State v. Lucas

NO. COA13-784

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Cumberland County

No. 11 CRS 65063

KALAN JOHN LUCAS,

Defendant

________________________________

STATE OF NORTH CAROLINA

v. Cumberland County

No. 11 CRS 65064

SHAQUILLE OQKWONE RICHARD,

Defendant

Appeal by defendants from judgments entered 27 March 2013

by Judge Reuben F. Young in Cumberland County Superior Court.

Heard in the Court of Appeals 11 December 2013.

Roy Cooper, Attorney General, by Richard H. Bradford,

Special Deputy Attorney General, and Susannah P. Holloway,

Assistant Attorney General, for the State.

Unti & Lumsden LLP, by Margaret C. Lumsden, for defendant-

appellant Lucas.

Guy J. Loranger for defendant-appellant Richard.

DAVIS, Judge.

Co-defendants Kalan John Lucas (“Lucas”) and Shaquille

Oqkwone Richard (“Richard”) (collectively “Defendants”) appeal

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from their convictions for second-degree burglary and conspiracy

to commit second-degree burglary. On appeal, Defendants argue

that the trial court erred in (1) denying their motions to

dismiss the second-degree burglary charges for insufficient

evidence; (2) failing to instruct the jury regarding the

definition of larceny and on the offense of first-degree

trespass; and (3) entering a restitution order that was not

supported by competent evidence. Defendants also contend that

their trial counsel provided ineffective assistance of counsel

by failing to request the above-referenced jury instructions.

After careful review, we vacate Defendants’ convictions for

second-degree burglary and remand for resentencing for felonious

breaking or entering. We also vacate the trial court’s

restitution orders and remand to the trial court for rehearing

on that issue.

Factual Background

The State presented evidence at trial which tended to

establish the following facts: On 27 November 2011 at

approximately 2:30 a.m., Nina Moore (“Mrs. Moore”) awoke to the

sound of “erratic knocking” and the doorbell ringing at the

front door of the home in Fayetteville, North Carolina that she

shared with her husband, Lynard Moore (“Mr. Moore”). From a

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window, Mrs. Moore observed a man wearing a dark-colored hooded

sweatshirt standing at the front door. Mrs. Moore also saw

another man sitting in the driver’s seat of a white car parked

outside their home. Mrs. Moore woke up Mr. Moore and informed

him that there was someone at the door and that she thought “he

needed to get his gun.” Mr. Moore retrieved a gun from their

safe, proceeded down the hallway, and saw that the front door

had been kicked open. Mr. Moore fired three or four shots into

the front entranceway. At that point, a man ran out of the

house and jumped into a white car, which Mr. Moore identified as

a Mercury Grand Marquis. The car then “sped away” out of the

Moores’ neighborhood.

Mrs. Moore called the police and informed them what had

occurred. Officer Leonard Honeycutt (“Officer Honeycutt”) of

the Fayetteville Police Department arrived at the Moores’ home,

took statements from Mr. and Mrs. Moore, and issued a “be on the

lookout” for a white Mercury Grand Marquis and a man wearing a

“dark hoody or toboggan” and dark tennis shoes. Shortly

thereafter, Officer Honeycutt received a dispatch regarding “a

suspicious white vehicle” parked in front of a residence on

Windlock Drive in a neighborhood approximately two miles away

from the Moores’ home.

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Steven Pavel (“Mr. Pavel”) was sitting on the front porch

of his home on Birchcreft Drive when he noticed a white sedan

approaching the corner of Birchcreft Drive and Windlock Drive.

The driver parked the car, and the vehicle’s two occupants

remained inside the vehicle for several minutes. Mr. Pavel then

witnessed two men exit the vehicle and approach “the first house

off from the corner.” Because Mr. Pavel believed that the men’s

actions seemed suspicious, he went inside and observed them

through his window. When the men “start[ed] to walk up to the

first house, casing the house and all,” Mr. Pavel called 911.

Mr. Pavel observed the men walk past the first home, which was

vacant, and attempt to open the door of a vehicle that was

parked in the next driveway.

The men then approached the second house, which was also

unoccupied due to the fact that the owners, Wesley Meredith and

Jennifer Meredith (collectively “the Merediths”), were out of

town. It appeared to Mr. Pavel that one of the men was trying

to strike the side patio door of the Merediths’ home.

