Opinion
No. COA07-562-2
Filed 20 April 2010 This case not for publication
Appeal by defendant from judgment entered 10 March 2004 by Judge Robert H. Hobgood in Superior Court, Wake County. Heard in the Court of Appeals 27 November 2007, and opinion filed 6 May 2008, reversing conviction of first-degree burglary. Reversed in part and remanded to this Court by opinion of the Supreme Court of North Carolina in State v. Turnage, 362 N.C. 491, 666 S.E.2d 753 (2008).
Attorney General Roy Cooper, by Assistant Attorneys General Catherine F. Jordan and David W. Boone, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Wake County Nos. 03 CRS 034114-15, 03 CRS 033741.
In the context of a burglary prosecution, "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." In the present case the evidence, viewed in the light most favorable to the State, shows that Defendant James Allen Turnage, Jr., broke a pane of glass in the front door of a residential dwelling. Because this evidence is sufficient to support a conviction of felonious breaking or entering, we remand for judgment.
State v. Gibbs, 297 N.C. 410, 418, 255 S.E.2d 168, 174 (1979) (quoting 13 Am. Jur. 2d, Burglary § 10, p. 327).
On 29 April 2003, Harold Coleman and seventeen-year-old Kristina Coleman lived at 508 Calloway Drive in Raleigh. Around 3:15 a.m., Mr. Coleman left the residence in the Coleman's only vehicle to go to work. Kristina was alone and asleep in the residence.
At about the same time, Defendant and a man named Artis Barber were hanging out at a store on Garner Road, drinking wine and smoking crack. Shortly after 3 a.m., Defendant and Barber left the store, walked down Calloway Drive, and saw Mr. Coleman driving away from his house.
Around 3:51 a.m., Kristina awoke to the sound of someone banging on a wall or a door near the front of the residence. She heard the sound of breaking glass. She grabbed the telephone and crouched on the floor while she called 911.
Officers R.J. Armstrong and Jason Bloodworth with the Raleigh Police Department received the dispatch call that a subject was attempting to break into the residence on Calloway Drive. They responded and arrived at the residence within two minutes of receiving the call. When they arrived at the scene, they met Officers Patchen and Hellman, who had arrived moments before.
Officers Armstrong and Bloodworth ran around the left side of the residence, and officers Patchen and Hellman ran around the right. Officer Armstrong reached the backyard of the residence and saw Officers Patchen and Hellman yelling at Defendant to stop. Defendant was running up a steep embankment approximately ten to fifteen feet behind the residence.
Officer Armstrong apprehended Defendant, and the two rolled down the embankment. Officer Armstrong handcuffed Defendant and searched him. He found a "screwdriver like" item, a seven inch metal rod, and a red ink pen with a lighter on the end of it in Defendant's pants pockets. Officer Armstrong observed that Defendant had cuts on his hands and wrists, but no glass was found on Defendant.
Defendant claimed he cut his hands on the chain-link fence that ran along Highway 440 at the top of the embankment.
Defendant stated that he thought the residence was vacant and that he didn't know anyone was inside. He asked the officers whether they got the other guy. When questioned, Defendant stated that Artis Barber was with him, and he provided a brief description of Barber to the police. Barber was picked up by the police walking on Garner Road approximately four or five blocks away.
City County Bureau of Identification Crime Scene Investigator Jason Howe was dispatched to the residence at around 4:15 a.m. He observed that the residence had a storm door and a wooden front door. The middle glass pane on the wooden front door was broken. The molding around the glass pane had been pulled back and was not level with the wooden door. There was a hole in the glass pane large enough for a hand. Although the edges of the broken glass were jagged, no blood was found on the broken window. Broken glass was inside the residence on the living room floor, and outside the residence.
Agent Howe lifted fingerprints from the interior of the storm door and the interior and exterior of the wooden front door. Agent Howe discovered a right thumb print on the exterior of the wooden front door directly below the broken glass pane. The thumb print was identified at trial as belonging to Defendant.
