Opinion
No. COA03-388
Filed 6 January 2004 This case not for publication
Appeal by defendant from judgment entered 27 June 2002 by Judge Larry G. Ford in Rowan County Superior Court. Heard in the Court of Appeals 22 December 2003.
Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State. Allen W. Boyer for defendant-appellant.
Rowan County Nos. 01 CRS 57587-57590, 01 CRS 9797.
Defendant Ronald Rankin was charged with four counts each of felonious breaking and entering and felonious larceny. Defendant was also charged with having attained the status of habitual felon. The State's evidence tends to show that at all times relevant defendant lived across the street from Eastview Mobile Home Park in Faith, North Carolina. Gerald L. Schilling and John G. Lawson, Jr. were residents of the mobile home park and became friendly with defendant after seeing him around the neighborhood. Schilling and Lawson testified that defendant would come to their respective homes to borrow sugar and cigarettes. At times, defendant visited with Schilling in Schilling's home, where he would sit and talk and watch movies with Schilling. Lawson saw defendant virtually every day when Lawson drove into the mobile home park, but defendant only came into Lawson's home once — the night of the theft from Lawson's home.
Jennifer Kellough did not live in the same mobile home park as Schilling and Lawson. She lived about a mile from the Eastview Mobile Home Park. Although Kellough did not know defendant, she knew defendant's live-in girlfriend, Rhonda Fink. On 31 August 2001, a television was stolen from the mobile home of Kellough. She did not have any information about the identity of the perpetrator.
On 9 September 2001 Schilling, who had been out of town on vacation, arrived home to discover that someone had broken into his mobile home. Schilling observed that the back door of the residence had been pried open and the deadbolt lock had been pried away from the wall. Schilling also noted that his television was gone from his living room. Schilling's residence was also broken into on 13 October 2001. Schilling left his home on that day at approximately 1:00 or 1:30 p.m. and returned at approximately 5:30 p.m. When he returned, he noticed the front door of the trailer home had been pried open and the television was missing from the living room. Later in the evening, Schilling noticed that a bag of sugar was missing from his cupboard.
On the evening of 16 October 2001, someone entered the mobile home of John Lawson and took the television, a Sony Play Station., and his wife's purse. Lawson had left home with his children atabout 7:00 p.m. on the date in question. His wife remained home because she was tired and wanted to sleep. Lawson's wife is a deep sleeper and went to sleep immediately after Lawson and the children left. Lawson had seen defendant about thirty minutes before leaving home and told defendant that he was going to his father's house for a while later that evening. In fact, Lawson had to ask defendant to leave his home because it was time for Lawson to leave. When he left, Lawson shut the front door, but did not lock it since his wife was still at home. Lawson returned home at 8:00 p.m. The screen door to the trailer home was shut, but the front door was standing open. Lawson's wife was still asleep.
Brian Jackson, a resident of Eastview Mobile Home Park, was driving past Lawson's residence between 7:00 and 7:30 p.m. on 16 October 2001, when he saw defendant knocking on the door of Lawson's mobile home. Michael Futch, another resident of the mobile home park, testified that he saw defendant, on a number of occasions, stroll through the trailer park and go to individual trailer home doors. Futch noted that defendant is the only African-American man he has ever seen in the mobile home park. Futch testified that on 16 October 2001, he observed two men, a "white male and an African-American male," carrying a television away from Lawson's home. The African-American male was wearing a white neck brace.
Some time between midnight and 1:00 a.m., a couple of days after witnessing the 16 October 2001 theft at Lawson's residence, Futch heard someone trying to open the back door of his trailerhome. When Futch and his stepson went outside to investigate, Futch saw a "black male" wearing a white neck brace running from his trailer. Futch called the police and gave them a statement implicating defendant in the theft from Lawson's residence and in the attempted breaking and entering of his residence.
Deputies of the Rowan County Sheriff's Department went to defendant's residence on 19 October 2001 to arrest defendant. Though defendant's girlfriend initially told the deputies that defendant was not at home, deputies subsequently found defendant hiding in the attic area of the apartment. Before being transported, defendant asked officers to get his neck brace from the back seat of his car, whereupon defendant was allowed to retrieve the brace and put it on.
A jury found defendant not guilty of the breaking and entering and larceny as to the residence of Jennifer Kellough, but found him guilty of the remaining charges. The trial court sentenced defendant in a consolidated judgment to 133-169 months imprisonment. Defendant appeals.
By his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss because there was insufficient evidence to show that he was guilty of the crimes charged. We disagree.
