               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1240

                                Filed: 2 August 2016

Alamance County, Nos. 12 CRS 56171, 13 CRS 609

STATE OF NORTH CAROLINA

              v.

RISA COVINGTON


      Appeal by defendant from judgment entered 5 March 2014 by Judge Reuben

F. Young in Alamance County Superior Court. Heard in the Court of Appeals 11

April 2016.


      Roy Cooper, Attorney General, by Anne Goco Kirby, Assistant Attorney General,
      for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
      defendant-appellant.


      DAVIS, Judge.


      Risa Covington (“Defendant”) appeals from his convictions for breaking or

entering into a motor vehicle, misdemeanor larceny, injury to personal property, and

attaining the status of an habitual felon. On appeal, he contends that (1) the trial

court plainly erred by failing to instruct the jury on the lesser-included offense of

first-degree trespass; and (2) he received ineffective assistance of counsel. After

careful review, we conclude that Defendant received a fair trial free from error.

                               Factual Background
                                 STATE V. COVINGTON

                                   Opinion of the Court



      The State presented evidence at trial tending to establish the following facts:

On the morning of 27 September 2012, Samuel King (“King”), the owner of King’s

Wheels and Tires (“King’s Tires”) located at 1625 North Church Street in Burlington,

North Carolina, arrived at his business and noticed trash strewn on the ground near

three cars parked in the parking lot behind the building. King walked toward the

vehicles in order to investigate further.

      As he approached, he saw Defendant sitting in the driver’s seat of a blue Honda

Civic (the “Civic”), which was later established as the property of Catherine Woods

(“Woods”). He observed Defendant “prying on the dash” with what appeared to be a

screwdriver. King asked Defendant if the Civic belonged to him, and Defendant

responded by inaudibly mumbling under his breath. King told Defendant he was

calling the police at which point Defendant got out of the Civic and began walking

away from King down North Church Street.

      King called 911 and informed the dispatcher of the events that had just

transpired. He also reported that Defendant was walking down North Church Street.

Officer Johnathan Khan (“Officer Khan”) with the Burlington Police Department

(“BPD”) was dispatched to North Church Street. Shortly thereafter, Officer Khan

located Defendant walking along Cobb Avenue one block away from North Church

Street.




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                                   Opinion of the Court



      Officer Khan honked his patrol vehicle’s horn twice at which point Defendant

stopped, looked back in the direction of Officer Khan, and began walking towards

him. Upon seeing Defendant, Officer Khan recognized him from past encounters

between them. When Defendant reached the patrol vehicle, Officer Khan asked

Defendant if he had been “messing around [with] any cars over here by King’s Tire.”

Defendant denied having done so.        Officer Khan detected an odor of alcohol on

Defendant’s breath and noticed that he was unsteady on his feet.

      Officer Khan exited his vehicle and frisked Defendant for weapons. He felt a

large object in Defendant’s left sleeve as well as metal objects in his left front pockets

that he believed could be knives. He searched Defendant’s pockets and discovered a

pair of vice grip pliers, a ratchet socket, a vehicle oxygen sensor, an electronic device

with an attached USB cord, a library card issued in the name of Tiffany Neal, a

lighter, three boxes of cologne, lottery tickets, three silver earrings, and other

miscellaneous items.

      While Officer Khan was in the process of searching Defendant, Officer Justin

Jolly (“Officer Jolly”) of the BPD went to King’s Tires. After speaking with King and

checking King’s Tires’ records, he determined that the owner of the Civic was Woods.

He then called her and informed her about the break-in, asking her to come to King’s

Tires. While Woods was en route, Officer Jolly drove to Officer Khan’s location and




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collected the items Officer Khan had recovered from Defendant. Officer Jolly then

returned to King’s Tires.

      Woods subsequently arrived at King’s Tires, and upon speaking with Officer

Jolly she identified several of the items recovered from Defendant as her personal

property that she had left in her Civic when she dropped it off at King’s Tires

overnight for maintenance work. Officer Jolly radioed Officer Khan and instructed

him to arrest Defendant.

