{ "id": 12129199, "name": "STATE OF NORTH CAROLINA v. FREDDIE ROBINSON, Defendant", "name_abbreviation": "State v. Robinson", "decision_date": "1994-06-21", "docket_number": "No. 9310SC902", "first_page": "358", "last_page": "364", "citations": [ { "type": "official", "cite": "115 N.C. App. 358" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "181 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "year": 1971, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "158 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573661 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0496-01" ] }, { "cite": "150 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "268 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561037 ], "year": 1966, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0214-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-55", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "215 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "317 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772194 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0242-01" ] }, { "cite": "413 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "413 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "789" }, { "page": "790" }, { "page": "788" } ], "opinion_index": 0 }, { "cite": "331 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499339 ], "year": 1992, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0039-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] } ], "analysis": { "cardinality": 629, "char_count": 13266, "ocr_confidence": 0.737, "pagerank": { "raw": 2.2087053531992334e-07, "percentile": 0.77619409471363 }, "sha256": "131d092e74d013c3359f61b47ef202c32fa0a55c19293c47a8ba7127c3026bba", "simhash": "1:964a6120327e9de8", "word_count": 2170 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and ORR concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FREDDIE ROBINSON, Defendant" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant appeals from a jury verdict finding him guilty of felonious breaking or entering and possession of implements of housebreaking and from a judgment and commitment entered on the verdicts imposing an active term of imprisonment.\nThe evidence presented at defendant\u2019s trial tended to show that on Sunday, 8 March 1992, the owner of a health and fitness chib in Raleigh found the door to his second floor office open and heard the sound of a desk drawer being shaken. Upon investigating, the owner found defendant standing behind the desk. Defendant was not a member of the club and did not have permission to be in the building or in the owner\u2019s office. Defendant told the owner he was looking for a job and tried to leave. The owner subdued him and found a screwdriver in defendant\u2019s pocket and an icepick in his waist band. The police were notified and when an officer arrived, defendant told the officer that he had had car trouble and had come into the building looking for tools. He later told the officer that his car was operational but that he had been working on the mirrors.\nAfter a voir dire hearing, the State also offered the testimony of two witnesses who testified as to similar incidents involving defendant. Crystal Clayton, a store manager at a Greensboro shopping mall, testified that on 3 October 1991, defendant had entered the store\u2019s stockroom and tampered with the handle of the store\u2019s safe. When Ms. Clayton started towards the stockroom, defendant quickly left. The trial court admitted Ms. Clayton\u2019s testimony for the limited purpose of showing defendant\u2019s intent, a common plan or scheme, or the absence of mistake. Michelle Austin, a salesperson at a store in a Burlington shopping mall, testified that on 30 March 1989, defendant had entered the stockroom and office area of the store and had stolen a cash box. However, Ms. Austin testified that defendant was acquitted of the charge because the arresting police officer was not present in court when defendant\u2019s case was tried.\nDefendant first contends that he is entitled to a new trial because the admission of Ms. Austin\u2019s testimony unfairly prejudiced him by allowing the jury to consider evidence concerning a crime for which defendant was acquitted. We agree that the admission of Ms. Austin\u2019s testimony was error, but not of such magnitude as to entitle defendant to a new trial.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) provides:\nOther crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nThe trial court admitted the testimony of Ms. Austin to show intent, plan or absence of mistake on the part of defendant. However, even if the evidence was relevant for one of the purposes enumerated in Rule 404(b), it must still be excluded, under Rule 403, \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403.\nThe State argues that according to State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990), the decision \u201c[wjhether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court,\u201d and that the trial judge properly exercised his discretion. In admitting the testimony, the trial court stated that it had applied the balancing test of Rule 403 to the evidence and concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to defendant. Ordinarily, such a determination is committed to the sound discretion of the trial judge, but the exercise of that discretion is reviewable and \u201c[w]hen the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under the rule as a matter of law.\u201d State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789 (1992).\nIn Scott, the Supreme Court observed:\nThe North Carolina Rules of Evidence must be interpreted and applied in light of this proposition: an acquittal and the undefeated presumption of innocence it signifies mean that, in law, defendant did not commit the crime charged. When the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403.\nId. at 44, 413 S.E.2d at 790. Thus, the court held:\n[E]vidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403. (Emphasis added.)\nId. at 42, 413 S.E.2d at 788.\nSince the probative value of Ms. Austin\u2019s testimony to prove intent, common scheme, plan, modus operandi, or absence of mistake directly depended on defendant in fact having committed the crime about which Ms. Austin testified, pursuant to Scott, we are compelled to find that defendant\u2019s \u201cacquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant.\u201d Id. at 41, 413 S.E.2d 788. Thus, we hold that the admission of Ms. Austin\u2019s testimony was error.\nIn spite, however, of our conclusion that the admission of Ms. Austin\u2019s testimony was error, the error was not so prejudicial as to warrant a new trial. Given the circumstances under which defendant was found in the private office, his self-contradictory and highly improbable explanations for his presence there, and the strikingly similar testimony of Ms. Clayton, to which defendant did not object, we do not believe that there was any reasonable possibility that, had Ms. Austin\u2019s testimony been excluded, a different result would have been reached at trial. N.G. Gen. Stat. \u00a7 15A-1443(a).