NO. COA13-1080

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Nash County

Nos. 12 CRS 51464

MARKEITH RAYSHOUN MITCHELL,

Defendant.

 12 CRS 51466

Appeal by defendant from judgments entered 16 May 2013 by 

Judge Marvin K. Blount, III in Nash County Superior Court. 

Heard in the Court of Appeals 22 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Amy Kunstling Irene, for the State.

William B. Gibson for defendant-appellant. 

GEER, Judge.

Defendant Markeith Rayshoun Mitchell appeals from his 

convictions of felonious breaking or entering a motor vehicle,

first degree trespass, injury to real property, and attempted 

larceny. On appeal, defendant primarily contends that the trial 

court erred in denying his motion to dismiss the charge of 

breaking or entering and in instructing the jury on a charge of 

"breaking or entering" when the indictment charged "breaking and

entering." We hold that because of the disjunctive language of 
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N.C. Gen. Stat. § 14-56 (2013), the State need not prove both a 

breaking and an entering and the instruction was not erroneous. 

The State's evidence that defendant opened the car door with 

intent to steal the car itself was substantial evidence that 

defendant committed a breaking with intent to commit a felony 

therein. Because defendant does not challenge the sufficiency 

of the State's evidence as to the remaining elements of the 

charge, we hold that the trial court did not err in denying the 

motion to dismiss. 

Facts

The State's evidence tended to show the following facts. 

On 26 March 2012, defendant offered Marcus Lucas $50.00 to "help 

him get a car." The two men drove in defendant's Jeep Cherokee 

to 1021 Russell Street, the property where the vehicle was 

located. When they arrived, the fence around the property was 

locked. Defendant and Lucas tore the fence down and entered the 

property. 

Once inside, defendant backed his Jeep up to a shelter in 

the backyard where a 1979 Dodge Aspen was parked. Defendant and 

Lucas exited the Jeep, and defendant opened the door of the 

Dodge. Lucas stood back as defendant retrieved the tire pump 

from his Jeep and began pumping up the flat tire on the Dodge. 
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Meanwhile, Officer J.K. Richardson of the Rocky Mount 

Police Department received a call that a breaking and entering 

was in progress on 1021 Russell Street. Officer Richardson 

arrived at the scene a short time later and announced his 

presence as he approached the garage. Although Lucas 

immediately fled, defendant, who was at the rear of the Dodge 

pumping the tire, did not see the police arrive. Defendant was 

arrested at the scene, while Lucas was arrested later.

After taking defendant into custody, Officer Richardson 

returned to the garage. The Jeep was backed up to the garage 

approximately five feet from the Dodge, and the trunk and 

driver's door of the Jeep were open. Inside the Jeep, Officer 

Richardson saw an air compressor and a metal pipe with pieces of 

rope on each end, an apparatus that is normally used for towing 

vehicles. There was a rope attached to the back of the Jeep 

that went toward the Dodge, but was not yet hooked up to the 

Dodge. 

The driver's side door of the Dodge had been left open. 

Officer Richardson concluded that the door had recently been 

opened because it was pollen season and the outside of the Dodge 

and the garage were both very dusty, but there was no pollen on 

the interior of the Dodge or on the tool kits and tarps stored 

inside the Dodge. 
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The Dodge and the property where it was parked belonged to 

Brenda Simmons, who had inherited it from her deceased parents. 

Ms. Simmons had never opened the driver's door of the Dodge

after her father passed away. She had visited her property the 

evening prior to defendant's arrest while it was still daylight

out and, from her vantage point in the backyard, she had not 

noticed the car door of the Dodge being open. Ms. Simmons did 

not know defendant or Lucas and did not consent to either of 

them coming on her property or taking the Dodge. 

On 4 June 2012, defendant was indicted for attempted 

larceny, first degree trespass, injury to real property, and 

breaking and entering a motor vehicle. At trial, defendant 

testified on his own behalf. He claimed that, on the morning of 

26 March 2012, he was out driving when he saw Lucas motion for 

him to stop. Lucas told defendant that a friend had given him a 

car and that he needed someone to help him get the car home. He 

offered defendant $50.00 to help, and defendant agreed. Lucas 

already had a chain for towing, but they went to defendant's 

uncle's house to get a towing bar and an air compressor. When 

they arrived at the property where the car was located, 

defendant saw that there was a locked fence, but Lucas pulled

the fence over to one side with his hands. 
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Once they gained entry onto the property, defendant backed 

the Jeep up to the Dodge while Lucas retrieved a chain off the 

dog house in the backyard. At that point, the police arrived 

and Lucas fled. Defendant did not flee because he did not know 

that they were stealing a car. Defendant denied having ever 

touched the Dodge, having opened the car door, or having noticed

that the door was ajar. 

