An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

              IN THE COURT OF APPEALS OF NORTH CAROLINA
                                   No. COA14-1149

                                  Filed: 5 May 2015

Guilford County, No. 12 CRS 085608-9

STATE OF NORTH CAROLINA,

              v.
CHARLES WILSON ROBERTSON, Defendant


      Appeal by defendants from judgments entered 30 January 2014 by Judge

Tanya T. Wallace in Guilford County Superior Court. Heard in the Court of Appeals

18 March 2015.


      Attorney General Roy Cooper, by Special Deputy Attorney General Ann W.
      Matthews, for the State.

      Kimberly P. Hoppin, for defendant.


ELMORE, Judge.



      On 16 January 2014, a jury found defendant guilty of first degree burglary,

felonious larceny after burglary, and felonious possession of stolen goods. The trial

court sentenced defendant to consecutive terms of active imprisonment of 128-166

months for the first degree burglary conviction and 18-31 months for the larceny after

burglary conviction. The trial court arrested judgment on defendant’s conviction for
                                STATE V. ROBERTSON

                                   Opinion of the Court

felonious possession of stolen goods.      After careful consideration, we hold that

defendant received a trial free from prejudicial error.

                                           I. Facts

      At approximately 2:00 a.m. on 7 August 2012, on-duty Officers J.C. McIntosh

and Sheila Lennox-Spaulding of the Greensboro Police Department were traveling in

a patrol vehicle on Martin Luther King Boulevard in Greensboro. While they were

driving northbound, the officers observed two males on the sidewalk, walking in

tandem not more than one foot from each other, approaching their direction. As their

marked vehicle approached the two males, the officers noticed a large, square, flat-

appearing object wrapped in a blanket and tucked under the arm of Charles Wilson

Robertson (defendant). The other individual, Larry Doggett, carried a book bag. The

two men immediately left the sidewalk and began to walk away from the officers.

Doggett went behind a bush and reappeared without the bag. Defendant dropped the

flat object on the ground, and the officers determined the object to be a television.

      The officers exited their vehicle and approached the men. Officer McIntosh

asked defendant about the television, and defendant repeatedly denied having any

knowledge about its existence. The officers decided to detain both men. Defendant

did not obey the officers’ commands and appeared to reach for his back pocket while

Officer Lennox-Spaulding attempted to handcuff him. For officer safety purposes,

Officer McIntosh tackled defendant in order to detain him. A taser and cell phone




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                                    Opinion of the Court

fell out of defendant’s pocket when he went to the ground. In the backpack carried

by Doggett, the officers found two laptop computers and several hats.

      Officer B.R. Denny examined the two computers and traced the computers’

serial numbers to identify their registered owner.         The registered owner was

Chauncey Gianni Bennett, whose address was 219 Southside Square, a location

within walking distance of where the officers first noticed defendant and Doggett.

      At approximately 2:30 a.m., Officer Denny and Sergeant A.H. Hollis went to

219 Southside Square and made contact with the tenant, Barbara Bennett (the

victim). The building at 219 Southside Square has a commercial space on the first

floor and residential quarters upstairs. There is an entrance and stairway leading to

the residence from inside the downstairs commercial space.         The building also

contains another door and stairway to the residence located on the front exterior of

the building, which is accessible from the street and separate from the business. This

door is the entrance way used by the victim’s family to access her apartment. Her

apartment also contains a back door with a stairway leading to a courtyard.

      The victim was alone in the apartment when the officers arrived, but her two

adult sons, one of whom was Chauncey Bennett, also lived with her. The victim

testified at trial that she went to bed and fell asleep between 9:00 - 10:00 p.m. on 6

August. Her two sons were with her in the apartment that evening, but they left at

some point after she fell asleep.




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                                  Opinion of the Court

      When the officers arrived at the victim’s apartment building, the victim invited

them inside her living space. The officers asked her to search the apartment for any

missing items. The victim discovered that items were taken from her apartment

without her consent, including two laptops, a blanket, hats, cell phones, and a taser.

