No. COA06-1394 THIRTIETH DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA ))

v. ) From Haywood)

PAUL MICHAEL BRANKS )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT ERRED BY ENTERING JUDGMENT AGAINST MR. BRANKS FOR LARCENY IN CASE NO. 06 CRS 1007 WHEN THE INDICTMENT WAS FATALLY DEFECTIVE?

II. WHETHER THE TRIAL COURT ERRED BY DENYING MR. BRANKS’ MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR TWO COUNTS OF LARCENY WHEN THE STATE’S EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM A SINGLE CONTINUOUS TRANSACTION?

III. WHETHER THE TRIAL COURT ERRED BY DENYING MR. BRANKS’ MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR BREAKING OR ENTERING WHEN THE STATE FAILED TO ESTABLISH LACK OF CONSENT?

IV. WHETHER THE TRIAL COURT ERRED IN GIVING A SINGLE PATTERN LARCENY INSTRUCTION FOR TWO COUNTS OF LARCENY?

STATEMENT OF THE CASE

This case came on to be tried at the June 7, 2006 Criminal Session of

Haywood County Superior Court, before the Honorable Zoro J. Guice, Jr., on

indictments alleging the following: one count of felony breaking or entering, two

counts of felony larceny, two counts of felony possession of stolen goods, one

count of resisting a public officer, and habitual felon status.

On June 8, 2006, a jury found Mr. Branks guilty of the following charges:

one count of felony breaking or entering, two counts of felony larceny, two counts

of possession of stolen property, and habitual felon status. The jury acquitted Mr.

Branks of resisting a public officer. Judge Guice arrested judgment on two counts

of possession of stolen property.

Judge Guice sentenced Mr. Branks as an habitual felon to three consecutive

terms of imprisonment as follows: 168 to 211 months for felony breaking or

entering; 168 to 211 months for one count of felony larceny; and 168 to 211

months for the other count of felony larceny. Mr. Branks gave notice of appeal.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Branks appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) (2006) and

15A-1444(a) (2006) from final judgments entered against him in Haywood County

Superior Court.

2

STATEMENT OF THE FACTS

In July 2005, Paul Branks lived on Westwood Circle in Waynesville in a

small blue and white trailer. He lived across the street from a church, the

Abundant Life Assembly of God. (Tpp. 57, 72) The State’s evidence tended to

show that on July 15, 2005, during the early morning hours, Mr. Branks was

extraordinarily drunk and wandering along his street wearing nothing but a pair of

shorts and possibly a pair of sneakers. (Tpp. 27, 39, 40-41, 49-50, 100) Around

one o’clock in the morning, police arrested Mr. Branks in the church parking lot.

(Tp. 33)

A. The Trashcan, Food, and Kitchen Supplies

On July 15, 2005, around one o’clock in the morning, Officers Craig Shiba

and Brad Miller of the Waynesville Police Department and Deputy Norman of the

Sheriff’s Department received radio traffic from dispatch that an anonymous caller

reported that, “there appeared to be two people inside the Abundant Life Assembly

of God.” (Tpp. 23, 32, 44, 46, 76) The officers immediately went to the church.

Officer Shiba arrived first. Officer Miller and Deputy Norman arrived shortly

thereafter. (Tpp. 25, 28, 32, 66, 67)

Officers Shiba and Miller both testified that once they arrived at the church,

they approached the building on foot. They saw Mr. Branks walking away from

the church carrying various items. (Tpp. 32-33, 44, 67, 68) They arrested Mr.

3

Branks and found the following items on the ground near him: a trashcan and a

white trash bag containing shampoo, Clorox cleanup, canned goods, and

miscellaneous kitchen supplies like napkins and potholders. (Tpp. 34, 36-38, 103-

09)

After arresting Mr. Branks, Shiba and Miller conducted a security sweep of

the church searching for the reported second suspect. Deputy Norman remained

with Mr. Branks in the church parking lot. (Tpp. 28, 33, 69) While Shiba and

Miller were searching, Sergeant Keith Moore arrived at the church. He had heard

the same radio traffic concerning Abundant Life Assembly. (Tp. 85) He joined

Deputy Norman and Mr. Branks in the parking lot and read Mr. Branks his

Miranda rights. (Tp. 86) Shiba and Miller did not discover any other person in or

around the church. (Tpp. 28, 33, 69)

Officer Shiba testified that after searching the building, he questioned Mr.

Branks about what happened. Shiba stated that Mr. Branks smelled like alcohol

and that his speech was “very slurred.” (Tpp. 40-41, 49-50) Shiba testified that it

was his opinion that Branks “had consumed a sufficient amount of an impairing

substance to appreciably impair his mental and/or physical faculties.” (Tp. 41)

Because Shiba could not “decipher” Mr. Branks’ speech, the officer did not take a

written statement from him. (Tpp. 49-50)

4

After questioning Mr. Branks, Shiba located the church pastor, Paul

Hensley, who was asleep in the parsonage adjacent to the church. Shiba and

Hensley joined Mr. Branks and the other officers in the parking lot. (Tpp. 50, 98-

99) Hensley testified that Mr. Branks was “drunk,” “high as a kite,” and just

“sitting there . . . mumbling.” (Tp. 100) Hensley told the officers that the

trashcan, food, and kitchen supplies had come from inside the church. At trial, he

testified that all of the property had come from his office, the youth room, and the

church kitchen. (Tpp. 29, 101) He estimated the value of each item and testified

that the total value of those items was between three and four hundred dollars.

(Tpp. 102-109, 110-11)

After identifying the items from the church, Hensley walked through the

building to determine if any other property was gone. He noticed that his two

guitars were missing from his office. (Tp. 109) Officers did not locate any guitars

on July 15, 2005. At trial, Hensley estimated that each guitar was worth about six

hundred dollars. (Tpp. 114-15)

Hensley also testified that someone could have easily gained access to the

church by walking up the handicap ramp and entering the building’s nursery room

through a waist-level window. That window was kept open at all times during the

summer. On July 15, 2005, that window was open. (Tp. 109) Hensley testified

that while speaking with officers in the parking lot that morning, he noticed that

5

the screen on that window was “cut or pushed.” (Tp. 109) He had not seen the

screen in that condition before. (Tp. 110)

Officers Miller and Shiba and Deputy Norman left the church with Mr.

