State v. Eldridge

• Decision Date: 18 November 1986
• Docket Number: No. 8621SC151,8621SC151
• Citation: 83 N.C.App. 312,349 S.E.2d 881
• Parties: STATE of North Carolina v. Paul Turner ELDRIDGE, Jr.
• Court: North Carolina Court of Appeals

Page 881

349 S.E.2d 881

83 N.C.App. 312

STATE of North Carolina v. Paul Turner ELDRIDGE, Jr.

No. 8621SC151.

Court of Appeals of North Carolina.

Nov. 18, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Steven F. Bryant, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant first assigns as error the trial court's denial of his motion to dismiss the charge of first degree burglary because there is no evidence from which the jury could find that the defendant had committed a breaking as required by G.S. 14-51. We believe this argument has merit.

The offense of first degree burglary requires proof that the defendant both broke and entered the dwelling house of another in the nighttime, intending to commit a felony within. A "breaking" is defined as any act of force, however slight used to make an entrance "through any usual or unusual place of ingress, whether open, partly open, or closed." State v. Jolly, 297 N.C. 121, 127-128, 254 S.E.2d 1, 5-6 (1979). Proof of such a breaking usually requires testimony that prior to entry all doors and windows were closed. State v. Alexander, 18 N.C.App. 460, 197 S.E.2d 272, cert. denied, 283 N.C. 666, 198 S.E.2d 721 and cert. denied, 284 N.C. 255, 200 S.E.2d 655 (1973).

In the present case the State offered no evidence to raise an inference that any force was employed to gain entry to the victim's apartment. The victim testified concerning the type of lock on the only door to the apartment but never stated that the door and two windows were closed when she went to sleep. There was no evidence of forced entry. Evidence of a breaking, an essential element of burglary, was therefore missing, and the defendant could not properly be convicted of that offense. There is evidence, however, that the defendant entered the victim's apartment with the intent to commit an assault upon her, which is sufficient to support a conviction for felonious breaking or entering. G.S. 14-54(a). Felonious breaking or entering is a lesser-included offense of first degree burglary, State v. Jolly, supra, and requires only evidence of breaking or entering but not of both. State v. Barnett, 41 N.C.App. 171, 254 S.E.2d 199 (1979). The trial court's charge to the jury, which included only an instruction on burglary but not on its lesser-included offenses, was sufficient to support a conviction for felonious breaking or entering. See State v. McCoy, 79 N.C.App. 273, 339 S.E.2d 419 (1986). By its verdict of guilty of first degree burglary the jury indicated that it found all facts necessary to a conviction for felonious breaking or entering. We therefore vacate the judgment on the charge of first degree burglary and remand with instructions to enter judgment as upon a conviction of felonious breaking or entering.

The defendant next argues that the court erred in denying his motion to dismiss the charge of felonious larceny. He contends that because the evidence was insufficient to support a conviction for burglary and the court instructed only on the theory of felonious larceny committed pursuant to burglary this conviction must also be vacated. We cannot agree.

We held above that although in its jury charge on the offense of first degree burglary the court did not instruct the jury on the lesser-included offense of felonious breaking or entering, the indictment charging only burglary and the instructions were nonetheless sufficient to support a conviction for felonious breaking or entering. We believe the same reasoning applies to the defendant's larceny conviction. The indictment charging felonious larceny committed pursuant to burglary is sufficient to charge the defendant with felonious larceny committed pursuant to breaking or entering. State v. McCoy, supra. G.S. 14-72(b)(2) makes it a felony to commit larceny pursuant to burglary or breaking or entering without regard to the value of the property taken. By its verdict of guilty of felonious larceny pursuant to burglary the jury necessarily found facts to support a verdict of guilty of felonious larceny pursuant to breaking or entering. We hold that the court's instruction on felonious larceny pursuant...