      On 28 January 2013, Defendant was indicted on charges of breaking and

entering into a motor vehicle, misdemeanor larceny, injury to personal property, and

attaining the status of an habitual felon. Beginning on 3 March 2014, a jury trial

was held before the Honorable Reuben F. Young in Alamance County Superior Court.

      The jury found Defendant guilty of breaking or entering into a motor vehicle,

misdemeanor larceny, and injury to personal property. He subsequently pled guilty

to attaining the status of an habitual felon. The trial court consolidated Defendant’s

convictions and sentenced him to 50-72 months imprisonment.

      On 3 March 2015, Defendant filed a petition for writ of certiorari with this

Court seeking review of his convictions despite the fact that he failed to properly enter

notice of appeal. On 20 March 2015, we granted Defendant’s petition.

                                       Analysis

I. Instruction on Lesser-Included Offense



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                                   Opinion of the Court



      Defendant’s first argument on appeal is that the trial court committed plain

error by failing to instruct the jury on the lesser-included offense of first-degree

trespass.   Specifically, Defendant contends that he presented evidence at trial

showing that he lacked the felonious intent necessary to commit the offense of

breaking or entering into a motor vehicle, thereby entitling him to a jury instruction

on the lesser-included offense. We disagree.

      Defendant failed to object at trial to the absence of an instruction on first-

degree trespass. Therefore, our review is limited to plain error. See N.C.R. App. P.

10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted at

trial and that is not deemed preserved by rule or law without any such action

nevertheless may be made the basis of an issue presented on appeal when the judicial

action questioned is specifically and distinctly contended to amount to 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
             affects 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,

quotation marks, and brackets omitted).

                    It is well settled that a defendant is entitled to have


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                                  Opinion of the Court



             a lesser-included offense submitted to the jury only when
             there is evidence to support it. The test in every case
             involving the propriety of an instruction on a lesser grade
             of an offense is not whether the jury could convict
             defendant of the lesser crime, but whether the State’s
             evidence is positive as to each element of the crime charged
             and whether there is any conflicting evidence relating to
             any of these elements.

State v. Chaves, __ N.C. App. __, __, 782 S.E.2d 540, 542-43 (2016) (citation and

brackets omitted).

      “The trial court is not obligated to give a lesser included instruction if there is

no evidence giving rise to a reasonable inference to dispute the State’s contention.”

State v. Lucas, 234 N.C. App. 247, 256, 758 S.E.2d 672, 679 (2014) (citation, quotation

marks, and ellipses omitted). “Where no lesser included offense exists, a lesser

included offense instruction detracts from, rather than enhances, the rationality of

the process.” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (citation

and quotation marks omitted).

      The elements of breaking or entering into a motor vehicle are “(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.” State v. Jackson, 162 N.C. App. 695, 698, 592

S.E.2d 575, 577 (2004) (citation and emphasis omitted). “First-degree trespass is a

lesser-included offense of felonious breaking or entering. Unlike felonious breaking

or entering, first-degree trespass does not include the element of felonious intent but


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                                  Opinion of the Court



rather merely requires evidence that the defendant entered or remained on the

premises or in a building of another without authorization.” Lucas, 234 N.C. App. at

256, 758 S.E.2d at 678-79 (internal citation omitted).

      Defendant concedes that there was sufficient evidence to submit the offense of

breaking or entering into a motor vehicle to the jury. He argues, however, that

conflicting evidence existed as to his intentions for entering the Civic. In support of

this argument, Defendant speculates that he may have entered the Civic for the

purpose of sleeping because he was drunk, had been kicked out of his sister’s house

the previous night, and had occasionally broken into other vehicles and buildings in

the past when similarly intoxicated in order to find a place to sleep.

      The fatal flaw with Defendant’s argument is that he unambiguously testified

at trial that he had no memory at all of the events surrounding his forced entry into

the Civic. Defendant testified as follows on direct examination:

             Q. Okay. Risa, do you remember this night in question?

             A. I don’t.

             Q. Do you remember any of it at all?

             A. None of it.

             Q. Okay. Why don’t you remember, if you know?

             A. I was drunk.

             ....