The jury found defendant guilty of attempted larceny, first 

degree trespass, injury to real property, and breaking or 

entering a motor vehicle. The trial court sentenced defendant 

to 60 days imprisonment on the consolidated charges of attempted 

larceny, first degree trespass, and injury to real property. 

The trial court also sentenced defendant to six to 17 months 

imprisonment for breaking or entering a motor vehicle, but

suspended the sentence and imposed 24 months of supervised 

probation. Defendant timely appealed to this Court. 

I

Defendant first argues that the trial court erred in 

denying his motion to dismiss the charge of felonious breaking 

or entering a motor vehicle. "'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 
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(2) of defendant's 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 (2000) (quoting State v. Barnes, 

334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). "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).

"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). We 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). 

Defendant was charged with breaking and entering a motor 

vehicle in violation of N.C. Gen. Stat. § 14-56. In order to 

obtain a conviction for breaking and entering a motor vehicle,

"the State must prove the following five 

elements beyond a reasonable doubt: (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."
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State v. Clark, 208 N.C. App. 388, 390-91, 702 S.E.2d 324, 326 

(2010) (quoting State v. Jackson, 162 N.C. App. 695, 698, 592 

S.E.2d 575, 577 (2004)). Defendant contends that the State 

presented insufficient evidence of the first and fifth elements.

As to the first element, evidence of either a breaking or

an entering satisfies the State's burden of proof. See State v. 

Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982) (holding,

under identical language in N.C. Gen. Stat. § 14-54(a) (1979),

State "need not show both a breaking and an entering"). 

This Court has held that 

"[b]reaking is defined as 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. A breaking may be actual or 

constructive. A defendant has made a 

constructive breaking when another person 

who is acting in concert with the defendant 

actually makes the opening. Acting in 

concert means that the defendant is present 

at the scene of the crime and acts together 

with another who does the acts necessary to 

constitute the crime pursuant to a common 

plan or purpose to commit the crime."

State v. Baskin, 190 N.C. App. 102, 109, 660 S.E.2d 566, 572 

(2008) (quoting State v. Graham, 186 N.C. App. 182, 196-97, 650 

S.E.2d 639, 649 (2007)). A breaking may be established by a 

"'mere pushing or pulling open of an unlocked door or the 

raising or lowering of an unlocked window, or the opening of a 

locked door with a key.'" State v. Garcia, 174 N.C. App. 498, 
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502, 621 S.E.2d 292, 296 (2005) (quoting State v. Bronson, 10 

N.C. App. 638, 640, 179 S.E.2d 823, 825 (1971)). 

Where, as here, the trial court instructs the jury on the 

acting in concert doctrine, the State's burden as to the element 

of breaking can be satisfied by showing either the defendant 

personally committed the breaking or that he acted in concert 

with someone to commit the breaking. See Baskin, 190 N.C. App. 

at 109-10, 660 S.E.2d at 572 (holding that sufficient evidence 

of breaking and entering by defendant existed when passenger in 

car driven by defendant reached inside victim's car and stole 

victim's satchel).

In this case, the evidence viewed in the light most 

favorable to the State is sufficient to show that defendant, or, 

alternatively, Lucas acting in concert with defendant committed 

a breaking by opening the door of the Dodge. Officer Richardson 

testified that when he arrived on the scene, defendant was 

standing near the Dodge and the Dodge's driver-side door was 

open. The State also presented evidence that the door must have 

been recently opened because there was no pollen inside although 

the outside of the car was covered in pollen and the owner of 

the Dodge never opened the doors of the Dodge and its door was 

not open the previous afternoon. Moreover, defendant testified 

that Lucas opened the car door, while Lucas testified that 
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defendant opened the door. From this evidence, a reasonable 

juror could infer that defendant opened the car door, or, 

alternatively, that Lucas opened the door and was acting in 

concert with defendant. 

Defendant also argues that there was insufficient evidence 

of the fifth element -- that the act was committed "with intent 

to commit any felony or larceny therein." N.C. Gen. Stat. § 14-

56. Defendant argues that while the evidence presented by the 

State may be sufficient to show that defendant intended to steal 

the car itself, it was not sufficient to show intent to steal 

the "thing[s] of value" found therein. Id.

