entered the house and the shed located on the Pine Hall Road property, he “did not have the intent to commit larceny.” We do not find this argument persuasive.
“When any evidence presented at trial would permit the jury to convict defendant of the lesser included offense, the trial court must instruct the jury regarding that lesser included offense. Failure to so instruct the jury constitutes reversible error not cured by a verdict of guilty of the offense charged.” State v. Whitaker, 316 N.C. 515, 520, 342 S.E.2d 514, 518 (1986) (citing State v. Riera, 276 N.C. 361, 368, 172 S.E.2d 535, 540 (1970), and State v. Thacker, 281 N.C. 447, 456, 189 S.E.2d 145, 150–51 (1972), disapproved on other grounds in North Carolina v. Butler, 441 U.S. 369, 372, 99 S.Ct. 1755, 1757, 60 L Ed.2d 286, 291 (1979)). “ ‘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.’ Where the State's evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense, it is not error for the judge to refuse to instruct on the lesser offense.” State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985) (quoting State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)) (other citations omitted). We review challenges to a trial court's refusal to instruct the jury concerning the issue of a defendant's guilt of a lesser included offense by evaluating the evidence in the light most favorable to the defendant, State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994), using a de novo standard of review. State v. Laurean, ––– N.C.App. ––––, ––––, 724 S.E.2d 657, 660,disc. review denied,366 N.C. 241, 731 S.E.2d 416 (2012).
According to N.C. Gen.Stat. § 14–54:
(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.
(c) As used in this section, “building” shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.
As a result, “ ‘[t]he essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. The breaking or entering must be without the consent of the owner or occupant.’ “ State v. Johnson, 208 N.C.App. 443, 448, 702 S.E .2d 547, 550 (2010) (quoting State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992)), disc. review denied,365 N.C. 84, 706 S.E.2d 247 (2011). “ ‘Misdemeanor breaking or entering, [N .C. Gen.Stat. § ] 14–54(b), is a lesser included offense of felonious breaking or entering and requires only proof of wrongful breaking or entry into any building.’ “ Johnson, 208 N.C.App. at 448, 702 S.E.2d at 551 (quoting State v. O'Neal, 77 N.C.App. 600, 606, 335 S.E.2d 920, 924 (1985)) internal citation omitted)). As a result, the “one element of felony breaking or entering that differs from misdemeanor breaking or entering” is “[t]he ‘intent to commit any felony or larceny therein.’ “ State v. Silas, 360 N.C. 377, 383, 627 S.E.2d 604, 608 (2006) (quoting N.C. Gen.Stat. § 14–54(a)). In addition, “first-degree trespass is a lesser included offense of felony breaking or entering.... N.C. Gen.Stat. [§ ] 14–159.12 provides that a person is guilty of first-degree trespass premises of another ... or in a building of another.' ...” State v. Hamilton, 132 N.C.App. 316, 320–21, 512 S.E .2d 80, 84 (1999) (citing N.C. Gen.Stat. § 14–159.12 (1993)). Therefore, in the event that the undisputed evidence in the present record raises no dispute that Defendant broke into or entered a building located on the Pine Hall Road property with the intent to commit larceny, the trial court would have correctly refused to instruct the jury concerning the issue of Defendant's guilt of misdemeanor breaking or entering and first degree trespass.
“The criminal intent of the defendant at the time of breaking or entering may be inferred from the acts he committed subsequent to his breaking or entering the building.” Williams, 330 N.C. at 585, 411 S.E.2d at 818 (citing State v. Wilson, 315 N.C. 157, 162–63, 337 S.E.2d 470, 474 (1985) (holding that “the intent to commit larceny” could “be inferred from the fact that defendant committed the larceny”). Moreover, “ ‘[t]he doctrine of recent possession allows the jury to infer that the possessor of certain stolen property is guilty of larceny. This Court has also explained that[,] under the doctrine of recent possession, the State must show three things: (1) that the property was stolen; (2) that defendant had possession of this same property; and (3) that defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession honestly.’ “ State v. Rawlinson, 198 N.C.App. 600, 606, 679 S.E.2d 878, 882 (2009) (quoting State v. Friend, 164 N.C.App. 430, 438–39, 596 S.E.2d 275, 282 (2004)) (internal quotations omitted).
