State v. Faircloth

• Decision Date: 12 June 1979
• Docket Number: No. 25,25
• Citation: 297 N.C. 388,255 S.E.2d 366
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Gregory FAIRCLOTH.

Page 366

255 S.E.2d 366

297 N.C. 388

STATE of North Carolina v. Gregory FAIRCLOTH.

No. 25.

Supreme Court of North Carolina.

June 12, 1979.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.

Michael A. Ellis, R. Gene Braswell and Herbert B. Hulse, Goldsboro, for defendant-appellant.

HUSKINS, Justice:

On direct examination Officer Goodman was requested to describe the bathroom screen and did so as follows:

"The screen was one whole screen that covered the entire window; the bottom section of the window and the top section. The screen was secured in the window by two latches on each side. These two latches had been pulled out away from the window and in the bottom left-hand corner approximately 6 inches from the corner of that screen there was an indentation marking on the window and on the screen where some object had been pried under and the screen forced out."

Upon objection by defendant, the court said:

"I'll ask the jury not to consider it. You can't draw any conclusions. You can say that you saw tool marks."

Officer Goodman was then asked: "Did you see any tool marks?" He answered "Yes, I did." Defendant objects and excepts to the suggestion of the court as to the proper form of questioning and argues that the court's remarks amounted to expression of an opinion. This is defendant's first assignment of error.

Former G.S. 1-180 has been repealed and the General Assembly has enacted in lieu thereof G.S. 15A-1222 and G.S. 15A-1232 reading respectively as follows:

"The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.

In instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence. He must not express an opinion whether a fact has been proved."

Although the language in former G.S. 1-180 referred only to the charge, it was always construed as including the expression of any opinion, or intimation by the judge, at any time during the trial which was calculated to prejudice either of the parties. State v. Staley, 292 N.C. 160, 232 S.E.2d 680 (1977); State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954). Now, G.S. 15A-1222 and -1232 expressly so provide. Thus any intimation or expression of opinion by the trial judge at any time during the trial which prejudices the jury again the accused is ground for a new trial. Whether the accused was deprived of a fair trial by the challenged remarks must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973).

Applying these legal principles to the challenged comment by the court, we hold that no prejudice has been shown. It was perfectly competent for the witness to say that the two latches securing the screen had been pulled away from the window and that there was an indentation marking on the window and on the screen. The only objectionable part of the statement was the conclusion Officer Goodman drew from what he had observed, I. e., that "some object had been pried under and the screen forced out." Upon objection and motion to strike, the trial court instructed the jury not to consider the answer and informed the witness, "You can't draw any conclusions. You can say that you saw tool marks." Such an instruction to the witness was not a comment upon the credibility of the witness. It was not an expression of opinion on any question of fact to be decided by the jury nor was it an expression of opinion as to whether a fact had been proved. Rather, the statement simply limited the officer's testimony to a statement of what he saw, leaving the jury to draw its own conclusions. This was entirely proper. Defendant cites and relies upon State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936). That case is factually distinguishable, the inadvertent question by the court there clearly constituting an expression of opinion in violation of former G.S. 1-180. There is no merit in defendant's first assignment, and it is therefore overruled.

Defendant argues that there is evidence to support a finding by the jury (1) that he went to the home of Barbara Smith without any intention to commit any felony therein but in response to her invitation and (2) that entry could have been made from the outside by means other than a burglarious breaking. Defendant therefore contends the trial court erred by failing to charge on the lesser included offense of non-felonious breaking and entering. This constitutes his second assignment of error.

Where it is permissible under the bill of indictment to convict an accused of a lesser degree of the crime charged, And there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Moreover, when there is some evidence supporting a lesser included offense, "a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime." State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Conversely, if all the evidence tends to show that the crime charged in the bill of indictment was committed, and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on the unsupported lesser degree and correctly refuses to submit lesser degrees of the crime charged as permissible verdicts. State v. Alston, 293 N.C. 553, 238 S.E.2d 505 (1977); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); 4 N.C. Index 3d, Criminal Law, § 115.

When one person breaks and enters the occupied dwelling of another in the nighttime with the requisite intent to commit the felony designated in the bill of indictment, the crime of burglary is complete even though, after entering the house, the offender abandons his intent through fear or because he is resisted. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976).

Applying these principles to the record before us, we find no evidence of a non-felonious breaking or entering. The evidence for the State tends to show that defendant committed a breaking by removing the bathroom screen and entering the occupied dwelling of Barbara Smith in the nighttime. The evidence concerning the assault he then committed upon her tends to show that his purpose was to commit rape. On the other hand, defendant's evidence tends to show that he went to Barbara Smith's home by invitation and she helped him climb through the bathroom window. There is no evidence whatever tending to show a nonburglarious breaking or entering. Under these circumstances, the judge was not required to submit that lesser included offense. State v. Watson, 283 N.C. 383, 196 S.E.2d 212 (1973); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). The evidence supports only two possibilities: (1) that the defendant broke and entered Barbara Smith's home with the intention of raping her, or (2) that he entered the house by invitation, with her consent and assistance, and assaulted her only after she bit his tongue. In that posture the evidence supports only first degree burglary or not guilty. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), Death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). For these reasons, defendant's second assignment of error is overruled.

Defendant contends the trial court erred in the charge to the jury by failing to explain and apply the law to the different factual aspects of the evidence with respect to the intent to commit rape. Defendant argues that his evidence showed a complete absence of such intent while the State's evidence showed the contrary. Thus, defendant says, it was the duty of the trial judge to array the evidence on each side and apply the law thereto so as to aid the jury in determining whether the requisite intent existed. This constitutes defendant's third assignment of error.

Intent to commit a felony is an essential element of burglary. State v. Friddle, 223 N.C. 258, 25 S.E.2d 751 (1943). To support a verdict of guilty of burglary in the first degree, the evidence must show and the jury must find that the intent charged in the bill of indictment was in the mind of the intruder at the time he forced entrance into the house. State v. Thorp, 274 N.C. 457, 164 S.E.2d 171 (1968). Intent is a mental attitude which must ordinarily be proved by circumstances from which it may be inferred. It is seldom provable by direct evidence. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473 (1965); State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963). "The intent with which an accused broke and entered may be found by the jury from evidence as to what he did within the house. . . . However, the fact that a felony was actually committed after the house was entered is not necessarily proof of the intent requisite for the crime of burglary. It is only evidence from which such intent at the time of the breaking and entering may be found. Conversely, actual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary." (Citations omitted.) State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). Moreover, when the indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged. State v. Friddle, supra; State v....