The officers presented the victim with items that had been retrieved from defendant

and Doggett, and she identified each item as belonging to her or her sons.

                                        II. Analysis

a.) Motion to Dismiss: First Degree Burglary & Larceny Pursuant to a
Burglary
      Defendant argues the trial court erred by denying his motion to dismiss the

charges of first degree burglary and larceny pursuant to burglary. Specifically,

defendant avers the State failed to present sufficient evidence that a “breaking”

occurred.   Additionally, defendant argues that due to the absence of sufficient

evidence of a “breaking,” the trial court erred by allowing the State to rely on the

doctrine of recent possession to withstand defendant’s motion to dismiss.         We

disagree.

      We review a 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). This Court must determine “whether

there is substantial evidence of each essential element of the offense charged and of

the defendant being the perpetrator of the offense.” State v. Clagon, 207 N.C. App.

346, 350, 700 S.E.2d 89, 92 (2010) (citation and quotation marks omitted). “In ruling

on a motion to dismiss, the trial court must examine the evidence in the light most



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                                    Opinion of the Court

favorable to the State, and the State is entitled to every reasonable inference and

intendment that can be drawn therefrom.”             Id. (citation and quotation marks

omitted).

             The test of the sufficiency is the same whether the evidence
             is circumstantial or direct, or both: the evidence is
             sufficient to withstand a motion to dismiss and to take the
             case to the jury if there is evidence which tends to prove
             the fact or facts in issue or which reasonably conduces to
             its conclusion as a fairly logical and legitimate deduction,
             and not merely such as raises a suspicion or conjecture.

State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (citations and quotation

marks omitted).

      In order to sustain a conviction for the felony charge of first degree burglary,

the State must provide substantial evidence that defendant committed “(1) the

breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used

as a sleeping apartment (5) of another (6) which is actually occupied at the time of

the offense (7) with the intent to commit a felony therein.” State v. Blyther, 138 N.C.

App. 443, 447, 531 S.E.2d 855, 858 (2000) (citation and quotation marks omitted). A

larceny can also constitute a felony if it is committed pursuant to a burglary. N.C.

Gen. Stat § 14-72(b)(2) (2013).    Thus, a conviction for felony larceny pursuant to a

burglary requires sufficient evidence that a “breaking” occurred.

      A “breaking” is “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.”

State v. Cunningham, 140 N.C. App. 315, 321, 536 S.E.2d 341, 346 (2000) (citation



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                                  Opinion of the Court

and quotation marks omitted). “Breaking” can be established by circumstantial

evidence that “prior to entry all doors and windows were closed” or “evidence of habit

or custom” that the doors and windows were typically closed at the time of entry.

State v. Howell, 335 N.C. 457, 473, 439 S.E.2d 116, 125 (1994).

      Where the evidence is purely circumstantial, the State can rely on the doctrine

of recent possession to raise the presumption that the possessor of stolen property is

guilty of a breaking and entering as long as “there is sufficient evidence that a

building has been broken into and entered[.]” State v. Maines, 301 N.C. 669, 674, 273

S.E.2d 289, 293 (1981).     “When the doctrine of recent possession applies in a

particular case, it suffices to repel a motion [to dismiss] and defendant’s guilt or

innocence becomes a jury question.” Id.

      Because defendant only challenges the sufficiency of the evidence with regard

to “breaking,” we limit our analysis to a discussion of that element. In the light most

favorable to the State, we hold the State presented sufficient circumstantial evidence

of a “breaking.”

