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State v. McDaniel

Court of Appeals of North Carolina

May 15, 2018


          Heard in the Court of Appeals 22 January 2018.

          Appeal by Defendant from judgments entered 24 January 2017 by Judge J. Thomas Davis in Superior Court, McDowell County Nos. 14 CRS 50509, 50512.

          Attorney General Joshua H. Stein, by Assistant Attorney General Deborah M. Greene, for the State.

          Gilda C. Rodriguez for Defendant. Mc

          GEE, Chief Judge.

         Mollie Elizabeth B. McDaniel ("Defendant") appeals her convictions for felonious breaking and entering and larceny after breaking and entering. For the reasons discussed below, we vacate Defendant's convictions.

         I. Factual and Procedural Background

         Daniel Sheline ("Mr. Sheline") inherited five acres of real property and a three-bedroom house located at 30 Woody Street in Marion, North Carolina, in February 2014. Mr. Sheline visited the house at 30 Woody Street on 20 March 2014 to "check on it, [and] make sure nothing had been bothered." Mr. Sheline observed a number of items of personal property in the house during the 20 March 2014 visit, including an aluminum ladder and push lawnmower, both in the basement; an unrestored cuckoo clock; miscellaneous furniture; aluminum pots and pans; heirloom china; an Atari electronic gaming system; and a monitor heater, located behind the front door of the house, which was wired and plumbed through copper tubing to a kerosene oil tank outside the house. The monitor heater was in working order, the copper tubing was intact, and there was kerosene in the outside oil tank.

         When Mr. Sheline left the house on 20 March 2014, he locked the front door's knob lock. Mr. Sheline did not have a key to the deadbolt lock, which could only be locked from the inside, so he left the deadbolt unlocked. The door to the basement of the house was pulled shut and secured from the inside with a padlock that "had a screwdriver through it [so that] nobody could open it from the outside." Mr. Sheline testified "[t]he only way . . . [to] open [the basement door] would be to crawl through a window or have a key and go down the [interior] steps and open it [from inside the house]." The house also had a side door that was nailed shut. Mr. Sheline posted a "no trespassing" sign on the front door of the house, and stated that, as of 20 March 2014, "[n]o one [else] had permission to go into the house at all."

         When Mr. Sheline returned to the house at 30 Woody Street on 1 April 2014, the deadbolt to the front door was locked and the doorknob lock was unlocked. The basement door and a window next to the basement door were both open, and the padlock to the basement door was missing. As Mr. Sheline walked up the stairs from the basement into the house, he smelled a strong odor of kerosene. He "found the whole living room floor was full of [leaked] kerosene and the monitor heater was missing." The piping from the heater to the outside oil tank had been cut and the copper tubing was missing. Mr. Sheline noticed that other items were missing from the house, including the aluminum ladder, lawnmower, and cuckoo clock. The house's electrical wiring had been ripped from the electric box and removed, and various plumbing fixtures were also missing. Mr. Sheline's wife called the police to report the stolen property.

         Lieutenant Detective Andy Manis ("Lt. Det. Manis") of the McDowell County Sherriff's Office ("MCSO") received information on 2 April 2014 that the property missing from the house at 30 Woody Street was located at a house at 24 Ridge Street. Lt. Det. Manis went to investigate and found a monitor heater, lawnmower, aluminum ladder, pipes, and wiring outside the residence at 24 Ridge Street. Lt. Det. Manis knocked on the door. Stephanie Rice ("Ms. Rice") answered the door and provided information to Lt. Det. Manis indicating a person driving a white pickup truck had unloaded the property at 24 Ridge Street earlier that day. Mr. Sheline later identified the items found at 24 Ridge Street as the property missing from 30 Woody Street.

          Detective Jason Grindstaff ("Det. Grindstaff") of the MCSO received a report on 4 April 2014 that someone had again entered the house at 30 Woody Street, left in a white pickup truck, and turned down Ridge Street. Det. Grindstaff went to Ridge Street and found a white Chevrolet pickup truck parked directly across the street from the house at 24 Ridge Street. Defendant was sitting in the driver's side of the truck. Det. Grindstaff asked Defendant for identification and permission to search the vehicle. With Defendant's permission, Det. Grindstaff searched the truck's interior cabin and outer truck bed. He found an Atari gaming system, glassware, china, and an antique clock in the bed of the truck. Det. Grindstaff arrested Defendant. Mr. Sheline later confirmed the items found in the truck were property from 30 Woody Street. Mr. Sheline testified the property found in the white pickup truck on 4 April 2014 "might have been" in the house at 30 Woody Street when he was there on 1 April 2014.

         According to Det. Grindstaff, Defendant said she "got [the property in the pickup truck] from a residence on Woody Street[, ]" but indicated "[s]omeone gave her . . . permission to go inside the residence and get the property." Defendant stated that a friend of hers, Michael Nichols ("Nichols") "told her a neighbor [of] Mr. Sheline [] gave them permission to enter the residence." Defendant also told Det. Grindstaff that Nichols had been at 24 Ridge Street shortly before Det. Grindstaff arrived, but "had just left the residence . . . [and] she did not know where [Nichols] was going."

          Defendant testified she met Nichols in 2012 and worked with him "doing some salvage work at [an] old abandoned place at 50 Woody Street[, ] . . . going through and taking some old metal and stuff, working together on that." Defendant stated she and Nichols went to the residence at 30 Woody Street in October 2013 and spoke to an elderly man who answered the door. According to Defendant, the elderly man gave Nichols and Defendant permission to remove a plow and some scrap metal from the basement at 30 Woody Street. Nichols and Defendant took the items to the building at 50 Woody Street, where they were collecting scrap metal to sell. Defendant stopped working with Nichols in late 2013. She collected unemployment benefits for several months and, when those benefits ended, she began working with Nichols again.

