in the Court of Appeals 26 January 2017.
by defendant from judgments entered 19 August 2015 by Judge
W. Russell Duke, Jr. in Pitt County Superior Court Pitt
County, Nos. 14 CRS 51431, 51433, 3584.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Michael T. Wood, for the State.
Kimberly P. Hoppin for defendant-appellant.
case presents a number of issues stemming from the
defendant's act of breaking into a barn adjacent to a
building that was being rented by a church for the purpose of
holding religious services. Anthony Lee McNair
("Defendant") appeals from his convictions of
breaking or entering into a place of religious worship,
possession of burglary tools, and injury to personal
property. On appeal, Defendant argues that the trial court
erred in denying his motion to dismiss the charges against
him due to (1) insufficiency of the evidence to support his
convictions; (2) the existence of fatal variances between his
indictment and both the evidence at trial and the trial
court's jury instructions; and (3) the facial invalidity
of the indictment. After careful review, we find no error in
part, vacate in part, and remand.
and Procedural Background
State presented evidence at trial tending to show the
following facts: In February of 2014, Vision Phase III
International Outreach Center ("Vision") - a church
"engaged in international missions" - was renting a
building (the "Chapel") in Greenville, North
Carolina owned by Sutton Amusement Company
("Sutton") for the purpose of conducting its church
services. The Chapel and several other structures situated
behind it were located on a half block along Raleigh Street.
One of these structures was a small barn (the
"Barn"), which was located approximately 50 feet
behind the Chapel. Although Sutton owned the Barn, it allowed
Vision to use the Barn to store equipment that it could not
keep in the Chapel.
six-foot-tall chain link fence stood along the sidewalk
adjacent to Raleigh Street beside the Chapel. A large
building also owned by Sutton and used for its storage
purposes was located behind the Chapel and the Barn along the
back side of the half block. Directly behind the Chapel and
to the right of the Barn stood a ten-foot brick wall, which
closed off access to the premises such that entry was only
possible through the main gate of the chain link fence. Both
the Chapel and the Barn were located within the area enclosed
by the chain link fence, Sutton's large storage building,
and the ten foot brick wall.
padlock secured the main gate of the chain link fence. A
second padlock affixed to a hasp was used to secure the door
of the Barn. One part of the hasp was screwed into the door
frame and the other part was fastened to the door. The
padlock was used to secure both parts of the hasp together in
order to keep the Barn door locked.
approximately 1:00 a.m. on 19 February 2014, Officer Adam
Smith of the Greenville Police Department was notified by
dispatch that a 911 caller had reported the presence of a
person "inside the fence" on the Sutton property
near the Chapel. Detective Joshua Smith and Officer Chad
Bowen of the Greenville Police Department were also
dispatched to the scene.
Officer Smith arrived at the Raleigh Street side of the
premises, he looked inside the fenced-in area and observed
Defendant climbing over the ten-foot brick wall from the
inside out. The officers discovered that the padlock securing
the main gate at the front of the property had been cut off
and was laying on the ground next to the gate. Outside the
fenced-in area near the main gate, the officers discovered
bolt cutters and an electrical cord.
the fenced-in area, the officers also discovered that (1) the
Barn door had been opened; (2) "the whole padlock
assembly" had been "pried off" of the Barn
door; and (3) a pry bar that had previously been stored
inside the Barn was laying on the ground inside the fenced-in
area. The officers also found a pair of work gloves in the
fenced-in area near the ten-foot wall. Detective Smith
noticed "a metal gate propped up against the wall . . .
sort of like a ramp type, where [sic] somebody may have used
to go up over" the brick wall.
was subsequently arrested, advised of his Miranda
rights, and questioned by Detective Matt McKnight at the
Greenville Police Department. Detective McKnight testified
that Defendant had stated that he was homeless and that he
had "illegally entered the premises of the church for
the purpose of sleeping and that all he did was sleep on a
bench near the courtyard of the church."
was indicted on the charges of: (1) breaking or entering into
a place of religious worship; (2) possession of burglary
tools; (3) injury to the personal property of Vision; (4)
breaking or entering a building occupied by Sutton; and (5)
injury to the personal property of Sutton. A jury trial was
held beginning on 18 August 2015 before the Honorable W.