The uncontradicted evidence adduced at trial established that, when law enforcement officers arrived at the Pine Hall Road property, Defendant and Mr. Dotson were in the process of removing a piece of sheet metal from a shed on the property. The door to the house located on the Pine Hall Road property was open, a pickup truck had been backed up to the house, and the vehicle had been loaded with various items that both John Wood and Ms. Berry identified as having belonged to Mr. Wood and as having been stored inside the house. Ms. Berry testified unequivocally that she had not given anyone, including Defendant or Mr. Dotson, permission to come onto the Pine Hall Road property or to remove property from the interior of the house or from the shed. This evidence is more than sufficient to establish that Defendant and Mr. Dotson had recently possessed stolen property taken in the course of a breaking or entering, thereby triggering the application of the doctrine of recent possession. Even without the inference deemed legally permissible from the possession of recently stolen property, this evidence is more than sufficient to strongly imply that Defendant and Mr. Dotson had entered the house located on the Pine Hall Road property and taken items from the interior of that building. Finally, Defendant and Mr. Dotson were specifically seen taking property from the shed on the Pine Hall Road property. As a result, given that the evidence presented at trial was “positive as to each and every element” of the offense of felonious breaking or entering and did not contain any “conflicting evidence” concerning whether Defendant entered a building with the intent to commit larceny, Friend, 164 N.C.App. at 441, 596 S.E.2d at 284 (quoting State v. McKinnon, 306 N.C. 288, 301, 293 S.E.2d 118, 126 (1982)) (internal citation omitted), we conclude that the trial court did not err by rejecting Defendant's request that the jury be instructed concerning the issue of Defendant's guilt of the lesser included offenses of misdemeanor breaking or entering or first degree trespass.
In seeking to convince us to reach a different result, Defendant directs our attention to various factual circumstances which we conclude have no bearing on the issue of whether Defendant entered a “building” as that word is defined in N.C. Gen.Stat. § 14–54 or whether Defendant intended to commit larceny. For example, Defendant asserts that the Pine Hall Road property was run down, that there were discarded items strewn about the yard, and that the property that he and Mr. Dotson had loaded into the truck had little monetary value. In addition, Defendant notes that the incident in question occurred during daylight hours and that he and Mr. Dotson had cooperated with investigating officers after their apprehension. Finally, Defendant appears to suggest that he might have been hired by Mr. Dotson for the purpose of removing property from the premises rather than acting on the basis of his own inclinations. We do not believe, however, that these circumstances, considered separately or in conjunction with each other, have any bearing on the extent to which the undisputed record evidence tends to show that Defendant and Mr. Dotson entered the house and shed on Pine Hall Road without permission, moved items located on that property without consent, and placed them into Mr. Dotson's truck with the intent to steal them.
