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      "STATE OF NORTH CAROLINA v. GENE WAYNE HAYMOND"
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      {
        "text": "MARTIN, Chief Judge.\nDefendant was charged in true bills of indictment returned by the Wilkes County Grand Jury with the following offenses:\n07 CRS 881 Count I. Felonious Breaking or Entering of a building occupied by William Pel\u00f3n in violation of N.C.G.S. \u00a7 14-54(a).\nCount II. Felonious Larceny of William Pelon\u2019s property pursuant to the breaking or entering in violation of N.C.G.S. \u00a7 14-72(b)(2).\n08 CRS 1474 Felonious Possession of stolen property belong to William Pel\u00f3n in violation of N.C.G.S. \u00a7 14-71.1\n07 CRS 886 Count I. Felonious breaking or entering of a building occupied by Jeffrey Ritch in violation of N.C.G.S. \u00a7 14-54(a).\nCount II. Felonious Larceny of Jeffrey Ritch\u2019s property pursuant to the breaking or entering in violation of N.C.G.S. \u00a7 14-72(b)(2).\n08 CRS 1470 Felonious Possession of stolen property belonging to Jeffrey Ritch in violation of N.C.G.S. \u00a7 14-71.1.\n07 CRS 50460 Count I. Felonious breaking or entering of a building occupied by Sherry Gambill in violation of N.C.G.S. \u00a7 14-54(a).\nCount II. Felonious Larceny of Sherry Gambill\u2019s property pursuant to the breaking or entering in violation of N.C.G.S. \u00a7 14-72(b)(2).\n08 CRS 1472 Felonious Possession of stolen property belonging to Sherry Gambill in violation of N.C.G.S. \u00a7 14-71.1.\n07 CRS 50466 Count I. Felonious breaking or entering of a building occupied by Lowe Fur and Herb, Inc. in violation of N.C.G.S. \u00a7 14-54(a).\nCount II. Felonious Larceny pursuant to the breaking or entering of personal property belong to Lowe Fur and Herb, Inc., Arthur Lowe, and Arthur Lowe, Jr. in violation of N.C.G.S. \u00a7 14-72(b)(2).\nCount III. Felonious safecracking in violation of N.C.G.S. \u00a7 14-89.1.\n08 CRS 1475 Felonious Possession of stolen property belonging , to Lowe Fur and Herb, Inc. in violation of N.C.G.S. \u00a7 14-71.1.\n08 CRS 1471 Felonious Possession of stolen property belonging to Robert Mittet in violation of N.C.G.S. \u00a7 14-71.1.\n08 CRS 1473 Felonious Possession of a Firearm by a Felon in violation of N.C.G.S. \u00a7 14-415.1.\n08 CRS 108 Attaining the status of an Habitual Felon in violation of N.C.G.S. \u00a7 14-7.1.\nDefendant appeared, with counsel, before the trial court at a hearing on 7 January 2008, at which time the State offered defendant a plea arrangement. Defendant requested to address the court, but before allowing him to do so, the trial court advised defendant that any statement made by him could be used against him. Defendant initially requested a continuance in order to employ different counsel, and then made statements to the court in which he admitted complicity and asked the trial court, in light of his cooperation with the authorities, to impose a lesser sentence than that offered by the prosecutor. The trial court refused to do so and advised defendant as to the consequences of accepting or rejecting the plea arrangement offered by the State. Defendant was given a further opportunity to discuss the plea arrangement with his counsel over the evening recess. On the following day, defendant rejected the plea arrangement. Defendant subsequently waived his right to the assistance of counsel and proceeded pro se.\nDefendant moved to suppress all evidence seized as a result of a search by law enforcement officers, pursuant to a search warrant, of a residence at 515 Corporation Street, Wilkesboro, North Carolina. Defendant alleged that the application for issuance of the search warrant was insufficient to establish probable cause for its issuance.\nThe evidence at the suppression hearings tended to show that in January 2007, Detective Peyton Colvard (\u201cDetective Colvard\u201d) of the Ashe County Sheriffs Department was investigating a break-in of New River Outfitters and larceny of items therein, which occurred in late December 2006 or early January 2007. On 19 January 2007, while processing the scene for latent fingerprints, Detective Colvard found a business card and vehicle registration in the leaves outside the back door of New River Outfitters. Both items contained defendant\u2019s name and the address 515 Corporation Street, Wilkesboro, North Carolina. After discussing this evidence with other officers, Detective Colvard recalled that defendant had been involved in prior break-ins in Ashe County. Detective Colvard then called Captain John Summers (\u201cCaptain Summers\u201d) of the Wilkes County Sheriff\u2019s Department and asked him to ride by the address shown on the cards, which was in Wilkes County, to see if he could identify any items that had been stolen from New River Outfitters. When Captain Summers rode by the house, the only item he spotted was a stainless steel grill sitting on the porch.\nWhen Detective Colvard heard about the grill, he recalled that a stainless steel grill had been taken from the summer home of Randy Miller (\u201cMr. Miller\u201d) in mid-December 2006. Suspecting the grill spotted on the porch of the house might be Mr. Miller\u2019s, Detective Colvard contacted Mr. Miller and requested that he drive by the house to see if he could identify it. When Mr. Miller drove by the house, he was \u201c80 percent sure\u201d the grill on the porch was his. On 22 January 2007, Detective Colvard took Mr. Miller back to the house. On this occasion, both Detective Colvard and Mr. Miller got out of the car and walked through the yard to the porch. At this point, Mr. Miller positively identified the grill as the one stolen from his vacation home.\nDetective Colvard then applied for a search warrant for 515 Corporation Street, Wilkesboro, North Carolina. In his Probable Cause Affidavit, Detective Colvard provided the magistrate with the information concerning the discovery of defendant\u2019s business card and vehicle registration at New River Outfitters. He also indicated that he had \u201cobserved a coastal stainless steel grill on [defendant\u2019s] side porch\u201d and that \u201cthis grill matched the description of a grill stolen on December 23, 2006.\u201d As additional information, Detective Colvard indicated that the victim \u201cidentified the grill as being his\u201d after going by defendant\u2019s house. According to Detective Colvard, \u201c[t]he victim was certain of this because of a black bungee cord that he had applied to the grill.