         Defendant testified that on 2 April 2014, at Nichols's request, she drove a white pickup truck to the building at 50 Woody Street and "loaded some stuff on the truck" from a crawl space underneath the building, including a ladder, monitor heater, "and various other things that were all under there in that spot." Defendant testified she believed the items belonged to a friend of Nichols who was storing them at 50 Woody Street. Nichols asked Defendant "to bring the truck up and carry [the property] down [the hill] for him." Defendant testified she drove the items to 24 Ridge Street and deposited them outside the residence, "up against the side of the building."

         Defendant testified Nichols called her on 4 April 2014 and

asked me to give him a ride to the scrap yard. He said he had a load of aluminum or something. I got to his house and he said he wasn't ready to go yet, but that I could go up the hill [to the building at 50 Woody Street]. There was still a bunch of stuff over there in the house he thought I might be interested in. . . . In the meantime, [Nichols said] if I wanted to go up there and look around and see if there [was] anything that I might be interested in, there was still a lot of stuff up there at the house at 50 [Woody Street]. . . . So I went up there and got the items that [Det. Grindstaff found] on my truck out of the attic of [the] house at [50 Woody Street] at that time.

         Defendant stated she drove the truck to 24 Ridge Street, where she saw Nichols and another man loading bags of aluminum cans into the trunk of a car. According to Defendant, Nichols and the man drove away hurriedly and, as Nichols was driving away, Defendant saw Det. Grindstaff approaching. Defendant admitted she told Det. Grindstaff that she had recently removed the property in her truck from a house "on Woody Street, " but testified she was referring to the building at 50 Woody Street. Defendant testified she had not been to the house at 30 Woody Street since going there with Nichols in October 2013.

         Defendant was charged by separate indictments on 21 July 2014 with (1) one count of felony breaking and entering and one count of larceny after breaking and entering, on or about 20 March 2014, in connection with the lawnmower, aluminum ladder, monitor heater, kerosene, electrical wiring, flooring, and cuckoo clock found at 24 Ridge Street on 2 April 2014; and (2) one count of felony breaking and entering and one count of larceny after breaking and entering, on 4 April 2014, in connection with the Atari game system, heirloom china, and antique radio found in Defendant's truck on that date. The charges were joined for trial.

         At the close of the State's evidence, Defendant moved to dismiss the charges related to the alleged 20 March 2014 breaking and entering and larceny based on insufficiency of the evidence. The State conceded it was

a circumstantial case, obviously, that [Defendant was] the one that broke into the house [at 30 Woody Street] the first time and brought the items and deposited them at [24] Ridge Street, and then two days later [] broke[] in [to the house at 30 Woody Street] again and [came] back to Ridge Street with another load.

         Nevertheless, the State contended the evidence that, on 4 April 2014, Defendant was found in possession of certain stolen property from a purported second break-in was sufficient to show Defendant was "also responsible for the larceny [of the other property] and the break-in for the first time because it[] [was] Ridge Street [again]." Defense counsel noted Defendant was not present when the stolen property was discovered at 24 Ridge Street on 2 April 2014, and further observed "it wasn't [Defendant's] residence[.]"

         The trial court initially indicated it would allow Defendant's motion to dismiss with respect to the 20 March 2014 charges only. Before the presentation of Defendant's evidence, however, the court revisited the matter, stating it "may have dismissed the wrong one[.]" The court expressed some confusion over the dates of the alleged offenses:

TRIAL COURT: I did dismiss the [20 March 2014 breaking and entering charge], but what I am telling you is I may have gotten them backwards. I should have dismissed the April 4 [2014] [breaking and entering charge] and left the March 20 [2014] [charge] in place based on this evidence. I want to make sure I have time to correct that since nothing has happened at this point in time. . . . The way I see it is the only testimony as to opening the window, the door [at 30 Woody Street], all the situations are from one incidence. We don't have any testimony there was any sort of entry that second time, and that admission that [Defendant] makes was not peculiar to win. The evidence that [the State] brought out [that] somebody reported seeing the [white pickup truck], I think all that does is goes to the state of mind of this officer. I think it's only offered for that purpose. . . . [T]herefore, it cannot be used as substantive evidence of any particular crime. As a result [], I may have dismissed - by dismissing the April 4 [2014] allegation, I am basically - I may have committed error to the State because that's the later one, and it would be hard for you to relate the original breaking and entering that was testified to today to that indictment because it was the wrong date. I may have missed [sic] the wrong one. . . . I can correct it right now without any prejudice to [] [D]efendant. I was thinking it over through lunch and I may have dismissed the wrong one.

         After further discussion, the trial court concluded the State had presented insufficient evidence to support two separate charges of breaking and entering. The court reinstated both charges in the indictment dated 20 March 2014, i.e., one count of felonious breaking and entering and one count of larceny after breaking and entering. It dismissed the 4 April 2014 charge of breaking and entering, but left in place the 4 April 2014 charge of larceny after breaking and entering, finding there was "evidence to show that the [property found in Defendant's possession on 4 April 2014] was acquired as a result of the original breaking and entering [that allegedly occurred on 20 March 2014]." However, the court indicated that, if the jury ...

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