Branks. (Tp. 86) Sergeant Moore testified that he stayed behind to “canvas[] the

neighborhood.” (Tp. 92) He noticed a man and a woman standing on the front

porch of a trailer across the street from the church. (Tp. 92) Moore recognized the

man as Junior Forney. Moore had arrested him before for breaking or entering.

Forney had just been released from prison. (Tpp. 86, 93) Sergeant Moore asked

Forney some questions. Moore testified that Forney admitted to making the call

reporting that there were people inside Abundant Life Assembly. (Tpp. 23, 93)

Moore also testified that Forney said he saw someone “come out [of the church]

one time with two guitars and turn the corner and come back.” (Tp. 94) Sergeant

Moore did not ask Forney about a second suspect. He did not take any written

statement from Forney. He did not tell the other officers about his conversation

with Forney. He did not write a report. At trial, Sergeant Moore testified that he

was aware that nothing in the court file referenced Forney’s statement. He was

also aware that the court file made no mention of Junior Forney. (Tpp. 94-95)

B. Two Guitars

Sam Smith testified that in March 2004, more than a year before the events

of July 15, 2005, he met Paul Branks at Hazelwood Presbyterian Church. (Tp. 56)

6

Mr. Smith, a retired school Superintendent, volunteered at Hazelwood Presbyterian

and helped Mr. Branks find suitable housing and move into the little blue and

white trailer. (Tpp. 55-56, 199) In return, Mr. Branks performed yard work on

Smith’s properties. (Tpp. 56, 57, 58, 200) For more than two years, the two men

saw each other on a regular basis. (Tp. 199)

Smith testified that on July 15, 2005, just before eight o’clock in the

morning, he drove to the trailer to pick up Mr. Branks for work. (Tp. 58) No one

appeared to be home, but the front door was unlocked, all of the windows were

open, and there was a candle burning inside. Mr. Smith left, but he immediately

turned around, re-entered the trailer, and blew out the candle. (Tpp. 58, 59-60)

Smith did not hear from Mr. Branks again until the evening of July 16, 2005, when

Mr. Branks called him from jail. Smith informed Mr. Branks that his front door

was unlocked. At Mr. Branks’ request, Smith agreed to return to the trailer and

lock the front door. Mr. Branks informed him that the key was on the table inside

the trailer. (Tpp. 58-59) On July 17, 2005, Smith locked the front door of the

trailer. (Tpp. 59, 63) The door had been unlocked from around one o’clock in the

morning on July 15 through July 17, 2005. (Tpp. 58, 59, 63-64)

On July 19, 2005, Smith spoke with Mrs. Hargrove, Mr. Branks’ landlord.

Smith expressed his concern over leaving the trailer’s windows open. Mrs.

Hargrove shared his concern and suggested that he return to the trailer and shut

7

some of the windows. Smith testified that Mrs. Hargrove asked him to look

around while he was there to “see if [he] saw any guitars.” (Tpp. 60, 61) Mrs.

Hargrove had heard about some missing guitars. Smith told her that he would take

care of the windows and look for any guitars. (Tp. 61)

On July 21, 2005, Smith returned to the trailer and shut some windows.

(Tpp. 61, 62, 64) All of the windows had been open from around one o’clock in

the morning on July 15 through July 21, 2005. (Tpp. 62, 64) Pursuant to Mrs.

Hargrove’s request, Smith looked around. He found one guitar in one closet and a

second guitar in another closet. He did not touch or move anything. He went

straight to the police department and spoke with Officer Brad Miller. (Tpp. 62, 66,

67, 70)

Officer Miller testified that when he spoke with Smith at the police station

on July 21, 2005, Smith referenced Abundant Life Assembly and stated, “I think

I’ve found some items that may have been stolen.” (Tp. 70) Smith described the

guitars that he discovered. (Tpp. 70, 71) Based on Smith’s statement to Officer

Miller, Officer Miller and Sergeant Moore obtained a warrant to search Mr.

Branks’ trailer. Over Mr. Branks’ objection, the State introduced the search

warrant as State’s Exhibit 4. (Tpp. 70, 71) The warrant stated that officers were

searching for one Jay Turser acoustic guitar and one Jay Turser electric guitar.

(Tp. 72) On July 21, 2005, Miller and Moore executed the search warrant. The

8

officers found two guitars, one Jay Turser acoustic guitar painted like an American

flag and one black Jay Turser electric guitar. (Tpp. 73, 74, 88)

Miller testified that he took the guitars back to the police department. (Tp.

74) Moore testified that the guitars were placed in a secured evidence room. (Tp.

91) Neither officer was certain as to the location of the guitars at the time of the

trial, but both thought the guitars were eventually given back to Hensley. (Tpp. 75,

91) Hensley testified that at some point, he got his guitars back from the police

department. (Tp. 110)

ARGUMENT

I. THE TRIAL COURT ERRED BY ENTERING JUDGMENT AGAINST MR. BRANKS IN COUNT II OF THE INDICTMENT IN CASE NO. 06 CRS 1007. THE INDICTMENT WAS FATALLY DEFECTIVE IN THAT IT FAILED TO ALLEGE AS VICTIM OF THE LARCENY A NATURAL PERSON OR LEGAL ENTITY CAPABLE OF OWNING PROPERTY, THEREBY DEPRIVING THE TRIAL COURT OF JURISDICTION OVER THE OFFENSE.

Assignment of Error No. 13, Addendum to the Record on Appeal

In Case No. 06 CRS 1007, count II of the indictment was fatally defective

because it failed to fully allege the offense of larceny. (Rp. 4) Specifically, count

II of the indictment did not allege as victim of the larceny a natural person,

corporation, or other legal entity capable of owning property. State v. Thornton,

251 N.C. 658, 661-62, 111 S.E.2d 901, 903 (1960). As a result, the trial court

9

never acquired jurisdiction to try Mr. Branks or to enter judgment against him for

that count of larceny. The court should have dismissed the charge.

