Heard in the Court of Appeals June 3, 2015.
Wake County, Nos. 11 CRS 223728, 11 CRS 12444, and 11 CRS 224046.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
Attorney General Roy Cooper by Assistant Attorney General Katherine M. McCraw, for the State.
STEELMAN, Judge. Judges HUNTER, JR. and DAVIS concur.
Upon petition for certiorari from judgment entered 27 March 2013 by Judge Howard E. Manning, Jr., in Wake County Superior Court.
Where there was no evidence that defendant had a non-criminal intent on either of the two occasions that he attempted to break into a dwelling, the trial court could properly infer that he had the intent to commit larceny, as set forth in State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887). The trial court did not err by denying defendant's motion to dismiss the charges against him for insufficient evidence.
I. Factual and Procedural Background
On 12 December 2011 Donald Wayne Mims (defendant) was indicted for the attempted first degree burglary of a duplex located in Raleigh, on 11 October 2011, and for possession of a stolen bicycle on the same date. On 13 December 2011 defendant was indicted for having attained the status of an habitual felon. On 6 February 2012 defendant was indicted for the 27 September 2011 attempted felonious breaking and entering at the same duplex. The charges against defendant came on for trial before a jury at the 26 March 2013 criminal session of Superior Court for Wake County.
Maria Flores (Flores) and Mr. Amet Gonzales (Gonzales) testified for the State. In September and October of 2011, Flores lived in the duplex with her husband, children, and Gonzales, who rented a room at the back of the unit. On 27 September 2011 Gonzales returned from work at around 2:00 p.m. and lay down to take a nap. Between 2:00 and 3:00 p.m., he heard a knock at the back door. He thought it might be Flores, and opened the door of his room, which opened onto a fenced back yard. He saw an unknown African-American man in the yard, and shouted " Police!" The man jumped over the back fence and ran away. Gonzales noticed that the screen on the back window, which was previously secured to the window frame, was now lying in the yard. Raleigh Police Officer Jose Delasierra was dispatched to the duplex in response to Gonzales's phone call to 911, and confirmed that the screen was lying on the ground. At a later date Raleigh Detective Isaac Perez administered a photo lineup to Gonzales. When Gonzales was shown defendant's picture, he " immediately identified" the photo as the person he had seen on 27 September 2011. Detective Perez asked Gonzales to rate the certainty of his identification on a scale of one to ten, and he characterized it as an " eight."
About 4:00 a.m. on 11 October 2011, Flores heard a knock at the front door. A few minutes later she heard the sound of someone tampering with the lock, and saw the door knob moving inside the house. She looked out a window and saw an African-American man leaving on a bicycle. Flores called 911 and after the police arrived, she went outside and ...