                                   NO. COA13-1080

                        NORTH CAROLINA COURT OF APPEALS

                                 Filed: 17 June 2014


STATE OF NORTH CAROLINA

    v.                                         Nash County
                                               Nos. 12 CRS 51464
MARKEITH RAYSHOUN MITCHELL,                         12 CRS 51466
          Defendant.


    Appeal by defendant from judgments entered 16 May 2013 by

Judge   Marvin    K.    Blount,    III    in   Nash     County    Superior   Court.

Heard in the Court of Appeals 22 January 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Amy Kunstling Irene, for the State.

    William B. Gibson for defendant-appellant.


    GEER, Judge.


    Defendant         Markeith     Rayshoun       Mitchell   appeals     from     his

convictions of felonious breaking or entering a motor vehicle,

first degree trespass, injury to real property, and attempted

larceny.     On appeal, defendant primarily contends that the trial

court   erred    in    denying    his    motion    to   dismiss    the   charge    of

breaking or entering and in instructing the jury on a charge of

"breaking or entering" when the indictment charged "breaking and

entering."      We hold that because of the disjunctive language of
                                      -2-
N.C. Gen. Stat. § 14-56 (2013), the State need not prove both a

breaking and an entering and the instruction was not erroneous.

The State's evidence that defendant opened the car door with

intent to steal the car itself was substantial evidence that

defendant committed a breaking with intent to commit a felony

therein.     Because defendant does not challenge the sufficiency

of the State's evidence as to the remaining elements of the

charge, we hold that the trial court did not err in denying the

motion to dismiss.

                                  Facts

      The State's evidence tended to show the following facts.

On 26 March 2012, defendant offered Marcus Lucas $50.00 to "help

him get a car."       The two men drove in defendant's Jeep Cherokee

to   1021   Russell   Street,   the   property   where   the    vehicle   was

located.     When they arrived, the fence around the property was

locked.     Defendant and Lucas tore the fence down and entered the

property.

      Once inside, defendant backed his Jeep up to a shelter in

the backyard where a 1979 Dodge Aspen was parked.              Defendant and

Lucas exited the Jeep, and defendant opened the door of the

Dodge.      Lucas stood back as defendant retrieved the tire pump

from his Jeep and began pumping up the flat tire on the Dodge.
                                             -3-
    Meanwhile,          Officer       J.K.    Richardson       of    the     Rocky   Mount

Police Department received a call that a breaking and entering

was in progress on          1021 Russell Street.                    Officer Richardson

arrived    at    the    scene     a   short     time    later       and    announced    his

presence    as     he     approached          the     garage.             Although   Lucas

immediately fled, defendant, who was at the rear of the Dodge

pumping the tire, did not see the police arrive.                            Defendant was

arrested at the scene, while Lucas was arrested later.

    After       taking    defendant          into    custody,       Officer     Richardson

returned to the garage.               The Jeep was backed up to the garage

approximately      five    feet       from     the    Dodge,    and       the   trunk   and

driver's door of the Jeep were open.                    Inside the Jeep, Officer

Richardson saw an air compressor and a metal pipe with pieces of

rope on each end, an apparatus that is normally used for towing

vehicles.       There was a rope attached to the back of the Jeep

that went toward the Dodge, but was not yet hooked up to the

Dodge.

    The driver's side door of the Dodge had been left open.

Officer Richardson concluded that the door had recently been

opened because it was pollen season and the outside of the Dodge

and the garage were both very dusty, but there was no pollen on

the interior of the Dodge or on the tool kits and tarps stored

inside the Dodge.
                                      -4-
       The Dodge and the property where it was parked belonged to

Brenda Simmons, who had inherited it from her deceased parents.

Ms. Simmons had never opened the driver's door of the Dodge

after her father passed away.          She had visited her property the

evening prior to defendant's arrest while it was still daylight

out and, from her vantage point in the backyard, she had not

noticed the car door of the Dodge being open.                  Ms. Simmons did

not know defendant or Lucas and did not consent to either of

them coming on her property or taking the Dodge.

