An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-734
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 10 CRS 258879
                                                  10 CRS 258881
ROBERT ADAM KAPFHAMER



      Appeal by Defendant from judgment entered 6 July 2012 by

Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 12 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kevin G. Mahoney, for the State.

      Irving Joyner, Esq., for defendant.


      DILLON, Judge.


      Robert Adam Kapfhamer (“Defendant”) appeals from a judgment

convicting him of felonious possession of stolen goods and of

misdemeanor breaking or entering, challenging the trial court’s

denial of his motion to dismiss.            We find no error.

      The    evidence      of    record   tends    to   show    the    following:

Defendant     and   Cody    Dedischew     rented    separate     bedrooms     in   a
                                    -2-
boarding house in Mecklenburg County.           On 25 November 2010, Mr.

Dedischew left the country to attend            a   funeral, leaving      his

bedroom door locked, and giving no one permission to enter his

room.

       On the night of 25 November 2010, Defendant called the

police to report a breaking and entering at the house.               Randall

Jones, who owned the boarding house, discovered that the front

door and all of the bedroom doors had been kicked in.               He said

that     Defendant   looked   frazzled    and   very     nervous   and   that

Defendant indicated he did not think anything had been stolen.

       When Mr. Dedischew returned from the funeral, he discovered

that a television, a camera, and a Black and Decker drill were

missing from his bedroom.       Approximately three months after the

break-in, police informed Mr. Dedischew that his drill had been

recovered from a local pawn shop and that the pawn ticket for

the drill indicated that it had been pawned by Defendant.                When

police     confronted   Defendant   with    this       evidence,   Defendant

claimed that he had not been responsible for the break-in but

that he took advantage of the fact that the boarding house had

been broken into by taking and pawning Mr. Dedischew’s drill,

stating that he needed the money for gas.
                                        -3-
      On 27 June 2011, Defendant was indicted on two counts of

larceny after breaking and entering, and two counts felonious

breaking and entering, and one count of felonious possession of

stolen goods.        After a trial on the merits, the jury returned

verdicts of guilty of felonious possession of stolen goods and

of misdemeanor breaking or entering.               The trial court entered a

judgment     consistent       with     the      jury’s     verdict,        sentencing

Defendant to 7 to 9 months incarceration, which the trial court

suspended, subject to the condition that Defendant was placed on

30 months supervised probation.                From this judgment, Defendant

appeals.

                              I: Motion to Dismiss

      On   appeal,    Defendant      contends     the    trial     court    erred   by

denying     his   motion      to     dismiss     the     charges     of    felonious

possession of stolen property and of misdemeanor breaking or

entering.    We disagree.

      “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).          “‘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 (2) of defendant’s
                                     -4-
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, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150

(2000)    (citation   and    quotation     marks   omitted).      “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).                 “In making its

determination,     the    trial    court    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), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995)

(citation omitted).

             A:   Felonious Possession of Stolen Property

    “The essential elements of felonious possession of stolen

property are: (1) possession of personal property, (2) which was

stolen pursuant to a breaking or entering, (3) the possessor

knowing or having reasonable grounds to believe the property to

have been stolen pursuant to a breaking or entering, and (4) the

possessor acting with a dishonest purpose.”               State v. McQueen,

165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004), disc. review
                                          -5-
denied, 359 N.C. 285, 610 S.E.2d 385 (2005) (citing N.C. Gen.

Stat. §§ 14-71.1, 14-72(c)) (citations omitted).

       The   indictment       in   this      case   charging      Defendant      with

felonious possession of stolen property alleged the following:

“[O]n or about the 29th day of November, 2010, in Mecklenburg

County, [Defendant]          did unlawfully, willfully and feloniously

possess a drill, the personal property of Cody Dedischew, having

some   value,     which     property   was      stolen    property,   knowing     and

having reasonable grounds to believe the property to have been

feloniously       stolen,    taken,    and      carried    away   pursuant     to    a

violation of Section 14-54 of the General Statutes of North

Carolina.”

       Defendant contends the State did not present substantial

evidence of Defendant’s “possession of personal property,” or of

Defendant’s “knowing or having reasonable grounds to believe the

property     to    have     been   stolen       pursuant    to    a   breaking      or

entering.”        McQueen, 165 N.C. App. at 459, 598 S.E.2d at 676.

We address each argument in turn.

       The first element of possession of stolen goods is that a

defendant must have had the personal property in his possession.

“[P]ossession [of stolen goods] . . . may be either actual or

constructive.             Constructive       possession      exists     when        the
                                                -6-
defendant, while not having actual possession [of the goods], .

.   .   has     the    intent      and    capability       to    maintain   control        and

dominion over the[m].”               State v. Szucs, 207 N.C. App. 694, 698,

701     S.E.2d     362,      365    (2010)        (citation       and   quotation        marks

omitted)        (alterations        in    original).            Defendant   contends        on

appeal     there      “was    no    evidence          presented    in   this   case       that

[Defendant] was in possession of any property which belonged to

and had been stolen from Cody Dedischew on November 29, 2010.”

The     State    presented         the    following      evidence       tending     to    show

Defendant’s possession of the drill:                      Defendant admitted he took

the drill.        Further, Defendant’s identification was presented to

the     pawn    shop    operator         when    he     pawned    the   drill,      and    the

operator testified that he checked the identification “[v]ery

closely” to be certain the identification was current and that

the     identification        matched       the       individual.       Accordingly,        we

believe there was substantial evidence to support the element of

possession.