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                                  Opinion of the Court



             Q. Do you remember speaking to Officer Kahn [sic]?

             A. No. No, sir.

             Q. Okay. Do you remember walking down Church Street?

             A. No.

             Q. Do you remember where you were coming from before
             8:30 that morning?

             A. No, sir.

             Q. What’s the first thing that you remember?

             A. Nothing really. When I got down here, I got in the
             holding cell, went to sleep. When I woke up I realized I was
             in jail.

             Q. Didn’t know how you got there?

             A. No.

             ....

             Q. . . . So you don’t remember going to King’s that day?

             A. No, sir.

      Because (1) Defendant was unable to remember how or why he entered the

Civic; and (2) no witnesses observed him actually sleeping in the vehicle, no evidence

was presented at trial tending to support Defendant’s hypothesis that he may have

broken into the Civic in order to sleep.       Indeed, the only evidence relating to

Defendant’s actions while in the vehicle came from King, who testified that when he




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                                    Opinion of the Court



first noticed Defendant inside the Civic, Defendant was attempting to pry open the

vehicle’s front dashboard with a screwdriver.

      Thus, the only support for Defendant’s argument on this issue is his own pure

conjecture, which is insufficient to entitle him to a lesser-included instruction on first-

degree trespass. See Leazer, 353 N.C. at 240, 539 S.E.2d at 926 (“A defendant is not

entitled to an instruction on a lesser included offense merely because the jury could

possibly believe some of the state’s evidence but not all of it.           Further, mere

speculation as to the rationales for defendant’s behavior is not sufficient to negate

evidence of premeditation and deliberation.” (internal citations, quotation marks, and

brackets omitted)).

      While Defendant attempts to rely on State v. Worthey, 270 N.C. 444, 154 S.E.2d

515 (1967), and State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985), on this issue,

his reliance on these cases is misplaced. In Worthey, the defendant was charged with

felonious breaking and entering into a building, and on appeal he argued that the

trial court erred by failing to give a jury instruction on the lesser-included offense of

non-felonious breaking or entering. He testified that upon being discovered by police

officers exiting a manufacturing plant he was not authorized to enter, he had told the

officers that he went “inside to meet an employee of [the plant] named ‘Robert’ who

was going to give him a ride, and that he used the toilet facilities while inside.”

Worthey, 270 N.C. at 445-46, 154 S.E.2d at 515-16. Our Supreme Court awarded the



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                                  Opinion of the Court



defendant a new trial based on the above-referenced testimony, holding that “[t]he

evidence as to defendant’s intent was circumstantial and did not point unerringly to

an intent to commit a felony; the jury might have found defendant guilty of a

misdemeanor upon the evidence.” Id. at 446, 154 S.E.2d at 516.

      Similarly, in Peacock, the defendant was charged with, among other offenses,

first-degree burglary and requested an instruction on the lesser-included offense of

breaking and entering. His request was denied by the trial court. Peacock, 313 N.C.

at 557, 330 S.E.2d at 192-93. The defendant had told officers that he broke into his

landlady’s apartment at his boarding house while he was “trip[ping] on . . . acid” so

that he could talk to her about his rent. He further related that only after breaking

into the apartment did he consider robbing her. He then killed the landlady, stole a

“money pouch” from her, and left the premises. Id. at 556, 330 S.E.2d at 192.

      Our Supreme Court held that

             Defendant’s statement that he “was standing there [in the
             living room] thinking about robbing Mrs. Frye” is at best
             ambiguous with regard to the question of when he formed
             an intent to commit larceny. We note, however, that
             Detective Hill, who transcribed defendant’s oral statement,
             testified on cross-examination that defendant told him that
             it was after he was inside that he decided to rob Mrs. Frye.
             Detective Hill’s interpretation of what defendant said lends
             credence to defendant’s argument that a juror might also
             infer that he broke and entered without an intent to
             commit larceny.




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                                         Opinion of the Court



Id. at 559-60, 330 S.E.2d at 194. The Court then held that the defendant was entitled

to a new trial based on the trial court’s failure to instruct the jury on the lesser-

included offense of breaking and entering. Id. at 561-62, 330 S.E.2d at 195.