       On   4   June    2012,   defendant    was    indicted    for    attempted

larceny, first degree trespass, injury to real property, and

breaking and entering a motor vehicle.                 At trial, defendant

testified on his own behalf.          He claimed that, on the morning of

26 March 2012, he was out driving when he saw Lucas motion for

him to stop.      Lucas told defendant that a friend had given him a

car and that he needed someone to help him get the car home.                 He

offered defendant $50.00 to help, and defendant agreed.                    Lucas

already had a chain for towing, but they went to defendant's

uncle's house to get a towing bar and an air compressor.                    When

they    arrived    at    the    property    where   the   car    was   located,

defendant saw that there was a locked fence, but Lucas pulled

the fence over to one side with his hands.
                                           -5-
    Once they gained entry onto the property, defendant backed

the Jeep up to the Dodge while Lucas retrieved a chain off the

dog house in the backyard.                 At that point, the police arrived

and Lucas fled.          Defendant did not flee because he did not know

that they were stealing a car.                    Defendant denied having ever

touched the Dodge, having opened the car door, or having noticed

that the door was ajar.

    The jury found defendant guilty of attempted larceny, first

degree   trespass,        injury     to    real    property,       and    breaking     or

entering a motor vehicle.                The trial court sentenced defendant

to 60 days imprisonment on the consolidated charges of attempted

larceny, first degree trespass, and injury to real property.

The trial court also sentenced defendant to six to 17 months

imprisonment       for    breaking    or     entering      a   motor      vehicle,     but

suspended    the    sentence       and     imposed    24    months       of   supervised

probation.     Defendant timely appealed to this Court.

                                            I

    Defendant        first    argues       that    the     trial    court      erred   in

denying his motion to dismiss the charge of felonious breaking

or entering a motor vehicle.                     "'Upon defendant's motion for

dismissal,    the    question       for     the    Court    is     whether     there   is

substantial    evidence       (1)     of    each     essential      element      of    the

offense charged, or of a lesser offense included therein, and
                                        -6-
(2) of defendant's being the perpetrator of such offense.                           If

so, the motion is properly denied.'"                State v. Fritsch, 351 N.C.

373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes,

334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).                           "This Court

reviews   the   trial    court's   denial      of    a    motion   to     dismiss   de

novo."    State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007).

       "Substantial     evidence       is   such    relevant       evidence    as    a

reasonable      mind    might    accept       as    adequate       to     support   a

conclusion."      State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164,   169   (1980).      We    must    "consider        all   evidence    admitted,

whether competent or incompetent, in the light most favorable to

the State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor."                      State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).

       Defendant was charged with breaking and entering a motor

vehicle in violation of N.C. Gen. Stat. § 14-56.                        In order to

obtain a conviction for breaking and entering a motor vehicle,

             "the State must prove the following five
             elements beyond a reasonable doubt: (1)
             there was a breaking or entering by the
             defendant; (2) without consent; (3) into a
             motor vehicle; (4) containing goods, wares,
             freight, or anything of value; and (5) with
             the intent to commit any felony or larceny
             therein."
                                    -7-
State v. Clark, 208 N.C. App. 388, 390-91, 702 S.E.2d 324, 326

(2010) (quoting State v. Jackson, 162 N.C. App. 695, 698, 592

S.E.2d 575, 577 (2004)).          Defendant contends that the State

presented insufficient evidence of the first and fifth elements.

    As to the first element, evidence of either a breaking or

an entering satisfies the State's burden of proof.             See State v.

Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982) (holding,

under identical language in N.C. Gen. Stat. § 14-54(a) (1979),

State "need not show both a breaking and an entering").

    This Court has held that

           "[b]reaking is defined as any act of force,
           however   slight,  employed   to  effect  an
           entrance through any usual or unusual place
           of ingress, whether open, partly open, or
           closed.     A breaking may be actual or
           constructive.     A defendant has made a
           constructive breaking when another person
           who is acting in concert with the defendant
           actually makes the opening.        Acting in
           concert means that the defendant is present
           at the scene of the crime and acts together
           with another who does the acts necessary to
           constitute the crime pursuant to a common
           plan or purpose to commit the crime."