Defendant was indicted for first degree burglary, possession of implements of housebreaking, and attaining habitual felon status. On 10 March 2004, Defendant was found guilty of first degree burglary and possession of implements of housebreaking. He then pled guilty to being a habitual felon. Defendant appealed, claiming, among other things, that the trial court erred in denying his motion to dismiss the charge of burglary for insufficient evidence.
The trial court initially granted the motion to dismiss before reversing that decision and sending the charge to the jury due to the "reasonable inference that the defendant's hand had to go inside the home to the extent it did break the plain [sic][.]"
On May 6, 2008 the Court of Appeals reversed Defendant's first degree burglary conviction, stating that the evidence "gives rise to mere speculation, `sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator[.]'" State v. Turnage, 190 N.C. App. 123, 128, 660 S.E.2d 129, 133 (quoting State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983)), affirmed in part, reversed in part, 362 N.C. 491, 666 S.E.2d 753 (2008). Judge Bryant filed a dissenting opinion, and the State appealed as a matter of right. Our Supreme Court reversed this Court on the issue of "the sufficiency of the evidence as to defendant's identity as the perpetrator of the offense if a burglary occurred." State v. Turnage, 362 N.C. 491, 496, 666 S.E.2d 753, 757 (2008) (emphasis added). The Supreme Court remanded for "reconsideration of the sufficiency of the evidence on the element of entry for purposes of first-degree burglary." Id. Accordingly, we now consider whether the State's evidence was sufficient to establish entry.
To survive a motion to dismiss, the State must present "substantial evidence of each essential element of the offense charged." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, Garcia v. North Carolina, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). "Substantial evidence" is "relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id. (citation and quotations omitted). When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences drawn from the evidence. State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
In State v. Sneed, 38 N.C. App. 230, 247 S.E.2d 658 (1978), we quoted Blackstone for the definition of entry at common law.
As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in at a window to draw out goods, or a pistol to demand one's money, are all of them burglarious entries.
Id. at 231-32, 247 S.E.2d at 659 (quoting IV W. Blackstone, Commentaries 227).
"Literally, entry is the act of going into the place after a breach has been effected, but the word has a broad significance in the law of burglary, for it is not confined to the intrusion of the whole body, but may consist of the insertion of any part 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. Gibbs, 297 N.C. 410, 418, 255 S.E.2d 168, 174 (1979) (quoting 13 Am. Jur. 2d, Burglary § 10, p. 327).
Thus, in order to establish an entry, the State must prove that Defendant broke the threshold of the residence with some part of his body or with an "instrument with which it is intended to commit a felony." Id. at 418, 255 S.E.2d at 173. But there is no entry if the breach was accomplished only by an instrument inserted during the course of the break. Id. North Carolina cases are consistent with this distinction. Compare Gibbs, 297 N.C. at 411-19, 255 S.E.2d at 170-74 (extension of defendant's hands through broken window was sufficient to establish entry), and Sneed, 38 N.C. App. at 230-32, 247 S.E.2d 659-60 (defendant committed an entry by leaning part of his body into a van), with State v. Surcey, 139 N.C. App. 432, 435-36, 533 S.E.2d 479, 481-82 (2000) (evidence that defendant pushed a shotgun through the victim's window and fired for the purpose of inflicting injury on occupant was sufficient to establish entry).
This distinction has been recognized by leading treatises on criminal law:
If, after a break, an instrument passes the line of the threshold, there is an entry only if such instrument is being used to commit the felony intended. . . .
If, on the other hand, an instrument passes the line of the threshold merely in the course of the break, or to facilitate a subsequent entry of the defendant's person by making the opening wider, there is no entry.
3 Charles E. Torcia, Wharton's Criminal Law § 323 at 248-49 (15th ed. 1995); see also Rollin M. Perkins Ronald N. Boyce, Criminal Law at 254 (3rd ed. 1982); see also Clark Marshall, A Treatise on the Law of Crimes § 13.04 at 1001-03 (7th ed. 1967).