Mr. Pavel remained on the phone with the 911 dispatcher and

related that the men had walked back down the driveway and

reentered their car. After sitting in the car for several

minutes, the men exited the vehicle again and walked around to

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the back of the Merediths’ house. A few minutes later, Mr.

Pavel saw both men “running around from the back of the house.”

The men then jumped into their car and sat there for several

minutes. Officer Honeycutt and Officer Michael Tackema

(“Officer Tackema”) arrived at the scene and apprehended the two

men. At trial, Officers Honeycutt and Tackema identified these

men as Defendants.

Officers Honeycutt and Tackema detained and searched both

Defendants, and Officer Honeycutt found tube socks in their

vehicle, which he noted were “very common for breaking and

entering artists and thieves to put on their hands” because they

were less conspicuous than gloves. Officers Honeycutt and

Tackema then proceeded to inspect the area surrounding the home.

They observed that the outer pane of a double-pane sliding glass

door on the side of the house had been shattered. A fire pit

bowl and two concrete landscaping bricks were lying on the

ground near a back bedroom window that was also shattered.

Several similar bricks were lying on the floor inside the

bedroom where the window had been broken. There was soot

covering the fire pit bowl and the back bedroom window, and the

blinds hanging from that window were “somewhat ajar.” The

officers did not detect any soot on Defendants or their vehicle

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but did locate a shard of glass on Lucas’s person that appeared

to be similar to the glass found at the scene.

Defendants were subsequently charged with first-degree

burglary and conspiracy to commit first-degree burglary at the

Moores’ residence and second-degree burglary and conspiracy to

commit second-degree burglary at the Merediths’ residence. The

matter came on for a jury trial on 25 March 2013 in Cumberland

County Superior Court. On 27 March 2013, the jury returned

verdicts finding Defendants (1) not guilty of first-degree

burglary or conspiracy to commit first-degree burglary; and (2)

guilty of second-degree burglary and conspiracy to commit

second-degree burglary. The trial court entered judgments on

the jury’s verdicts, sentencing Defendants to a presumptive-

range term of 13 to 16 months imprisonment for second-degree

burglary and a consecutive presumptive-range term of 6 to 8

months imprisonment for conspiracy to commit second-degree

burglary. Defendants gave notice of appeal in open court.

Analysis

I. Motion to Dismiss

Defendants first argue that the trial court erred in

denying their motion to dismiss the second-degree burglary

charges. Specifically, Defendants contend that the evidence

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presented at trial was insufficient to show the elements of (1)

entry; and (2) intent to commit a felony.

A trial court’s denial of a defendant’s motion to dismiss

is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). On appeal, this Court must determine

“whether there is substantial evidence (1) of each essential

element of the offense charged, or of a lesser offense included

therein, and (2) of defendant’s being the perpetrator . . . .”

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455

(citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150

(2000). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980). Evidence must be viewed in the light most

favorable to the State with every reasonable inference drawn in

the State’s favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d

211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818

(1995).

To survive a defendant’s motion to dismiss a charge of

second-degree burglary, the State must provide substantial

evidence that the defendant committed a (1) breaking (2) and

entering (3) of an unoccupied dwelling house or sleeping

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apartment of another (4) in the nighttime (5) with the intent to

commit a felony therein. State v. Brown, ___ N.C. App. ___,

___, 732 S.E.2d 584, 586-87 (2012); N.C. Gen. Stat. § 14-51

(2013). Because Defendants only challenge the sufficiency of

the evidence regarding entry and intent to commit a felony, we

limit our analysis to those two elements. See State v. Davis,

198 N.C. App. 146, 151, 678 S.E.2d 709, 713-14 (2009)

(explaining that where defendant challenges sufficiency of

evidence as to some elements “but does not challenge the State’s

evidence of the other elements of the crime,” this Court

examines only the sufficiency of the evidence concerning the

challenged elements).

[E]ntry, for the purposes of burglary, is

committed by the insertion of any part of

the body for the purpose of committing a

felony. Thus, an entry is accomplished by

inserting into the place broken the hand,

the foot, or any instrument with which it is

intended to commit a felony . . . .

State v. Bumgarner, 147 N.C. App. 409, 415, 556 S.E.2d 324, 329

(2001) (citation, quotation marks, and brackets omitted).