A. Standard of Review

Review of a trial court’s subject matter jurisdiction presents a question of

law, which is reviewed de novo by this Court. E.g., Dunn v. State, ____ N.C. App.

____, 635 S.E.2d 604, 606 (2006).

B. Discussion

The federal constitution guarantees a criminal defendant the right to notice

of the elements that constitute the charge against him. U.S. Const. amends. V, VI,

XIV; Hodgson v. Vermont, 168 U.S. 262, 269, 42 L. Ed. 461, 463 (1897). To

protect this right, the North Carolina Constitution requires a valid bill of

indictment. N.C. Const. art. I, § 22. A valid indictment is “essential to the

jurisdiction of the trial court try an accused for a felony.” State v. Sturdivant, 304

N.C. 293, 308, 283 S.E.2d 719, 729 (1981). Without a valid bill of indictment, the

trial court never acquires jurisdiction over the charged offense. State v. Snyder,

343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996). If the trial court assumes

jurisdiction, then the resulting conviction is a nullity. State v. Neville, 108 N.C.

App. 330, 332, 423 S.E.2d 496, 497 (1992).

An indictment is valid if it alleges “facts supporting every element of [the

charged] criminal offense . . . with sufficient precision clearly to apprise the

10

defendant . . . of the conduct which is the subject of the accusation.” N.C. Gen.

Stat. § 15A-924(a)(5) (2006). In contrast, an indictment is invalid and prevents

the trial court from acquiring jurisdiction over the charged offense if “it wholly

fails to charge some offense . . . or fails to state some essential and necessary

element of the offense of which the defendant is found guilty.” State v. Wilson,

128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). When the “record shows a

lack of jurisdiction in the lower court, the appropriate action on the part of the

appellate court is to arrest judgment or vacate any order entered without authority.”

State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981).

Challenging the validity of an indictment is a jurisdictional challenge; thus,

it may be raised at any time, even if raised for the first time on appeal. Wilson, 128

N.C. App. at 691, 497 S.E.2d at 419. Accordingly, the validity of an indictment is

an issue that is automatically preserved for appeal even though at the trial level, the

defendant made no objection to the indictment or the court’s entry of judgment.

Id. See also N.C. Gen. Stat. §§ 15A-1446(d)(1) and (4) (2006).

Errors based on the trial court’s lack of jurisdiction due to a defective

indictment require reversal without regard to prejudice. State v. Taylor, 301 N.C.

164, 170, 270 S.E.2d 409, 413 (1980). When a trial court allows a defendant to be

convicted on a theory unsupported by an indictment, prejudicial error is presumed.

Id.

11

In a larceny charge, the indictment must identify as victim a natural person,

corporation, or other legal entity capable of owning property. If a larceny

indictment fails to meet this requirement, it is fatally defective. State v. Woody,

132 N.C. App. 788, 791, 513 S.E.2d 801, 803 (1999).

In an indictment for larceny, if the allegedly stolen property belongs to a

“corporation [or other legal entity], the name of the corporation [or other legal

entity] should be given, and the fact that it is a corporation [or other legal entity]

stated, unless the name itself imports a corporation [or other legal entity].”

Thornton, 251 N.C. at 662, 111 S.E.2d at 903-04. In a larceny indictment, the

following tags are sufficient to import a corporation or other legal entity capable of

owning property: “limited,” “company,” “corporation,” and “incorporated.” Id.

Additionally, abbreviations of these tags such as “Inc.” or “Ltd.” are sufficient to

import a corporation or other legal entity capable of owning property. Woody, 132

N.C. App. at 791, 513 S.E.2d at 803.

In Mr. Branks’ case, count II of the indictment in 06 CRS 1007 alleged that

pursuant to a felony breaking or entering, Mr. Branks “unlawfully, willfully, and

feloniously did steal, take and carry away the personal property of Abundant Life

Assembly of God of Waynesville having a value of $1,900.00 dollars . . . .” (Rp.

4) Nowhere in the indictment was it alleged that Abundant Life Assembly of God

was a corporation or other legal entity capable of owning property.

12

Mr. Branks’ case is governed by State v. Cathey, 162 N.C. App. 350, 590

S.E.2d 408 (2004). In Cathey, the defendant was convicted of larceny. The

larceny indictment alleged that the defendant “unlawfully, willfully, and

feloniously did steal, take and carry away . . . the personal property of Faith

Temple Church of God . . . .” Id. at 352, 590 S.E.2d at 410. The trial court

permitted the State to amend the indictment to allege “Faith Temple Church—High

Point, Incorporated.” Id. at 354, 590 S.E.2d at 411.

This Court found that the indictment, as passed by the grand jury, failed to

allege ownership of property either in a natural person or in a legal entity capable

of owning property. Id. at 353, 590 S.E.2d at 410. First, “Faith Temple Church of

God” was not the name of a natural person. Next, the indictment did not allege

that “Faith Temple Church of God” was a corporation or other legal entity capable

of owning property. Finally, the name “Faith Temple Church of God” did not

itself import a corporation or other legal entity capable of owning property. Id. at

352-53, 590 S.E.2d at 410. Accordingly, this Court held that the larceny

indictment was fatally defective, that the amendment constituted a prohibited

substantial alteration, and that the trial court should have dismissed the larceny

indictment. Id. at 352-54, 590 S.E.2d at 410-11. Accord Thornton, 251 N.C. at

662, 111 S.E.2d at 904 (finding that the larceny indictment identifying “The Chuck

Wagon” as victim was fatally defective because the indictment did not allege, and

13

the name itself did not import, a corporation or other legal entity capable of owning

property).