\u201d Finally, Detective Colvard indicated his familiarity with defendant\u2019s prior convictions for breaking or entering. Based on this information, the magistrate issued a search warrant for defendant\u2019s home, authorizing Detective Colvard to search for the grill and various items stolen from New River Outfitters.\nSoon after obtaining the search warrant, Detective Colvard contacted Detective William David Carson (\u201cDetective Carson\u201d) to help execute the search warrant. Since defendant\u2019s home was located in Wilkesboro, Lieutenant Rhodes of the Wilkesboro Police Department was called to assist in the search as well. When the detectives arrived, no one was at home. They attempted to contact Dawn Matthews (\u201cMs. Matthews\u201d), the owner of the house, but could not get in touch with her. They then called the number on the business card found at New River Outfitters, and defendant answered. They told defendant they had a warrant to search his house and instructed him to return to his home. Two hours later, defendant arrived at the house, and Detective Colvard served him with the search warrant. Defendant read over the search warrant and indicated that \u201calmost all\u201d of the items on the search warrant were in the house.\nDefendant let the officers into the house. The officers searched various rooms in the house, including the basement and the kitchen. They found many of the items identified on the search warrant. They also found numerous other items that were identified as items taken during various reported break-ins in Wilkes County. In the weeks following the search, defendant recovered and returned various other stolen items to the officers, including rifles and parts of a safe which had all been stolen from Lowe Fur and Herb, Inc. Some of the items recovered were determined to be those taken during break-ins of William Pelon\u2019s (\u201cMr. Pel\u00f3n\u201d) residence, Jeffrey Ritch\u2019s (\u201cMr. Ritch\u201d) residence, Sherry Gambill\u2019s (\u201cMs. Gambill\u201d) residence, and the Lowe Fur and Herb, Inc. business. A computer was found that was determined to have been stolen from Robert Mittet (\u201cMr. Mittet\u201d).\nThe trial court concluded that the application for the search warrant was sufficient to establish probable cause to search the residence for evidence relating to the Ashe County break-ins and that all of the other items seized, relating to the Wilkes County break-ins, were in plain view of the officers, with the exception of a television set which the officers moved in order to ascertain a serial number and some clothing which the officers found in closed drawers. Thus, the motion to suppress was denied except as to the television and the clothing, which were excluded.\nIn addition, defendant moved to suppress evidence of a letter dated 9 November 2007 which he directed to an assistant district attorney, various statements which he made to police officers during both the search of his house and plea discussions, and the statements which he made during the 7 January 2008 court appearance. The trial court ruled that the letter and statements made by defendant during plea discussions were inadmissible; however, the court ruled that defendant\u2019s statements made during the search were admissible because defendant was not under arrest at the time they were made, requiring no Miranda warning. The statements made by defendant at the 7 January 2008 hearing were also ruled admissible but only for impeachment purposes.\nThe State\u2019s evidence at trial was substantially the same as Detective Colvard\u2019s testimony with respect to his investigation of the New River Outfitters break-in and the subsequent search and seizure of stolen items from defendant\u2019s residence. Mr. Pel\u00f3n testified that he owned a second home in Wilkes County and that he was having some remodeling work done on the house in June 2006. In that month, the house was broken into and personal property belonging to Mr. Pel\u00f3n, as well as some tools belonging to his contractor, were stolen. The State offered evidence that a number of the stolen items were found at defendant\u2019s home, and others at the home of Jeremy Ebersole, a co-defendant who was tried separately.\nMs. Gambill testified that her home was broken into on or about 15 August 2006 and that a Jen-Air stove, a lawnmower and other personal property was taken. The State offered evidence that the stove was recovered from defendant\u2019s home and that defendant himself returned the lawn mower to the Sheriff\u2019s department. Daniel Richter testified that he and defendant went to Ms. Gambill\u2019s house; Richter went into the house through either a door or a window and took a Jen-Air stove, riding lawnmower, a ladder and some hoses. The items were quickly loaded into defendant\u2019s van and they went back to defendant\u2019s house, where defendant paid Richter $250.\nRichter also testified that he broke into Mr. Mittet\u2019s house in June 2006 and took a laptop computer, which he sold to defendant. Richter testified that he told defendant the computer had been stolen.\nSometime during August 2006, a vacation home owned by Mr. Ritch was broken into and various items of furniture, a stove, refrigerator, microwave, and dishwasher were stolen. These items were recovered during the search of defendant\u2019s residence.\nLowe\u2019s Fur and Herb, Inc. was broken into on 24 November 2006 and various items were stolen, including articles of Carhartt clothing which was part of the company\u2019s inventory. In addition, the safe had been broken into and blank checks, invoices, stock certificates and other documents stolen therefrom. In addition, two guns belonging to Arthur Lowe, the owner of the business, were stolen. The clothing was found during the search of defendant\u2019s residence, and, following the search, defendant returned the firearms and other documents, which had been taken from the safe, to the sheriff\u2019s department.\nAt the close of the State\u2019s evidence, the trial court dismissed the charge of safecracking, but denied defendant\u2019s motions to dismiss the remaining charges. Defendant neither testified nor offered evidence in his own behalf, and renewed his motions to dismiss, which were again denied. The jury returned verdicts of guilty on each of the substantive offenses.