Our Supreme Court has further explained that “entry is the

act of going into the place after a breach has been effected,”

State v. Gibbs, 297 N.C. 410, 418, 255 S.E.2d 168, 174 (1979)

(citation and quotation marks omitted and emphasis added), and

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that “the least entry with the whole or any part of the body,

hand, or foot, or with any instrument or weapon, introduced for

the purpose of committing a felony, is sufficient to complete

the offense,” State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d

753, 756 (2008) (citation and quotation marks omitted).

In State v. Watkins, ___ N.C. App. ___, 720 S.E.2d 844,

disc. review denied, ___ N.C. ___, 724 S.E.2d 509 (2012), the

defendant argued that the evidence presented at trial showing

that he and his accomplice used the end of a shotgun to break a

townhouse window, heard movement within the residence, and

immediately fled the scene was insufficient to establish the

entry element of burglary. We agreed, explaining that the entry

element requires the defendant to “either physically enter the

residence, however slight, or commit the burglary by virtue of

[an] instrument.” Id. at ___, 720 S.E.2d at 849 (citation,

quotation marks, and brackets omitted). We further noted that

to constitute an entry through the use of an instrument, the

instrument itself must be “used to commit a felony within the

residence” rather than merely to make an opening into the

residence. Id. at ___, 720 S.E.2d at 849. Consequently, our

analysis of North Carolina case law as well as leading treatises

on criminal law led us to conclude that

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the fact that defendant broke a window of

the residence in the nighttime with an

instrument — even if the instrument itself

crossed the threshold — is not sufficient to

find him guilty of burglary. . . . [V]iewing

the evidence in the light most favorable to

the State, it appears only that defendant

broke a window of the residence with an

instrument to facilitate a subsequent entry.

Such evidence does not support the trial

court’s submitting a case of burglary to the

jury.

Id. at ___, 720 S.E.2d at 850.

We believe that the evidence in the present case compels

the same result. At trial, the State introduced circumstantial

evidence tending to show that Defendants used landscaping bricks

and a fire pit bowl to break a back window of the Merediths’

home. Although there was soot covering the fire pit bowl and

the broken window, law enforcement officers did not find soot on

the person of either Defendant or within the interior of the

home. Several landscaping bricks were found inside the bedroom

where the window had been broken, but there was no evidence that

anything within the home had been tampered with or was missing.

While Officer Honeycutt testified that the blinds hanging

from the broken window were “somewhat ajar” and “parted enough

that entry could have been made with a hand or body part,” the

State neither offered evidence that Defendants had actually

crossed the threshold of the home nor introduced evidence

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permitting a reasonable inference of such actual entry. The

lack of evidence on this issue distinguishes the present case

from State v. Salters, 137 N.C. App. 553, 528 S.E.2d 386, cert.

denied, 352 N.C. 361, 544 S.E.2d 556 (2000), in which we held

that evidence of a splintered door frame and broken lock in the

residence at issue coupled with testimony that a suitcase

discovered to be missing from inside the residence was seen in

the defendant’s possession was sufficient to allow the inference

that the defendant had entered the home. Id. at 557, 528 S.E.2d

at 390.

Nor did the State provide evidence that the landscaping

bricks found inside the home were used for a purpose beyond

creating an opening in the window. See Watkins, ___ N.C. App.

at ___, 720 S.E.2d at 849 (“[W]here the State’s evidence seeks

to establish an entry by the defendant’s use of an instrument,

the defendant can only be guilty of burglary if the instrument

that crossed the threshold was itself used to commit a felony

within the residence.”). Although a shard of glass was

discovered on Lucas’s person, we cannot agree with the State’s

contention that this amounted to substantial evidence of entry

where law enforcement officers testified that there was glass

“all over the ground” outside the Merediths’ residence.

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As such, we believe that this evidence failed to raise more

than a mere suspicion or conjecture that Defendants entered the

home. See State v. McDowell, ___ N.C. App. ___, ___, 720 S.E.2d

423, 424 (2011) (“A motion to dismiss should be granted . . .

when the facts and circumstances warranted by the evidence do no

more than raise a suspicion of guilt or conjecture since there

would still remain a reasonable doubt as to defendant’s guilt.”

(citation and quotation marks omitted)). Accordingly, we vacate

Defendants’ convictions for second-degree burglary.

However, because we conclude, for the reasons discussed

below, that there was sufficient evidence to establish

Defendants’ intent to commit a felony, we remand to the trial

court for entry of judgment on felonious breaking or entering.