      The victim testified the door from the commercial space downstairs that leads

to her apartment always stays locked. She further testified that both her front and

back doors were closed when she went to sleep and when the police arrived. The

victim also stated that it is her usual practice to make sure all the doors leading to

her apartment are physically closed, and her sons typically keep the front door shut

when they leave the apartment.        Moreover, when the officers arrived to her



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                                  Opinion of the Court

apartment, she initially opened her window to speak to them. Because the victim

testified that the window and all of the doors leading to her apartment were closed

and were usually kept shut, and the property in question went missing from her

apartment without her consent, the evidence was sufficient to establish that a

breaking of her residence occurred while she was asleep by an individual turning the

front doorknob and entering the residence. See State v. Alexander, 18 N.C. App. 460,

462, 197 S.E.2d 272, 273 (1973) (“The State must present evidence that a breaking

occurred, or from which it may reasonably be inferred that the defendant broke into

the dwelling. Such proof is usually accomplished by testimony showing that prior to

the entry all doors and windows were closed.”); see also State v. Sweezy, 291 N.C. 366,

383, 230 S.E.2d 524, 535 (1976) (“It is well established that the mere pushing or

pulling open of an unlocked door constitutes a breaking.”). As such, the trial court

did not err by denying defendant’s motion to dismiss for insufficient evidence of a

“breaking.” Because the State presented sufficient evidence of a “breaking,” the trial

court did not err by allowing the State to rely on the doctrine of recent possession to

withstand defendant’s motion to dismiss.

b.) Acting in Concert

      Next, defendant argues the trial court’s jury instruction on acting in concert

was prejudicial error because that theory of guilt was not supported by the evidence.

We disagree.




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                                   Opinion of the Court

      We evaluate a challenge to the trial court’s jury instructions under a de novo

standard of review. State v. Gabriel, 207 N.C. App. 440, 443, 700 S.E.2d 127, 129

(2010). In general, a trial court errs by instructing the jury “upon a theory of a

defendant’s guilt which is not supported by the evidence.” State v. Brown, 80 N.C.

App. 307, 311, 342 S.E.2d 42, 44 (1986). Despite a trial court’s error, a defendant in

challenging non-constitutional matters carries the burden to establish prejudicial

error— “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.”

N.C. Gen. Stat. § 15A-1443(a) (2013).

      Even if we presume arguendo that the trial court’s jury instruction on acting

in concert was not supported by the evidence, defendant has failed to establish

prejudicial error. The trial court did not instruct the jury that it could only convict

defendant exclusively based on a theory of acting in concert with Doggett. With

regard to the burglary charge, the trial court instructed the jury: “[i]f you find from

the evidence . . . the defendant . . . acting either by himself or together with

[Doggett]” committed the elements of first-degree burglary, “it would be your duty to

return a verdict of guilty[.]” Similarly, the trial court instructed the jury on the

larceny charge: “[i]f you find from the evidence . . . the defendant, acting either by

himself or acting together with [Doggett],” committed the elements of larceny

pursuant to a burglary, “it would be your duty to return a verdict of guilty[.]”




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                                    Opinion of the Court

(emphasis added). Thus, the jury was free to convict defendant based on his actions

alone.

         Had the trial court omitted the acting in concert instruction from the jury’s

consideration, no reasonable possibility exists that the jury would have acquitted

defendant of the burglary and larceny charges. The relevant evidence shows that

defendant was in exclusive possession of identifiable property, including the

television, blanket, taser, and cell phone, which were taken from the victim’s

residence without her permission at night while she was asleep in her home.

Defendant’s possession of the stolen property near the victim’s home at 2:00 a.m.

shortly after the burglary and larceny occurred raised the presumption that

defendant was guilty of the larceny and the burglary pursuant to the recent

possession doctrine. The evidence presented at trial relating to Doggett was almost

identical but for the property in Doggett’s possession. No additional evidence relating

to Doggett was presented to tip the scales in favor of the jury’s decision to convict

defendant under a theory of acting in concert. Accordingly, defendant has failed to

establish prejudicial error as a result of the trial court’s purported erroneous acting

in concert instruction.

c.) Felony Breaking or Entering (N.C. Gen. Stat. § 14-54(a))

         Defendant argues the trial court erred by failing to instruct the jury on felony

breaking or entering, a lesser-included offense of first degree burglary. Assuming

arguendo it was error for the trial court to fail to instruct on the lesser-included



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                                   Opinion of the Court

offense, defendant invited any such error. Accordingly, we dismiss this argument on

appeal.