In Mr. Branks’ case, the indictment identified as victim “Abundant Life

Assembly of God of Waynesville.” (Rp. 4) As in Cathey, the indictment in this

case failed to allege as victim a natural person or legal entity capable of owning

property. First, the name “Abundant Life Assembly of God of Waynesville” was

not the name of a natural person capable of owning property. Next, count II of the

indictment did not allege that “Abundant Life Assembly of God of Waynesville”

was a legal entity capable of owning property. Finally, the name “Abundant Life

Assembly of God of Waynesville” did not itself import a corporation or other legal

entity capable of owning property. Therefore, as in Cathey, the larceny indictment

in 06 CRS 1007 was fatally defective. Thus, the trial court never acquired

jurisdiction to try or to enter judgment against Mr. Branks for that larceny charge.

In conclusion, because count II of the indictment in Case No. 06 CRS 1007

for larceny failed to allege as victim a natural person or legal entity capable of

owning property, the indictment was fatally defective. As a result, the trial court

never had jurisdiction to enter judgment against Mr. Branks for that count of

larceny. The trial court should have dismissed that larceny charge. Mr. Branks

respectfully requests that this Court vacate the judgment for felony larceny in Case

No. 06 CRS 1007 (count II).

14

II. THE TRIAL COURT ERRED BY DENYING MR. BRANKS’ MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR TWO COUNTS OF LARCENY WHEN THE STATE’S EVIDENCE DEMONSTRATED THAT BOTH COUNTS AROSE FROM A SINGLE CONTINUOUS TRANSACTION.

Assignments of Error Nos. 5, 6, and 7, Rp. 60

In this case, the State’s evidence failed to establish that Mr. Branks

committed more than one larceny on July 15, 2005. Although the evidence, taken

in the light most favorable to the State, tended to show that Mr. Branks took

several items from the church, the evidence also established that he engaged in

only one transaction. Therefore, the trial court erred by denying Mr. Branks’

motions to dismiss at the end of the State’s evidence and at the close of all

evidence and by entering judgment against him for two counts of larceny.

A. Standard of Review

The issue of whether the State’s evidence was sufficient is reviewed de

novo. State v. Hart, ____ N.C. App. ____, 633 S.E.2d 102, 108 (2006).

B. Discussion

In its de novo review of a defendant’s claim of insufficiency of the evidence,

the appellate court will determine whether the evidence, taken in the light most

favorable to the State, constitutes substantial evidence (1) of each essential element

of the charged offense and (2) that the defendant was the perpetrator of the offense.

State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial

15

evidence is sufficient evidence from which a jury might reasonably conclude that

the accused is guilty beyond a reasonable doubt. State v. Earnhardt, 307 N.C. 62,

66, n. 1, 296 S.E.2d 649, 652, n. 1 (1982) (citing Jackson v. Virginia, 443 U.S.

307, 319, n. 12, 61 L. Ed. 2d 560 (1979)).

In a larceny prosecution, even if the defendant took multiple items, he may

only be convicted of one larceny if he took the items at the same time and place, as

part of one continuous act or transaction. State v. Hargett, 157 N.C. App. 90, 95,

577 S.E.2d 703, 706 (2003). This rule is referred to as the “single taking rule.”

State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992). Pursuant to the

single taking rule, in order to convict a defendant of more than one larceny, the

State must present sufficient evidence that the defendant committed multiple

takings separated in time and place. If the State only presents evidence of a single

taking, then the defendant may only be convicted of a single larceny. Hargett, 157

N.C. App. at 95, 577 S.E.2d at 706.

For example, in State v. Marr, 342 N.C. 607, 613, 467 S.E.2d 236, 239

(1996), our Supreme Court found that the State produced evidence of only one

taking. In Marr, the defendant was convicted as an accessory before the fact of

four separate counts of larceny: (1) larceny pursuant to entering the victim’s

mobile home; (2) larceny pursuant to entering the victim’s workshop; (3) larceny

by taking the victim’s Volvo automobile; and (4) larceny by taking the victim’s

16

Ford truck. Id. at 613, 467 S.E.2d at 239. The mobile home, the workshop, and

the two vehicles were all located on the same piece of property. The defendant

broke into and stole property from the mobile home and from the workshop. Id. at

612, 467 S.E.2d at 238-39. Then, the defendant loaded up the victim’s vehicles

with the stolen property and drove off. Id. The trial court arrested judgment on the

larceny pursuant to entering the mobile home. Id. at 611, 467 S.E.2d at 238.

In Marr, the State presented the following evidence: (1) the defendant stole

multiple items; (2) there were two separate entries, entry of the mobile home and

of the workshop; and (3) the defendant did not remove each item of property from

the premises at exactly the same time. Nevertheless, the Court held that the

“taking of the various items was all part of the same transaction.” Id. at 613, 467

S.E.2d at 239. Accordingly, the Court arrested judgment on two of the three

remaining larceny convictions. Id. Accord Hargett, 157 N.C. App. at 95-96, 577

S.E. 2d at 706-07 (holding that although defendant broke into and stole multiple

tools from multiple vans, the evidence supported only one larceny conviction as

the taking of items was all part of a single transaction).

Mr. Branks’ case is factually similar to State v. Phillips, 172 N.C. App. 143,

615 S.E.2d 880 (2005). Although Phillips is a possession case, this Court utilized

the single transaction rule used in larceny cases to determine the proper number of

possession convictions the evidence supported. Id. at 146-47, 615 S.E.2d at 882

17

(citing Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003) and Marr, 342 N.C. 607,

467 S.E.2d 236 (1996)). In Phillips, the defendant and three other men stole five

all-terrain vehicles on the same night, from the same place. Id. at 144, 615 S.E.2d

at 881. The defendant was convicted of five counts of possession of stolen

property. Id. The State’s evidence established that the men pushed the five

vehicles through a hole in the fence and into the woods nearby. Id. Then, because

the vehicles were large and heavy, the men had to make at least four separate trips

to transport them from the woods to two separate secured locations. Id. While

the men were transporting each vehicle to its secured destination, they temporarily

left the remaining vehicles unattended in the woods. Id. at 147, 615 S.E.2d at 883.

This Court found that the five vehicles were stolen at approximately the

same time and place. The same four men worked until they had secured all five

vehicles. While transporting them from the woods to other locations, the men left

the vehicles in the woods for short periods of time. They made several trips to

move the vehicles from the woods to secured areas, but that evidence “d[id] not

convert th[e] offense into five separate offenses.” Id. at 148, 615 S.E.2d at 883.