\nDefendant stipulated to having been convicted of the felony of third degree burglary in the State of Delaware on 12 June 1992 for an offense which occurred on 2 September 1991, of felonious breaking or entering and felonious larceny in Watauga County, North Carolina, on 7 September 2000 for an offense which occurred on 12 September 1999, and of felonious larceny in Wilkes County, North Carolina, on 5 June 2001 for an offense which occurred on 25 October 2000. The jury then found defendant guilty of having attained the status of an habitual felon. The trial court arrested judgment on each of the felonious larceny convictions. The trial court then determined that defendant had eight prior record level points and a prior record level of III, and entered judgment sentencing defendant in the presumptive range to a minimum term of 116 months and a maximum term of 149 months as an habitual felon for each of the ten felonies, to be served consecutively. Defendant appeals.\nI.\nWe first consider defendant\u2019s contention that the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant. \u201c[A]ppellate review of a ruling upon a motion to suppress is strictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994).\nDefendant\u2019s primary contention is that Detective Colvard intentionally omitted material facts from his application for the search warrant, which facts, if they had been included, would have disclosed that no probable cause existed. In the record before us, it does not appear that the trial court made specific findings of fact with respect to the alleged omission of facts from the probable cause affidavit, other than noting that there was no fabrication on the part of Detective Colvard. However, \u201c[w]here there is no material conflict in the evidence, findings and conclusions are not necessary even though the better practice is to find facts.\u201d State v. Edwards, 85 N.C. App. 145, 148, 354 S.E.2d 344, 347, cert. denied, 320 N.C. 172, 358 S.E.2d 58 (1987). Thus, we must only consider whether the trial court\u2019s conclusions are supported by the evidence.\nIt is well settled \u201cthat a search warrant be based on probable cause.\u201d State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997). \u201cProbable cause for a search [warrant] is present where facts are stated which establish reasonable grounds to believe a search of the premises will reveal the items sought and that the items will aid in the apprehension or conviction of the offender.\u201d Id. Inherent in the showing of probable cause \u201cis that there will be a truthful showing.\u201d Franks v. Delaware, 438 U.S. 154, 164-65, 57 L. E. 2d 667, 678 (1978), on remand, 398 A.2d 783 (Del. Supr. 1979). \u201cTruthful\u201d in this context \u201cdoes not mean . . . that every fact recited in the warrant affidavit is necessarily correct.\u201d Id. at 165, 57 L. E. 2d at 678. However, the factual showing offered in support of probable cause should \u201cbe \u2018truthful\u2019 in the sense that the information put forth is believed or appropriately accepted by the affiant as true.\u201d Id.\nThough there is \u201ca presumption of validity with respect to the affidavit supporting the search warrant,\u201d id. at 171, 57 L. E. 2d at 682, a defendant \u201cmay [still] challenge the truthfulness of the testimony showing probable cause.\u201d State v. Steen, 352 N.C. 227, 243-44, 536 S.E.2d 1, 11 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). The United States Supreme Court set forth the process and standard for making such a challenge by stating:\n[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant\u2019s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit\u2019s false material set to one side, the affidavit\u2019s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.\nFranks, 438 U.S. at 155-56, 57 L. Ed. 2d 672. Thus, a defendant must \u201cestablish facts from which the finder of fact might conclude that the affiant alleged the facts in bad faith.\u201d Fernandez, 346 N.C. at 14, 484 S.E.2d at 358. He cannot rely on evidence that merely \u201ccontradicts assertions contained in the affidavit, or even that shows the affidavit contains false statements.\u201d Id. Moreover, even if the defendant establishes that the affiant alleged the facts in bad faith, the warrant will not be voided if the remaining unchallenged factual allegations sufficiently establish probable cause for the search. See Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672; see also State v. Rashidi, 172 N.C. App. 628, 634-35, 617 S.E.2d 68, 73 (holding that the search warrant was not void when the defendant failed to show that the alleged false statements were material), aff\u2019d per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005).\nDefendant\u2019s motion to suppress evidence was based on the fact that, on its face, the search warrant failed to establish probable cause to search. Defendant did not allege that Detective Colvard\u2019s statements were made with \u201cdeliberate falsehood or [with] reckless disregard for the truth,\u201d and the trial court was not required to grant defendant a hearing on this issue. Franks, 438 U.S. at 171, 57 L. E. 2d at 682 (stating that, in order to \u201cmandate an evidentiary hearing, . . . [t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof\u2019). Even so, our review discloses that the trial court did, in fact, grant defendant a hearing in accordance with Franks and ultimately concluded that \u201c[t]here was no fabrication or any wrongdoing by\u201d Detective Colvard.\nThe search warrant must be voided only if, after setting aside any false material, the affidavit fails to provide sufficient probable cause for the search. Id. at 156, 57 L. E. 2d at 672. Thus, \u201c[w]e need not decide whether [the] defendant [has] sufficiently established knowing or reckless falsehoods [when the] defendant has failed to demonstrate that any false statements were material.\u201d Rashidi, 172 N.C. App. at 634, 617 S.E.2d at 73; see also United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008) (\u201c[I]n order... to be entitled to a Franks hearing on [a] challenge of [an officer\u2019s] affidavit, [a defendant] is required to make a substantial preliminary showing that [the officer] omitted material facts that when included defeat a probable cause showing . . . .\u201d).