      Pursuant to N.C. Gen. Stat. § 15A–1443(c) (2013), “[a] defendant is not

prejudiced by the granting of relief which he has sought or by error resulting from his

own conduct.” Thus, “a defendant who invites error has waived his right to all

appellate review concerning the invited error, including plain error[.]”       State v.

Spence, __ N.C. App. __, __, 764 S.E.2d 670, 677 (2014) (citation and quotation marks

omitted).

      Here, defendant’s attorney specifically objected to the instruction on the lesser-

included offense of felonious breaking or entering:

             THE COURT: [N]o one’s asking the charge on felonious
             breaking or entering as a lesser included of the first degree
             burglary.

             PROSECUTOR: I guess to be safe then, Your Honor, I
             would ask for that.

             DEFENSE ATTORNEY: And, Your Honor, we would object
             to that.

             THE COURT: All right. You’d asked for the first degree
             burglary and the felonious breaking or entering as a lesser
             included.

             PROSECUTOR: Yes.

Despite the State’s request that the trial court instruct the jury on felony breaking or

entering, defendant’s attorney specifically opposed such an instruction. As such,

defendant cannot argue on appeal that he was prejudiced by the trial court’s decision



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                               STATE V. ROBERTSON

                                  Opinion of the Court

not to include an instruction on the lesser-included offense of felony breaking or

entering when he specifically sought such an outcome at trial. See State v. Hope, __

N.C. App. __, __, 737 S.E.2d 108, 113 (2012) (holding the defendant waived his right

to appellate review of a purported erroneous jury instruction when “defendant invited

the [error] . . . by objecting to the correct instruction, requesting the incorrect

instruction, and by choosing to forgo . . . [the] instruction when given the option”).

Accordingly, we dismiss this argument on appeal.

d.) Ineffective Assistance of Counsel

      In anticipation that we might rule defendant invited error with regard to the

previous issue, defendant contends his trial counsel’s failure to concur with the

State’s request for an instruction on felony breaking or entering amounted to

ineffective assistance of counsel. We disagree.

      “The accepted practice is to raise claims of ineffective assistance of counsel in

post-conviction proceedings, rather than direct appeal.” State v. Dockery, 78 N.C.

App. 190, 192, 336 S.E.2d 719, 721 (1985). Should this Court rule that an ineffective

assistance of counsel claim has been brought prematurely by a direct appeal, we shall

dismiss the claim “without prejudice to the defendant’s rights to reassert [the claim]

during a subsequent MAR proceeding.” State v. Stroud, 147 N.C. App. 549, 554, 557

S.E.2d 544, 547 (2001) (citation and quotation marks omitted).

      Although defendant raises questions regarding his trial counsel’s handling of

the lesser-included jury instruction, we are unable to find ineffective assistance of



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                                   Opinion of the Court

counsel per se from the face of the record. As such, defendant prematurely asserted

his ineffective assistance of counsel claim by requesting we review this issue directly

on appeal. Thus, we dismiss defendant’s claim without prejudice to his right to file

appropriate motions in the trial court. See State v. Ware, 125 N.C. App. 695, 697, 482

S.E.2d 14, 16 (1997) (dismissing the defendant’s appeal where the issues could not be

determined from the record and concluding that “[t]o properly advance these

arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415[ ]

and G.S. 15A–1420[ ]”).

                                   III. Conclusion

      In sum, the trial court did not err by denying defendant’s motion to dismiss the

burglary and larceny charges. Even if the trial court erred by providing the jury with

the acting in concert instruction, any such error was non-prejudicial. Additionally,

defendant invited any purported error arising from the trial court’s failure to instruct

on the lesser-included offense of felony breaking or entering.     Finally, we dismiss

defendant’s premature ineffective assistance of counsel claim without prejudice.

      No prejudicial error.

      Judges GEER and INMAN concur.

      Report per Rule 30(e).




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