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State v. McNair

Court of Appeals of North Carolina

April 18, 2017

STATE OF NORTH CAROLINA
v.
ANTHONY LEE MCNAIR

          Heard in the Court of Appeals 26 January 2017.

         Appeal 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.

          DAVIS, Judge.

         This 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.

         Factual and Procedural Background

         The 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.

         A 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.

         A 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.

         At 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.

         When 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.

         Inside 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.

         Defendant 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."

         Defendant 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 the defense.

         At the 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.

         The 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.

         Analysis

         On 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).

         Our 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).

         I. Breaking or Entering into a Place of Religious Worship

         Defendant's 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.

         A. "Place of Religious Worship" Element

          N.C. 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 "[1] wrongfully breaks or enters [2] any building that is a place of religious worship [3] 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).

         As an 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.

         "The 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) (2015).

         Based 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 its brief.

         Thus, 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).

         We are 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.

         We 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 emphasis added)).

         Thus, 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.

         B. Sufficiency of Evidence as to Breaking or Entering

         Alternatively, 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 ...


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