in the Court of Appeals 22 January 2018.
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.
C. Rodriguez for Defendant. Mc
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.
Factual and Procedural Background
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.
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."
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.
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.
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.
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."
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.
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
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.
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  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.
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]
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
 [breaking and entering charge] and left the March 20
 [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  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.
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 ...