State v. Dawkins
287 S.E.2d 885
N.C.
1982
Check Treatment
MITCHELL, Justice.

The question dispositive of this appeal is whether the State’s evidence was sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant broke into Ms. Johnson’s house with the intent to commit the felony of rape therein. The only evidence relevant to the element of intent was circumstantial: the mode of dress of the defendant. The evidence that the defendant was wearing shorts, a raincoat, a knee-length cast and a gym shoe is too ambiguous, standing alone, to do more than raise a possibility or conjecture that the defendant had the intent to commit rape as charged in the bill of indictment. Thus, it was an insufficient foundation upon which to permit a trier of fact to infer that he intended to commit the felony of rape once he broke into the house. See State v. Gaskins, 252 N.C. 46, 112 S.E. 2d 745 (1960).

Ordinarily evidence of an unexplained breaking and entering into a dwelling house in the nighttime is in itself “sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The fundamental theory, in the absence of evidence of other intent or explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.” State v. Hedrick, 289 N.C. 232, 236, 221 S.E. 2d 350, 353 (1976); State v. Accor, 277 N.C. 65, 175 S.E. 2d 583 (1970). The State chose to indict the defendant for breaking and entering with the intent to commit rape rather than larceny; therefore the State became obligated to prove the specific felonious intent to commit rape, as alleged. State v. Wilson, 293 N.C. 47, 235 S.E. 2d 219 (1977). The State having failed to carry the burden, the defendant’s burglary conviction must be reversed.

The intent to commit a felony following a breaking and entering distinguishes burglary from the lesser included offense of misdemeanor breaking and entering prohibited by G.S. § 14-54(b). When the jury found the defendant guilty of burglary, it *291 necessarily found facts which would support a conviction of misdemeanor breaking and entering. The defendant’s counsel conceded as much during oral argument. Therefore, because there is not sufficient evidence of intent to commit the felony of rape within Ms. Johnson’s house, we recognize the jury’s verdict as a verdict of guilty of misdemeanor breaking and entering under G.S. § 14-54(b). See State v. Barnette, 304 N.C. 447, 284 S.E. 2d 298 (1981); State v. Jolly, 297 N.C. 121, 254 S.E. 2d 1 (1979). The judgment upon the verdict of first degree burglary is vacated and the cause remanded to the Superior Court of Guilford County for imposition of a judgment as upon a verdict of guilty of misdemeanor breaking and entering.

Remanded for judgment as for verdict of guilty of misdemeanor breaking and entering.