\nDefendant argues that the evidence presented at the suppression hearing shows that Detective Colvard knowingly omitted material facts in his affidavit which were crucial to the finding of probable cause. Detective Colvard\u2019s affidavit states in pertinent part:\nOn January 16th, 2007, the Ashe County Sheriff\u2019s Office received a report of a breaking and entering and larceny at the New River Outfitter\u2019s in the Crumpler area of Ashe County. Several items were taken in this break-in. On Friday January 19th, 2007, Lieutenant Detective Colvard located a registration card and business card bearing the name of Gene Wayne Haymond with an address of 515 Corporation St. Wilkesboro, NC 28697. . . . Lt. Colvard visited 515 Corporation St. Wilkesboro, NC and observed a coastal stainless steel grill on the side porch. Lt. Colvard noticed that this grill matched the description of a grill stolen on December 23, 2006, from another location in Ashe County. Lt. Colvard contacted the victim who also came to 515 Corporation St. and identified the grill as being his. The victim was certain of this because of a black bungee cord that he had applied to the grill.\nDefendant argues Detective Colvard\u2019s testimony at the suppression hearing materially contradicts the statements contained in his Probable Cause Affidavit. Defendant directs us to Detective Colvard\u2019s testimony that the break-in at New River Outfitters occurred in late December 2006, rather than in January 2007 as suggested in the affidavit and nearer the time when Detective Colvard discovered the defendant\u2019s registration card and business card in the course of his investigation. Citing State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980), defendant argues that omitting information showing that the breaking or entering could have occurred more than a month prior to the discovery of the cards materially reduces the likelihood that the stolen goods would be found at defendant\u2019s home. Defendant\u2019s contention is misplaced. The fact remains that the defendant\u2019s cards were discovered while Detective Colvard was still processing the scene for fingerprints, giving rise to a reasonable probability of defendant\u2019s presence there and that evidence relating to the crimes could be found at his residence. Probable cause requires a showing of \u201conly the probability ... of criminal activity.\u201d State v. May, 41 N.C. App. 370, 374, 255 S.E.2d 303, 306 (1979).\nLikewise, defendant contends Detective Colvard\u2019s affidavit in support of the application for a search warrant omitted the fact, disclosed in his testimony, that the officer and Mr. Miller, whose grill was stolen in another December 2006 break-in, walked across defendant\u2019s yard, a possible violation of defendant\u2019s Fourth Amendment rights, to look at the grill before Mr. Miller was able to identify it. Again, we do not believe the omission is material; the porch where the grill was located was on the front portion of the house and was visible from the road, as was the grill. From that distance, Mr. Miller was \u201c80 percent sure\u201d the grill was his. Detective Colvard then accompanied Mr. Miller to defendant\u2019s house, where they pulled into the driveway, got out of the car, and walked through the yard to a point closer to the grill. From a closer vantage point, Mr. Miller was able to positively identify the grill as his based on the presence of the black bungee cord. When Mr. Miller and Detective Colvard walked through the yard, they merely looked at the grill and left. In doing so, neither Detective Colvard nor Mr. Miller violated defendant\u2019s Fourth Amendment rights. See State v. Prevette, 43 N.C. App. 450, 455, 259 S.E.2d 595, 599-600 (1979) (\u201cEntrance [by a police officer] onto private property for the purpose of a general inquiry or interview is proper.\u201d), appeal dismissed and disc. review denied, 299 N.C. 124, 261 S.E.2d 925, cert. denied, 447 U.S. 906, 64 L. Ed. 2d 855 (1980); see also United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971) (finding that, even if the officer\u2019s entry onto private property was a trespass, the act of looking at an item in plain view was not an illegal search), cert. denied by Grubbs v. United States, 405 U.S. 965, 31 L. Ed. 2d 240 (1972). Accordingly, even considering the alleged omissions, we conclude the affidavit was sufficient to establish probable cause to believe the stolen items listed would be found in defendant\u2019s home.\nDefendant also argues that the trial court erred in denying his motion to suppress some of the items obtained during the search of his house because they were neither listed on the search warrant nor covered under the plain view doctrine. Specifically, defendant argues that it was not immediately apparent that these items were stolen. After a careful review of the record, we find defendant\u2019s argument has no merit.\nWe first note that defendant argues in his brief that \u201ccertain items\u201d taken from defendant\u2019s home are inadmissible under the plain view doctrine. Yet, nowhere in his brief does defendant specifically state which of the items he challenges. However, after a review of defendant\u2019s assignments of error relating to this argument and the transcript references defendant has provided in his brief, it appears that defendant is objecting to the admission of a Toshiba television and Dewalt skill saw taken from Mr. Pelon\u2019s residence; assorted Carhartt clothing taken from Lowe Fur and Herb, Inc.; a microwave, refrigerator, dishwasher, and vanity taken from Mr. Ritch\u2019s residence; and a Jen-Air stove taken from Ms. Gambill\u2019s residence.\nUnder the plain view doctrine,\npolice may seize contraband or evidence if (1) the officer was in a place where he had a right to be when the evidence was discovered; (2) the evidence was discovered inadvertently; and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband.\nState v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999). An item is \u201cimmediately apparent\u201d under the plain view doctrine \u201cif the police have probable cause to believe that what they have come upon is evidence of criminal conduct.\u201d State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387, 389-90 (1993) (internal quotation marks omitted). Probable cause is present when \u201cthe facts and circumstances within their [the officers\u2019] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.\u201d State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (alterations in original) (internal quotation marks omitted).