State v. Martin ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1432
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 11 CRS 394-95, 55315
JACK MEREDITH MARTIN
Appeal by defendant from judgments entered 13 June 2013 by
Judge Mark E. Powell in Buncombe County Superior Court. Heard
in the Court of Appeals 27 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Perry J. Pelaez, for the State.
Russell J. Hollers III for defendant.
HUNTER, Robert C., Judge.
Defendant appeals the judgments entered after a jury
convicted him of two counts of felonious breaking or entering,
larceny after breaking or entering, and second degree
kidnapping. On appeal, defendant argues that the trial court
erred by failing to instruct the jury on misdemeanor breaking or
entering in case no. 11 CRS 55315, failing to instruct the jury
on false imprisonment in case no. 11 CRS 395, and committing a
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clerical error by incorrectly stating that defendant was
convicted of first degree kidnapping on the judgment sheet.
After careful review, we find no error in the trial court’s
refusal to instruct on misdemeanor breaking or entering and
false imprisonment. However, we remand the kidnapping judgment
sheet in case no. 11 CRS 395 to correct a clerical error.
Background
The incidents that gave rise to defendant’s convictions
occurred on two different days in 2011 at two separate hotels in
Asheville, North Carolina. The first incident occurred on 21
April 2011 at the Holiday Inn Express. Guests of the hotel use
plastic key cards to gain entry into their rooms. Mr. and Ms.
Frevert were staying at the hotel while visiting their son who
was looking for a home in Asheville. On the afternoon of 21
April, the Freverts went to dinner with their son. Prior to
leaving, Ms. Frevert put her jewelry into a duffel bag and left
it in the room. The next morning, Ms. Frevert noticed that the
jewelry was gone. The value of the jewelry was in excess of
$30,000.
Bipen Patel (“Bipen”), the owner of the Holiday Inn
Express, determined that a housekeeping key had been used twice
to enter the room while the Freverts were out. At trial, Bipen
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claimed that the particular housekeeping key used was not one of
the ones in his possession. In addition, Bipen identified
defendant from the video surveillance system which showed
defendant entering the hotel’s rear entrance and leaving that
same way approximately one hour later. Entry through that door
required a key card. Apparently, Bipen had had several run-ins
with defendant back in 2004 after he caught defendant entering
his hotel several consecutive days even though defendant was not
a guest. When Bipen confronted him about it in 2004, defendant
claimed that he was an FBI agent; when defendant was showing
Bipen his drivers license, Bipen also saw 10-15 key cards in
defendant’s wallet.
The second incident happened on 6 May 2011 at the Country
Inn & Suites in Asheville. Neal Patel (“Neal”), the owner of
the Country Inn & Suites, saw defendant enter his hotel even
though defendant was not a guest. Neal observed defendant
walking on the second and third floors of the hotel before he
entered room 303 using a plastic key card. When defendant came
out of the room, Neal confronted him. According to Neal,
defendant told Neal to drop his cell phone and get on the floor;
defendant threatened to shoot him if he moved. When defendant
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tried to reenter room 303, Neal ran to the front desk and called
police.
In May 2011, Bridgette Clark (“Ms. Clark”), a hotel
property manager, called police after seeing a newscast about
defendant. At trial, Ms. Clark testified that she recognized
defendant from when he was a guest at Value Place, an extended
stay hotel in Asheville, sometime in the fall of 2010. After
several incidents where defendant claimed that someone was
entering his hotel room and stalking him, he confronted Ms.
Clark and became furious. He screamed that he could make hotel
key copies “all day long” and threw several key cards at her.
Prior to asking defendant to leave, Ms. Clark inspected his room
and saw a square black box connected to defendant’s computer.
The box was similar to the one Value Place used to program its
hotel keys.
At trial, defendant admitted to being at both hotels on the
dates in question. However, he claimed that he gained access
both times using friends’ key cards; he declined to identify the
friends. Furthermore, defendant disputed Neal’s account of
their confrontation, claiming that he did not order Neal to lay
on the ground or threaten to shoot him. Instead, defendant
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alleged that after Neal approached him and asked if he was a
guest, defendant refused to accompany Neal to the front desk.