Thus, the Court held that the defendant’s actions were “part of a single, continuous

transaction[.]” Id. at 147, 615 S.E.2d at 883 (citing Hargett, 157 N.C. App. 90,

577 S.E.2d 703 (2003)). The Court arrested judgment on four of the five

possession convictions. Id. at 149, 615 S.E.2d at 884.

18

As in Marr and Phillips, in the present case, in the light most favorable to

the State, the State’s evidence showed that Mr. Branks took multiple items, but it

also showed that he took the items at the same time and place. Thus, he committed

only one larceny. First, Mr. Branks took all of the property from the same place,

the church. Paul Hensley testified that everything came from inside the church.

(Tp. 101) As in Marr, the fact that Mr. Branks’ allegedly took multiple items did

not divide this transaction into multiple larceny offenses. Second, Mr. Branks took

the items at the same time. The State’s evidence indicated that like the four men in

Phillips, Mr. Branks was unable to secure all of the items at once. Like the men in

Phillips, Mr. Branks never stopped once he began taking the property. From the

time Mr. Branks allegedly entered the church to the time officers apprehended him,

there was no evidence that he stopped the transaction at any point. Junior Forney

allegedly stated that he saw someone leave and come right back. (Tp. 94)

Accordingly, the State’s evidence against Mr. Branks only supported one larceny

conviction.

In conclusion, the trial court erred by denying Mr. Branks’ motions to

dismiss at the end of the State’s evidence and at the close of all evidence and by

entering judgment against him for two counts of larceny when the State’s evidence

showed that both counts arose from the same act. Mr. Branks respectfully requests

that this Court arrest judgment on one of his larceny convictions.

19

III. THE TRIAL COURT ERRED BY DENYING MR. BRANKS’ MOTIONS TO DISMISS AND ENTERING JUDGMENT AGAINST HIM FOR BREAKING OR ENTERING WHEN THE STATE FAILED TO PRODUCE ANY EVIDENCE THAT MR. BRANKS ENTERED THE CHURCH WITHOUT CONSENT.

Assignment of Error No. 8, Rp. 60

Mr. Branks was convicted of breaking or entering Abundant Life Assembly.

However, the State failed to produce any evidence that he entered without consent,

an essential element of breaking or entering. Thus, the trial court erred by denying

Mr. Branks’ motions to dismiss at the end of the State’s evidence and at the close

of all evidence and by entering judgment against him for breaking or entering.

A. Standard of Review

The issue of whether the State’s evidence was sufficient is reviewed de

novo. Hart, ____ N.C. App. ____, 633 S.E.2d 102, 108 (2006).

B. Discussion

In this de novo review, the appellate court will determine whether the

evidence, taken in the light most favorable to the State, constitutes substantial

evidence of each essential element of the charged offense and that the defendant

was the perpetrator of the offense. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814.

Substantial evidence is sufficient evidence from which a jury might reasonably

conclude that the accused is guilty beyond a reasonable doubt. Earnhardt, 307

N.C. at 66, n. 1, 296 S.E.2d at 652, n. 1 (citing Jackson v. Virginia, 443 U.S. 307,

20

319, n. 12, 61 L. Ed. 2d 560 (1979)). Evidence that only raises mere conjecture or

suspicion, even if strong suspicion, as to the commission of the charged offense, is

not substantial evidence. Id. If there was not substantial evidence, then the trial

court should have granted the defendant’s motion to dismiss for insufficient

evidence. Id.

Pursuant to N.C. Gen. Stat. § 14-54(a) (2006), a person is guilty of breaking

or entering if he unlawfully breaks or enters any building with the intent to commit

a felony or larceny therein. State v. Locklear, 320 N.C. 754, 758, 360 S.E.2d 682,

684 (1987). Although N.C. Gen. Stat. § 14-54(a) does not specifically require lack

of consent, the statute implies that it is an element of breaking or entering. State v.

Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979). Accordingly, to convict a

defendant of breaking or entering of a building, the State must prove four elements

beyond a reasonable doubt: (1) that the defendant broke or entered; (2) any

building; (3) without consent; and (4) with the intent to commit any felony or

larceny therein. Id.

To prove lack of consent, the State must present evidence sufficient to allow

a jury to reasonably infer that the defendant entered without the permission. State

v. Salters, 137 N.C. App. 553, 558, 528 S.E.2d 386, 390 (2000). The State may

use direct or circumstantial evidence to establish lack of consent.

21

Direct evidence, such an occupant’s testimony that no consent was given,

will establish lack of consent. See e.g., State v. Chambers, 52 N.C. App. 713, 721-

22, 280 S.E.2d 175, 180 (1981) (holding that an employee’s testimony that neither

he nor anyone else consented to defendant’s entry of a non-public area within the

shop was sufficient to establish lack of consent).

The State may also use circumstantial evidence to establish lack of consent.

For example, evidence that the defendant used force to gain entry is relevant to the

element of lack of consent. Salters, 137 N.C. App. at 558, 528 S.E.2d at 390.

Also, evidence that the doors were locked, such as an occupant’s testimony that he

locked the doors, is sufficient to establish his lack of consent. State v. Carver, 96

N.C. App. 230, 233, 385 S.E.2d 145, 147 (1989) (holding that there was sufficient

circumstantial evidence of lack of consent when the vehicle owner testified that he

locked the car doors prior to defendant’s entering his car).

In State v. Jones, 151 N.C. App. 317, 328-29, 566 S.E.2d 112, 120 (2002),

circumstantial evidence was sufficient to establish lack of consent. In Jones,

police officers testified that the defendant exited an apartment through a window

carrying a crowbar and a backpack full of electronic equipment. The officers also

found “obvious pry marks” around the window. Id. at 319, 566 S.E.2d at 114.

