Preview:

NO. COA10-1283 NORTH CAROLINA COURT OF APPEALS Filed: STATE OF NORTH CAROLINA v. PATRICK LEE WHITLEY, Defendant. Durham County No. 09CRS050727 19 July 2011

Appeal by defendant from judgment entered on or about 14 May 2010 by Judge Robert F. Johnson in Superior Court, Durham County. Heard in the Court of Appeals on 24 March 2011.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Mary S. Mercer, for the State. Bryan Gates, for defendant-appellant. STROUD, Judge. Defendant appeals his conviction breaking or entering. error. I. Background for attempted felonious

For the following reasons, we find no

The State's evidence tended to show that around 11:00 a.m. on 30 September 2009, Ms. Ana Lopez was in her home when she heard a noise coming from her bedroom window. Ms. Lopez looked

out of the window and saw a black man wearing a black shirt and

-2jeans with a white cloth on his head and "puffs[] or pigtails." Ms. Lopez hit the wall or window to scare the man outside, and he ran away. Ms. Lopez called the police. Wesley Brown of the Durham County Sheriff's

Deputy

Office and Officer James Muehlbach of the City of Durham Police Department responded to Ms. Lopez's call; Ms. Lopez described the suspect as a black male wearing a black shirt, jeans, and a "do-rag" with "two puffy ponytails." Officer Muehlbach

recognized the description as similar to that of defendant, with whom he had previously interacted. Lopez's residence. residence. wearing Officer and Deputy Brown went to Ms.

Officer Muehlbach proceeded to defendant's Muehlbach a white found shirt defendant with "two at his big home puffy

jeans

ponytails[.]"

Officer Muehlbach searched defendant and found a Ms. Lopez

white do-rag and latex gloves in defendant's pocket. identified defendant as the man outside her window.

Defendant was indicted for attempted felonious breaking or entering, obtaining dismissed entering. felonious attempted the the larceny of of after breaking felon. larceny or The after entering, trial and

status charge jury or

habitual attempted

court or

breaking of

The

found

defendant

guilty

attempted guilty to

breaking

entering.

Defendant

pled

-3obtaining the status of habitual felon. Defendant was

determined to have a prior record level of VI and was sentenced for both convictions to 113 to 145 months imprisonment.

Defendant appeals. II. Motion to Dismiss

Defendant first argues that the trial court failed to grant his motion to dismiss based upon insufficiency of the evidence. However, defendant failed to make a motion to dismiss at the close of all of the evidence, and as such we will not address this issue. State v. Richardson, 341 N.C. 658, 677, 462 S.E.2d

492, 504 (1995) ("Rule 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all the evidence may not attack on appeal the sufficiency of the

evidence at trial."). III.

This argument is overruled. Prior Inconsistent Statement

During defendant's trial, Mr. Leslie Griffin testified that on the morning of 30 September 2009, he saw defendant walking in defendant's neighborhood, Bunn Terrace, with another man.

Officer Muehlbach then testified Mr. Griffin had previously told him that he saw defendant in his own neighborhood; however, Mr. Griffin did not mention the other man. Defendant objected to Defendant

Officer Muelbach's testimony, but this was overruled.

-4contends that the introduction was of Mr. Griffin's it prior

inconsistent

statement

prejudicial

because

undermined

defendant's alibi.

We disagree.

The State presented evidence that Ms. Lopez saw defendant outside of her window unit air conditioner attempting to break into her home. Both Mr. Griffin and Officer Muehlbach testified

that Mr. Griffin had seen defendant in his own neighborhood on 30 September 2009. Muehlbach's We do not conclude that without Officer regarding Mr. Griffin's previous

testimony

statement, "there is a reasonable possibility that a different result would have been reached" in light of Ms. Lopez's

eyewitness testimony.

State v. Hurst, 127 N.C. App. 54, 61, 487

S.E.2d 846, 852 ("[T]o obtain reversal based on any error in the trial court's ruling, the defendant must show prejudicial error. The test for prejudicial error is whether there is a reasonable possibility that a different result would have been reached at trial had the error not been committed." (citation and quotation marks omitted)), disc. review denied and appeal dismissed, 347 N.C. 406, 494 S.E.2d 427 (1997), cert denied, 523 U.S. 1031, 140 L.Ed. 2d 486 (1998). As defendant has failed to show the

prejudicial effect of

Officer

Muehlbach's

testimony regarding

what Mr. Griffin had previously said, we overrule this argument.

-5IV. Jury Instructions

Lastly, defendant contends that the trial court erred in failing to define the term "larceny" for the jury. However,

this Court has previously determined that "larceny" is a word of "common usage and meaning to the general public[,]" and thus it is not error for the trial court to not define it in the jury instructions. State v. Chambers, 52 N.C. App. 713, 721, 280 While we disagree that the legal term

S.E.2d 175, 180 (1981).

"larceny" is commonly understood by the general public, we are bound by precedent; In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and thus this issue is overruled. V. Conclusion

For the forgoing reasons, we find no error. NO ERROR. Judges HUNTER, JR., Robert N. and THIGPEN concur.



Download http-appellate-nccourts-org-opinions-c-2andpdf-mjaxms8xmc0xmjgzlteucgrm.pdf

South Carolina Law