State v. Baskin, 190 N.C. App. 102, 109, 660 S.E.2d 566, 572

(2008) (quoting State v. Graham, 186 N.C. App. 182, 196-97, 650

S.E.2d 639, 649 (2007)).          A breaking may be established by a

"'mere   pushing   or   pulling   open    of   an   unlocked   door   or   the

raising or lowering of an unlocked window, or the opening of a

locked door with a key.'"         State v. Garcia, 174 N.C. App. 498,
                                             -8-
502, 621 S.E.2d 292, 296 (2005) (quoting State v. Bronson, 10

N.C. App. 638, 640, 179 S.E.2d 823, 825 (1971)).

       Where, as here, the trial court instructs the jury on the

acting in concert doctrine, the State's burden as to the element

of breaking can be satisfied by showing either the defendant

personally committed the breaking or that he acted in concert

with someone to commit the breaking.                       See Baskin, 190 N.C. App.

at 109-10, 660 S.E.2d at 572 (holding that sufficient evidence

of breaking and entering by defendant existed when passenger in

car driven by defendant reached inside victim's car and stole

victim's satchel).

       In    this      case,    the    evidence          viewed    in     the   light   most

favorable to the State is sufficient to show that defendant, or,

alternatively, Lucas acting in concert with defendant committed

a breaking by opening the door of the Dodge.                         Officer Richardson

testified       that    when     he    arrived      on    the     scene,    defendant    was

standing near the Dodge and the Dodge's driver-side door was

open.       The State also presented evidence that the door must have

been recently opened because there was no pollen inside although

the outside of the car was covered in pollen and the owner of

the Dodge never opened the doors of the Dodge and its door was

not open the previous afternoon.                    Moreover, defendant testified

that    Lucas    opened        the    car   door,    while        Lucas    testified    that
                                        -9-
defendant opened the door.             From this evidence, a reasonable

juror    could    infer   that    defendant      opened    the    car   door,   or,

alternatively, that Lucas opened the door and was acting in

concert with defendant.

       Defendant also argues that there was insufficient evidence

of the fifth element -- that the act was committed "with intent

to commit any felony or larceny therein."                 N.C. Gen. Stat. § 14-

56.     Defendant argues that while the evidence presented by the

State may be sufficient to show that defendant intended to steal

the car itself, it was not sufficient to show intent to steal

the "thing[s] of value" found therein.              Id.

       Defendant's argument, however, was rejected by this Court

in Clark, 208 N.C. App. at 393, 702 S.E.2d at 327-28.                   In Clark,

this    court    held   that   the   intent   to   steal    the    motor   vehicle

itself may satisfy the intent element under N.C. Gen. Stat. §

14-56.     208 N.C. App. at 393, 702 S.E.2d at 327-28.                  Defendant

concedes    that    the   State      presented     sufficient     evidence      that

defendant, or Lucas acting in concert with defendant, intended

to steal the vehicle itself.              Under Clark, such evidence is

sufficient.       We, therefore, conclude that the State presented

substantial evidence of each of the elements of the charge of

breaking or entering a motor vehicle.              Accordingly, we hold that
                                      -10-
the trial court did not err in denying defendant's motion to

dismiss.

                                       II

      Defendant      next   argues    that    the      trial   court   committed

reversible error by instructing the jury on a theory of breaking

or entering a motor vehicle when the indictment alleged that

defendant    broke    and   entered    the    vehicle.         "Whether    a   jury

instruction correctly explains the law is a question of law,

reviewable by this Court de novo."                State v. Barron, 202 N.C.

App. 686, 694, 690 S.E.2d 22, 29 (2010).                "However, an error in

jury instructions is prejudicial and requires a new trial only

if 'there is a reasonable possibility that, had the error in

question not been committed, a different result would have been

reached at the trial out of which the appeal arises.'"                    State v.

Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009)

(quoting N.C. Gen. Stat. § 15A-1443(a) (2007)).