\nWith regard to the Toshiba television and Dewalt saw, defendant appears to argue that the officers did not know these items were stolen until they were moved and the serial numbers were checked. In admitting the Dewalt saw, the trial court found\nthat upon the officers\u2019 entry and based on their prior investigations and knowledge they determined that other items appeared to be stolen from other break-ins, that subsequently as a result of the service of the search warrant on defendant... that the owner, the actual owner of the premises, Dawn Matthews, appeared and indicated to the officers . . . that she wanted any items that were stolen to be removed from the premises. And based on that officer\u2019s interpretation which the Courts find reasonable allowed them to begin to further search and open up items to determine whether or not they were stolen . . . and as a result the tools that were recovered in the Pel\u00f3n case will be admissible.\nThe trial court made a similar finding in admitting the Toshiba television. After a review of the record, it appears that the detectives did not start opening the tool boxes until after Ms. Matthews had told them \u201cthat she wanted all the stolen property out of the house and that if it was even questionable she wanted it out.\u201d Moreover, there is evidence in the record that the officers did not begin to inventory anything until after they had talked to Ms. Matthews. These facts provide competent evidence to support the trial court\u2019s finding that Ms. Matthews gave the officers consent to further search the items to determine if they were stolen. See State v. McLeod, - N.C. App. -, -, 682 S.E.2d 396, 399 (2009) (finding consent to search a residence may be determined from the words and actions of a cohabitant of that residence even if the other co-habitant has not consented). Since Ms. Matthews consented to the further search, the trial court\u2019s conclusion to admit these items was proper. See State v. Williams, 314 N.C. 337, 344, 333 S.E.2d 708, 714 (1985) (\u201cEvidence seized during a warrantless search is admissible if the State proves that the defendant. . . consented to the search.\u201d).\nWe also conclude the microwave, refrigerator, dishwasher, and vanity stolen from Mr. Ritch\u2019s residence were properly admitted into evidence. In State v. Weakley, 176 N.C. App. 642, 627 S.E.2d 315 (2006), this Court held it was immediately apparent that a shower curtain found in the defendant\u2019s home was evidence of a crime when the officer testified the curtain matched pictures she had seen that the \u201cvictims ha[d] provided [her] of items that were taken from their bathroom.\u201d Weakley, 176 N.C. App. at 649-50, 627 S.E.2d at 320. Similarly, in the present case, Detective Jason Whitley (\u201cDetective Whitley\u201d) of the Wilkes County Sheriffs Department testified that when he entered the kitchen, he immediately recognized the appliances as being items stolen from a break-in he was investigating. He was certain of this because he had pictures of the items and had a \u201cgood recollection\u201d of what the stolen items looked like. The microwave had additional physical characteristics that further indicated to Detective Whitley that it was stolen. Accordingly, the trial court properly concluded that these items were in plain view and thus admissible.\nThe Jen-Air stove stolen from Ms. Gambill\u2019s residence was also properly admitted. The evidence reveals that, upon entering defendant\u2019s residence, Detective Whitley noticed that the stove was unusual in that it did not vent into the ceiling but had a down vent. He testified that it was a unique model and stood out because the sides were missing when it appeared there should be something there. At this time, he only took a picture of the stove. There is no evidence that the stove was moved in order to take the picture. Therefore, this was not an impermissible search or seizure. Arizona v. Hicks, 480 U.S. 321, 324-25, 94 L. Ed. 2d 347, 353-54 (1987) (stating that \u201cmere recording of the serial numbers did not constitute a seizure\u201d and \u201c[m]erely inspecting those parts of the [object] that came into view during the [original] search would not have constituted an independent search\u201d). Detective Whitley later showed the picture to Ms. Gambill, who identified it as her stove. After receiving consent from defendant, Detective Whitley went back to defendant\u2019s home and seized the stove. In fact, defendant had the stove unhooked and ready for Detective Whitley to take when he arrived.\nFinally, the trial court granted defendant\u2019s motion to suppress a quantity of Carhartt clothing that was found when the officers opened drawers, because it was not in plain view. However, the officers also discovered a quantity of the Carhartt clothing in the basement, plainly visible to anyone entering the area. Detective Carson testified that when he saw it he remembered \u201cthat Carhartt clothing had been stolen from Lowe Fur & Herb.\u201d From the tags attached to this Carhartt clothing, Detective David Johnson (\u201cDetective Johnson\u201d) from the North Wilkesboro Police Department was able to determine that it was the clothing taken from Lowe Fur and Herb, Inc. Detective Johnson\u2019s observations gave him probable cause to believe that the clothing was stolen. The trial court did not err in determining that this clothing was admissible.\nII.\nCiting State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988), defendant argues the trial court impermissibly chilled his right to testify in his own defense when it told him that statements made at the 7 January 2008 hearing could be used against him if he testified. In Autry, our Supreme Court found the trial court had incorrectly informed defendant when it said, \u201c[The prosecutor] could, on good faith, ask you about prior misconduct, whether it resulted in convictions in court if they had some good faith reason to ask those questions, and you would be under oath to answer the questions truthfully.\u201d Autry, 321 N.C. at 402, 364 S.E.2d at 347. However, the Court held this error was harmless because the evidence overwhelmingly proved defendant\u2019s guilt and because the trial court repeatedly advised the defendant to consult his attorney before deciding whether to testify. Id. at 403-04, 364 S.E.2d at 348.\nDefendant first suggests that the statements made at his hearing were inadmissible against him because they were made during a suppression hearing. It is true \u201cthat when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.