*1 COURT OF v. WALTER RUSHING STATE OF NORTH CAROLINA No. 8220SC594 1983) (Filed 1 March degree burglary Breakings § Burglary 5.11— first 1. and Unlawful —insufficient of intent evidence was the to find that defendant insufficient to entering in the the time of a and tended commit burglary degree his of first where indictment so as conviction in which in the window the bedroom show defendant climbed wearing prosecutrix sleeping during nighttime; defеndant was the was the shirt; gloves prosecutrix not to scream and white and no told the defendant gun; pros- although prosecutrix gun, never saw a the that he had a the stated bed, the up whereupon came to head of her defendant ecutrix backed the arm; every prosecutrix to turn grabbed the her timе the tried side of bed and move; light, prosecutrix her not to when the started on the screaming, defendant told mouth; her and when the small child over defendant screaming, go prosecutrix’s arm prosecutrix defendant let started dived out the head first. and window attempted rape insufficiency of Rape § 5— 2. and Alliеd Offenses — conviction of was insufficient to sustain defendant’s State’s evidence window climbed where it tended show defendant sleeping during nighttime; prosecutrix bedroom in which the shirt; pros- wearing gloves no defendant told the white defendant although prosecutrix gun, stated that he had a ecutrix to scream and bed, prosecutrix head of her gun; backed never saw a arm; every grabbed to the side of the bed defendant came move; when light, defendant told her not to prosecutrix tried to turn on mouth; screaming, put his hand over started go screaming, prosecutrix started defendant let the small child of the head prosecutrix’s arm out the window first. and dived Vaughn part. concurring part dissenting in Judge Chief Collier, Judgment from Judge. APPEAL in the County Heard Superior in STANLY Court. 23 March 1982 1982. December Appeals Defendant, charg- Walter was tried indictments Rushing, with first ing him following. pros- show the evidence tended to
The State’s ear- sleep August on 3 was awakened from eсutrix light in her there was Although noise. ly morning hours room, could tell that in her window. She someone climb she saw *2 Rushing
State v. male, a black intruder was and that he was wearing dark white no pants, gloves fabric and shirt. The woman asked who it holler, scream, was and he said “Don’t don’t I got gun, a I’ll shoot bed, you.” The backed up to the head of her intruder came the side and grabbed bed Every arm. time she to turn tried on the the man told light, her not to move. The prosecutrix started screaming and called grandmother. for her The intruder hand over her mouth. Her small child woke and started The man screaming. let go her arm and dove out the window head first. woman rаn away. window and watched him run She never saw a gun. wife, prosecutrix knows defendant’s has spoken and with defend- ant in the past. Although she has asked men than house, boyfriend to to her come she never asked defendant analysis come there. Lab show that fibers found at the scene of the crime matched рants and gloves found defendant’s gloves house. The found at defendant’s house had makeup grass stains on them.
Defendant’s evidence year tended to show that a 39 he is old man. married He had known the prosecuting witness for about a year. In June of 1981 he saw her at a store she convenience complained boyfriend to him that her did not spend enough with her. Defendant told her that plenty they he had of time and agreed to meet sometime. She told him which bedroom window stay hers that he away boyfriend’s should when her car 2, was at her house. Late on August defendant went answer, woman’s front door and knocked. Upon getting went window and knocked. He partially pushed open window, window up, put a shoulder and through called to her. The woman out fright called ran and he home and stayed there. found charged the trial verdict,
court judgment on the imposing active sentence imprisonment. Defendant appealed. Edmisten, Attorney General L. by Assistant Attorney Rufus Jr., Harkins, Harry
General H. the State. Stein, A-ppellate Adam Assistant Appellate Defender Nora Henry, B. Defender for defendant. OF APPEALS COURT WELLS, Judge. defendant contends
By his assignments
as a matter of law
is insufficient
In order
degree burglary.
and first
convictions
conviction,
must
offense
charged
eaсh element of
to support
evidence,
scintilla” of
State v. Sum
by “more than a
be supported
denied,
mit,
451 U.S.
273 S.E. 2d
cert.
which means “substantial
defendant appealed a conviction of burglary wherе the State relied on evidence of an attempted for the felony. element intent to commit a The Supreme *4 held that Court there was of sufficient evidence the defendant’s intent to commit rape where the State’s proof tended show window, that the intruder —who climbed into the victim’s got into bed with her with his outside pants put down and over mouth, to cut her if threatening throat she screamed —ran only away when another on girl turned the in the room. light Wells, In v. State the supra, defendant had broken into the window of the apartment night. victim’s at She woke to find up lying the defendant top kissing her on the When neck. screamed, she his hаnd over her mouth told her shut and that all he wanted was some sex. She him told that him, boyfriend would kill he left the door. Court held that this evidence was support ference that the the victim rape intended at time he the apartment. broke and entered (1982) Dawkins,
In S.E. 885 State v. 305 287 2d our N.C. Supreme Court vacated the defendant’s conviction of first degree OF
66 COURT State v. felony rape. intended was allegedly burglary where was wearing that the defendant held that evidence Court cast, shorts, and a knee-high on one foot and gyma shoe an inference that defend- support was insufficient raincoat that, by lady Noting inside the house. rape ant intended necessarily the defendant finding the misdemeanor of had committed found that defendant on that sentencing remanded the case entering, the Court misdemeanor. --- --- ---, Freeman, S.E. 2d N.C. recently, in State v. Most
--- (filed 1983), reversed the January Supreme our 11 degree burglary, holding that conviction for defendant’s felоny evidence of the intended failed to offer sufficient State had indictment, In the State’s evidence in the defendant, type in a sweat shirt dressed tended to show that being to enter and asking permission jacket refused, jeans, upon and blue night, victim’s home at forcibly entered the female twice him. State v. Citing have enticed” that she “shouldn’t telling her Bell, intent of where sufficient example as an supra, shown, Freeman’s conviction held that defendant the Court been stand, nothing stating that could not “[t]here to commit suggest an intent or demeanor dress ., . light defendant. spoken “words rape” and [i]n in no fully clothed and testimony that she viсtim’s] [the defendant, ambiguous . . . at best are way encouraged virtually meaningless.” . . . are case in the present contends facts
The State entry into the bedroom male’s nocturnal a shirtless (specifically, woman) an inference that defendant of a We do not her room. the time he entered to сommit v. cites Hud- the State State argument, In agree. Goines, (1971), son, v. N.C. 280 N.C. Norman, (1968), App. S.E. 2d 469 Gaston, 167 S.E. App. and State 2d 667 S.E. cases, was some overt of those there all 2d 510 *5 an ele- gratification, sexual intended forcible an manifestation us. The in the case before shown ment not sexual show that defendant tending presented himself, and de- by was evidence presented purpose he intended only to show that evidence tended fendant’s in engage consensual intercourse with the prosecutrix. We fur- dress, ther note that defendant’s while possibly indicating an in- crime, tent commit a does itself indicate an intent in nonconsensuаl engage intercourse.
