An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1202
                        NORTH CAROLINA COURT OF APPEALS

                                 Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                          Johnston County
                                                  No. 12CRS50894
KIMBERLY DALE ADAMS



      Appeal by defendant from judgment entered 11 December 2012

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

Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Torrey D. Dixon, for the State.

      Amanda S. Zimmer for defendant-appellant.


      HUNTER, Robert C., Judge.


      Kimberly     Dale      Adams    (“defendant”)           appeals   from    judgment

entered    after    a   jury    convicted        her    for    one   count     of   felony

breaking     and   entering     and    one      count   of     felony   larceny.        On

appeal, defendant argues              that the trial court: (1) erred                    by

admitting     irrelevant       photographs       into    evidence;      (2)     erred    by

denying      defendant’s       motion      to     dismiss       because      there      was

insufficient evidence to establish all elements of breaking and
                                           2


entering; and (3) committed plain error by not instructing the

jury on abandonment as a defense to larceny.                       Defendant also

argues that her trial counsel was ineffective for failing to

request an instruction on abandonment as a defense to larceny.

      After careful review, we find no error.

                                  Background

      The evidence presented at trial tended to establish the

following facts: defendant and a male companion arrived at the

residential home at 185 Winterberry Street in Clayton, North

Carolina on 9 February 2012.               A neighbor, Michael Coats (“Mr.

Coats”), testified that from his own home across the street he

saw defendant and the man back into the driveway, open the hatch

of their vehicle, and enter the home through the side door of

the garage.       Mr. Coats approached the house and heard either

defendant    or   her    companion    opening       boxes     inside.      He     then

confronted     them.      Defendant     told      Mr.     Coats   that   they     were

working with a realtor, that the house was in foreclosure, and

they were considering buying it.                Mr. Coats then left the house

and   called   911.       After   Mr.      Coats    left    the   house,    he     saw

defendant put a crate in the back of the vehicle before driving

away.

      Two officers responded to the 911 call.                 Officer Clay Coats

(“Officer Coats”) found the door to the garage open but in a

locked   position      with   signs   of       possible    tampering     around    the
                                             3


door.      Officer Coats testified that he observed a number of

personal belongings in the house.                    Another officer, Detective

Brad    Gillis    (“Detective        Gillis”),      testified      that    he     observed

slight    pry    marks   on    every       outside       door,    each   of   which    was

locked.     Photographs of pry marks on the front and back doors

were admitted for illustrative purposes during the testimony of

Detective Gillis, over objection by defense counsel that they

were irrelevant.

       Defendant     was      pulled       over     by     Officer       Isaiah     Ruffin

(“Officer Ruffin”), who had responded to the description of the

vehicle called in by Mr. Coats.                   Sergeant Robert Raetz, another

officer on the scene, testified that he seized a tote containing

“various    items”   that      was    in    plain    view.        The    police    report

valued    these    items   at    one       dollar,    but    in    subsequent      arrest

warrant they were valued at one hundred dollars.                         Other officers

arrived and located a screwdriver and laptop in the vehicle.

Defendant was then arrested and charged with felony breaking and

entering and larceny of toys and a container.

       At trial, Helen Lambeth (“Ms. Lambeth”) testified for the

State.      She    and     her   husband          owned     the    residence      at   185

Winterberry Street, but were in default on their mortgage with

Wells Fargo; they received a pre-foreclosure notice from Wells

Fargo in June 2011.           They moved out in May 2011, bringing most

of their personal property with them and had not returned to
                                               4


reclaim the property left behind.                       When they moved out of the

house, all of the doors were closed and locked with no damage.

Her family left property in the house because they could not fit

all of their belongings into the small moving vehicle they had

rented and could only use for a limited time.                              However, Ms.

Lambeth testified that they planned to return and retrieve the

property left behind.             Ms. Lambeth further testified that she

did not consent to defendant being present or taking the toys

and container from the house.

     At the close of the State’s evidence, defendant moved to

dismiss the charges in part because it was unclear who actually

owned    the     house    at     the    time       of   the     alleged    breaking   and

entering.      At the close of all evidence, defendant renewed the

motion   to    dismiss.          Both    motions         were    denied.      The   judge

instructed the jury that the photographs showing pry marks on

the doors were admitted for illustrative purposes only.

        The jury found defendant guilty of felony breaking and

entering and felony larceny.               Defendant received a consolidated

sentence    of    eight     to    nineteen         months     imprisonment     that   was

suspended      for       thirty-six      months         of      supervised    probation.

Defendant later entered an untimely pro se notice of appeal.

Defendant filed a petition for writ of certiorari on 12 December

2013.