\u201d State v. Bracey, 303 N.C. 112, 120, 277 S.E.2d 390, 395 (1981) (quoting Simmons v. United States, 390 U.S. 377, 394, 19 L. Ed. 2d 1247, 1259 (1968)). However, the 7 January 2008 hearing was not one on a motion to suppress evidence, and the statements were made after defendant, though represented by counsel, asked to address the court. Prior to granting the request, the trial court warned the defendant that his statements could be used against him. Even if the statements had been made in the course of a motion to suppress evidence, use of the statements for impeachment purposes \u201cis permissible under the holding in Simmons.\u201d Id. at 120, 277 S.E.2d at 396. The trial court expressly limited the use of these statements against defendant for impeachment purposes.\nDefendant next contends the statements are inadmissible because they were made during the course of plea negotiations. Rule 410 of the North Carolina Rules of Evidence provides that \u201c[a]ny statement made [by a defendant] in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn\u201d is inadmissible at trial. N.C. Gen. Stat. \u00a7 8C-1, Rule 410(4) (2009); see also N.C. Gen. Stat. \u00a7 15A-1025 (2009) (\u201cThe fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant . . . .\u201d). \u201cPlea bargaining implies an offer to plead guilty upon condition.\u201d United States v. Porter, 821 F.2d 968, 976-77 (4th Cir. 1987) (internal quotation marks omitted), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 269, reh\u2019g denied, 485 U.S. 1042, 99 L. Ed. 2d 919 (1988). Moreover, as the rule implies, \u201c[p]lea negotiations, in order to be inadmissible, must be made in negotiations with a government attorney or with that attorney\u2019s express authority.\u201d Id. at 977 (emphasis added). \u201cIn addition, conversations with government agents do not constitute plea discussions unless the defendant exhibits a subjective belief that he is negotiating a plea, and that belief is reasonable under the circumstances.\u201d State v. Curry, 153 N.C. App. 260, 263, 569 S.E.2d 691, 694 (2002) (internal quotation marks omitted). Here, defendant\u2019s statements at the 7 January 2008 hearing appear to have been made in an attempt to ask for either a continuance or the trial court\u2019s mercy in imposing a lesser sentence than that offered by the prosecutor. Defendant was clearly aware that the prosecuting attorney was unwilling to accept defendant\u2019s plea in exchange for the sentence which defendant requested, and defendant, therefore, made his request of the court:\nI\u2019m asking for mercy from the Court. Whether or not I deserve it, I\u2019m not sure. When you look at my record or you look at these charges or the amount of money that Mr. Horner claims is at issue, I\u2019m not sure that when you ask for mercy those things are \u2014 if\u2014I don\u2019t expect any mercy from Mr. Horner. I\u2019m asking for it from the Court.\nIn response to this request, the trial court indicated that it was not willing to impose any sentence less than what the prosecuting attorney had already offered. After having time to further consider the State\u2019s offer, defendant then decided to go to trial. From this evidence, it does not appear that defendant subjectively thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor\u2019s express authority when he made statements at the 7 January 2008 hearing. Instead, the statements were made in the course of defendant\u2019s various requests to the trial court. Thus, defendant\u2019s argument that these statements were made during the course of plea negotiations, and thus inadmissible, fails.\nFinally, defendant argues that the trial court incorrectly concluded that defendant\u2019s statements at the 7 January 2008 hearing were confessions. Thus, he contends that the trial court incorrectly informed him that the prosecutor could use the statements against him at trial. Under the North Carolina Rules of Evidence, an admission by a party opponent can be admitted against that party if it is \u201chis own statement, in either his individual or a representative capacity.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d)(A) (2009). \u201cAn admission is a statement of pertinent facts which, in light of other evidence, is incriminating.\u201d State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986). A confession is \u201can acknowledgment in express words by the accused in a criminal case of his guilt of the crime charged or of some essential part of it.\u201d State v. Fox, 277 N.C. 1, 25, 175 S.E.2d 561, 576 (1970). \u201cA confession, therefore, is a type of an admission.\u201d Trexler, 316 N.C. at 531, 342 S.E.2d at 880. Accordingly, a statement is admissible against a party even if it is not technically a confession but qualifies as an admission.\nAt the 7 January 2008 hearing, defendant made various statements which implied his guilt of the charged offenses. At one point he said, \u201cBut in one case in Yadkin County they claimed $30,000 worth of blankets were stole, and there is no way. At the high side, it might have been $10,000 worth of blankets that were stole, and I admitted to that.\u201d These statements clearly qualify as \u201cstatement[s] of pertinent facts which, in light of other evidence, [are] incriminating.\u201d Id. at 531, 342 S.E.2d at 879-80. Accordingly, the trial court did not err when it ruled that these statements could be used against defendant for impeachment purposes or when it instructed defendant that the statements could be used against him at trial. Since the trial court did not err in advising defendant regarding the prosecutor\u2019s potential use of his statements made at the 7 January 2008 hearing, defendant\u2019s right to testify was not impermissibly chilled.\nIII.\nDefendant next challenges the trial court\u2019s denial of his motion to dismiss the breaking or entering charges. Specifically, defendant contends the State failed to provide sufficient evidence that he broke or entered into any of the buildings alleged in the bills of indictment. Upon a motion to dismiss, \u201cthe trial court must determine whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). \u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable person might accept as adequate.\u201d Id. In determining whether there is substantial evidence, a \u201creviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.\u201d Id. at 412-13, 597 S.E.2d at 746.