Moreover, where the State proves an entry using only circumstantial evidence that defendant or some part of him crossed the threshold, our cases have noted circumstances in the residence making it possible to infer that defendant himself entered the residence. See, e.g., State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d 200, 202-03 (1992) (holding evidence sufficient to permit inference that defendants broke and entered animal shed where they were apprehended with animals and tools missing from the shed and wet footprints were found within); State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390 (holding evidence of broken lock, wood chips on floor inside door, and testimony that suitcase missing from house was seen in defendant's possession sufficient to permit inference of breaking and entering), disc. review denied, 352 N.C. 361, 544 S.E.2d 556-57 (2000); State v. O'Neal, 77 N.C. App. 600, 605, 335 S.E.2d 920, 924 (1985) (holding evidence sufficient to support inference of breaking and entering where smoke grenade was found on window sill inside broken window).
In the present case, the State presented no evidence that Defendant himself entered the place broken. Instead, the State argued that "the only logical explanation" for the broken glass on the inside of the residence and the blood on Defendant's hands was that Defendant or a tool used by Defendant crossed the plane of the exterior door when Defendant broke the glass. The trial court denied Defendant's motion to dismiss, stating that there is a reasonable inference that Defendant's hand crossed the threshold.
On the contrary, the circumstantial evidence in this case does not support an inference of bodily entry. In those cases that have approved such an inference, there was evidence that something was missing or out of place in the place broken. See Sluka, 107 N.C. App. at 204, 419 S.E.2d at 203; Salters, 137 N.C. App. at 557, 528 S.E.2d at 390; O'Neal, 77 N.C. App. at 605, 335 S.E.2d at 924. In the present case, nothing was missing from the Coleman house and nothing was found inside the house that can be linked to Defendant. Although the hole in the broken window was large enough for a hand, Defendant's fingerprints were not found on any interior surface. Defendant's blood was not discovered on or near the door, and there was no glass on his person. In short, there is not sufficient circumstantial evidence to establish an entry by Defendant himself. Thus, the State could prove entry only by demonstrating that an instrument inserted to commit a felony crossed the threshold.
Indeed, the fact that Defendant was convicted of possessing implements of housebreaking supports the conclusion that the jury believed the breaking was accomplished by means of an instrument. But that Defendant broke a window of the residence in the nighttime with an instrument — even if the instrument itself crossed the threshold — does not make him guilty of burglary. Gibbs, 297 N.C. at 418, 255 S.E.2d at 173. Defendant would be guilty of burglary only if the instrument that crossed the threshold was itself used to commit a felony within the residence. Surcey, 139 N.C. App. at 435-36, 533 S.E.2d at 481-82.
There is no evidence in this case that any felony was attempted, much less accomplished, inside the residence by means of the instrument which crossed the threshold. On the contrary, viewing 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. It does, however, support a conviction for felonious breaking or entering. See N.C. Gen. Stat. § 14-54(a) (2009).
"Felonious breaking or entering is a lesser included offense of burglary. For conviction of felonious breaking or entering, a violation of G.S. 14-54(a), it is not necessary that the State show both a breaking and an entering; proof of either is sufficient if committed with the requisite felonious intent." State v. Helton, 79 N.C. App. 566, 569, 339 S.E.2d 814, 816 (1986) (citation omitted). "Although the evidence is insufficient to sustain a conviction of first-degree burglary, the jury, in convicting defendant of first-degree 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." State v. Barnett, 113 N.C. App. 69, 75-76, 437 S.E.2d 711, 715 (1993). "Hence, leaving the verdict undisturbed but recognizing it for what it is, the judgment is vacated in the burglary case . . . and the cause is remanded to the Superior Court . . . for the pronouncement of a judgment as upon a verdict of guilty of felonious breaking [or] entering." State v. Cox, 281 N.C. 131, 136, 187 S.E.2d 785, 788 (1972).
Remanded for judgment.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).