A motion to dismiss based upon insufficient evidence is properly denied if in the light most favorable to the State and giving the State the benefit of every reasonable inference to be derived therefrom, there is substantial evidence — whether director circumstantial — to show that defendant committed the offense charged. State v. Santiago, 148 N.C. App. 62, 69, 557 S.E.2d 601, 606 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 499 (2002). Substantial evidence has been defined as the amount of evidence a reasonable mind might accept in support of a conclusion. State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002). Contradictions and discrepancies in the evidence are matters for the jury and do not warrant dismissal. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
To obtain a conviction of felony breaking and entering, the State must show (1) a breaking or entering (2) into a building (3) with an intent to commit a felony therein. N.C.G.S. § 14-54(a) (2003). "The requisite intent for felony breaking and entering need not be directly proved [if] it may be inferred from the circumstances." State v. Roberts, 135 N.C. App. 690, 696, 522 S.E.2d 130, 134 (1999) (citing State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d 577, 580 (1982)). To support a conviction of larceny, the State must present substantial evidence that defendant "(1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of his property permanently." State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992) (citing State v. Reeves, 62 N.C. App. 219, 302 S.E.2d 658 (1983)). "[T]he intent to commit larceny may be inferred from the fact that defendant committed larceny." State v. Thompkins, 83 N.C. App. 42, 43, 348 S.E.2d 605, 606 (1986) (citation omitted).
The evidence in the light most favorable to the State tends to show, inter alia, that defendant lived across the street from the mobile home park where Schilling and Lawson lived. Defendant was often observed walking in and around the mobile home park. He was a regular visitor at the mobile home of Schilling and visited in the home of Lawson 16 October 2001. Jackson observed defendant knock on Lawson's door October 16 and Futch testified that two men, including one African-American with a neck brace, carried a television out of that residence. Though Futch's statement to police as to defendant being the person observed carrying a television from Lawson's home differed from his testimony at trial, the jury could accept as true his statement to police in which he identified defendant. See Gibson, 342 N.C. at 150, 463 S.E.2d at 199 (contradictions in evidence are matters for the jury). Defendant retrieved his white neck brace when he was ultimately arrested. Numerous parallels in the time, location and manner of the break-ins and the theft of at least one significant item, televisions, suggests one individual committed the offenses. With respect to the Schilling break-in occurring 13 October, a unique item, sugar, was missing from the residence. Defendant had borrowed sugar from Schilling on numerous occasions. In addition, no vehicles other than those associated with the Schillings were outside the home during the 13 October break-in. Though there was no direct evidence of defendant's involvement in the 9 September and 13 October thefts from Schilling's residence, the break-in and larceny at Lawson's residence 16 October and the attempted break-inat Futch's home are sufficiently similar to those thefts occurring at Schilling's trailer home "to make it likely" that defendant also committed the thefts at Schilling's residence. See State v. Sokolowski, 351 N.C. 137, 144, 522 S.E.2d 65, 69 (1999) (holding that evidence of other crimes "may be offered on the issue of defendant's identity as the perpetrator when the modus operandi of that crime and the crime for which defendant is being tried are similar enough to make it likely that the same person committed both crimes").
We conclude that the direct and circumstantial evidence, considered in tandem, is sufficient to show that defendant broke and entered the mobile homes of Schilling and Lawson on 9 September, 13 October, and 16 October 2001, respectively, and stole items of personal property as alleged in the subject indictments. The trial court, based upon all the evidence of record, properly denied defendant's motion to dismiss. This assignment of error is overruled.
Defendant has not brought forward his second assignment of error and it is, therefore, taken as abandoned. N.C.R. App. P. 28(b)(6). By his third assignment of error, defendant argues that he received ineffective assistance of counsel. Specifically, defendant contends that counsel was ineffective in that counsel cross-examined State's witness Michael Futch by reading Futch's written statement, which was at odds with Futch's trial testimony. Again, we disagree.
Ineffective assistance of counsel claims are generally bettersuited to determination upon a motion for appropriate relief filed in the superior court, where the record can be fully developed. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) ("The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal."). However, this Court has previously noted that "`I[neffective] A[ssistance] [of] C[ounsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.'" State v. Long, 354 N.C. 534, 539-540, 557 S.E.2d 89, 93 (2001) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)). In the instant case, the argument presented by defendant may be properly determined from the present record.
To prevail on a claim of ineffective assistance of counsel, the defendant must show the following: (1) "that counsel's performance fell below an objective standard of reasonableness," and (2) "that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error." State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000) (citing Strickland v. Washington, 466 U.S. 668, 691-96, 80 L.Ed.2d 674, 696-99 (1984), and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)). In Braswell, our Supreme Court explained that the defendant must show more than mere deficient performance by counsel, but that "`counselmade errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the test set forth in Strickland and its progeny. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
In the case sub judice, Futch testified at trial at variance with several statements found in his written statement to law enforcement. Although Futch had indicated in his statement that he saw two men come "out the front door" of Lawson's trailer home, at trial, Futch denied having seen the men come out of the front door. Further, while his written statement identified one of the men leaving the Lawson residence as defendant, he stated at trial that he could not identify the African-American man carrying the television from Lawson's residence.
The record shows that defendant's attorney cross-examined Futch extensively, including the introduction of Futch's criminal history, in an effort to impeach him. We cannot conclude the use of Futch's written statement was something other than a trial tactic, and as such, it should be accorded due deference by this Court. See State v. Taylor, 79 N.C. App. 635, 339 S.E.2d 859 (1986) (explaining that matters of trial tactics are reviewed by the Court with deference).
Defendant has not demonstrated that counsel acted unreasonably in his cross-examination of Futch, or more generally in his defenseof defendant. Accordingly, this assignment of error is overruled.
Defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).