Russell Duke, Jr. in Pitt County Superior Court. At trial,
the State presented testimony from Officer Smith, Detective
Smith, Officer Bowen, William Harper (the pastor of Vision),
and Jonathan Sutton (the owner of Sutton Amusement Company).
Defendant and his brother, Lynwood Leon McNair, testified for
close of the State's evidence, counsel for Defendant made
a motion to dismiss, which was denied by the trial court. The
jury found Defendant guilty of: (1) breaking or entering into
Vision, a place of religious worship; (2) possession of
burglary tools; (3) injuring the personal property of Vision;
and (4) injuring the personal property of Sutton. The jury
found him not guilty of breaking or entering into a building
occupied by Sutton. Defendant was also found guilty of
attaining the status of a habitual felon.
trial court consolidated the judgments and sentenced
Defendant to 146 to 188 months imprisonment. Defendant gave
oral notice of appeal and also filed a written notice of
appeal, Defendant contends that the trial court erred by
denying his motion to dismiss the charges against him.
"When reviewing a defendant's motion to dismiss,
this Court determines only whether there is substantial
evidence of (1) each essential element of the offense charged
and of (2) the defendant's identity as the perpetrator of
the offense. Whether the evidence presented at trial is
substantial evidence is a question of law for the court.
Appellate review of a denial of a motion to dismiss for
insufficient evidence is de novo." State v.
Fisher, 228 N.C.App. 463, 471, 745 S.E.2d 894, 900-01
(internal citations and quotation marks omitted), disc.
review denied, 367 N.C. 274, 752 S.E.2d 470 (2013).
In reviewing challenges to the sufficiency of evidence, we
must view the evidence in the light most favorable to the
State, giving the State the benefit of all reasonable
inferences. Contradictions and discrepancies do not warrant
dismissal of the case but are for the jury to resolve. The
test for sufficiency of the evidence is the same whether the
evidence is direct or circumstantial or both. Circumstantial
evidence may withstand a motion to dismiss and support a
conviction even when the evidence does not rule out every
hypothesis of innocence.
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d
451, 455 (internal citations and quotation marks omitted),
cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
Supreme Court has held that "[i]f there is any evidence
tending to prove guilt or which reasonably leads to this
conclusion as a fairly logical and legitimate deduction, it
is for the jury to say whether it is convinced beyond a
reasonable doubt of defendant's guilt." State v.
Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787
(1990). However, "[i]f the evidence is sufficient only
to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the defendant as
the perpetrator of it, the motion should be allowed."
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866,
868 (2002) (citation omitted).
Breaking or Entering into a Place of Religious
first argument is that the trial court erred in denying his
motion to dismiss the charge of breaking or entering into a
place of religious worship. Specifically, he contends that
(1) the Barn was not a place of worship; and (2) the State
presented insufficient evidence to support a finding that
Defendant was guilty of the lesser-included offense of felony
breaking or entering. We address each argument in turn.
"Place of Religious Worship" Element
Gen. Stat. § 14-54.1 states as follows:
(a) Any person who wrongfully breaks or enters any building
that is a place of religious worship with intent to commit
any felony or larceny therein is guilty of a Class G felony.
(b) As used in this section, a "building that is a place
of religious worship" shall be construed to include any
church, chapel, meetinghouse, synagogue, temple, longhouse,
or mosque, or other building that is regularly used, and
clearly identifiable, as a place for religious worship.
N.C. Gen. Stat. § 14-54.1 (2015) (emphasis added).
