Heard in the Court of Appeals December 11, 2013.
Counsel Amended, June 3, 2014.
Cumberland County. No. 11 CRS 65063. No. 11 CRS 65064. Reuben F. Young, Judge.
Roy Cooper, Attorney General, by Mr. Richard H. Bradford, Special Deputy Attorney General, and Ms. Susannah P. Holloway, Assistant Attorney General, for the State.
Unti & Lumsden LLP, by Ms. Margaret C. Lumsden, for defendant-appellant Lucas.
Mr. Guy J. Loranger for defendant-appellant Richard.
DAVIS, Judge. Judges STEELMAN and STEPHENS concur.
Appeal by defendants from judgments entered 27 March 2013 by Judge Reuben F. Young in Cumberland County Superior Court. Heard in the Court of Appeals 11 December 2013.
Co-defendants Kalan John Lucas (" Lucas" ) and Shaquille Oqkwone Richard (" Richard" ) (collectively " Defendants" ) appeal from their convictions for second-degree burglary and conspiracy to commit second-degree burglary. On appeal, Defendants argue that the trial court erred in (1) denying their motions to dismiss the second-degree burglary charges for insufficient evidence; (2) failing to instruct the jury regarding the definition of larceny and on the offense of first-degree trespass; and (3) entering a restitution order that was not supported by competent evidence. Defendants also contend that their trial counsel provided ineffective assistance of counsel by failing to request the above-referenced jury instructions. After careful review, we vacate Defendants' convictions for second-degree burglary and remand for resentencing for felonious breaking or entering. We also vacate the trial court's restitution orders and remand to the trial court for rehearing on that issue.
The State presented evidence at trial which tended to establish the following facts: On 27 November 2011 at approximately 2:30 a.m., Nina Moore (" Mrs. Moore" ) awoke to the sound of " erratic knocking" and the doorbell ringing at the front door of the home in Fayetteville, North Carolina that she shared with her husband, Lynard Moore (" Mr. Moore" ). From a window, Mrs. Moore observed a man wearing a dark-colored hooded sweatshirt standing at the front door. Mrs. Moore also saw another man sitting in the driver's seat of a white car parked outside their home. Mrs. Moore woke up Mr. Moore and informed him that there was someone at the door and that she thought " he needed to get his gun." Mr. Moore retrieved a gun from their safe, proceeded down the hallway, and saw that the front door had been kicked open. Mr. Moore fired three or four shots into the front entranceway. At that point, a man ran out of the house and jumped into a white car, which Mr. Moore identified as a Mercury Grand Marquis. The car then " sped away" out of the Moores' neighborhood.
Mrs. Moore called the police and informed them what had occurred. Officer Leonard Honeycutt (" Officer Honeycutt" ) of the Fayetteville Police Department arrived at the Moores' home, took statements from Mr. and Mrs. Moore, and issued a " be on the lookout" for a white Mercury Grand Marquis and a man wearing a " dark hoody or toboggan" and dark tennis shoes. Shortly thereafter, Officer Honeycutt received a dispatch regarding " a suspicious white vehicle" parked in front of a residence on Windlock Drive in a neighborhood approximately two miles away from the Moores' home.
Steven Pavel (" Mr. Pavel" ) was sitting on the front porch of his home on Birchcreft
Drive when he noticed a white sedan approaching the corner of Birchcreft Drive and Windlock Drive. The driver parked the car, and the vehicle's two occupants remained inside the vehicle for several minutes. Mr. Pavel then witnessed two men exit the vehicle and approach " the first house off from the corner." Because Mr. Pavel believed that the men's actions seemed suspicious, he went inside and observed them through his window. When the men " start[ed] to walk up to the first house, casing the house and all," Mr. Pavel called 911. Mr. Pavel observed the men walk past the first home, which was vacant, and attempt to open the door of a vehicle that was parked in the next driveway.
The men then approached the second house, which was also unoccupied due to the fact that the owners, Wesley Meredith and Jennifer Meredith (collectively " the Merediths" ), were out of town. It appeared to Mr. Pavel that one of the men was trying to strike the side patio door of the Merediths' home.
Mr. Pavel remained on the phone with the 911 dispatcher and related that the men had walked back down the driveway and reentered their car. After sitting in the car for several minutes, the men exited the vehicle again and walked around to the back of the Merediths' house. A few minutes later, Mr. Pavel saw both men " running around from the back of the house." The men then jumped into their car and sat there for several minutes. Officer Honeycutt and Officer Michael Tackema (" Officer Tackema" ) arrived at the scene and apprehended the two men. At trial, Officers Honeycutt and Tackema identified these men as Defendants.
Officers Honeycutt and Tackema detained and searched both Defendants, and Officer Honeycutt found tube socks in their vehicle, which he noted were " very common for breaking and entering artists and thieves to put on their hands" because they were less conspicuous than gloves. Officers Honeycutt and Tackema then proceeded to inspect the area surrounding the home. They observed that the outer pane of a double-pane sliding glass door on the side of the house had been shattered. A fire pit bowl and two concrete landscaping bricks were lying on the ground near a back bedroom window that was also shattered. Several similar bricks were lying on the floor inside the bedroom where the window had been broken. There was soot covering the fire pit bowl and the back bedroom window, and the blinds hanging from that window were " ...