“To support a conviction for felonious breaking [or] entering

under N.C. Gen. Stat. § 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.” State v. Jones, 188 N.C. App. 562,

564-65, 655 S.E.2d 915, 917 (2008) (citation, quotation marks,

and brackets omitted); see Watkins, ___ N.C. App. at ___, 720

S.E.2d at 850 (“For conviction of felonious breaking or

entering, a violation of G.S. 14-54(a), it is not necessary that

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the State show both a breaking and an entering; proof of either

is sufficient if committed with the requisite felonious

intent.”); State v. Barnett, 113 N.C. App. 69, 75-76, 437 S.E.2d

711, 715 (1993) (concluding that although evidence was

insufficient to sustain burglary conviction, jury — in

convicting defendant of burglary — “necessarily found facts

which establish felonious breaking [or] entering, i.e., the

breaking [or] entering of a building with intent to commit any

felony or larceny therein”).

“Intent is a mental attitude seldom provable by direct

evidence. It must ordinarily be proved by circumstances from

which it may be inferred.” State v. Baskin, 190 N.C. App. 102,

109, 660 S.E.2d 566, 572 (citation and quotation marks omitted),

disc. review denied, 362 N.C. 475, 666 S.E.2d 648 (2008).

Intent to commit a felony may be inferred from the defendant’s

acts and conduct during the subject incident. State v. Allah,

___ N.C. App. ___, ___, 750 S.E.2d 903, 907 (2013).

Here, the State offered testimony from Mr. Pavel describing

Defendants’ behavior during the incident. Mr. Pavel explained

that Defendants were “casing” the neighborhood and “pull[ing] on

the door handles” of cars that were parked in driveways. Mr.

Pavel testified that he described their conduct as “casing” to

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the 911 dispatcher because “it’s just not normal activity for

someone to be walking from house to house to see if it’s

occupied or not” or to try to open the doors of various cars

parked in the driveways.

A “fundamental theory” in the context of both burglary and

breaking or entering is that absent “evidence of other intent or

explanation for breaking and entering . . . the usual object or

purpose of burglarizing a dwelling house at night is theft.”

State v. Hedrick, 289 N.C. 232, 236, 221 S.E.2d 350, 353 (1976)

(citation and quotation marks omitted); see State v. McBryde, 97

N.C. 393, 396, 1 S.E. 925, 927 (1887) (“The intelligent mind

will take cognizance of the fact that people do not usually

enter the dwelling of others in the night-time, when the inmates

are asleep, with innocent intent. The most usual intent is to

steal, and, when there is no explanation or evidence of a

different intent, the ordinary mind will infer this also.”).

Although — as discussed above — the State failed to prove

that either Defendant actually entered the home, we do not

believe that this in any way detracts from the sufficiency of

the evidence regarding Defendants’ intent to commit a felony

within the residence. Because a reasonable juror could infer

from Defendants’ conduct that they broke the back bedroom window

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with the intent to commit the felony of larceny once inside, we

hold that there was substantial evidence of felonious intent and

that the entry of judgment on felonious breaking or entering is

appropriate. As such, we remand to the trial court “for the

pronouncement of a judgment as upon a verdict of guilty of

felonious breaking or entering.” Watkins, ___ N.C. App. at ___,

720 S.E.2d at 850 (citation, quotation marks, and brackets

omitted).1

II. Jury Instructions

In its charge to the jury, the trial court gave

instructions regarding second-degree burglary, felonious

breaking or entering, and misdemeanor breaking or entering. The

1

In addition to challenging his conviction for second-degree

burglary, Defendant Richard also argues that the trial court

erred in denying his motion to dismiss the charge of conspiracy

to commit second-degree burglary based on the insufficiency of

the evidence regarding entry and intent to commit a felony.

However, he offers no argument that the State failed to prove

that there was an agreement or understanding between him and

Lucas to commit second-degree burglary. See State v. Dalton,

122 N.C. 666, 672, 471 S.E.2d 657, 661 (1996) (“A criminal

conspiracy is an agreement between two or more people to commit

a substantive offense.”); State v. Rozier, 69 N.C. App. 38, 52,

316 S.E.2d 893, 902 (“It is well established that the gist of

the crime of conspiracy is the agreement itself, not the

commission of the substantive crime.”), cert. denied, 312 N.C.

