Opinion
No. COA08-1241.
Filed 19 May 2009.
Forsyth County, Nos. 07CRS54170; 05940.
Appeal by defendant from judgment entered 22 April 2008 by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 5 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Durwin P. Jones, for the State. William D. Auman for defendant-appellant.
Defendant Bernard Watson appeals from a judgment entered against him for felonious breaking or entering, misdemeanor attempted larceny, and having attained habitual felon status. Defendant contends that the evidence supported instructing the jury on two lesser-included offenses of felonious breaking or entering, and that there was insufficient evidence to support the trial court's jury instruction on felonious breaking or entering. After careful review, we find no error.
On 16 July 2007, the Forsyth County grand jury returned a two-count indictment against defendant for felonious breaking or entering and felonious attempted larceny. The grand jury also returned an indictment against defendant for having attained habitual felon status. The case came on for trial on 21 April 2008 in Forsyth County Superior Court.
At trial, the State's evidence tended to show that on 27 April 2007, Shaun Grace was the principal partner and employee of a group home. On that day, Mr. Grace took the group home's only resident out to breakfast. No one else lived in the home or was staying there at the time. When they returned, Mr. Grace noticed that the side door was open.
When Mr. Grace first entered the home, he saw that a few items were out of place in the laundry room. Mr. Grace then entered the kitchen and stood face-to-face with defendant. Mr. Grace had never seen defendant before and had not given him permission to enter the house. Both men yelled and defendant charged at Mr. Grace. Mr. Grace and defendant struggled in the kitchen and then the laundry room. Finally, Mr. Grace and the resident restrained defendant in the carport.
Mr. Grace and one of his neighbors each called 911, and officers responded and took defendant into custody. When Mr. Grace walked through the home with police, he noticed that his laptop computer had been moved from a tabletop and placed near a duffle bag on the floor. Mr. Grace's DVD player, which had been connected to a television in the back of the home, was in the duffle bag.
The trial court denied defendant's motions to dismiss at the end of the State's evidence and again after the presentation of all evidence. The jury found defendant guilty of felonious breaking or entering and attempted misdemeanor larceny. Defendant pled guilty to having attained habitual felon status. The trial court consolidated the cases into one judgment and imposed a presumptive-range term of 98 to 127 months in prison. Defendant appeals.
Defendant's first two arguments, which we will address together, are that the trial court erred when it denied his request for a jury instruction on the lesser-included offense of first-degree trespass and committed plain error when it failed to instruct the jury on the lesser-included offense of misdemeanor trespassing. These arguments are without merit.
First-degree trespass and misdemeanor breaking or entering are lesser-included offenses of felony breaking or entering. State v. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84 (1999). In addition to an unlawful entry, felonious breaking or entering requires the additional element that the defendant entered with the intent to commit any felony or larceny. Id.
An instruction on a lesser-included offense must be given if there is evidence to support the conviction of the lesser offense. See State v. Richmond, 347 N.C. 412, 431, 495 S.E.2d 677, 687, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). The trial court is not, however, 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. McKinnon, 306 N.C. 288, 301, 293 S.E.2d 118, 127 (1982). Thus, the mere possibility that a jury might reject part of the prosecution's evidence does not require submission of a lesser-included offense. See State v. Barnette, 96 N.C. App. 199, 202, 385 S.E.2d 163, 164 (1989).
Here, the evidence does not support instructing the jury on either of the lesser-included offenses because no evidence suggests that defendant had a non-felonious reason for entering the home. To the contrary, defendant's actions after Mr. Grace discovered he was in the home, along with the location of the DVD player and laptop with the duffle bag indicate defendant's criminal intent. In addition, "[d]efendant did not testify or present any evidence that he broke or entered for any non-felonious purpose." Hamilton, 132 N.C. App. at 321, 512 S.E.2d at 85. Thus, there was insufficient evidence to support a jury instruction on the lesser-included offenses, and the trial court did not err, much less commit plain error, when it did not instruct the jury on them. These assignments of error are overruled.
Finally, defendant contends that the trial court erred when it denied his motion to dismiss the charge of felonious breaking or entering. We disagree.
"To support a conviction for felonious breaking and 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. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 103 (1988).
"Upon defendant's motion for dismissal, the question for the Court is 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 of such offense." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citations omitted). "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) (citations omitted). "[A]ll of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference there from." Smith, 300 N.C. at 78, 265 S.E.2d at 169 (citations omitted).
Here, the State presented substantial evidence of each element of felonious breaking or entering. Defendant was not a resident of the home, and Mr. Grace testified that he did not have permission to enter. When defendant was discovered, he struggled with Mr. Grace and the resident. Mr. Grace's laptop and DVD player were moved together with a duffle bag. Accordingly, viewing the evidence in the light most favorable to the State, there was substantial evidence both of defendant's unlawful entry into the home and of his intent to commit a larceny or other felony by taking property that did not belong to him. We find that the trial court properly denied defendant's motions to dismiss.
No error.
Judges STEELMAN and JACKSON concur.
Reported per Rule 30(e).