State v. Thomas, 8015SC900

• Decision Date: 02 June 1981
• Docket Number: No. 8015SC900,8015SC900
• Citation: 278 S.E.2d 535,52 N.C.App. 186
• Parties: STATE of North Carolina v. Charles Edsol THOMAS, Jr. STATE of North Carolina v. Daniel Wayne CHRISTMAS. STATE of North Carolina v. Mark Ashley KING.
• Court: North Carolina Court of Appeals

Page 535

278 S.E.2d 535

52 N.C.App. 186

STATE of North Carolina v. Charles Edsol THOMAS, Jr.

STATE of North Carolina v. Daniel Wayne CHRISTMAS.

STATE of North Carolina v. Mark Ashley KING.

No. 8015SC900.

Court of Appeals of North Carolina.

June 2, 1981.

Atty. Gen., Rufus L. Edmisten by Asst. Attys. Gen., George W. Lennon, Tiare B. Smiley and Henry T. Rosser, Raleigh, for the State.

Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave Chapel Hill, by Martin J. Bernholz and Gunn & Messick by Robert L. Gunn, Pittsboro, for defendant-appellant Charles Edsol Thomas, Jr. J. Samuel Williams, Siler City, for defendant-appellant Daniel Wayne Christmas.

Dark & Paschal by L. T. Dark, Jr., Siler City, for defendant-appellant Mark Ashley King.

ROBERT M. MARTIN, Judge.

We first note that defendant Thomas failed to set out and discuss his eighth assignment of error in his appellate brief; defendant King failed to set out and discuss his third, fourth, eighth, sixteenth and seventeenth assignments of error in his appellate brief; and defendant Christmas failed to set out and discuss his fourth, sixth, sixteenth, eighteenth and twenty-first assignments of error in his appellate brief, thereby abandoning them. Rule 28(a), N.C.Rules App.Proc. In addition, defendant King failed to set forth any argument or authority for his fifth assignment of error in his appellate brief, therefore it is also deemed abandoned. Id. "App.R. 28(a) requires that a question be presented and argued in the brief in order to obtain appellate review." Love v. Pressley, 34 N.C.App. 503, 514, 239 S.E.2d 574, 581 (1977), rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).

Defendant Christmas, by his fifteenth, nineteenth and twentieth assignments of error, defendant Thomas, by his fifth and seventh assignments of error and defendant King, by his twelfth, thirteenth, fourteenth and fifteenth assignments of error, present the question of whether the trial court erred in failing to submit to the jury as possible alternative verdicts the lesser included offenses of second degree burglary and misdemeanor breaking and entering. N.C.Gen.Stat. § 15-170 provides that upon the trial of any indictment, the defendant may be convicted of the crime charged therein or of a lesser degree of the same crime. However, the necessity of charging on a crime of a lesser degree arises only when there is evidence from which the jury could find that a crime of lesser degree was committed. State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979); State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970). With this fundamental principle in mind, we will discuss the two proposed lesser included offenses separately.

With regard to second degree burglary, the defendants contend that the law enforcement officials were not occupants of the Farrell home at the time of the breaking and entering within the meaning of N.C.Gen.Stat. § 14-51. That statute divides the common law crime of burglary into two degrees, first and second degree burglary, the sole distinction being the element of occupancy. State v. Jolly, supra.

N.C.Gen.Stat. § 14-51 states, in pertinent part:

If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree. (Emphasis added.)

In State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967), Justice Lake, speaking for the Court, held: "If the burglary occurred i. e., the breaking and entry occurred while the dwelling house was actually occupied, that is, while some person other than the intruder was in the house, the crime is burglary in the first degree." (Emphasis supplied.) Id. at 595, 155 S.E.2d at 274.

In the present case, all of the evidence showed that at the time of the breaking and entering four sheriff's deputies were present in the Farrell house with the knowledge and consent of the owner. Their occupancy of the house at the owner's request was rightful as against the burglar. Each of them was "some person other than the intruder." Id. We hold that the police officers were persons in actual occupation of the dwelling house at the time of the commission of the crime within the meaning of N.C.Gen.Stat. § 14-51. The appellate courts of this State have repeatedly held that where there is no evidence that the dwelling house was unoccupied at the time of the breaking and entry, the trial court may not instruct the jury that it may return a verdict of burglary in the second degree. State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980); State v. Tippett, supra; State v. McAfee, 247 N.C. 98, 100 S.E.2d 249 (1957). Thus, the trial judge in the present case correctly refused to submit second degree burglary to the jury as a possible verdict and the defendants' assignments of error regarding this issue are overruled.