88, 321 S.E.2d 907 (1984). Because he does not challenge the

sufficiency of the evidence of such an agreement between him and

Lucas and because completion of the substantive offense is not

necessary for a conviction of conspiracy to commit second-degree

burglary, Defendant Richard’s argument on this issue is

overruled.

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trial court did not instruct the jury on the offense of first-

degree trespass, and Defendants contend that the failure to give

such an instruction constituted error. Defendants also assert

that the trial court erred by failing to expressly define the

crime of larceny when it instructed the jury that second-degree

burglary is the breaking and entering into an unoccupied

dwelling house without the consent of the owners during the

nighttime with the intent “to commit a felony or larceny

therein.” Defendants acknowledge that they did not object to

the trial court’s instructions and are, therefore, limited to

plain error review on appeal. Under plain error review,

Defendants bear the burden of showing that “the instructional

mistake had a probable impact on the jury’s finding that the

defendant was guilty.” State v. Lawrence, 365 N.C. 506, 517,

723 S.E.2d 326, 333 (2012) (citation and quotation marks

omitted).

A. Failure to Instruct on First-Degree Trespass

First-degree trespass is a lesser-included offense of

felonious breaking or entering. State v. Owens, 205 N.C. App.

260, 266, 695 S.E.2d 823, 828 (2010). Unlike felonious breaking

or entering, first-degree trespass does not include the element

of felonious intent but rather merely requires evidence that the

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defendant entered or remained on the premises or in a building

of another without authorization. N.C. Gen. Stat. § 14-159.12

(2013).

A trial court “must submit a lesser-included offense to the

jury when, and only when, there is evidence from which the jury

can find that the defendant committed the lesser-included

offense.” State v. Liggons, 194 N.C. App. 734, 742, 670 S.E.2d

333, 339 (2009) (citation, quotation marks, and brackets

omitted). “The trial court is not . . . obligated to give a

lesser included instruction if there is no evidence giving rise

to a reasonable inference to dispute the State’s contention.”

State v. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84

(1999). In Hamilton, this Court concluded that the trial court

was not required to submit the lesser-included offense of first-

degree trespass to the jury in the defendant’s trial for

felonious breaking or entering because the defendant “did not

testify or present any evidence that he broke or entered for any

non-felonious purpose.” Id. at 321, 512 S.E.2d at 85.

As in Hamilton, the evidence in the present case does not

permit a reasonable inference that would dispute the State’s

contention that Defendants intended to commit a felony. There

was no evidence presented that supported an alternative

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explanation for Defendants’ presence at the Merediths’ home.

Thus, in the absence of any evidence disputing the State’s

theory that Defendants “cased” the neighborhood and shattered

the Merediths’ window in the hope of stealing from the home,

Defendants have not demonstrated that the trial court’s failure

to instruct the jury regarding first-degree trespass was error —

much less plain error.

B. Failure to Define Larceny

Citing State v. Foust, 40 N.C. App. 71, 251 S.E.2d 893

(1979), Defendants contend that the trial court committed plain

error by failing to define larceny to the jury given that the

State’s case identified larceny as the specific felony that

Defendants intended to commit. In State v. Simpson, 299 N.C.

377, 261 S.E.2d 661 (1980), however, our Supreme Court held that

this Court’s ruling in Foust — that the trial court’s failure to

define larceny in a burglary prosecution premised on intent to

commit larceny was prejudicial and required a new trial — was

“too broad” and that “[t]he extent of the definition [of

larceny] required depends upon the evidence in the particular

case.” Id. at 384, 261 S.E.2d at 665.

In this case, the evidence established that in the early

morning hours of 27 November 2011, Defendants were “casing”

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houses and attempting to gain entry into vehicles in various

driveways. Defendants’ behavior, as witnessed by Mr. Pavel,

indicated that they were examining the homes and vehicles so

that they could steal property from them. No evidence was

offered to suggest that Defendants’ conduct was motivated by

some other purpose or plan or that Defendants were looking for

property to which they had some bona fide claim of right. See

id. at 384, 261 S.E.2d at 665 (“In the case before us, there was

no necessity for any definition or explanation of the word

‘larceny’ because there was no evidence suggesting that the

[stolen property] was borrowed, or taken for some temporary

purpose, or otherwise negating a taking with felonious intent to

steal.”). Thus, because there was evidence presented at trial

permitting the inference that Defendants intended to steal

property and there was no evidence suggesting that Defendants

intended to merely borrow the property, we are satisfied that

“the jury did not need a formal definition of the term ‘larceny’

to understand its meaning and to apply that meaning to the

evidence.” Id. (concluding that term “larceny” may be used as

shorthand statement of its definition, i.e., to steal or to take

and carry away goods of another with intent to permanently

deprive owner of those goods where there is no “direct issue as

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to the intent or purpose of the taking” (citation and quotation

marks omitted)).