This Court found that although the apartment’s occupant did not testify at trial as

to whether he consented to the defendant’s entry, the circumstantial evidence was

22

“sufficient to support an inference, and the jury’s finding, that [the] defendant . . .

entered the apartment without consent.” Id. at 328-29, 566 S.E.2d at 119-120.

Accord State v. Williams, 330 N.C. 579, 586-87, 411 S.E.2d 814, 819 (1992)

(holding that although the victim did not testify at trial as to lack of consent,

circumstantial evidence that defendant broke down the victim’s locked front door

to gain entry was sufficient to establish lack of consent).

Just as circumstantial evidence may establish lack of consent to enter, it may

also establish the owner’s implied consent to enter. For instance, when a defendant

“enter[s] [a] store at a time when it [i]s open to the public,” his entry is with the

implied consent of the owner and could not serve as the basis for a conviction of

felony breaking or entering. Boone, 297 N.C. at 659, 256 S.E.2d at 687.

In Mr. Branks’ case, the State failed to use either direct or circumstantial

evidence to establish lack of consent. The State produced no direct evidence

regarding lack of consent. In contrast to Chambers, no witness testified that he or

any other person actually withheld consent from Mr. Branks. Paul Hensley, the

pastor of the church, testified for the State, but the State did not ask and he did not

testify that he did not consent to Mr. Branks’ entry. Significantly, the State failed

to produce a single witness to testify that Mr. Branks did not have permission to

enter the church. As a result, the State did not produce any direct evidence

establishing the element of lack of consent.

23

The State also failed to produce sufficient circumstantial evidence to

establish lack of consent. First, unlike Jones or Williams, there was no evidence of

force in this case sufficient to support an inference that Mr. Branks lacked consent.

There was no evidence of pry marks, broken windows, or broken locks. There was

no fingerprint or shoeprint evidence linking Mr. Branks to any entryway at the

church. Hensley testified that the screen on the waist-level window on the

handicap ramp appeared to be “cut or pushed.” (Tp. 109) However, no witness

testified that he saw Mr. Branks enter or exit through that window or tear the

screen. Thus, there was insufficient evidence of force from which a juror could

reasonably infer that Mr. Branks lacked consent to enter. Second, there was no

evidence that any of the doors were locked when Mr. Branks allegedly entered the

church. In contrast to Carver, no witness testified to locking the doors. Hensley

did not testify that he or any other person locked the church doors on July 15,

2005. Nor did he testify that the doors were customarily locked at any certain

time. No witness testified that the church was not open twenty-four hours a day

for those in need of prayer or solace.

In sum, in the instant case, the State wholly failed to produce any direct or

circumstantial evidence that Mr. Branks entered Abundant Life Assembly without

consent. Even during its examination of Hensley, the State never elicited any

testimony tending to establish lack of consent. The evidence in this case as to lack

24

of consent, even viewed in the light most favorable to the State, was merely

speculative. At best, it raised a strong suspicion, but that is not enough to submit

the issue to the jury.

To conclude, the court erred by denying Mr. Branks’ motions to dismiss and

by entering judgment against him for breaking or entering when the State failed to

establish the element of lack of consent. Accordingly, Mr. Branks respectfully

requests that this Court vacate his conviction for breaking or entering.

IV. THE TRIAL COURT ERRED BY GIVING A SINGLE PATTERN LARCENY INSTRUCTION WHEN IT SUBMITTED TWO COUNTS OF LARCENY TO THE JURY.

Assignment of Error No. 9, Rp. 61

The trial court erred by giving a single larceny instruction when it submitted

two counts of larceny to the jury. (Tpp. 152-54; Rpp. 19-21) The instruction was

erroneous for two reasons. First, the court did not specifically instruct, and the jury

charge considered in its entirety failed to clarify, that the jury was to give each

larceny charge separate consideration as required by due process. Second, by

giving one instruction for both counts of felony larceny, the court allowed the jury

to convict on a theory of guilt not supported by the evidence.

A. Standard of Review

If a defendant in a criminal case claims on appeal that the trial court gave an

erroneous jury instruction, but the defendant did not object to the instruction at

25

trial, then the appellate court reviews the instruction for plain error. State v. Odom,

307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983).

B. The Instructions Failed to Require the Jury to Give Each Count of Larceny Separate Consideration.

In a criminal case, the trial court does not have to give a separate instruction

for each individual count submitted to the jury. State v. Parker, 119 N.C. App.

328, 339, 459 S.E.2d 9, 12 (1995). However, if the court gives one instruction for

multiple counts, then the jury charge, considered in its entirety, must make it clear

that the jury is to afford each count separate consideration as required by due

process. Id.

In State v. Schultz, 294 N.C. 281, 284, 240 S.E.2d 451, 454 (1978), the trial

court submitted three counts of larceny to the jury but only gave a single larceny

instruction. Id. On appeal, the defendant argued that the instruction permitted the

jury to convict him of all three counts if it found him guilty of only one count. Id.

at 285, 240 S.E.2d at 454. Our Supreme Court considered the jury charge in its

entirety finding that: the trial court (1) specifically instructed the jury to consider

each larceny count “as separate and distinct[;]” (2) instructed the jury that its

decision as to any one of the larceny counts could not influence its decision as to

any other larceny count; (3) instructed that the State had to prove felony larceny

beyond a reasonable doubt “in each case[;]” and (4) instructed that the jury’s

finding “as to each charge must be stated in a separate verdict.” Id. at 284, 240

26

S.E.2d at 454. Therefore, the Court held that the single larceny instruction was not

erroneous because the jury charge, considered in full, made it clear that the jury

was to consider each larceny count separately. Id. at 285, 240 S.E.2d at 454.

As in Schultz, the court in this case gave a single pattern instruction for more

than one count of larceny. However, in sharp contrast to Schultz, the instructions,

considered in context, failed to clarify that the jury must give each larceny count

separate consideration. First, the trial court never instructed the jury to consider

each charge as “separate and distinct.” Although the trial court instructed that Mr.

Branks had been charged with “two counts of felonious larceny[,]” it never

otherwise distinguished the two counts by linking any specific incident with either

count. (Rp. 17) Second, the court never instructed the jury that its decision as to

one larceny count should not influence its decision as to the other. Although, the

court instructed the jury that it had to reach unanimous agreement, the instructions

did not require separate consideration and unanimity for each individual charge.

