State v. Davis

64 N.C. App. 186 | N.C. Ct. App. | 1983

ARNOLD, Judge.

The defendant contends that the trial court erred when it denied his motion to dismiss as there was no evidence that he had the intent to commit larceny, the underlying felony to the charge of first degree burglary. The defendant further contends that the State’s evidence goes only to show that his intent was to commit some sexual offense, thereby negating any inference that the intent was larcenous.

Felonious intent is an essential element of burglary which must be alleged and proved. In addition, the State is held to proof of the intent alleged in the indictment. State v. Thorpe, 274 N.C. 457, 164 S.E. 2d 171 (1968). However, “in the absence of proof to the contrary, a reasonable inference of felonious intent may be drawn from the fact that an individual broke into and entered the dwelling of another at night.” State v. Simpson, 303 N.C. 439, 449, 279 S.E. 2d 542, 548 (1981).

The defendant bases his contention that any intent demonstrated on the night of the burglary was not larcenous, but purely carnal in nature, and thus a different intent than that alleged in the indictment, on evidence that Laverne Adams knew the defendant, that the defendant had no burglary tools in his possession, and that the defendant was seen standing at Laverne Adams’ bedroom door with his belt jingling and his pants unzipped.

The evidence in question does not require an inference of intent to commit a sexual offense as defendant argues. Laverne Adams knew the defendant, and had seen him earlier at the Lounge, permitting an inference that the defendant knew she would not be at home when he entered the dwelling. Moreover, burglary tools are not required to show the existence of larcenous intent. Sufficient circumstantial evidence was presented to raise the inference of intent to commit larceny. There is no error in the denial of defendant’s motion to dismiss.

The defendant also contends that the trial court erred in charging the jury on first degree burglary, and in failing to instruct on the definition of larceny and on their duty not to convict upon some abstract theory of law, but only upon the specific felonious intent alleged. We find no error in the court’s instruction on first degree burglary. The second part of defendant’s argument is not before us. Notwithstanding his contentions about the court’s refusal to give his requested instructions on the elements of larceny, the record contains no exception to the court’s refusal to give the requested charge. Rule 10, Rules of Appellate Procedure.

No error.

Judges Wells and Eagles concur.