State v. Patton

341 S.E.2d 744 (1986)

STATE of North Carolina v. Ronald Eugene PATTON.

No. 8528SC1220.

Court of Appeals of North Carolina.

April 15, 1986.

*746 Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Daniel C. Oakley, Raleigh, for the State.

Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant contends that the trial court erred in failing to dismiss the charge of first degree burglary. The trial judge charged the jury that to find defendant guilty of first degree burglary that "the State must prove to you that at the time of the breaking and entering the Defendant intended to commit a felony, that is to say, larceny." Defendant argues that there is insufficient evidence of intent to commit larceny to support his conviction for first degree burglary. We disagree.

First degree burglary is defined as the unlawful breaking and entering of an occupied dwelling or sleeping apartment in the nighttime with the intent to commit a felony therein. G.S. 14-51; State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976). In Sweezy, the Court, citing State v. McBryde, 97 N.C. 393, 396-97, 1 S.E. 925, 927 (1887), addressed the question of the sufficiency of the evidence to show an intent to commit larceny:

The intelligent mind will take cognizance of the fact, that people do not usually enter the dwellings 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. The fact of the entry alone, in the night time, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent.

Sweezy, 291 N.C. at 384, 230 S.E.2d at 535. Where the defendant's actions could be subject to more than one interpretation, it is the function of the jury to infer the defendant's intent from the circumstances. State v. Coleman, 65 N.C.App. 23, 308 S.E.2d 742 (1983), cert. denied, 311 N.C. 404, 319 S.E.2d 275 (1984).

In the present case, the evidence tends to show that defendant entered Ms. Littlejohn's apartment at 3:00 a.m., was confronted by and struggled with Ms. Littlejohn in her bedroom, and fled from the apartment, dragging her with him, after hearing her son shout "Who's out there?" After a further struggle with Ms. Littlejohn in the backyard, defendant fled when Charles Kilgore called out, "That's enough." There is no evidence in the record tending to show that defendant entered Ms. Littlejohn's home with any intent other than to commit larceny. Therefore, under the requirements of McBryde, the State has produced sufficient evidence to support the jury's inference that defendant intended to commit larceny.

Defendant also contends that the trial court erred in failing to submit to the jury the lesser included offense of misdemeanor breaking and entering. We agree.

Misdemeanor breaking or entering is a lesser included offense of burglary in the first degree as set forth in G.S. 14-51. State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965). The distinction between the two offenses rests on whether the unlawful breaking or entering was done with the intent to commit the felony named in the indictment. State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). In State v. Thomas and State v. Christmas and State v. King, 52 N.C.App. 186, 278 S.E.2d 535 (1981), this Court, based on analysis of prior decisions, stated that:

[W]here the only evidence of the defendant's intent to commit a felony in the building or dwelling was the fact that the *747 defendant broke and entered a building or dwelling containing personal property, the appellate courts of this State have consistently and correctly held that the trial judge must submit the lesser included offense of misdemeanor breaking and entering to the jury as a possible verdict.... However, where there is some additional evidence of the defendant's intent to commit the felony named in the indictment in the building or dwelling, such as evidence that the felony was committed ... or evidence that the felony was attempted, ... or ... evidence that the felony was planned, and there is no evidence that the defendant broke and entered for some other reason, then the trial court does not err by failing to submit the lesser included offense of misdemeanor breaking and entering to the jury as a possible verdict.

Id. at 196-97, 278 S.E.2d at 542-43 (citations omitted).

In the present case, Ms. Littlejohn testified that nothing was missing from her apartment. There is no evidence tending to show that larceny was committed, attempted or planned by defendant. The only evidence of defendant's intent to commit larceny is the fact that he broke and entered into Ms. Littlejohn's apartment. Therefore, the trial court erred in failing to submit the lesser included offense of misdemeanor breaking or entering to the jury as a possible verdict.

Finally, defendant contends that the trial court erred in failing to submit to the jury the possible verdict of simple assault as a lesser included offense of assault with a deadly weapon. Defendant argues that because the trial judge submitted the question to the jury of whether the garden tool defendant used to assault Ms. Littlejohn was a deadly weapon and because there was other evidence of simple assault, the jury could have found that defendant committed this lesser included offense. Defendant's contention is without merit.

Assault with a deadly weapon and assault on a female are both punishable by a fine, imprisonment for not more than two years, or both, pursuant to G.S. 14-33(b). Where, in a prosecution for assault with a deadly weapon, the evidence tends to show assault on a female at least, the trial court does not err in failing to submit the question of guilt of simple assault. State v. Church, 231 N.C. 39, 55 S.E.2d 792 (1949); State v. Hill, 6 N.C.App. 365, 170 S.E.2d 99 (1969). Since the evidence in the present case warranted an instruction to the effect that the jury might return a verdict of guilty of assault on a female, prejudicial error has not been shown. Id.

For the foregoing reasons, we hold that defendant had a fair trial free of prejudicial error on the charge of assault with a deadly weapon, but is entitled to a new trial on the charge of first degree burglary.

No error in part; new trial in part.

WELLS and MARTIN, JJ., concur.