On 11 July 2011, defendant was indicted for one count of
felonious breaking or entering and one count of larceny based on
the events that occurred at the Holiday Inn Express on 21 April
(case no. 11 CRS 394). On 11 July 2011 and 6 August 2012,
defendant was indicted for one count of first degree kidnapping
(case no. 11 CRS 395) with a sentence enhancement for committing
the felony while using a firearm pursuant to N.C. Gen. Stat. §
15A-1340.16A(c) and one count of felonious breaking or entering
(case no. 11 CRS 55315) based on the events at the Country Inn &
Suites.
The matter came on for trial on 10 June 2013. On 13 June
2013, in case no. 11 CRS 394, the jury found defendant guilty of
felonious breaking or entering and felonious larceny based on
the events that occurred at the Holiday Inn Express. In
addition, the jury convicted defendant of felonious breaking or
entering and second degree kidnapping based on the events at the
Country Inn & Suites in case nos. 11 CRS 55315 and 11 CRS 395,
respectively. However, the jury did not find that defendant
used, displayed, or threatened to use a firearm at the time he
committed the kidnapping. On 13 June 2013, the trial court
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sentenced defendant to 25 to 39 months imprisonment for the
kidnapping conviction and 5 to 6 months imprisonment for the
remaining convictions, to be served consecutively. On 17 June
2013, defendant purportedly appealed these judgments when he
appealed “the judgment entered against him in district court on
the 13th day of June” to superior court.
Grounds for Appeal
Initially, it should be noted, and defendant concedes, that
his notice of appeal is technically deficient because it
improperly states that defendant is appealing the district court
judgments entered against him to superior court when, in fact,
he was attempting to appeal the superior court judgments to this
Court. Accordingly, defendant has filed a petition for writ of
certiorari in order for this Court to review the judgments
entered against him on 13 June 2013. Because defendant was
represented by counsel at the time his attorney filed the
deficient notice of appeal and should not be punished for his
counsel’s failure to properly appeal, we grant the petition and
address the merits of his appeal.
Arguments
Defendant first argues that the trial court committed plain
error in failing to instruct the jury on misdemeanor breaking or
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entering in case no. 11 CRS 55315. Specifically, defendant
contends that there was evidence that he did not intend to
commit larceny when he entered room 303 at the Country Inn &
Suites, alleging that he was at the hotel visiting friends.
Furthermore, defendant argues that had the jury been provided
the instruction on the lesser-included offense, it probably
would have reached a different verdict. We disagree.
Since defendant failed to object when the trial court
refused to instruct the jury on misdemeanor breaking or
entering, defendant must show plain error:
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice—that,
after examination of the entire record, the
error had a probable impact on the jury’s
finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
A trial court is required to give a jury instruction on a
lesser-included offense “only if the evidence would permit the
jury rationally to find defendant guilty of the lesser offense
and to acquit him of the greater.” State v. Millsaps, 356 N.C.
556, 561, 572 S.E.2d 767, 771 (2002). The trial court must
consider the evidence in the light most favorable to the
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defendant. State v. Broom, __ N.C. App. __, __, 736 S.E.2d
802, 810, disc. review denied, __ N.C. __, 739 S.E.2d 853
(2013). However, the trial court does not err in refusing to
instruct on a lesser-included offense when the State provides
evidence of each element of the greater offense and there is no
evidence to negate these elements other than the defendant’s
denial that he committed the offense. State v. Reid, 175 N.C.
App. 613, 623, 625 S.E.2d 575, 584 (2006).
N.C. Gen. Stat. § 14–54(a) (2013) provides that “[a]ny
person who breaks or enters any building with intent to commit
any felony or larceny therein shall be punished as a Class H
felon.” In contrast, “[a]ny person who wrongfully breaks or
enters any building is guilty of a Class 1 misdemeanor.” N.C.
Gen. Stat. § 14–54(b). “The lesser included offense of
misdemeanor breaking and entering must be submitted to the jury
if there is substantial evidence the defendant broke and entered
for some non-felonious reason other than that alleged in the
indictment.” State v. Merritt, 120 N.C. App. 732, 743, 463
S.E.2d 590, 596 (1995) (emphasis added).
Defendant is correct that there was no evidence introduced
at trial that he took anything from room 303 at the Country Inn
& Suites. However, the evidence does not support the trial
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court instructing on a lesser-included offense because the jury
could have inferred felonious intent from defendant’s conduct,
and defendant failed to present substantial, credible evidence
that he broke and entered room 303 for a nonfelonious reason.