      Defendant's argument has previously been rejected regarding

the offense of breaking or entering a building under N.C. Gen.

Stat. § 14-54 (2013).         Under this statute, where an indictment

alleging a violation of N.C. Gen. Stat. § 14-54 charges the

defendant with "breaking and entering," it is not error for the

trial court to instruct on breaking or entering.                 State v. Boyd,

287   N.C.   131,    145,   214   S.E.2d    14,   22   (1975),    superseded     by
                                         -11-
statute on other grounds as stated in State v. Silhan, 302 N.C.

223, 239, 275 S.E.2d 450, 464 (1981).                    As explained in Boyd:

              It has long been the law in this State in
              prosecutions under [N.C. Gen. Stat. § 14-54]
              and its similar predecessors that where the
              indictment   charges   the  defendant    with
              breaking and entering, proof by the State of
              either   a  breaking   or  an   entering   is
              sufficient; and instructions allowing juries
              to convict on the alternative propositions
              are proper.

Id.     See also State v. Reagan, 35 N.C. App. 140, 143, 240 S.E.2d

805,    808    (1978)    (holding       no    error        when    the   defendant        was

indicted for breaking and entering and the trial court's charge

to    the   jury   referenced      breaking         or     entering).         The   act    of

"breaking or entering" is an element of a charge pursuant to

both N.C. Gen. Stat. § 14-54 and N.C. Gen. Stat. § 14-56.                                 We

therefore find that the rule under Boyd is applicable to the

element       of   "breaking      or    entering"          regardless         whether     the

defendant "breaks or enters" a motor vehicle under N.C. Gen.

Stat. § 14-56 or a dwelling house under N.C. Gen. Stat. § 14-54.

Accordingly,       we   hold   that     the        trial    court    did      not   err   in

instructing the jury on "breaking or entering."

                                             III

       Defendant's final argument on appeal pertains to the charge

of first degree trespassing.                  Defendant argues that the trial

court    erred     by   failing    to   instruct           the    jury   on    defendant's
                                      -12-
affirmative defense that he reasonably believed he had a right

to enter the property.            Because defendant did not request the

instruction at trial, we review for 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.
            Moreover, because plain error is to be
            applied   cautiously   and    only  in  the
            exceptional case, the error will often be
            one that seriously affect[s] the fairness,
            integrity or public reputation of judicial
            proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

    For a trial court to be required to instruct the jury on an

affirmative    defense,     the    defendant       must    present    substantial

evidence,   when   viewed    in     the    light    most    favorable    to    the

defendant, of each element of the defense.                  State v. Ferguson,

140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000).                           Here,

defendant     needed   to   present       substantial      evidence    that     (1)

defendant believed he had a right to enter the property and (2)

defendant had reasonable grounds to support this belief.                      State

v. Baker, 231 N.C. 136, 140, 56 S.E.2d 424, 427 (1949).

    Defendant argues that his testimony constitutes substantial

evidence of this affirmative defense.               Defendant testified that
                                             -13-
when he met up with Lucas on the morning of 26 March 2012, Lucas

told him that a friend had given him a car, that he needed

someone to help him get the car home, and that he would pay

defendant     $50.00      for    his    assistance      in    retrieving   the   car.

Although the property where the car was located was enclosed by

a locked fence, defendant testified that Lucas was easily able

to   pull    the   fence    to   one     side.      Under     these   circumstances,

defendant contends, his belief that they had permission to be on

the property remained reasonable.

      However, even assuming, without deciding, that defendant

presented substantial evidence of each element of this defense,

he cannot show that the failure of the trial court to instruct

the jury on this defense had a probable impact on its finding of

guilt.      The jury's verdict as to the larceny charges required a

finding that defendant intended to steal the vehicle, or that

Lucas    intended    to    steal       the    vehicle   and    defendant   acted   in

concert with him.          In either scenario, such a finding precludes

a finding by the jury that the defendant believed that he had a

legal right to enter the property.                      Defendant has therefore

failed to show that he was prejudiced by the alleged error.


      No Error.

      Judges BRYANT and CALABRIA concur.
