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Criminal Practice – Breaking or Entering – Church Building – Adjacent Barn – Indictment

State v. McNair (Lawyers Weekly No. 011-123-17, 29 pp.) (Mark Davis, J.) Appealed from Pitt County Superior Court (W. Russell Duke Jr., J.) N.C. App.

Holding: G.S. § 14-54.1 only applies to break-ins of buildings that are places of religious worship; it does not apply to a barn adjacent to, albeit used by, a church.

We vacate defendant’s conviction of felony breaking or entering into a place of religious worship under § 14-54.1; we remand for entry of judgment on the lesser-included offense of felony breaking or entering and resentencing. We find no error in defendant’s convictions of possession of burglary tools and injury to personal property.

The court rejects the state’s argument that a break-in of the barn violated § 14-54.1 because the barn was in the church’s “curtilage.” G.S. § 14-54’s definition of “building” references “curtilage” solely by reference to a “building within the curtilage of a dwelling house.” The state does not argue that any portion of the property occupied by the church was being used as a dwelling house.

However, the state did present sufficient evidence that defendant was guilty of the lesser-included offense of breaking or entering: (1) Pastor Harper testified that on Feb. 18, 2014, the church had secured the barn’s door with a lock; (2) at 1:00 a.m. on Feb. 19, 2014, a 911 call was received stating that someone was inside the fenced-in area; (3) defendant was found by law enforcement officers scaling a 10-foot brick wall near the barn; (4) officers discovered a pry bar on the ground next to the barn; and (5) a broken lock was found beside the barn door.

The evidence further supported an inference that defendant intended to commit larceny when he entered the barn. Upon their arrival at the scene, officers determined that the barn “appeared to have been rummaged through” and “was kind of in disarray[.]” The officers also discovered that certain items, including a grill and a pressure washer, had been removed from the barn and placed in the fenced-in area. Pastor Harper testified that these items had been inside the barn earlier that day. Thus, the state presented sufficient evidence that defendant was guilty of breaking or entering into the barn.

The state also proved that defendant had constructive possession of the burglary tools that were found within the fenced-in area around the church and barn. While defendant was not in exclusive possession of the area where the tools were found, the state presented the following other incriminating circumstances: (1) defendant was found alone inside a privately-owned, fenced-in area at 1:00 a.m.; (2) as the officers entered the fenced-in area, they saw defendant scaling a 10-foot brick wall in an apparent attempt to avoid apprehension; (3) the officers determined that someone had broken into the barn, observing that toolboxes and cabinets in the barn “appeared to [have been] rummaged through”; (4) padlocks were lying on the ground both next to the main gate and adjacent to the barn door; and (5) several items that had previously been stored inside the barn were found in the fenced-in area. These incriminating circumstances support a finding that defendant had constructive possession of the burglary tools.

No error in part; vacated in part; remanded with instructions.

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