Defendant's argument, however, was rejected by this Court 

in Clark, 208 N.C. App. at 393, 702 S.E.2d at 327-28. In Clark, 

this court held that the intent to steal the motor vehicle 

itself may satisfy the intent element under N.C. Gen. Stat. § 

14-56. 208 N.C. App. at 393, 702 S.E.2d at 327-28. Defendant 

concedes that the State presented sufficient evidence that 

defendant, or Lucas acting in concert with defendant, intended 

to steal the vehicle itself. Under Clark, such evidence is 

sufficient. We, therefore, conclude that the State presented 

substantial evidence of each of the elements of the charge of 

breaking or entering a motor vehicle. Accordingly, we hold that 
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the trial court did not err in denying defendant's motion to 

dismiss. 

II

Defendant next argues that the trial court committed 

reversible error by instructing the jury on a theory of breaking 

or entering a motor vehicle when the indictment alleged that 

defendant broke and entered the vehicle. "Whether a jury 

instruction correctly explains the law is a question of law, 

reviewable by this Court de novo." State v. Barron, 202 N.C. 

App. 686, 694, 690 S.E.2d 22, 29 (2010). "However, an error in 

jury instructions is prejudicial and requires a new trial only 

if 'there is 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.'" State v. 

Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) 

(quoting N.C. Gen. Stat. § 15A-1443(a) (2007)).

Defendant's argument has previously been rejected regarding 

the offense of breaking or entering a building under N.C. Gen. 

Stat. § 14-54 (2013). Under this statute, where an indictment 

alleging a violation of N.C. Gen. Stat. § 14-54 charges the 

defendant with "breaking and entering," it is not error for the 

trial court to instruct on breaking or entering. State v. Boyd, 

287 N.C. 131, 145, 214 S.E.2d 14, 22 (1975), superseded by 
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statute on other grounds as stated in State v. Silhan, 302 N.C. 

223, 239, 275 S.E.2d 450, 464 (1981). As explained in Boyd: 

It has long been the law in this State in 

prosecutions under [N.C. Gen. Stat. § 14-54] 

and its similar predecessors that where the 

indictment charges the defendant with 

breaking and entering, proof by the State of 

either a breaking or an entering is 

sufficient; and instructions allowing juries 

to convict on the alternative propositions 

are proper.

Id. See also State v. Reagan, 35 N.C. App. 140, 143, 240 S.E.2d 

805, 808 (1978) (holding no error when the defendant was 

indicted for breaking and entering and the trial court's charge 

to the jury referenced breaking or entering). The act of 

"breaking or entering" is an element of a charge pursuant to 

both N.C. Gen. Stat. § 14-54 and N.C. Gen. Stat. § 14-56. We 

therefore find that the rule under Boyd is applicable to the 

element of "breaking or entering" regardless whether the 

defendant "breaks or enters" a motor vehicle under N.C. Gen. 

Stat. § 14-56 or a dwelling house under N.C. Gen. Stat. § 14-54. 

Accordingly, we hold that the trial court did not err in 

instructing the jury on "breaking or entering." 

III

Defendant's final argument on appeal pertains to the charge 

of first degree trespassing. Defendant argues that the trial 

court erred by failing to instruct the jury on defendant's 
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affirmative defense that he reasonably believed he had a right 

to enter the property. Because defendant did not request the 

instruction at trial, we review for 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 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 citations and quotation marks omitted).

For a trial court to be required to instruct the jury on an 

affirmative defense, the defendant must present substantial 

evidence, when viewed in the light most favorable to the 

defendant, of each element of the defense. State v. Ferguson, 

140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000). Here, 

defendant needed to present substantial evidence that (1) 

defendant believed he had a right to enter the property and (2) 

defendant had reasonable grounds to support this belief. State 

v. Baker, 231 N.C. 136, 140, 56 S.E.2d 424, 427 (1949). 

Defendant argues that his testimony constitutes substantial 

evidence of this affirmative defense. Defendant testified that 
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when he met up with Lucas on the morning of 26 March 2012, Lucas 

told him that a friend had given him a car, that he needed 

someone to help him get the car home, and that he would pay 

defendant $50.00 for his assistance in retrieving the car. 

Although the property where the car was located was enclosed by 

a locked fence, defendant testified that Lucas was easily able 

to pull the fence to one side. Under these circumstances, 

defendant contends, his belief that they had permission to be on 

the property remained reasonable. 

However, even assuming, without deciding, that defendant 

presented substantial evidence of each element of this defense, 

he cannot show that the failure of the trial court to instruct 

the jury on this defense had a probable impact on its finding of 

guilt. The jury's verdict as to the larceny charges required a 

finding that defendant intended to steal the vehicle, or that 

Lucas intended to steal the vehicle and defendant acted in 

concert with him. In either scenario, such a finding precludes 

a finding by the jury that the defendant believed that he had a 

legal right to enter the property. Defendant has therefore 

failed to show that he was prejudiced by the alleged error. 

No Error.

Judges BRYANT and CALABRIA concur.