                                 Writ of Certiorari
                                                    5


      Defendant concedes that she filed untimely notice of appeal

in   contravention           of       Rule    4    of    the     North    Carolina      Rules   of

Appellate Procedure.                  See N.C. R. App. P. 4 (2013).                   It is well-

established that without proper notice of appeal, this Court

does not acquire jurisdiction to review the appeal.                                     State v.

McCoy,    171    N.C.       App.       636,       638,    615    S.E.2d       319,   320,   appeal

dismissed,       360      N.C.        73,     622       S.E.2d    626     (2005).        However,

defendant filed a petition for writ of certiorari in this case

seeking a belated appeal.                     This Court has previously allowed a

petition for writ of certiorari where a pro se defendant failed

to   comply     with       the        requirements         of    Rule    4.      See    State   v.

Crawford,       __    N.C.    App.          __,    __,    737     S.E.2d      768,    769   (2013)

(granting       the       defendant’s          petition          writ    of    certiorari    even

though she failed to serve her pro se notice of appeal on the

State).

      Based on the foregoing, we allow defendant’s petition for

writ of certiorari and will consider the merits of her appeal.

                                             Discussion

                     I.    Photographic Evidence of Pry Marks

      Defendant first argues that the trial court erred when it

admitted irrelevant photographs showing damage to the front and

back doors of the house.                    We disagree.

      “Even      though           a     trial       court’s        rulings       on     relevancy

technically are not discretionary and therefore are not reviewed
                                                    6


under the abuse of discretion standard applicable to Rule 403,

such rulings are given great deference on appeal.”                                     State v.

Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).

       Rule 401 defines relevant evidence as “evidence having any

tendency       to    make        the    existence          of    any    fact        that    is    of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                                  N.C. Gen.

Stat.    §    8C-1,       Rule    401    (2013).              Only   relevant       evidence      is

admissible.          N.C. Gen. Stat. § 8C-1, Rule 402 (2013).                               If the

evidence has no tendency to prove a fact at issue in the case,

the   evidence       is    irrelevant          and      must    be   excluded.         State      v.

Perry, 298 N.C. 502, 510, 259 S.E.2d 496, 501 (1979).                                         There

must be a “reasonable, or open and visible connection, rather

than one which is remote, latent, or conjectural, between the

evidence presented and the fact to be proved by it.”                                       State v.

Bates,       309    N.C.    528,        536,    308       S.E.2d       258,    263-64        (1983)

(alterations in original).

       The elements of the crime of breaking or entering are (1)

the   breaking       or    entering       (2)       of    a    building      (3)    without      the

consent of the owner or occupant (4) with the intent to commit

any felony or larceny therein.                          State v. Boone, 297 N.C. 652,

657, 256 S.E.2d 683, 686 (1979); N.C. Gen. Stat. § 14-54 (2013).

In    order    for    an    entry       to     be       unlawful,      for    the    purpose     of

felonious breaking and entering, the entry must be without the
                                          7


owner’s consent.         State v. Rawlinson, 198 N.C. App. 600, 607,

679 S.E.2d 878, 882 (2009).

     Defendant argues that the photographs showing damage to the

front and back doors of the house were irrelevant because it was

established at trial that defendant entered the house through

the garage door.         No pictures of the garage door were shown to

the jury.     Thus, defendant contends that the photographs of the

front and back doors had no “reasonable, or open and visible”

connection to any facts at issue in the case.                      We disagree.

     The photographs were admitted for illustrative purposes to

explain testimony from Detective Gillis that there were signs of

possible tampering on the doors consistent with forced entry.

Where a proper foundation has been laid, photographs may be used

to   illustrate      a    witness’s       testimony          and     facilitate       his

explanation.      State v. Swift, 290 N.C. 383, 395, 226 S.E.2d 652,

662 (1976).       Here, the photographs explained and illustrated the

degree to which the pry marks were present on the front and back

doors as Detective Gillis testified.                    Defendant does not contest

that Detective Gillis’s testimony was relevant.                            Indeed, this

testimony was relevant, because evidence of pry marks on the

doors   had   a   tendency   to    make       it    more   likely        that   defendant

entered the building without the owner’s consent and may have

entered the garage door because she had tried to get in through

other   doors,     but   found    them    to       be   locked     and    impenetrable.
                                       8


Because entering a building without the consent of the owner

constitutes an element of the crime charged, the circumstances

surrounding defendant’s entry into the home are material facts,

and Detective Gillis’s testimony made nonconsensual entry more

likely than it would be without the evidence.                Thus, because the

photographs    were   only     admitted     to   illustrate     this      relevant

testimony,    we   conclude    that   the    trial   court    did   not    err   by

admitting them for that purpose.