\nWhen the trial court does not instruct the jury \u201cthat it could convict [the] defendant if it found that he acted in concert with others in the commission of the elements of each of the offenses, the State ha[s] to satisfy the jury that [the] defendant personally committed every element of each offense.\u201d State v. Smith, 65 N.C. App. 770, 772, 310 S.E.2d 115, 116-17, aff\u2019d as modified, 311 N.C. 145, 316 S.E.2d 75 (1984). \u201cTo support a conviction for felonious breaking and entering under G.S. \u00a7 14-54(a), there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein.\u201d State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 103 (1988). A breaking has been defined as \u201cany act of force, however slight, employed to effect an entrance through any usual or unusual place of ingress.\u201d State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 580 (1982) (internal quotation marks omitted). The element of an entry is satisfied if a person inserts \u201cany part of the body, hand, . . . foot, or . . . any instrument or weapon\u201d into a building. State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d 753, 756 (2008) (internal quotation marks omitted).\n- In the present case, defendant was charged with the felonious breaking or entering of Mr. Ritch\u2019s residence, Mr. Pelon\u2019s residence, Ms. Gambill\u2019s residence, and the business of Lowe Fur and Herb, Inc. The trial court did not instruct the jury as to the doctrine of acting in concert, thus, the State was required to prove that defendant committed the offenses himself. The State concedes there was insufficient evidence presented at trial from which the jury could find that defendant either broke or entered into Mr. Pelon\u2019s residence, Mr. Ritch\u2019s residence, or Lowe Fur and Herb, Inc. Defendant\u2019s motions to dismiss those charges should have been granted, and we reverse his convictions of breaking or entering in 07 CRS 881, 07 CRS 886, and 07 CRS 50466.\nWith respect to the charge of breaking or entering into Ms. Gambill\u2019s residence, however, we reach a different conclusion. \u201cCircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993) (citation and internal quotation marks omitted). If there is a reasonable inference, then the question of defendant\u2019s guilt is left to the jury. Id. The evidence surrounding the breaking or entering of Ms. Gambill\u2019s residence tended to show that defendant and Daniel Ritcher went to Ms. Gambill\u2019s house together to \u201ctake the stuff [they] wanted to take.\u201d Ritcher gained entry into Ms. Gambill\u2019s house \u201cthrough the window or the back door.\u201d It did not take long to load the items, which included a Jen-Air stove, a riding lawnmower, and a ladder. Based on the nature and size of the items taken, the evidence presented creates a reasonable inference that defendant entered Ms. Gambill\u2019s home to assist Ritcher in removing the property from the house quickly. Thus, the trial court did not err in denying defendant\u2019s motion to dismiss this breaking or entering charge.\nIV.\nFinally, defendant argues that the trial court impermissibly sentenced him, at least in part, because of his insistence on having his cases tried by a jury. He thus contends that he is entitled to a new sentencing hearing.\n\u201cA sentence within statutory limits is presumed to be regular.\u201d State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002) (internal quotation marks omitted), appeal after remand, 168 N.C. App. 597, 608 S.E.2d 417 (2005). However,\n[w]here it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant\u2019s constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.\nState v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990). At a pretrial hearing on 7 January 2008, defendant asked the trial court to consider a possible sentence of five years of imprisonment and five years of probation in response to an offer by the prosecutor to recommend a sentence of ten years. In response to this request, the trial court responded by saying, \u201cSo I\u2019m just telling you up front that the offer the State made is probably the best thing.\u201d Defendant declined the State\u2019s offer.\nAt a subsequent pre-trial hearing on defendant\u2019s motion to suppress evidence, the subject of a plea arrangement was again discussed, and the trial court reminded defendant of the earlier discussions as well as the possible sentences which could be imposed if defendant were convicted of the offenses as an habitual felon. Defendant indicated that he understood the exposure, but declined the prosecutor\u2019s plea offer.\nAfter defendant was found guilty of the offenses, and after hearing arguments by the State and defendant on the issue of mitigating factors, the trial court stated, \u201c[w]ay back when we dealt with that plea different times and, you know, you told me you didn\u2019t have any drugs problems, you didn\u2019t have anything, what you wanted to do, and I told you that the best offer you\u2019re gonna get was that ten-year thing, you know.\u201d Defendant contends that, by that statement, an inference arises that the trial court based its sentence at least in part on defendant\u2019s failure to accept the State\u2019s plea offer. We agree.\nIn State v. Hueto, - N.C. App. -, \u2014, 671 S.E.2d 62 (2009), the trial court told the defendant prior to trial:\n[If you go to trial,] you are putting your faith in the hands of twelve strangers who do not know you, who do not know your situation, and if they find you guilty of the charges against both of these young girls, it will compel me to give you more than a single B-l sentence, and I would have to give you at least two . . . and maybe more.\n\u2014 N.C. App. at \u2014, 671 S.E.2d at 67. After a jury trial, the defendant was convicted of two counts of first-degree rape and six counts of statutory rape. Id. at -, 671 S.E.2d at 64. Before sentencing defendant to eight consecutive sentences, the trial court stated\nTo you, Se\u00f1or Hueto, I regret that you do [sic] not choose to take the offer that had been made to you at the beginning of the trial to plead guilty for a lesser sentence. And I had told you that I did not know what I would . . . give in terms of a sentence but that I would await the jury\u2019s verdict.\nId. at -, 671 S.E.2d at 68. This Court found that, since the trial court had the discretion to consolidate defendant\u2019s convictions for the purpose of judgment, it could reasonably be inferred from these statements that the trial court\u2019s \u201cdecision to impose eight consecutive sentences was partially based on [the] Defendant\u2019s decision to plead not guilty.