See generally State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d
577, 580 (1982) (noting that “[w]ithout other explanation for
breaking into the building or a showing of the owner’s consent,
[the defendant’s felonious] intent may be inferred from the
circumstances”). Instead, the evidence showed that defendant
was not a guest of the hotel but entered room 303 several times
with a plastic key card. Defendant offered no other explanation
for why he was in the hotel or had a key card to enter the hotel
other than he was meeting some friends whom he did not want to
identify. On cross-examination, defendant refused to provide
any information about the people he was visiting, including what
floor they were staying on and how he knew them. Instead,
defendant repeatedly told the prosecutor on cross-examination
that it was “none of [his] business” when asked about the
friends’ identities at trial. Furthermore, Ms. Clark’s
testimony shows that defendant had access to a machine that
programed key cards and that, as he boasted to her, he could
make key cards “all day long.” Taken as a whole, there is no
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evidence that might convince a jury that defendant entered the
Country Inn & Suites hotel room with a plastic key card for some
reason other than larceny besides his unsubstantiated assertion
that he was visiting friends whom he refused to identify.
Therefore, because the State provided evidence of each element
for felonious breaking or entering and defendant’s only evidence
offered to negate these elements was his denial that he intended
to commit larceny, the trial court was not required to instruct
on the lesser-included offense. See generally Reid, 175 N.C.
App. at 623, 625 S.E.2d at 584. Accordingly, the trial court
did not err, much less commit plain error, in refusing to give
an instruction on misdemeanor breaking or entering.
Next, defendant argues that the trial court committed plain
error by failing to instruct the jury on false imprisonment, a
lesser-included offense of kidnapping. We disagree.
“The difference between kidnapping and the lesser included
offense of false imprisonment is the purpose of the confinement,
restraint, or removal of another person: the offense is
kidnapping if the purpose of the restraint was to accomplish one
of the purposes enumerated in the kidnapping statute.” State v.
Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 562 (1992). Here, as
discussed, a reasonable juror could have inferred felonious
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intent based on the fact that defendant entered a hotel room
with a key card even though he was not a guest of the hotel.
Furthermore, Ms. Clark’s testimony showed defendant had, in the
past, access to a key card programming machine and the ability
to make any key card he wanted. “Intent is a condition of the
mind ordinarily susceptible of proof only by circumstantial
evidence. Evidence of a defendant’s actions following restraint
of the victim is some evidence of the reason for the restraint.”
State v. Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 128
(1993). Since the evidence indicated that defendant confined or
restrained Neal for the purpose of committing larceny in room
303 and there was no other credible evidence that defendant
acted for any other purpose, the trial court did not err, much
less commit plain error, in refusing to instruct on false
imprisonment.
Finally, defendant argues that this Court should remand the
judgment in case no. 11 CRS 395 for correction of a clerical
error. Specifically, defendant contends that the judgment sheet
incorrectly states that he was convicted of first degree
kidnapping even though the trial court instructed on second
degree kidnapping, the jury convicted him of second degree
kidnapping, and defendant was sentenced for second degree
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kidnapping. Thus, defendant requests this Court remand for
correction of the judgment sheet. As this was clearly the
result of a clerical error, see State v. Taylor, 156 N.C. App.
172, 177, 576 S.E.2d 114, 117-18 (2003) (defining clerical error
as “an error resulting from a minor mistake or inadvertence,
esp. in writing or copying something on the record, and not from
judicial reasoning or determination”), we agree and remand for
the trial court to correct the judgment to show that defendant
was convicted of second degree kidnapping, a Class E felony,
N.C. Gen. Stat. § 14-39(b) (2013). See generally State v.
Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008)
(“When, on appeal, a clerical error is discovered in the trial
court’s judgment or order, it is appropriate to remand the case
to the trial court for correction because of the importance that
the record ‘speak the truth.’”).
Conclusion
Because the State presented evidence that defendant
intended to commit larceny at the Country Inn & Suites and the
only evidence negating this element was defendant’s claim that
he was visiting friends, the trial court did not err, much less
commit plain error, in refusing to instruct on misdemeanor
breaking or entering. Relatedly, because the evidence supported
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a finding by the jury that defendant restrained or confined Neal
for the purpose of committing larceny in room 303, we find no
error in the trial court’s refusal to instruct on misdemeanor
false imprisonment. Finally, we remand the judgment in case no.
11 CRS 395 to correct the clerical error on the judgment sheet
to show that defendant was convicted of second degree
kidnapping, not first degree kidnapping.
NO ERROR IN PART; REMANDED IN PART TO CORRECT A CLERICAL
ERROR.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).