               II. Felonious Intent & Consent to Entry

    Defendant next argues that the trial court erred by failing

to dismiss the charge of breaking and entering because the State

failed to establish: (1) she had the requisite intent to commit

a felony or larceny at the time of entry; and (2) she did not

have consent to enter the house.            We disagree.

    We review the trial court’s denial of a motion to dismiss

de novo on appeal.       State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).         Under the de novo standard of review, the

reviewing court considers the matter anew and freely substitutes

its own judgment for the lower court’s.              Sutton v. N.C. Dep’t of

Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999).

    When a trial court rules on a motion to dismiss, it must

determine whether the State presented substantial evidence of

each essential element of that offense.              State v. Davis, 74 N.C.

App. 208, 212, 328 S.E.2d 11, 14 (1985).               “Substantial evidence
                                             9


is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.”                 State v. Smith, 300 N.C. 71,

78, 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).

       The element of intent to commit a felony or larceny must

exist    at    the   time   of   the    breaking     or     entering     in    order    to

convict a defendant on that charge.                  State v. Freeman, 307 N.C.

445, 450-51, 298 S.E.2d 376, 379-80 (1983).                      If intent does not

exist at the time of breaking or entering, a defendant would be

guilty of a misdemeanor rather than a felony.                     N.C. Gen. Stat. §

14-54(b)       (2013).       Intent      is       usually     inferred        from     the

circumstances.        State v. Bell, 285 N.C. 746, 750, 208 S.E.2d

506,     508   (1974).       Our       appellate      courts      have    based      such

inferences on several factors, including the taking of another’s

property under conditions rendering it unlikely an owner will

ever recover the property, the manner in which the property was

taken, and the fact that the taker held the property in her

possession until it was recovered by the police.                         See State v.

Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966); State v.
                                                  10


Sakobie, 157 N.C. App. 275, 284, 579 S.E.2d 125, 131 (2003).

However, evidence that an item was taken is not “positive proof”

that defendant intended to commit a larceny at the moment he

entered the building.                 State v. Peacock, 313 N.C. 554, 559, 330

S.E.2d 506, 508 (1985).

       Defendant first argues that since she entered the house

during the daytime and explained that her motive was to inspect

the house before possibly buying it, the State failed to prove

that    she    intended          to    commit       a    felony       or    larceny    therein.

Defendant       contrasts         the       facts       of     this    case    to     State    v.

Alexander, 18 N.C. App. 460, 197 S.E.2d 272 (1973), where this

Court noted that “in the absence of evidence of other intent or

explanation for breaking and entering, is that the usual object

or purpose of burglarizing a dwelling house at night is theft.”

Alexander, 18 N.C. App. at 462-463, 197 S.E.2d at 273-274.

       We     find,   however,             that   the        State    presented       sufficient

evidence       for    a    jury       to    reasonably         conclude       that     defendant

intended to commit a larceny when she entered the house.                                      “The

criminal intent of the defendant at the time of breaking or

entering may be inferred from the acts he committed subsequent

to his breaking or entering the building.”                                 State v. Williams,

330    N.C.    579,       585,   411       S.E.2d       814,    818   (1992).         The   State

produced the following evidence tending to show that defendant

had the intent to commit larceny before entering the house: (1)
                                      11


defendant and the man accompanying her pulled into the driveway

of   the   house    in    reverse    and    opened     the     hatchback      before

entering, indicating that they planned to take something from

the house and put it into their vehicle; (2) Mr. Coats heard one

of the two rummaging through boxes when he approached the house;

and (3) defendant was pulled over with items taken from the

house in her car shortly after she left.                      We hold that this

evidence   was     such   that   a   reasonable        mind    could    accept    as

adequate to support the conclusion that the requisite intent to

commit a larceny existed at the time of entry, and thus there

was substantial evidence of this element sufficient to survive a

motion to dismiss.        See State v. Thompkins, 83 N.C. App. 42, 44,

348 S.E.2d 605, 606 (1986) (evidence that defendant was seen

walking from the house with large objects and that those objects

were missing from the house was              substantial evidence            of the

element of intent to commit a larceny at the time of a breaking

or entering); State v. Barnett, 141 N.C. App. 378, 383, 540

S.E.2d 423, 427 (2000) (“[T]he evidence need only give rise to a

reasonable   inference      of   guilt     for   the    case    to     be   properly

submitted to the jury.”), aff’d, 354 N.C. 350, 554 S.E.2d 644

(2001).    Accordingly, defendant’s argument as to the element of

intent is overruled.

