State v. McCoy

• Decision Date: 04 February 1986
• Docket Number: No. 858SC192,858SC192
• Citation: 79 N.C.App. 273,339 S.E.2d 419
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Kenneth Luther McCOY, aka Jason McCoy.

Page 419

339 S.E.2d 419

79 N.C.App. 273

STATE of North Carolina v. Kenneth Luther McCOY, aka Jason McCoy.

No. 858SC192.

Court of Appeals of North Carolina.

Feb. 4, 1986.

Atty. Gen. Thornburg by Associate Atty. Gen. J. Allen Jernigan, Dept. of Justice, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred in denying his motion to dismiss the charge of second degree burglary. The court failed to instruct on acting in concert. Accordingly, defendant's conviction may be upheld only if the evidence supports a finding that he personally committed each element of the offense. State v. Cox, 303 N.C. 75, 85-87, 277 S.E.2d 376, 383-84 (1981); State v. Smith, 65 N.C.App. 770, 772-73, 310 S.E.2d 115, 116-17, modified on another point and affirmed, 311 N.C. 145, 316 S.E.2d 75 (1984). Second degree burglary is the unlawful breaking and entering of an unoccupied dwelling in the nighttime with the intent to commit a felony therein. N.C.Gen.Stat. 14-51; State v. Jones, 294 N.C. 642, 656, 243 S.E.2d 118, 127 (1978). Unlike felonious breaking or entering with intent to commit larceny, second degree burglary requires proof of both a breaking and an entering. E.g., State v. Jolly, 297 N.C. 121, 127-28, 254 S.E.2d 1 5-6 (1979); State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976).

Evidence, whether circumstantial or direct, from which jurors may reasonably infer that defendant committed each element of the offense, is sufficient to withstand a motion to dismiss. State v. Stephens, 244 N.C. 380, 383-84, 93 S.E.2d 431, 433-34 (1956). The State's evidence need not exclude every reasonable hypothesis except that of guilt. Id.

The evidence, considered in the light most favorable to the State as required, State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982), tends to establish the following:

Before leaving his apartment on the evening of 28 January 1984, Devon Ward secured his back door with a chain lock and by wedging a chair under the handle. The storm door was closed but would not lock. Ward secured his front door with a dead bolt lock. All windows were closed and locked.

When Ward returned at approximately 9:00 the next morning, the screen to his kitchen window had been removed, the lock on the window had been removed, the window was raised, and the kitchen door was open. Beneath the kitchen window a trash can had been turned upside down and a pillow placed on top of it. A television set and two rifles were missing.

Doris Wellington testified that on 28 January 1984 around 9:30 p.m. she saw defendant and a man she identified as Dwight Edwards come out the back door of Ward's apartment. Defendant was carrying a brown pillow case containing two shotguns and Edwards was carrying something shaped like a box inside a pillow case. Later that evening Wellington observed defendant several blocks away attempting to sell a shotgun.

Defendant argues that the jury could only speculate as to whether he personally committed any act which constituted a breaking. We are constrained to agree. Entry through an open window or door does not constitute a breaking. State v. Chambers, 218 N.C. 442, 11 S.E.2d 280 (1940). There was no evidence from which the jury reasonably could conclude that defendant, rather than Edwards, removed the screen and pried open the window. It is just as likely that defendant crawled through the window after Edwards opened it. Since the court failed to instruct the jury on acting in concert, the evidence does not permit a finding that defendant personally committed each element of the offense. Cox, supra; Smith, supra.