Consistently with we find that the State’s supra, evidence as to defendant’s intent was “at best and is ambiguous” not sufficient to an inference that the time he entered the window prosecutrix’s bedroom he Therefore, prosecutrix. defendant’s conviction of burglary must be vacated.
[2] By his seсond assignment contends that the State’s evidence was insufficient to sustain his conviction of There are two elements to the crime of attempt: there must be the intent to commit specific crime overt which in ordinary likely act course of events would result Dowd, in the commission of the crime. State v. 28 N.C. App. An is an attempt act done with the specific burden, intent to commit a crime. Id. carry in order for the State to present per sufficient evidence to first,, mit the jury to find when defendant assaulted the pros forcible, ecutrix he intended to engage nonconsensual second, intercourse with her and оrdinary that in the likely course events his assaultive acts would result in the commis sion of a rape. Applying standards articulated State v. Gay, Gammons, supra, State v. supra, the other cases involving at above, tempted rape discussed we hold that defendant’s convic tion of cannot stand. The State’s evidence showed nothing more than defendant attempted forcibly subdue the prosecutrix and to avoid detection persons house. The State’s evidence of defendant’s conduct after entering the prosecutrix’s house is insufficient to find either that defendant intended to commit a assaulted or thе victim that defendant committed an overt act which in ordinary likely course of events would result in the commission of a rape. Defendant’s conviction for attempted rape must be vacated. 14-54(b),
Misdemeanor or entering, G.S. requires only proof of wrongful breaking or any into building. female, 14-33(b)(2), Assault on a G.S. requires only proof of an *6 COURT OF eight- over the person age male female a person on a
assault and conclusive uncontroverted being years. een that, by hold age, we years over eighteen a male defendant is jury finding conviction necessarily that would found facts entering. or breaking femalе and non-felonious on a of assault on a sentencing for for assault remanded must be this case entering.1 or non-felonious female vacated. Judgment judgment. of appropriate
Remanded concurs. Judge WHICHARD part. part VAUGHN concurs in and dissents Judge
Chief dissenting concurring part Judge Chief VAUGHN part. conviction for first I in defendant’s find error fairly the evidence. summarizes majority opinion burglary. reached, however, an un- from appears spring The result evidence, a that should be left process weighing conscious jury. to show that he own evidence tends Defendant’s this purposes For intent to have intercourse. with thе bedroom to show he his evidence that tends part of appeal, His disregarded. must be consensual intercourse tended to have to find that certainly jury gun would threat to use of his victim with the intent the bedroom he entered It was for carry jury his intent to gun to out use that that she not see the of the victim’s statement did weigh the effect with respect entertaining admission gun, as well to see and hear the witnesses. opportunity jury men. reasonably I could infer that defend- do not. believe We concern, sug- in this case cause us considerable 1. We that the results note Assembly may gest want to consider whether the act of forсeful that the General occupied sleeping entry by quarters another should itself be person one into the felony. Riggan Highway Patrol *7 entry ant made the forcible through the victim’s bedroom window with the intent to commit Dawkins and State v. upon relied majority, distinguishable. are Dawkins, the evidence show the with made the intent to commit larceny. Freeman is also distinguishable, among other ways, there was no direct evidence that intercourse, intended to have either consensual or room, force. There the defendant prosecutrix’s entered the living threats, made no us, and did not touch her. In the case before however, defendant through came the bedroom window of his victim. I see a difference.
I agree with the majority that the evidence was insufficient to take the case on the charge attempted rape. Although evidence permits a finding that defendant broke through and entered the bedroom window with the intent com- that, mit rape, also shows because of the screams his intend- child, victim ed and her infant he abandoned his scheme and fled before attempting commit the rape.
I vote to find no error in the conviction for first burglary. I agree that the charge rape should be dis-
missed, and defendant should be sentenced for assault on a female. RIGGAN, Riggan KAY
TONIA of Lewis G. Administratrix of the Estate PATROL, NORTH STATE CAROLINA HIGHWAY a Division of The North Department Safety Carolina of Crime Control and Public
No. 8210IC354 (Filed 1983) 1 March §§ negligence employee supported by 1. State 10.1— record —Com- findings misinterpreted misapplied mission of fact to law Act, proceeding In a under the North Tort Carolina Claims G.S. 143-291et seq. compensation person allegedly resulting for the death of a from the Patrolman, negligence Highway of a North Carolina the Industrial Commission misinterpreted misapplied findings of the evidence and fact the law ar- riving negligence trooper proximate at its that the was a conclusion resulting cause of the victim. collision and the death