An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-232
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Johnston County
                                              Nos. 12 CRS 54938, 12 CRS 2809
CARLOS CRISP a/k/a
CARLOS CHRISP



      Appeal    by   Defendant     from   judgments       entered   19   September

2013 by Judge Thomas H. Lock in Superior Court, Johnston County.

Heard in the Court of Appeals 26 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Peggy S. Vincent, for the State.

      Appellate Defender Staples S. Hughes, by William D. Spence,
      for Defendant.


      McGEE, Chief Judge.


      Defendant      appeals    his   conviction     of    felony    breaking     or

entering, contending that (1) the trial court erred in denying

his motion to dismiss the felony breaking or entering charge for

insufficient evidence; (2) the jury’s verdict finding Defendant

guilty of felony breaking or entering is logically inconsistent

and mutually exclusive with its verdict finding Defendant not
                                        -2-
guilty of larceny after breaking or entering; and (3) the trial

court erred in calculating Defendant’s prior record level during

sentencing.        On the first two points, we disagree.                      On the

third, we find no prejudicial error.

                                 I.   Background

         Sheeba Vamattan (“Ms. Vamattan”) was the manager of Town

Crest Apartments (“Town Crest”) in Johnston County on 11 August

2012, when the following events occurred.                     Sherman Howell, Jr.

(“Mr. Howell”) was a tenant of Town Crest.

         Mr. Howell left his apartment at Town Crest around 10:00

a.m. Shortly thereafter, Ms. Vamattan noticed that the back door

to Mr. Howell’s apartment was open.               She considered this unusual

because     Mr.   Howell       exclusively    used      his   front   door.      Ms.

Vamattan telephoned Mr. Howell and confirmed that he was not in

his apartment and that no one was supposed to be inside.                         Ms.

Vamattan then saw Carlos Crisp, later identified as Defendant,

exit Mr. Howell’s apartment through the open back door, carrying

a white T-shirt; Ms. Vamattan immediately recognized Defendant

as the cohabitating boyfriend of another Town Crest tenant.                        A

second     man,   who   was     standing     at   the    rear   of    Mr.   Howell’s

apartment, motioned to Defendant, and both of the men drove away

in   a    white   van   that    had   been    parked    nearby.       Ms.   Vamattan

recognized the van as belonging to Defendant.
                                                -3-
       Ms. Vamattan called 911, and a deputy sheriff soon arrived

at    the   scene.         Upon       closer     inspection,           the     deputy       sheriff

discovered     that       the    glass     in       the   back    door       of   Mr.       Howell’s

apartment had been broken with a piece of cinder block; Mr.

Howell’s couch had been moved to barricade the front door of his

apartment;     and       the    master     bedroom        had     been       ransacked.           Mr.

Howell later reported that some tennis shoes and a PlayStation 3

were missing.

       Defendant      was       charged    with       felony     breaking         or    entering,

felony      larceny,      and     being        an     habitual      felon.             At     trial,

Defendant testified that he had nothing to do with the break-in

of Mr. Howell’s apartment.                 Defendant’s counsel moved to dismiss

the   felony       breaking      or    entering       charge      at     the      close      of   the

State’s evidence, which the trial court denied.                                Counsel renewed

the motion at the close of all the evidence and again after the

jury returned its verdict.                      Both of these motions also were

denied.

       A    jury    found       Defendant           guilty   of     felony         breaking        or

entering     and    of    being       an   habitual        felon,      but     not     guilty      of

larceny. Defendant gave notice of appeal in open court.

                    II.    Defendant’s Motions to Dismiss

                                 A.    Standard of Review
                                    -4-
      This Court reviews the denial of a motion to dismiss for

insufficient evidence de novo.            State v. Rouse, 198 N.C. App.

378, 381–82, 679 S.E.2d 520, 523 (2009).

                               B.   Analysis

      Defendant first assigns error to the trial court’s denial

of   his   motions   to   dismiss   the    felony   breaking   or   entering

charge.

            The rules governing motions to dismiss in
            criminal    cases   are   well   settled    and
            familiar.      When a defendant moves for
            dismissal, the trial judge must determine
            whether there is substantial evidence of
            each   essential   element   of   the   offense
            charged and of the defendant being the
            perpetrator    of  the   crime.      The   term
            “substantial evidence” is deceptive because,
            as interpreted by this Court in the context
            of    a    motion    to    dismiss,    it    is
            interchangeable with “more than a scintilla
            of evidence.”

State v. Faison, 330 N.C. 347, 358, 411 S.E.2d 143, 149 (1991)

(citations and quotes omitted).       Thus,

            [w]hen ruling on a motion to dismiss, all of
            the evidence should be considered in the
            light most favorable to the State, and the
            State   is   entitled   to   all   reasonable
            inferences which may be drawn from the
            evidence.      Any     contradictions      or
            discrepancies arising from the evidence are
            properly left for the jury to resolve and do
            not warrant dismissal.

State v. Rouse, 198 N.C. App. 378, 381, 679 S.E.2d 520, 523

(2009) (citations and quotes omitted).
                                            -5-
       In his brief, Defendant correctly concedes that “[i]ntent

is a mental attitude seldom provable by direct evidence.                                       It

must ordinarily be proved by circumstances from which it may be

inferred.”       State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506,

508    (1974),   overruled      in       part    on    other      grounds       by    State    v.

Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).                             He also concedes

that    intent    to    commit       a    larceny         can     be     inferred       through

“circumstances existing at the time of the alleged commission of

the offense.”          State v. Bronson, 10 N.C. App. 638, 641, 179

S.E.2d 823, 825 (1971) (citation omitted).                              In spite of these

concessions,      Defendant      argues         that      there    was     not       sufficient

evidence    presented      at    trial      for       a   jury     to     find,       beyond    a

reasonable doubt, that Defendant intended to commit a larceny

inside Mr. Howell’s apartment. Specifically, because the State

did not present any physical evidence connecting Defendant to

the crime, and because Defendant was not seen carrying “burglary

tools” out of Mr. Howell’s apartment, Defendant contends that

the State’s evidence established nothing more than his “mere

presence” at the crime scene.

       Defendant takes far too narrow a view of the circumstances

from which intent may be inferred in this case.                           The fact that a

couch was barricading the front door of Mr. Howell’s apartment,

the    master    bedroom   had       been       ransacked,        and    some     items   were
                                              -6-
reportedly       taken     from     the      apartment     provided    the    jury   with

sufficient       circumstantial           evidence    from    which     it    reasonably

could    infer      that   whomever        broke    into    Mr.    Howell’s    apartment

intended to commit a larceny therein.                      Considering the evidence

in the light most favorable to the State, the trial court did

not err in denying Defendant’s motions to dismiss.

        III.   Defendant’s Inconsistent Jury Verdicts Claim

                               A.      Standard of Review

     This Court reviews a claim of inconsistent jury verdicts de

novo.     State v. Blackmon, 208 N.C. App. 397, 403, 702 S.E.2d

833, 837-38 (2010).

                                        B.    Analysis

     Defendant next contends that the jury’s verdict finding him

guilty of felony breaking or entering is logically inconsistent

and mutually exclusive with its verdict finding him not guilty

of larceny after breaking or entering.                     It is neither.

     “Under G.S. [§] 14-54, if a person breaks or enters one of

the buildings described therein with intent to commit the crime

of larceny, he does so with intent to commit a felony, without

reference      to    whether      he    is    completely      frustrated      before   he

accomplishes his felonious intent[.]”                      State v. Smith, 266 N.C.

747, 748–49, 147 S.E.2d 165, 166 (1966).                          “[A]ctual commission

of the felony, which the indictment charges was intended by the
                                      -7-
defendant at the time of the breaking [or] entering, is not

required in order to sustain a conviction” of felony breaking or

entering.     See State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d

269,   274   (1967),   superseded     by    statute          on   other   grounds   as

stated in State v. Worsley, 336 N.C. 268, 279, 443 S.E.2d 68, 73

(1994) (reviewing a burglary conviction).

       In the present case, the jury convicted Defendant of felony

breaking or entering because it found beyond a reasonable doubt

that Defendant had the intent to commit a larceny at the time he

broke into Mr. Howell’s apartment.                The jury also had at least

reasonable doubt that Defendant committed a larceny within Mr.

Howell’s apartment and thus found him not guilty of larceny.

However,     Defendant’s    intent    to    commit       a    larceny     inside    Mr.

Howell’s     apartment,    concurrent      with    his       breaking     or   entering

thereof, is all that is required to sustain the jury’s verdict

for felony breaking or entering.             See id.          As such, the jury’s

verdicts here are not inconsistent.                Because the verdicts are

not    inconsistent,      neither    can    they     be       mutually     exclusive.

Therefore, Defendant’s argument is without merit.

                IV.    Defendant’s Prior Record Level

                           A.   Standard of Review

       This Court has stated that

             [t]he determination of an offender's prior
             record level is a conclusion of law that is
                                        -8-
               subject to de novo review on appeal. It is
               not necessary that an objection be lodged at
               the sentencing hearing in order for a claim
               that the record evidence does not support
               the   trial   court's   determination  of  a
               defendant's   prior   record   level  to  be
               preserved for appellate review.

State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804

(2009).

                                   B.   Analysis

       Defendant contends that the trial court miscalculated his

prior record level during sentencing.                 Specifically, Defendant

was sentenced under prior record level II, based on four prior

record level         points.     However, both       the State and Defendant

appear    to    be    in    agreement   that    Defendant   should   have   been

sentenced based on three prior record level points, rather than

four.

       A defendant is properly sentenced under prior record level

II if he has between two and five prior record level points.

See N.C. Gen. Stat. § 15A-1340.14(c) (2013).                  As such, whether

Defendant had three or four prior record level points would not

have    affected      the    determination     of   his   prior   record   level.

Where    “the    correct       calculation     of   defendant's   prior    record

points does not affect the determination of his prior record

level, the error is harmless.”               State v. Blount, 209 N.C. App.
                                     -9-
340,    347,   703   S.E.2d   921,     926   (2011).   Therefore,   this

miscalculation by the trial court did not prejudice Defendant.

       No error in part; no prejudicial error in part.

       Judges BRYANT and STROUD concur.

       Report per Rule 30(e).
