State v. Watts

334 S.E.2d 68 (1985)

STATE of North Carolina v. Eugene WATTS, Jr.

No. 8419SC1202.

Court of Appeals of North Carolina.

September 17, 1985.

*69 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

*70 Appellate Defender Adam Stein by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant assigns error to the trial court's denial of his motion to dismiss for insufficiency of the evidence. The constituent elements of first degree burglary are the breaking and entering in the nighttime into a dwelling house or a room used as a sleeping apartment which is occupied at the time of the offense with the intent to commit a felony therein. State v. Person, 298 N.C. 765, 259 S.E.2d 867 (1979). There was sufficient evidence in this case to allow the jury to find each of these elements.

Under this assignment, defendant first contends that the State failed to prove that the structure at 52 Bell Street was a dwelling house, relying principally upon State v. Potts, 75 N.C. 129 (1876), which held that a building occupied by a watchman for the sole purpose of keeping guard on property contained therein was not a dwelling. The case at bar is clearly distinguishable. The State's evidence showed that Timothy Williams was living in a dwelling house at 52 Bell Street. The facts that Williams was not paying rent and that he was living in the house to protect it and its contents for its owners do not negate the evidence which clearly showed that the structure was a dwelling house. A structure does not lose its status as a dwelling house because it is being occupied by someone other than the owner. See State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976).

Defendant next contends that the State failed to prove lack of consent to entry, because the evidence failed to show that the owner of the structure did not consent to defendant's entry. Defendant concedes that Williams did not consent to defendant's entry. While consent to entry by the owner of a dwelling house constitutes a defense to burglary, State v. Thompson, 59 N.C.App. 425, 297 S.E.2d 177, disc. rev. denied, 307 N.C. 582, 299 S.E.2d 650 (1983), in order to convict a person of burglary it is not necessary to show non-consent by the owner when the premises are occupied by another, but only non-consent by the occupant. State v. Beaver, supra.

Defendant next contends that the State's evidence did not prove a breaking or entering. It is well established that the mere pushing or pulling open of an unlocked door, even in the slightest degree, constitutes a breaking. See State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). The evidence in this case shows clearly that defendant entered through an unlocked door onto the porch of the house. This was sufficient to show a breaking and an entering.

Under another assignment of error, defendant contends that the trial court erred in failing to submit to the jury the lesser included offense of felonious breaking and entering, because the evidence was in conflict on the issue of dwelling house status and the issue of whether defendant both broke and entered the house. We have resolved these issues against defendant, and this assignment is therefore overruled.

Defendant next contends that the trial court committed "plain error" in failing to submit the lesser included offense of attempted burglary.[1] Again, defendant relies on an asserted conflict in the evidence as to whether there was an entry. Having resolved this issue against defendant, we overrule this assignment of error.

No error.

WHICHARD and PHILLIPS, JJ., concur.

[1] Defendant did not request an instruction as to this lesser included offense, nor object at trial to the trial court's failure to give such an instruction.