Therefore, the elements of this offense are that a person
" wrongfully breaks or enters  any building that
is a place of religious worship  with intent to commit any
felony or larceny therein." State v. Campbell,
234 N.C.App. 551, 557, 759 S.E.2d 380, 384 (2014) (citation
omitted), rev'd on other grounds, 368 N.C. 83,
772 S.E.2d 440 (2015).
initial matter, it is important to note that the only
building Defendant is alleged to have broken into was the
Barn, and the State concedes that the Barn itself was not
used for religious worship. However, the State asserts that
Defendant's act of breaking into the Barn nevertheless
constituted breaking or entering a place of religious worship
for purposes of N.C. Gen. Stat. § 14-54.1 because
"[t]he church was more than just a single
building." Moreover, according to the State, the Barn
was within the curtilage of the Chapel and, for this reason,
the Barn should be deemed an extension of the Chapel for
purposes of N.C. Gen. Stat. § 14-54.1. We reject the
State's arguments on this issue.
duty of a court is to construe a statute as it is
written." Campbell v. First Baptist Church, 298
N.C. 476, 482, 259 S.E.2d 558, 563 (1979) (citation omitted).
N.C. Gen. Stat. § 14-54(c) defines the word
"building" 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." N.C. Gen. Stat. § 14-54(c)
on the manner in which N.C. Gen. Stat. § 14-54.1 is
worded, it is clear that in order for Defendant to have been
convicted of violating this statute, the specific building
Defendant is alleged to have broken into must have been a
"building that is regularly used, and clearly
identifiable, as a place for religious worship."
See N.C. Gen. Stat. § 14-54.1. Although both
the Chapel and the Barn meet the statutory definition of
"building, " it is clear that the Chapel and the
Barn are separate structures. The State presented evidence at
trial that the Chapel was used for religious services but
presented no evidence that the Barn was used as a place of
religious worship - a fact which the State also concedes in
because the Barn was not itself used for religious worship
and because the General Assembly has limited the reach of
this offense to "building[s] that [are] regularly used,
and clearly identifiable, as a place for religious worship[,
]" the State cannot establish that Defendant was guilty
of violating N.C. Gen. Stat. § 14-54.1. This Court is
not at liberty to broaden the statutory text to encompass
structures adjacent to buildings being used as a
place of religious worship. State v. Wagner, __
N.C.App. __, __, 790 S.E.2d 575, 582 (2016) ("Our courts
lack the authority to rewrite a statute, and instead, the
duty of a court is to construe a statute as it is
written." (citation, quotation marks, and brackets
omitted)), disc. review denied, __ N.C. __, 795
S.E.2d 221 (2017).
also unable to accept the State's argument that because
the Chapel was a building that held religious services and
the Barn was within the curtilage of the Chapel, the Barn was
"clearly identifiable[ ] as a place for religious
worship" as required by N.C. Gen. Stat. §
14-54.1(b). As quoted above, the definition of the term
"building" contained in N.C. Gen. Stat. §
14-54 references the term "curtilage" solely by
referring to a "building within the curtilage of a
dwelling house." See N.C. Gen. Stat.
§ 14-54 (emphasis added). Here, the State does not
attempt to argue that any portion of the property occupied by
Vision was being used as a dwelling house.
observe that the language in N.C. Gen. Stat. § 14-54
linking the term "curtilage" to proximity to a
dwelling house is consistent with caselaw from North
Carolina's appellate courts defining curtilage. See,
e.g., State v. Fields, 315 N.C. 191, 194, 337
S.E.2d 518, 520 (1985) ("The curtilage is the land
around a dwelling house upon which those
outbuildings lie that are commonly used with the dwelling
house." (citation and quotation marks omitted and
the evidence presented by the State was not sufficient to
convict Defendant of violating N.C. Gen. Stat. §
14-54.1. Accordingly, we must vacate Defendant's
conviction of that offense.
Sufficiency of Evidence as to Breaking or Entering
the State contends that in the event we determine the
evidence was insufficient to convict Defendant under N.C.
Gen. Stat. § 14-54.1, this Court should remand to the
trial court for entry of judgment on the lesser-included
offense of breaking or entering. Defendant, conversely,
argues that the State not only failed to introduce evidence
showing a violation of N.C. Gen. Stat. § 14-54.1 but
also failed to produce adequate evidence to support a charge
of breaking or entering. Specifically, Defendant contends
that his mere presence at the scene was insufficient to
establish his guilt as to this offense.
The 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 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 [into] the building.
State v. Bowden, 216 N.C.App. 275, 278, 717 S.E.2d
230, 232-33 (2011) (internal citation and quotation ...