       Because here, conversely, Defendant’s total lack of memory rendered him

unable to offer any alternative explanation beyond utter conjecture as to why he

entered the Civic, Worthey and Peacock are inapposite. Thus, in light of his inability

at trial to present evidence indicating that he lacked the intent to commit larceny at

the time he broke into the Civic, we hold that the trial court did not err at all — much

less commit plain error — by failing to instruct the jury on the lesser-included offense

of first-degree trespass. See Lucas, 234 N.C. App. at 257, 758 S.E.2d at 679 (“Thus,

in the absence of any evidence disputing the State’s theory that Defendants ‘cased’

the neighborhood and shattered the Merediths’ window in the hope of stealing from

the home, Defendants have not demonstrated that the trial court’s failure to instruct

the jury regarding first-degree trespass was error much less plain error.”).1

II. Ineffective Assistance of Counsel




       1  The versions of Lucas available online through Westlaw and LexisNexis contain the full
sentence quoted above. The South Eastern Reporter, 2d Series also contains this full sentence. The
slip opinion available online likewise contains the full sentence. However, a portion of the sentence is
missing from the North Carolina Court of Appeals Reports. The North Carolina Court of Appeals
Reports contains only the following incomplete sentence: “Thus, in the absence of any evidence
disputing the State’s theory that Defendants ‘cased’ the neighborhood and shattered the Merediths’
window in the hope of stealing from the home.” Lucas, 234 N.C. App. at 257.

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                                   Opinion of the Court



      Defendant’s final argument on appeal is that he received ineffective assistance

of counsel. Specifically, he contends that his trial counsel’s failure to request an

instruction on the lesser-included offense of first-degree trespass constituted

ineffective assistance of counsel. We disagree.

      “In order to prevail on an ineffective assistance of counsel claim, a defendant

must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defense. Deficient performance may be established by

showing that counsel’s representation fell below an objective standard of

reasonableness. Generally, to establish prejudice, a defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” State v. Edgar, __ N.C. App. __,

__, 777 S.E.2d 766, 770-71 (2015) (internal citations and quotation marks omitted).

             In general, claims of ineffective assistance of counsel
             should be considered through motions for appropriate relief
             and not on direct appeal. It is well established that
             ineffective assistance of counsel claims brought on direct
             review will be decided on the merits when the cold record
             reveals that no further investigation is required, i.e.,
             claims that may be developed and argued without such
             ancillary procedures as the appointment of investigators or
             an evidentiary hearing. Thus, when this Court reviews
             ineffective assistance of counsel claims on direct appeal
             and determines that they have been brought prematurely,
             we dismiss those claims without prejudice, allowing
             defendants to bring them pursuant to a subsequent motion
             for appropriate relief in the trial court.


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                                   Opinion of the Court




State v. Turner, __ N.C. App. __, __, 765 S.E.2d 77, 83 (2014) (internal citations,

quotation marks, and brackets omitted), disc. review denied, __ N.C. __, 768 S.E.2d

563 (2015). However, “[i]n considering ineffective assistance of counsel claims, if a

reviewing court can determine at the outset that there is no reasonable probability

that in the absence of counsel’s alleged errors the result of the proceeding would have

been different, then the court need not determine whether counsel’s performance was

actually deficient.” Id. at __, 765 S.E.2d at 84 (citation and brackets omitted).

      Here, as discussed above, Defendant was not entitled to a jury instruction on

first-degree trespass. Therefore, it would have been futile for his trial counsel to

request one.    Accordingly, we hold that Defendant has failed to establish an

ineffective assistance of counsel claim. See Lucas, 234 N.C. App. at 258-59, 758

S.E.2d at 680 (“A successful ineffective assistance of counsel claim based on a failure

to request a jury instruction requires the defendant to prove that without the

requested jury instruction there was plain error in the charge. Here, we have already

determined that the trial court did not commit plain error in its instructions to the

jury . . . . Accordingly, we cannot conclude that their trial counsel’s failure to request

these instructions constituted ineffective assistance of counsel.” (internal citation and

quotation marks omitted)).

                                      Conclusion




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                                 Opinion of the Court



      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Chief Judge McGEE and Judge STEPHENS concur.




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