\nDefendant next assigns error to the denial of his motion to dismiss the charge of felonious possession of implements of housebreaking. / We hold that the evidence was sufficient to submit the question of defendant\u2019s guilt of felonious possession of implements of housebreaking to the jury. In ruling upon a motion to dismiss in a criminal case, the trial court must determine whether there is substantial evidence to support a finding of the existence of each element of the offense charged and that the defendant committed it. State v. Vines, 317 N.C. 242, 345' S.E.2d 169 (1986). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIf there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, a case for the jury is made and nonsuit should be denied.\u201d State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).\nN.C. Gen. Stat. \u00a7 14-55 provides, in pertinent part:\nIf any person . . . shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking;. .. such person shall be punished as a Class H felon.\nThe necessary elements for conviction of the offense described in the above quoted provision are (1) the possession of an implement of housebreaking (2) without lawful excuse. State v. Morgan, 268 N.C. 214, 220, 150 S.E.2d 377, 382 (1966).\nIn the present case, defendant was found inside a private office in a private establishment without permission, standing behind the owner\u2019s desk, in possession of a screwdriver and an icepick. The owner heard defendant shake the desk drawer. Upon being discovered, defendant tried to leave. He gave conflicting statements as to his purpose in being there. Although the tools possessed by defendant were capable of legitimate use, under the circumstances shown by the State, a legitimate inference can be drawn that defendant possessed the screwdriver and icepick for the purpose of breaking into the building, so as to come within the proscription of N.C. Gen. Stat. \u00a7 14-55 as \u201cother implements of housebreaking.\u201d See State v. Lovelace, 272 N.C. 496, 158 S.E.2d 624 (1968). Defendant\u2019s motion to dismiss was properly denied.\nFinally defendant contends that the trial court committed error by failing to instruct as to the lesser included offense of non-felonious breaking or entering. We disagree. The record reflects that at the conference on instructions, defendant specifically requested the trial court not to submit the offense of non-felonious breaking or entering as a lesser included offense. Thus, he is barred by N.C.R. App. R 10(b)(2) from assigning as error the failure of the trial court to instruct the jury on the lesser included offense. State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). Defendant argues, however, that the failure to give the instruction was \u201cplain error,\u201d reviewable under State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). We disagree.\n\u201cWhere ail the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a charge of less degree . . . the court correctly refuses to charge on the unsupported lesser degree.\u201d State v. Duboise, 279 N.C. 73, 80, 181 S.E.2d 393, 397 (1971). In this case, there was no evidence tending to show the commission of non-felonious breaking or entering; rather the evidence showed clearly defendant\u2019s intent to commit larceny in the owner\u2019s office and that he was interrupted in the commission of his objective. The failure of the trial judge to submit the lesser included misdemeanor was not \u201cplain error.\u201d\nWe hold that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges COZORT and ORR concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Deborah L. McSwain, for the State.", "John T. Hall for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDDIE ROBINSON, Defendant\nNo. 9310SC902\n(Filed 21 June 1994)\n1. Evidence and Witnesses \u00a7 368 (NCI4th)\u2014 breaking or entering \u2014 previous incident \u2014 no conviction \u2014 course of conduct \u2014 admission erroneous but not prejudicial\nThere was no prejudicial error in a prosecution for felo-niously breaking or entering a health club and possession of housebreaking tools where the trial court allowed the State to introduce the testimony of a salesperson at a store that defendant had entered the stockroom and office area and had stolen a cash box, but had been acquitted because the arresting officer was not present when the case was tried. Since the probative value of the testimony to prove intent, common scheme, plan, modus operandi or absence of mistake directly depended on defendant in fact having committed the crime which the testimony related, the acquittal divests the evidence of probative value and its admission was error. However, given the other evidence, there was no reasonable possibility that a different result would have been reached had the testimony been excluded.\nAm Jur 2d, Burglary \u00a7 63.\n2. Burglary and Unlawful Breakings \u00a7 121 (NCI4th)\u2014 possession of housebreaking implements \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of felonious possession of implements of housebreaking where defendant was found inside a private office in a private establishment without permission, standing behind the owner\u2019s desk, in possession of a screwdriver and ice pick; the owner heard defendant shake the desk drawer; defendant tried to leave upon being discovered; and defendant gave conflicting statements as to his purpose in being there. Although the tools possessed by defendant were capable of legitimate use, a legitimate inference can be drawn that defendant possessed the screwdriver and ice pick for the purpose of breaking into the building. N.C.G.S. \u00a7 14-55.\nAm Jur 2d, Burglary \u00a7 77.\n3. Burglary and Unlawful Breakings \u00a7 167 (NCI4th)\u2014 felonious breaking or entering \u2014 non-felonious breaking or entering not submitted \u2014 no error\nThe trial court did not err in a felonious breaking or entering prosecution by not submitting non-felonious breaking or entering where defendant specially requested the trial court not to submit non-felonious breaking or entering as a lesser-included offense and where there was no evidence tending to show non-felonious breaking or entering.\nAm Jur 2d, Burglary \u00a7\u00a7 66 et seq.\nAppeal by defendant from judgment entered 6 May 1993 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 13 April 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General Deborah L. McSwain, for the State.\nJohn T. Hall for defendant-appellant." }, "file_name": "0358-01", "first_page_order": 390, "last_page_order": 396 }