As a result of the instruction, the trial court permitted the jury to convict Mr.

Branks of both counts of felony larceny if it found him guilty of only one count in

violation of his due process rights.

The trial court’s instruction was prejudicial. The State’s evidence of the

larceny of two guitars in Case No. 06 CRS 1008 was substantially weaker than its

evidence of the larceny of the trashcan, food, and kitchen supplies in Case No. 06

27

CRS 1007. By lumping the two larceny counts together in one instruction, the

court permitted the jury to determine guilt of one larceny based on the strength of

the evidence of the other larceny.

In 06 CRS 1007, the State’s evidence indicated that on July 15, 2005,

officers found the trashcan, food, and kitchen supplies near Mr. Branks who was

on the church premises. That same night, in the church parking lot, Mr. Hensley

identified all of those items as having come from the church. He also identified the

items at trial. (Tpp. 25, 27, 28, 29, 69, 101) However, in 06 CRS 1008, there was

no evidence that any officer witnessed Mr. Branks with any guitars. Also, no

officer could testify with certainty as to the exact location of the guitars after they

were seized from the trailer or their location at the time of trial. (Tpp. 74, 75, 91)

Although the State presented evidence in 06 CRS 1008 that two guitars were found

in Mr. Branks’ trailer, the State also presented evidence indicating that: (1) more

than one person was inside the church that morning and (2) the trailer had been

unlocked for almost a week when officers found guitars there.

First, Junior Forney called police and reported that there appeared to be two

people inside the church. (Tpp. 23, 48, 53) Dispatch announced over the radio

that there were potentially two suspects involved. Four officers, Shiba, Miller,

Norman, and Moore, responded to this information and arrived at the church

expecting to encounter at least two suspects. (Tpp. 23, 28, 32, 46, 48, 51, 66, 69,

28

76, 85) The court did not instruct the jury on acting in concert. Thus, there was no

basis on which to convict Mr. Branks if a second person took the guitars from the

church to Mr. Branks’ trailer.

Second, the State’s evidence demonstrated that when guitars were found in

Mr. Branks’ trailer, the trailer had been wide open from the date of Mr. Branks’

arrest on July 15 to the date officers found guitars in his trailer on July 21, 2005.

From July 15 to July 17, 2005, the front door was unlocked. From July 15 and

July 21, 2005, all of the windows were open. (Tpp. 58, 59, 62, 63-64) Any

person could have entered his trailer through the front door or through a window.

To illustrate, about seven hours after Mr. Branks was taken into custody, Sam

Smith went to the trailer to pick up Mr. Branks for work. He entered through the

unlocked front door and discovered a candle burning inside. The burning candle

tends to suggest that someone other than Smith or Branks entered the trailer

between one and eight o’clock in the morning on July 15, 2005.

In summary, by giving a single instruction for both counts of larceny and by

not requiring the jury to consider each charge separately, the trial court allowed the

jury to consider the two counts together. The instruction was prejudicial because

to a reasonable juror, the State’s evidence of larceny of the trashcan, food, and

kitchen supplies in 06 CRS 1007 was stronger than its evidence of larceny of two

guitars in 06 CRS 1008. In 06 CRS 1007, officers found Mr. Branks at the church

29

with the stolen items. In sharp contrast, in 06 CRS 1008, when police discovered

two guitars in his trailer, Mr. Branks had been in custody for about a week. During

that week, his trailer was easily accessible to anyone, including the second suspect

that Junior Forney reported to police. Thus, the court permitted the jury to be

influenced by the strength of the evidence in 06 CRS 1007 to convict Mr. Branks

of larceny in 06 CRS 1008, a separate and distinct case.

Considered in its entirety, the jury charge failed to clarify that the jury must

give each larceny count separate consideration as required by due process. As a

result, Mr. Branks is entitled to a new trial for both counts of larceny.

C. The Instructions Permitted the Jury to Convict Mr. Branks of Felony Larceny Based on a Theory of Guilt Not Supported by the Evidence.

In the instant case, the trial court erred by instructing the jury that it could

convict Mr. Branks of felony larceny in 06 CRS 1007 (count II) on the theory that

the value of the stolen property was greater than one thousand dollars. In 06 CRS

1007, the State’s evidence demonstrated that the allegedly stolen property,

trashcan, canned goods, and kitchen supplies, was only worth about 363.50 dollars.

(Tpp. 102-10, 111) By permitting the jury to convict Mr. Branks of felony larceny

based on a theory of guilt not supported by the evidence, the court allowed for the

possibility of conviction without unanimity. Some jurors might have based

conviction on the supported theory, while others may have based conviction on the

unsupported theory. Because nothing in the record clarifies this ambiguity, it is

30

impossible to determine upon which theory the jury relied. Therefore, the court’s

instruction deprived Mr. Branks of his constitutional right to a unanimous jury

verdict.

The North Carolina Constitution guarantees criminal defendants the right to

be free from criminal conviction unless by unanimous jury verdict. N.C. Const.

art. I, § 24. See also N.C. Gen. Stat. §§ 15A-1237(b) (2006) and 15A-1201 (2006).

Accordingly, if the trial court’s instructions permit the jury to convict without

unanimity, it is reversible error. See e.g., State v. Pakulski, 319 N.C. 562, 574, 356

S.E.2d 319, 326 (1987). For instance, a trial court’s instruction using the

disjunctive “or” is reversible error if the instruction permits the jury to convict

without unanimity. State v. Diaz, 317 N.C. 545, 553, 346 S.E.2d 488, 494 (1986).

There are two types of disjunctive instructions. Both types permit a jury to

convict based on alternative theories of guilt. The first type is an instruction that

permits the jury to find the defendant guilty if he committed one of two acts and

each act itself constitutes a separate offense. This type of disjunctive instruction is

fatally ambiguous because two possible crimes are submitted to the jury in a single

issue, preventing the jury from reaching a unanimous verdict as to which particular

act the defendant committed. Id. at 553-54, 346 S.E.2d at 494.

