Opinion
No. 06-1215.
Filed July 3, 2007.
Alamance County Nos. 00CRS1308 and 00CRS5381.
Appeal by Defendant from judgment entered 25 May 2000 by Judge J. B. Allen, Jr. in Superior Court, Alamance County. Heard in the Court of Appeals 5 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Haral E. Carlin, for Defendant-appellant.
The breaking of a store window, accompanied by the requisite intent to commit a felony therein, constitutes the completed offense of breaking and entering. Here, Defendant Nathan Weaver, Jr. argues that the evidence was insufficient to show "breaking and entering" because the store owner testified that a person could not enter the store through the window. Because the evidence tended to show that Defendant broke the store's display window with the intent to commit a felony therein, and took several items of clothing, we find no error. The relevant facts show that on 30 January 2000, a heavy snow fall knocked out the electricity to Rauhut Street in Burlington, North Carolina. Officer Sam Epps of the Burlington Police Department received a dispatch call to investigate a report of breaking glass in the area of Rauhut Street. Upon arriving to the area, Officer Epps approached Defendant after observing him with several items of clothing. Defendant ran but was apprehended and returned to the store by Officer Epps and his partner.
State v. Jones, 272 N.C. 108, 109, 157 S.E.2d 610, 611 (1967).
At the store, the officers found broken glass, spilled gray paint, and blood on one piece of glass. Additionally, Officer Epps observed gray paint on Defendant's coat and ear, and a recent cut on Defendant's hand. The store's co-owner arrived at the store and identified the merchandise taken from the display window.
Thereafter, Defendant was charged with the felonious crimes of breaking and entering, larceny, and possession of stolen goods. Following a jury trial, Defendant was convicted on all counts and obtained habitual felon status. The trial court sentenced him to a term of 121 to 155 months for breaking or entering, entered prayers for judgment continued on the possession of stolen goods and larceny convictions, and ordered Defendant to pay restitution to the store.
The State indicted Defendant for breaking and entering. The trial judge instructed, and the jury returned a verdict of guilty on breaking or entering. Thereafter, the trial judge entered judgment on breaking and/or entering. In State v. Jones, our Supreme Court acknowledged that "defendant was charged with the offense of breaking and entering" but found the evidence at trial sufficient to support the "pertinent language of G.S. 14-5" regarding the intent to "break or enter." 272 N.C. at 109, 157 S.E.2d at 611 (emphasis supplied); see State v. Boyd, 287 N.C. 131, 145, 214 S.E.2d 14, 22 (1975) ("It has long been the law in this State in prosecutions under this statute and its similar predecessors that where the indictment charges the defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient; and instructions allowing juries to convict on the alternative propositions are proper.") (citations omitted); State v. Reagan, 35 N.C. App. 140, 144, 240 S.E.2d 805, 808 (1978) (providing that there was no error when the defendant was indicted for breaking and entering and the trial court's charge to the jury referenced breaking or entering).
Defendant appeals to this Court; however, we dismiss his attempt to appeal from the prayers for judgment continued on the possession of stolen goods and larceny convictions because no appeal may arise from a prayer for judgment. See N.C. Gen. Stat. § 15A-101(4a) (2005); State v. Southern, 71 N.C. App. 563, 566, 322 S.E.2d 617, 619 (1984) (providing that when a prayer for judgment is continued, no judgment is entered and no appeal is possible), aff'd, 314 N.C. 110, 331 S.E.2d 688 (1985). Thus, we review only Defendant's appeal regarding the charge of felonious breaking or entering, wherein he argues that the trial court erred by (I) denying his motion to dismiss the charge for insufficient evidence, and (II) admitting Officer Epps' uncorroborated testimony regarding the value of the merchandise taken by Defendant.
I.
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of felonious breaking or entering at the end of all evidence. We disagree.
A motion to dismiss requires a court to determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "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). In reviewing the evidence, the State must be afforded every reasonable inference that may be deduced from the evidence and must leave contradictions or discrepancies for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992). Defendant argues that the element of "breaking or entering" is absent because the store owner testified that a person could not enter the store through the display window, therefore, the trial court should have granted Defendant's motion. We disagree.
"The breaking of [a] . . . store window, with the requisite intent to commit a felony therein, completes the offense even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building." State v. Jones, 272 N.C. 108, 109, 157 S.E.2d 610, 611 (1967). In this case, there was evidence to support that Defendant broke the display window and removed the merchandise from therein. Accordingly, Defendant's assignment of error is without merit.
II.
Defendant next argues that the trial court erred by admitting Officer Epps' uncorroborated testimony regarding the value of the merchandise taken from the store's display window. We disagree.
The record shows that the trial court conditionally permitted Officer Epps to testify regarding the value of the clothing recovered from Defendant, subject to subsequent corroboration by the store owner who supplied the values to the officer. However, the co-owner who supplied the officer with the values did not testify at the trial; rather, another owner testified stating that she did not supply with the officer the value of the items. Defendant argues that the trial court should have stricken Officer Epps' testimony regarding the value of the items seized from Defendant.
However, when Officer Epps testified as to the value of the items, the trial court instructed the jury to consider the evidence only for corroborative purposes and that "if it does not corroborate the owner's testimony, then you will disregard it." "The law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence." State v. Shields, 61 N.C. App. 462, 464, 300 S.E.2d 884, 886 (1983). We hold that any error in allowing the testimony by Officer Epps regarding value was cured by the trial court's limiting instruction to the jury.
We have reviewed Defendant's remaining contentions and find them to be without merit.
Dismissed in part, no error in part. Judges HUNTER and BRYANT concur.