83 N.C. App. 312 | N.C. Ct. App. | 1986
The defendant first assigns as error the trial court’s denial of his motion to dismiss the charge of first degree burglary because there is no evidence from which the jury could find that the defendant had committed a breaking as required by G.S. 14-51. We believe this argument has merit.
The offense of first degree burglary requires proof that the defendant both broke and entered the dwelling house of another in the nighttime, intending to commit a felony within. A “breaking” is defined as any act of force, however slight, used to make an entrance “through any usual or unusual place of ingress, whether open, partly open, or closed.” State v. Jolly, 297 N.C. 121, 127-128, 254 S.E. 2d 1, 5-6 (1979). Proof of such a breaking
In the present case the State offered no evidence to raise an inference that any force was employed to gain entry to the victim’s apartment. The victim testified concerning the type of lock on the only door to the apartment but never stated that the door and two windows were closed when she went to sleep. There was no evidence of forced entry. Evidence of a breaking, an essential element of burglary, was therefore missing, and the defendant could not properly be convicted of that offense. There is evidence, however, that the defendant entered the victim’s apartment with the intent to commit an assault upon her, which is sufficient to support a conviction for felonious breaking or entering. G.S. 14-54(a). Felonious breaking or entering is a lesser-included offense of first degree burglary, State v. Jolly, supra, and requires only evidence of breaking or entering but not of both. State v. Barnett, 41 N.C. App. 171, 254 S.E. 2d 199 (1979). The trial court’s charge to the jury, which included only an instruction on burglary but not on its lesser-included offenses, was sufficient to support a conviction for felonious breaking or entering. See State v. McCoy, 79 N.C. App. 273, 339 S.E. 2d 419 (1986). By its verdict of guilty of first degree burglary the jury indicated that it found all facts necessary to a conviction for felonious breaking or entering. We therefore vacate the judgment on the charge of first degree burglary and remand with instructions to enter judgment as upon a conviction of felonious breaking or entering.
The defendant next argues that the court erred in denying his motion to dismiss the charge of felonious larceny. He contends that because the evidence was insufficient to support a conviction for burglary and the court instructed only on the theory of felonious larceny committed pursuant to burglary this conviction must also be vacated. We cannot agree.
We held above that although in its jury charge on the offense of first degree burglary the court did not instruct the jury on the lesser-included offense of felonious breaking or entering, the indictment charging only burglary and the instructions were nonetheless sufficient to support a conviction for felonious breaking or
By his final assignment the defendant argues that the court erred in permitting the State’s attorney to cross-examine him regarding his post-arrest silence about the man who dropped the telephone found in his possession. The defendant concedes he made no objection to this line of questioning at trial and that therefore review may be had only if the error rises to the level of “plain error.”
In State v. Odom, 307 N.C. 655, 660, 300 S.E. 2d 375, 378 (1983), our Supreme Court adopted the “plain error” rule as stated in United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed. 2d 513 (1982):
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “resulted in a miscarriage of justice or in the denial to appellant of a fair trial” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can fairly be said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.” (Emphasis in original.)
In the present case the following occurred on cross-examination of the defendant:
*317 Q: Did you tell [Officer Bruce] — did you tell him about the man who dropped the phone and the t-shirt?
A: No, I didn’t.
Q: And at any time that night, did you tell the officers about the man that dropped the phone?
A: No, I didn’t.
Q: Anytime that night, did you tell the officer, look, officers, you got me under arrest for rape and burglary and I found these matters and let me describe this fellow to you and show you which way he ran so you can get a track on him, get the bloodhounds out? Did you tell them that at all?
A: If I could explain that.
Q: Sure.
A: The reason why I didn’t say anything, either they was playing it as a joke or whatever, I took it serious. Police Patrolman Bruce said that I could have blown his head off at that time. I said to myself, I’m not stupid. And at that time, said we ought to let him run and shoot him. I said I know I ain’t saying nothing now.
We do not believe the error complained of rises to the level of “plain error” within the rule adopted in State v. Odom, supra.
Affirmed in part, vacated and remanded in part.