\u201d Id. at -, 671 S.E.2d at 69.\nDefendant was convicted of having committed the offenses after having attained the status of an habitual felon. N.C.G.S. \u00a7 14-7.6 mandates that when \u201can habitual felon . . . commits any felony under the laws of the State of North Carolina, the felon must, upon conviction ... be sentenced as a Class C felon.\u201d .N.C. Gen. Stat. \u00a7 14-7.6 (2009). \u201cSentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.\u201d Id. \u201cHowever, in situations where a defendant is convicted of two or more offenses, the General Assembly has given the trial court discretion to consolidate the offenses into a single judgment.\u201d State v. Tucker, 357 N.C. 633, 636, 588 S.E.2d 853, 855 (2003); see also N.C. Gen. Stat. \u00a7 15A-1340.15(b) (2009) (\u201cIf an offender is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment and impose a single judgment for the consolidated offenses.\u201d). Since N.C.G.S. \u00a7 14-7.6 does not expressly preclude the trial judge from exercising its statutory discretion under N.C.G.S. \u00a7 15A-1340.15(b), we see no reason to so hold. See Bd. of Adjustment of Swansboro v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313 (\u201cStatutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each.\u201d), reh\u2019g denied, 335 N.C. 182, 436 S.E.2d 369 (1993); see also Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 595, 528 S.E.2d 568, 571 (2000) (construing Rule 9(j) and Rule 41(a)(1) of the North Carolina Rules of Civil Procedure as compatible where Rule 9(j) did \u201cnot expressly preclude such complainant\u2019s right to utilize a Rule 41(a)(1) voluntary dismissal\u201d). Thus, the trial court in the present case had the discretion to consolidate some or all of defendant\u2019s convictions for the purposes of judgment.\nHowever, without consolidating any of defendant\u2019s convictions, the trial court sentenced defendant in the presumptive range as a Class C felon to ten felonies and made the sentences run consecutively. Thus, as in Hueto, we believe it may be reasonably inferred from the trial court\u2019s statements that it made this decision based at least in part on defendant\u2019s decision to refuse the State\u2019s plea offer. See State v. Pavone, 104 N.C. App. 442, 446, 410 S.E.2d 1, 3 (1991) (finding that the trial court\u2019s statement at sentencing that, \u201c[y]ou tried the case out; this is the result\u201d created a reasonable inference that the trial court impermissibly considered the defendant\u2019s failure to accept a plea in imposing its sentence). Accordingly, defendant is entitled to a new sentencing hearing.\n07 CRS 000881 \u2014 Reversed.\n07 CRS 000886 \u2014 Reversed.\n07 CRS 050460 \u2014 No Error At Trial; New Sentencing Hearing.\n07 CRS 050466 \u2014 Reversed.\n08 CRS 000108 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001470 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001471 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001472 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001473 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001474 \u2014 No Error At Trial; New Sentencing Hearing.\n08 CRS 001475 \u2014 No Error At Trial; New Sentencing Hearing.\nJudges HUNTER and ERVIN concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Gerald K. Robbins, Special Deputy Attorney General, for the State.",
      "Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GENE WAYNE HAYMOND\nNo. COA09-1030\n(Filed 6 April 2010)\n1. Criminal Law\u2014 motion to suppress \u2014 search warrant \u2014 sufficient probable cause\nThe trial court did not err in denying defendant\u2019s motion to suppress evidence seized pursuant to a search warrant because, even considering allegedly material facts which defendant contended were intentionally omitted from the application for the warrant, the application was sufficient to establish probable cause to believe the stolen items listed would be found in defendant\u2019s home.\n2. Criminal Law\u2014 motion to suppress \u2014 search warrant\u2014 items not listed \u2014 plain view doctrine\nThe trial court did not err in denying defendant\u2019s motion to suppress certain items obtained during a search of his residence that were not listed on the search warrant because the police were given consent by the owner of the residence to search some of the items to determine if they were stolen and the remaining items were admissible under the plain view doctrine.\n3. Criminal Law\u2014 defendant\u2019s right to testify \u2014 not impermissibly chilled\nThe trial court did not impermissibly chill defendant\u2019s right to testify in his own defense. The trial court\u2019s instruction that statements made by defendant at a hearing concerning a plea agreement could be used against him at trial if he testified was not erroneous as the statements were not made during a hearing on a motion to suppress and were not made during the course of plea negotiations. Furthermore, the trial court did not err in concluding that defendant\u2019s statements were confessions that could be used against him at trial.\n4. Criminal Law\u2014 motion to dismiss \u2014 sufficiency of the evidence \u2014 breaking or entering\nThe trial court erred by denying defendant\u2019s motion to dismiss three charges of breaking or entering as the State failed to offer sufficient evidence that defendant either broke or entered the three residences. The trial court did not err in denying defendant\u2019s motion to dismiss a fourth charge of breaking or entering as the State presented sufficient evidence that defendant entered the fourth residence.\n5. Sentencing\u2014 reasonable inference \u2014 impermissibly based on defendant\u2019s insistence on jury trial\nIt could be reasonably inferred from the trial court\u2019s statements that it impermissibly sentenced defendant based, at least in part, on defendant\u2019s decision to refuse the State\u2019s plea offer. Defendant was entitled to a new sentencing hearing.\nAppeal by defendant from judgments signed 13 August 2008 by Judge Henry E. Frye, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 11 January 2010.\nRoy Cooper, Attorney General, by Gerald K. Robbins, Special Deputy Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant."
  },
  "file_name": "0151-01",
  "first_page_order": 179,
  "last_page_order": 200
}
