An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                           -2-
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
                                             -3-
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
                                       -4-
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
                                       -5-
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
                                            -6-
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
                                         -7-
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
                                        -8-
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
                                        -9-
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
                                     -10-
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
                                        -11-
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
                                           -12-
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
                                -13-
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).