As such, we conclude that “[t]he use of the word ‘larceny’

as it is commonly used and understood by the general public was

sufficient in this case to define for the jury the requisite

felonious intent needed to support a conviction” and that

“[t]here is no reasonable possibility that [the] failure to

define ‘larceny’ contributed to defendant’s conviction or that a

different result would have likely ensued had the word been

defined.” Id. Consequently, Defendants have failed to meet

their burden of establishing plain error.

III. Restitution

Defendants next contend that the trial court erred in

ordering them to pay restitution in the amount of $575.00

without sufficient evidence to support the award. It is well

established that “[t]he amount of restitution ordered by the

trial court must be supported by competent evidence presented at

trial or sentencing.” State v. Mauer, 202 N.C. App. 546, 551,

688 S.E.2d 774, 777 (2010). On appeal, this Court reviews de

novo whether the restitution ordered by the trial court is

supported by competent evidence. State v. McNeil, 209 N.C. App.

654, 667, 707 S.E.2d 674, 684 (2011).

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The State concedes error on this issue, acknowledging that

there was no evidence presented regarding the monetary value of

the property damage caused by Defendants. Restitution “is not

intended to punish defendants but to compensate victims,” and

the amount ordered must be based on “something more than a guess

or conjecture.” State v. Daye, 78 N.C. App. 753, 758, 338

S.E.2d 557, 561, aff’d per curiam, 318 N.C. 502, 349 S.E.2d 576

(1986). Accordingly, we vacate the trial court’s restitution

orders and remand for a rehearing on this issue. See Mauer, 202

N.C. App. at 552, 688 S.E.2d at 778 (vacating restitution order

and remanding for rehearing where no evidence was introduced at

trial or sentencing to support amount of restitution ordered).

IV. Ineffective Assistance of Counsel

Finally, Defendants claim that their defense counsel’s

failure to request a jury instruction defining larceny and an

instruction on first-degree trespass constitutes ineffective

assistance of counsel. We disagree.

“A successful ineffective assistance of counsel claim based

on a failure to request a jury instruction requires the

defendant to prove that without the requested jury instruction

there was plain error in the charge.” State v. Pratt, 161 N.C.

App. 161, 165, 587 S.E.2d 437, 440 (2003). Here, we have

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already determined that the trial court did not commit plain

error in its instructions to the jury because (1) the trial

court was not required to expressly define larceny under the

facts of this case; and (2) Defendants were not entitled to an

instruction regarding first-degree trespass. Accordingly, we

cannot conclude that their trial counsel’s failure to request

these instructions constituted ineffective assistance of

counsel. See State v. Land, ___ N.C. App. ___, ___, 733 S.E.2d

588, 595 (2012) (holding that “[s]ince the trial court did not

commit plain error when failing to give the instructions at

issue, defendant cannot establish the necessary prejudice

required to show ineffective assistance of counsel for failure

to request the instructions”), aff’d per curiam, 366 N.C. 550,

742 S.E.2d 803 (2013).

Conclusion

For the reasons stated above, we conclude that Defendants’

second-degree burglary convictions and the trial court’s

restitution orders must be vacated. We remand to the trial

court for entry of judgment and resentencing as to each

Defendant on the charges of felonious breaking or entering and

for rehearing on the issue of restitution.2

2

We also note that the judgments entered by the trial court

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NO ERROR IN PART; VACATED AND REMANDED IN PART.

Judges STEELMAN and STEPHENS concur.

mistakenly list Defendants’ conspiracy offenses as conspiracy to

commit breaking or entering of a building rather than conspiracy

to commit second-degree burglary. While the judgments reflect

the correct class of felony for conspiracy to commit second-

degree burglary (Class H), the trial court should amend the

offense descriptions upon remand so that the record may “speak

the truth.” State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d

695, 696 (2008) (citation and quotation marks omitted).