With regard to the lesser included offense of misdemeanor breaking and entering, the same fundamental rule applies, i. e., the trial judge must submit the misdemeanor to the jury as a possible verdict only if there is evidence from which the jury could find that the lesser included offense was committed. State v. Jolly, supra; State v. Davis, supra; State v. Murry, supra. In the case sub judice, if there is any evidence from which the jury could find that the defendants broke and entered the Farrell residence without the intent to commit larceny therein, the trial judge erred in failing to charge the jury on the misdemeanor. The presence of such evidence is the test.

Defendant King testified that at all times before the officers in the Farrell house shouted "halt," he believed that he, Ned Diggs and defendant Thomas were breaking into Diggs' parents' house in order for Diggs to remove some of his personal belongings. Defendant King's testimony that he had no knowledge of any plans to burglarize the Farrell residence was supported by the testimony of Sheriff Elkins that Ned Diggs had furnished him with two suspects' names prior to the break-in and that defendant King's name was not one of the two. If the jury had believed defendant King's testimony, it could have found him guilty only of misdemeanor breaking and entering, as his testimony tended to negate the element of intent to commit larceny in the house he was breaking and entering. Where there is evidence that a crime of a lesser degree was committed, the trial court must submit the lesser crime to the jury for its consideration. State v. Davis, supra. There was plenary evidence in this case that defendant King was guilty only of misdemeanor breaking and entering, if the jury believed it. The trial court's failure to submit for the jury's consideration and decision whether defendant King was guilty of the misdemeanor was prejudicial error. Error in this respect is not cured by a verdict convicting defendant King of the felony. State v. Worthey, 270 N.C. 444, 154 S.E.2d 515 (1967); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). We hold, therefore, that defendant King is entitled to a new trial. Because of our holding, we will not address defendant King's remaining assignments of error.

The case against defendant Christmas was submitted to the jury upon the theory of aiding and abetting defendants Thomas and King in committing first degree burglary. To prove its case against defendant Christmas, the State had to prove that either defendant Thomas or defendant King was guilty of first degree burglary, see State v. Austin, 31 N.C.App. 20, 228 S.E.2d 507 (1976), and also had to prove that defendant Christmas aided or abetted one of them in the burglary. See State v. Spencer, 27 N.C.App. 301, 219 S.E.2d 231 (1975). It follows that prejudicial error in the trial of defendant King alone does not constitute error prejudicial to defendant Christmas.

Defendants Thomas and Christmas argue that there was evidence from which the jury could infer that they also believed that they were aiding Ned Diggs in removing his personal belongings from his father's house. Defendants Thomas and Christmas, however, derive no benefit from defendant King's testimony because that testimony related only to defendant King's understanding and general impressions. King did not testify that Diggs made any representations regarding the house to defendants Thomas or Christmas. Defendant King could not testify as to what the other defendants thought or believed. Defendants Thomas and Christmas did not testify. The record contains no direct evidence as to what defendants Christmas and Thomas believed or knew about the breaking and entering.

Thus, we must determine whether the record contains any evidence from which the jury could find that defendants Christmas and Thomas committed the lesser included offense of misdemeanor breaking and entering. Defendants contend that because there was no evidence that any property was taken from the Farrell home, the evidence regarding defendants' intent to commit larceny therein was merely circumstantial and did not point unerringly to an intent to commit the felony, therefore, the trial court erred by not submitting the misdemeanor to the jury. We disagree with defendants' analysis in this case.

Defendants cite four cases holding that a trial court erred by failing to submit the lesser included offense of misdemeanor breaking and entering as a possible verdict in support of their contention. In State v. Worthey, 270 N.C. 444, 154 S.E.2d 515 (1967), the defendant was charged with feloniously breaking and entering a building where personal property was kept with the intent to steal and carry away personal property in violation of N.C.Gen.Stat. § 14-54. The evidence tended to show only that the defendant was apprehended in the building and that...