The conviction, however, need not be reversed. Felonious breaking or entering, N.C.Gen.Stat. 14-54(a), is a lesser included offense of second degree burglary and only requires proof of a breaking or entering with the intent to commit any felony or larceny therein. See State v. Fikes, 270 N.C. 780, 155 S.E.2d 277 (1967); State v. Gaston, 4 N.C.App. 575, 167 S.E.2d 510 (1969). By finding defendant guilty of second degree burglary the jury necessarily found facts that would support defendant's conviction of felonious breaking or entering. Thus, the judgment entered on a verdict of guilty of second degree burglary is vacated, and the case is remanded for entry of a judgment as upon a conviction of felonious breaking or entering. State v. Corley, 310 N.C. 40, 55, 311 S.E.2d 540, 549 (1984). See also State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. O'Neal, 77 N.C.App. 600, 335 S.E.2d 920 (1985). ¹

Defendant contends the court erred in denying his motion to dismiss the charge of felonious larceny. Relying on his first argument, supra, he argues that the State's failure to present evidence sufficient to uphold his conviction for second degree burglary creates a fatal variance between the allegations in the indictment, which charged him with larceny committed pursuant to a burglary, and the proof presented at trial. See State v. Faircloth, 297 N.C. 100, 106-08, 253 S.E.2d 890, 894-95 (1979); State v. Davis, 253 N.C. 86, 98-99, 116 S.E.2d 365, 373 (1960), cert. denied, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819 (1961), rev'd on other grounds, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Defendant correctly asserts that as the State's evidence was insufficient to prove he personally broke into Ward's apartment, the felony aspect of his larceny conviction cannot be based on second degree burglary. See Faircloth, supra; Davis, supra. He further argues that the felony aspect of his larceny conviction cannot be based on "breaking or entering" as the indictment failed to allege such a violation. We disagree.

The indictment upon which defendant was convicted of felonious larceny charges that defendant:

during the nighttime between the hours of 9:00 p.m. and 1:00 a.m., after having unlawfully, wilfully and feloniously broken into and entered a building occupied by Devon Ward used as a dwelling house located at 402 S. William St., Goldsboro, N.C. with the intent to commit the felony of larceny, unlawfully, and wilfully did feloniously steal, take and carry away (1) Panasonic 13"'' color T.V. ser. no. PJ44T0883; (1) 22 caliber rifle; & (1) 22 caliber bolt action Glenfield Martin rifle, ser. no. 27458875 the personal property of Devon Ward having a value of $800.00 dollars.

The indictment is clearly sufficient to sustain a felonious larceny conviction under N.C.Gen.Stat. 14-72(b)(2), specifically, a larceny committed pursuant to a second degree burglary, N.C.Gen.Stat. 14-51, or under N.C.Gen.Stat. 14-72(a), viz, a larceny of goods with a value of more than four hundred dollars. The State, however, failed to present evidence regarding the value of the goods stolen. The court instructed the jury that it should find defendant guilty of felonious larceny if the State proved beyond a reasonable doubt "that the property was taken from a building during a burglary or after a breaking or entering." Defendant did not object to the court's instructions. The issue of whether defendant committed larceny pursuant to a burglary was not submitted to the jury. The jury found defendant guilty of "larceny after a breaking or entering" and the court entered judgment accordingly.

While it is error for the court to permit the jury to convict based on "some abstract theory not supported by the bill of indictment," State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980), the indictment charging defendant with larceny pursuant to a burglary is sufficient to uphold defendant's conviction for larceny pursuant to a breaking or entering. Felonious breaking or entering, N.C.Gen.Stat. 14-54, is a lesser degree of the offense of second degree burglary. Fikes, supra; Gaston, supra. N.C.Gen.Stat. 15-170 provides that "[u]pon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime...." Thus, we find no fatal variance.

Portions of defendant's argument could be construed as an exception to the court's failure to instruct the jury regarding the elements of breaking or entering. As defendant failed to object to the charge, this issue was not preserved for consideration on appeal. N.C.R.App.P. 10(b)(2). Further, any failure by the court to set forth fully the elements of breaking or entering was harmless error. The court properly instructed the jury regarding the elements of second degree burglary. By finding defendant guilty of second degree burglary the jury necessarily found that he had committed each element of the offense of felonious breaking or entering.

Defendant further argues that the State failed to present substantial evidence that he took and carried away "the personal property of another." See, e.g., State v. Bowers, 273 N.C. 652, 161 S.E.2d 11 (1968). Relying on State v. Foster, 268 N.C. 480 151 S.E.2d 62 (1966) and State v. Evans, 1 N.C.App. 603, ...