        Next,     Defendant         argues        the     State     did     not     present

substantial           evidence       of     Defendant’s          “knowing      or    having

reasonable grounds to believe the property to have been stolen

pursuant to a breaking or entering.”                      McQueen, 165 N.C. App. at

459, 598 S.E.2d at 676.                  According to Defendant, Mr. Jones saw
                                      -7-
the drill in a common area of the house a few days after the

break-in had occurred, which supplied evidence from which the

jury could infer that the drill was not taken during the break-

in or that Defendant entered Mr. Dedischew’s room to take it.

However, there was also evidence that the drill was taken from

Mr. Dedischew’s bedroom.          Specifically, Mr. Dedischew testified,

that he had left the drill on the floor of his room before

leaving for the funeral.        Further, the jury could infer from the

evidence that Defendant was the sole perpetrator of the breaking

and entering into Mr. Dedischew’s room.                 We, therefore, believe

that the State presented substantial evidence from which a jury

could infer that of Defendant’s “knowing or having reasonable

grounds to believe the property to have been stolen pursuant to

a   breaking   or    entering.”      Id.     at    459,   598    S.E.2d   at   676.

Accordingly, we hold that the trial court did not err by denying

Defendant’s motion to dismiss on this ground.                    State v. Cox, __

N.C.    __,    __,    749   S.E.2d    271,        277   (2013)     (stating    that

“evidentiary contradictions and discrepancies are for the jury

to resolve and do not warrant dismissal”).

                 B:    Misdemeanor Breaking or Entering

       In Defendant’s next argument on appeal, he contends the

trial court erred by denying his motion to dismiss the charge of
                                                  -8-
misdemeanor      breaking          or     entering.           “Misdemeanor      breaking       or

entering,    .   .   .    is       a    lesser       included       offense    of   felonious

breaking    or    entering             and    requires        only    proof    of   wrongful

breaking or entry into any building.”                            State v. Johnson, 208

N.C. App. 443, 448, 702 S.E.2d 547, 551 (2010), disc. review

denied, 365 N.C. 84, 706 S.E.2d 247 (2011) (citing N.C. Gen.

Stat. § 14-54(b)) (additional citation omitted).

    The indictment             charged Defendant with felonious                      breaking

and entering; however, the jury                         convicted him         of the lesser

included offense of misdemeanor breaking or entering.

    Defendant’s          argument            on    appeal      is     predicated     on    the

uncontroverted fact that Defendant and Mr. Dedischew each rented

separate private bedrooms and shared common areas in one house –

the house referenced in the indictment.                              On appeal, Defendant

contends    essentially            that      there      was   not    substantial     evidence

presented that Defendant kicked in the door to Mr. Dedischew’s

locked   bedroom,        and       that,      the       foregoing     notwithstanding,          a

locked   room    within        a       boarding      house     does    not    qualify     as   a

“building” for purposes of the application of N.C. Gen. Stat.

14-54(b).    We find these arguments meritless.

    We first address Defendant’s argument that the State did

not present substantial evidence that Defendant broke into Mr.
                                           -9-
Dedischew’s       bedroom.            Assuming     arguendo     there     was    not

substantial evidence that Defendant broke into Mr. Dedischew’s

bedroom, to convict Defendant of a violation of N.C. Gen. Stat.

14-54(b), “it is sufficient if the State’s evidence shows either

a breaking or an entering; it need not show both.”                        State v.

O'Neal,   77     N.C.   App.    600,    605,     335   S.E.2d   920,    923   (1985)

(emphasis added).        In this case, there was evidence tending to

show that the drill was on the floor in Mr. Dedischew’s locked

bedroom, and that Defendant pawned the drill to get money for

gas.      Even    if    the    jury        believed    Defendant   was    not   the

perpetrator responsible for kicking in Mr. Dedischew’s bedroom

door - but merely took advantage of the breaking and entering to

pawn the drill - there is evidence from which the jury could

infer that Defendant nonetheless entered Mr. Dedischew’s bedroom

to remove the drill.

       Lastly, we address Defendant’s argument that a locked room

within a building does not satisfy the statutory requirement of

breaking and entering a “building” pursuant to N.C. Gen. Stat. §

14-54.     N.C.     Gen.      Stat.    §    14-54(c)    defines    “building”    as

“include[ing] any dwelling, dwelling house, uninhabited house,

building under construction, building within the curtilage of a

dwelling house, and any other structure designed to house or
                              -10-
secure within it any activity or property.”   Id.   This Court has

previously held contrary to Defendant’s argument.     In State v.

Clinton, 3 N.C. App. 571, 574, 165 S.E.2d 343, 345 (1969), in

the context of breaking and entering, we held that “a room in a

rooming house” is included “in the meaning of the term ‘dwelling

house.’”   Id.; see also State v. Merritt, 120 N.C. App. 732,

736, 463 S.E.2d 590, 592 (1995), disc. review denied, 342 N.C.

897, 467 S.E.2d 738 (1996) (holding that “[t]here may be several

dwelling units in a single structure, as the rooms in an inn,

hotel or lodging house.   In such case, each room is regarded as

a ‘dwelling house’ of its respective occupant”).      As such, in

this case Mr. Dedischew’s room within the rooming house was

exclusively his “dwelling house” within the meaning of N.C. Gen.

Stat. § 14-54, and not that of Defendant.

    For the foregoing reasons, we believe the trial court did

not err in denying Defendant’s motion to dismiss the charge of

breaking and entering.

    NO ERROR.

    Judge STROUD and Judge HUNTER, JR. concur.

    Report per Rule 30(e).