The second type of disjunctive instruction permits the jury to find the

defendant guilty if he committed one of two acts and either act constitutes a means

31

of committing a single offense. State v. Hartness, 326 N.C. 561, 564-65, 391

S.E.2d 177, 179 (1990). Even if jurors convict based on different acts, there would

still be a unanimous agreement that the defendant committed the charged offense.

Id. Thus, the second type generally does not violate a defendant’s right to a

unanimous jury verdict. Id. However, in certain circumstances, the second type of

disjunctive instruction may constitute prejudicial error. For example, when a trial

court instructs the jury on alternative theories of guilt, and the evidence does not

support one of the theories, then the instruction is erroneous. State v. Pakulski, 319

N.C. 562, 574, 356 S.E.2d 319, 326 (1987).

In Pakulski, the trial court instructed the jury that it could convict the

defendant of felony murder based on alternative theories: that the predicate felony

was either (1) felony breaking or entering or (2) armed robbery. Id. at 573-74, 356

S.E.2d at 326. Either act would establish an element of the offense of felony

murder. N.C. Gen. Stat. § 14-17 (2006).

Our Supreme Court held that there was insufficient evidence to submit the

charge of felony murder based on the theory of felony breaking or entering as the

predicate felony. Pakulski, 319 N.C. at 573, 356 S.E.2d at 326. The State argued

the instruction was harmless error because the jury could have unanimously relied

on the armed robbery theory. However, the Court noted that the verdict forms did

not reflect the theory upon which the jury convicted, and it was impossible to

32

determine from the rest of the record that the jury unanimously relied on the armed

robbery theory. Some jurors might have relied on the improperly submitted theory

of breaking or entering. Id. at 574, 356 S.E.2d at 326. Accordingly, the Court held

that when the trial court instructs the jury on alternative theories of conviction,

“one of which is determined to be erroneous and the other properly submitted, and

[the Court] cannot discern from the record the theory upon which the jury relied,

[the] Court will not assume that the jury based its verdict on the theory for which it

received a proper instruction.” The Court will “resolve the ambiguity in favor of

the defendant.” Id.

In Mr. Branks’ case, as in Pakulski, the court submitted an instruction that

was the second type of disjunctive instruction. In the present case, the court

submitted alternative theories of conviction for felony larceny: (1) property taken

from a building pursuant to a breaking or entering or (2) property taken was worth

more than one thousand dollars. (Rp. 20) Either act would establish an element

of felony larceny. N.C. Gen. Stat. § 14-72(a) (2006). The court gave a single

larceny instruction, so the disjunctive portion applied to both counts of felony

larceny. However, in 06 CRS 1007, there was no evidence that the property taken

was worth more than one thousand dollars.

In this case, the State did not present any evidence that the value of the small

trashcan, food, and kitchen supplies was greater than one thousand dollars. To the

33

contrary, the State’s evidence, as elicited from Paul Hensley, showed that the

property was only worth 363.50 dollars. (Tpp. 102-10, 111) The court’s

instruction allowed for the possibility of a divided jury on the issue of what made

Mr. Branks’ act a felony in violation of his right to a unanimous jury verdict. In

Mr. Branks’ case, just like in Pakulski, it is impossible to discern from the record

upon which theory the jury relied to convict Mr. Branks of felony larceny in 06

CRS 1007. The verdict forms failed to indicate upon which theory the jury relied.

(Rpp. 33, 34) Nothing else in the record clarifies the ambiguity.

In conclusion, the State’s evidence of larceny in 06 CRS 1007 demonstrated

that the property taken from the church was worth only 363.50 dollars. Thus, the

trial court erred in permitting the jury to convict Mr. Branks of felony larceny in 06

CRS 1007 based on the theory that the property taken was worth more than one

thousand dollars. Moreover, it is impossible to determine from the record upon

which theory the jury relied. It cannot be assumed that the jury based it verdict on

the properly submitted theory. The ambiguity should be resolved in favor of Mr.

Branks. Pakulski, 319 N.C. at 574, 356 S.E.2d at 326. Accordingly, the defendant

respectfully requests this Court to reverse the trial court’s judgment and order a

new trial larceny in Case No. 06 CRS 1007 (count II) for felony larceny.

34

CONCLUSION

For the reasons set forth in Argument I, Mr. Branks respectfully requests

that the judgment for larceny in Case No. 06 CRS 1007 (count II) be vacated and

the larceny charge dismissed. For reasons set forth in Argument II, Mr. Branks

respectfully requests that either the judgment for larceny in Case No. 06 CRS 1007

(count II) or the judgment for larceny in Case No. 06 CRS 1008 be arrested. For

reasons set forth in Arguments III, Mr. Branks respectfully requests that the

judgment for breaking or entering be vacated and the charge dismissed. For

reasons set forth in Argument IV, Mr. Branks respectfully requests that the

judgments be reversed and the cause remanded for a new trial.

Respectfully submitted, this the 5th day of January, 2007.

_________________________________________Emily H. DavisAssistant Appellate DefenderEmily.H.Davis@nccourts.org

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701919.560.3334

ATTORNEYS FOR DEFENDANT-APPELLANT

35

CERTIFICATE OF COMPLICANCE WITH RULE 28(J)(2)

I hereby certify that Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in fourteen point Times New Roman font and the body of the brief, including footnotes and citations, contains no more than 8750 words as indicated by Microsoft Word, the program used to prepare the brief.

This the 5th day of January, 2007.

_________________________________________Emily H. DavisAssistant Appellate Defender

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26 of the North Carolina Rules of Appellate Procedure by sending it first-class mail, postage prepaid, to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602-2779, by placing it in a depository for that purpose.

I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon the State of North Carolina by sending it first-class mail, postage prepaid, to Ms. Hilda Burnett-Baker, Assistant Attorney General, Transportation Section, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, by placing it in a depository for that purpose.

This the 5th day of January, 2007.

_________________________________________Emily H. DavisAssistant Appellate Defender

36