The fact that the Pine Hall Road property may have had limited aesthetic appeal does not in any way tend to suggest that those lacking any legal interest in the property or its contents are entitled to enter upon the premises or take items from buildings located there. Simply put, disorder and failure to maintain a tract of property in an immaculate condition is not tantamount to abandonment of the property in question or the items kept there. Similarly, under the circumstances revealed by the present record, the fact that apprehended individuals acted in full view of anyone passing by and cooperated with investigating officers after being taken into custody says little about the nature of their actions or the intentions that motivated them. Moreover, according to well-established North Carolina law, “[t]he crime of larceny is a felony without regard to the value of the property where ... the larceny is committed pursuant to a breaking or entering[.]” Friend at 438, 596 S.E.2d at 282 (citing N.C. Gen.Stat. § 14–72(b)(2)). For that reason, the fact that the items which Defendant and Mr. Dotson placed into the truck may have actually had little to no real value does not tend to show that Defendant neither entered the house and shed nor lacked the required felonious intent. Finally, the fact that the record may not contain “any evidence” concerning “the relationship between Defendant and [Mr.] Dotson” does not provide any basis for believing “that Defendant had been hired by [Mr.] Dotson to assist him with moving the items at the property.” Aside from the fact that Defendant has not cited us to any evidence tending to support his contention that he was “hired” by Mr. Dotson, he has not contended that there was any evidence tending to show, much less any evidence establishing, that Defendant actually, much less reasonably, believed that Mr. Dotson was legally entitled to take the property which the two of them had placed or were in the process of placing into the truck. For that reason, even if Mr. Dotson had paid Defendant to assist him in entering the house and shed and removing any property found in those locations, that fact would not have had the effect of providing any basis for a finding that Defendant was guilty of any lesser included offense of felonious breaking or entering.
As a result, given that Defendant has failed to direct our attention to any evidence tending to show that he neither entered the house or shed located on the Pine Hall Road property nor acted with the intent to commit larceny, none of the arguments that Defendant has advanced for our consideration in any way undercut the validity of the trial court's decision to refrain from instructing the jury concerning the issue of his guilt of the lesser included offenses of misdemeanor breaking or entering and first degree trespass. Thus, Defendant is not entitled to relief from the trial court's judgment on the basis of this contention.
B. Calculation of Jail Fees
Secondly, Defendant argues that the trial court erred by calculating the amount of jail fees assessed against Defendant using an incorrect daily rate. The amount of jail fees that the trial court ordered Defendant to pay was calculated by applying a rate of $10.00 per day to the 601 days from the date of his arrest on 10 November 2010 through 2 July 2012, when Judge John O. Craig, III, changed Defendant's bond from secured to unsecured following the allowance of the State's request to continue the trial due to the unavailability of its prosecuting witness. However, Defendant argues that the trial court ordered Defendant to pay an inappropriately high amount because the appropriate jail fee rate was only $5.00 a day for the period between 10 November 2010 and 1 August 2011 and contends that the trial court's judgment should be modified to reflect a jail fee amount calculated using the correct daily rates. Defendant's contention has merit.
According to N.C. Gen.Stat. § 7A–304(c), a trial court is authorized to require a convicted criminal defendant to pay the costs, including jail fees “as provided by law.” Jail fees are governed by N.C. Gen.Stat. § 7A–313, which was amended, effective 1 August 2011, to increase the previously authorized jail fee amount from $5.00 a day to $10.00 a day. As the State candidly concedes, the relevant statutory language clearly indicates that the changed jail fee rate was to be applied on a purely prospective basis. Thus, for the period between 10 November 2010 and 1 August 2011, Defendant was only subject to being assessed jail fees at the rate of $5.00 a day. On the other hand, for the period between 1 August 2011 and 2 July 2012, Defendant was subject to a jail fee assessment calculated using a rate of $10.00 a day. For that reason, the trial court erred by ordering Defendant to pay a jail fee amount calculated using a rate of $10.00 per day for each day during which Defendant was confined prior to trial. As a result, the trial court's judgment should be vacated and this case should be remanded to the Forsyth County Superior Court for the entry of a new judgment containing a jail fee amount calculated by applying the correct rate to the correct time period.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the Defendant's challenge to his conviction lacks merit. However, we also conclude that the trial court erred by ordering Defendant to pay an amount of jail fees calculated using an incorrect daily rate as applied to certain days during which Defendant was held in pretrial confinement. As a result, although Defendant's convictions should, and hereby do, remain undisturbed, the trial court's judgment should be, and hereby is, vacated, and this case should be, and hereby is, remanded to the Forsyth County Superior Court for the entry of a new judgment in which Defendant is ordered to pay a correctly calculated jail fee amount.
NO ERROR IN PART; VACATED IN PART AND REMANDED. Judges HUNTER and STROUD concur.
Report per Rule 30(e).