     Defendant next argues that the State failed to produce a

showing that the breaking or entering was without the consent of
                                          12


the owner or occupant.          Williams, 330 N.C. at 585, 411 S.E.2d at

818.      In    North   Carolina,   “as    between      the    mortgagor     and    the

mortgagee, the legal title to the mortgaged premises is vested

in the mortgagee, while the mortgagor is looked upon as the

equitable owner of the land.              This relative position continues

until the land is redeemed or until the mortgage is foreclosed.”

Stevens v. Turlington, 186 N.C. 191, 191, 119 S.E. 210, 211-12

(1923).        Here, Ms. Lambeth was the mortgagor of the property,

and Wells Fargo was the mortgagee.                    Although Wells Fargo had

given notice of pre-foreclosure to the Lambeths in June 2011,

foreclosure      proceedings     had   not      yet   occurred       when   defendant

entered the home.           Thus, because the land was neither redeemed

nor foreclosed, Ms. Lambeth was the equitable owner during the

time period in question.          Because Ms. Lambeth testified that she

did not consent to defendant entering the house, we hold that

the    State     produced    substantial       evidence       that   the    owner   or

occupant did not consent to the entry.                 Defendant’s argument is

without merit.

                        III. Instruction on Abandonment

       Defendant next argues that the trial court committed plain

error when it did not instruct the jury that abandonment was a

defense to larceny in this case.               We disagree.

       Because defendant did not object on this ground at trial,

the appropriate standard of review is plain error.                          State v.
                                     13


Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).                    Plain

error arises when the error is “so basic, so prejudicial, so

lacking in its elements that justice cannot have been done[.]”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(citation and quotation marks omitted).

           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 quotation marks omitted).

    Property that has been abandoned by the owner cannot be the

subject of larceny.    State v. Hall, 57 N.C. App. 544, 546, 291

S.E.2d 873, 875 (1982).      The party relying on the defense of

abandonment must affirmatively show by clear, unequivocal, and

decisive   evidence   the   intent    of        the   owner   to   permanently

terminate ownership of the disputed property.                 State v. West,

293 N.C. 18, 30, 235 S.E.2d 150, 157 (1977).                   The owner of

personal property may give up his ownership by abandoning the

property, and if he does so, title passes to the first person

who takes possession thereafter.          Id.
                                            14


       Defendant argues the trial court plainly erred in failing

to instruct on abandonment because the evidence supported such

an instruction.          Defendant contends that Ms. Lambeth left her

personal property unattended for approximately ten months after

leaving the home, and that she moved to a location not far from

her    old    home,     thus     indicating       clearly,      unequivocally,         and

decisively that she abandoned the property left in the previous

residence.      We disagree. Ms. Lambeth testified that she did not

intend to terminate her ownership of the property that defendant

took from the home.              To the contrary, she testified that she

intended to return to the house and retrieve the items, which

were   only    left     behind      temporarily     because     there      was   limited

space in the moving vehicle and limited time to use it.                              Given

this    testimony,       we      conclude        that   there      was     not   clear,

unequivocal and decisive evidence that Ms. Lambeth permanently

terminated     ownership       of    the    property    in    this       case.       Thus,

because      there    was   insufficient          evidence    to    support      a    jury

instruction on the defense of abandonment, the trial court did

not err, let alone commit plain error, by declining to issue

such an instruction.             See State v. Napier, 149 N.C. App. 462,

463, 560 S.E.2d 867, 868 (2002); State v. Torain, 316 N.C. 111,

116, 340 S.E.2d 465, 468 (1986) (without error, there cannot be

plain error).

                     IV. Ineffective Assistance of Counsel
                                           15


      Defendant’s        final    argument      is    that    her     trial   counsel’s

failure to request an instruction on the defense of abandonment

constituted ineffective assistance of counsel.                         To establish a

claim of ineffective assistance of counsel, defendant must show

that her trial counsel’s performance was deficient and that this

deficient performance prejudiced defendant.                     State v. Braswell,

312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).                          Having found

no error in the trial court’s decision not to instruct on the

defense of abandonment, we hold that defendant has failed to

show that her attorney’s failure to request such an instruction

was deficient or prejudiced her in any way.                         Thus, defendant’s

argument is without merit.

                                     Conclusion

      In   sum,    the    trial    court     did     not     commit    error:   (1)   in

admitting photographs for the purpose of illustrating relevant

testimony; (2) by denying defendant’s motion to dismiss; and (3)

by   not   instructing       the    jury     on      abandonment      as    defense   to

larceny. Further, defendant was not denied effective assistance

of   counsel      when    her     trial    attorney        failed     to    request   an

instruction on abandonment.



      NO ERROR.

      Judges GEER and McCULLOUGH concur.

      Report per Rule 30(e).
