A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1230

NORTH CAROLINA COURT OF APPEALS

Filed: 17 September 2002

STATE OF NORTH CAROLINA

v .                             Gaston County
                                No. 99 CRS 30651
                                  00 CRS 16898
ROBERT JONATHAN CARTER

    Appeal by defendant from a judgment entered 11 April 2001 by Judge Marvin K. Gray in Gaston County Superior Court. Heard in the Court of Appeals 15 August 2002.

    Attorney General, Roy Cooper, by Assistant Attorney General, John F. Oates, Jr., for the State.
    

    Edwin L. West, III, for the defendant.

    BIGGS, Judge.
    Robert Carter (defendant) appeals his convictions of first- degree burglary and conspiracy to commit first-degree burglary. For the reasons herein, we find no error.
    The State's evidence tended to show the following: On 6 September 1999, at approximately 10:00 p.m., Officer Randy Holbrooks, of the Gastonia Police Department, responded to a call regarding suspicious persons around a residence on West Garrison Boulevard. The officer was told to look for people in the shrubbery. Upon his arrival, using night vision equipment, Holbrooks observed a male, later identified as Melvin Brooks, inside the residence of John Kersey (Kersey), a 74 year old retiree who lived alone.     Holbrooks, with his service weapon drawn, ordered Brooks to walk out of the house with his hands raised. In response to this order, defendant, who was behind a bush beside the house unbeknownst to the officer, also complied with the officer's order. After requesting assistance, Holbrooks instructed defendant and Brooks to approach the patrol vehicle. A second officer arrived to assist Holbrooks with placing handcuffs on both suspects. Holbrooks then observed a handgun, a ski mask and gloves in a chair and on the floor of Kersey's den.
    When a third officer, Shane Caughey, arrived, he and Holbrooks searched the house and found Kersey asleep in his bedroom. Kersey was awakened by the officers who informed him that they discovered “some prowlers” in and around his residence. Kersey told the officers that he went to bed around 8:00 or 9:00 p.m. He further stated that he did not invite Brooks into his home and that he did not know either Brooks or defendant.
    During a search of the front yard of the house, Caughey found a .380 caliber Rother handgun, and another officer found a black ski mask approximately three to four feet from where the handgun was discovered. Caughey later conducted a pat-down search of defendant before placing him in one of the patrol cars. At that time, defendant asked the officer “what's going on?” After Caughey responded that defendant would probably be charged with first- degree burglary, defendant then made a statement to Caughey implicating himself and three other suspects in the crime.
    Defendant was indicted on 3 July 2000 for first-degreeburglary and conspiracy to commit first-degree burglary. On 11 April 2001, defendant was convicted as charged; from these convictions, defendant appeals.

_________________
    At the outset, we note that while defendant sets forth 23 assignments of error in the record on appeal, those assignments not addressed in his brief are deemed abandoned, pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure.
I.
    Defendant contends first that the trial court erred in denying his motion to suppress a statement made to law enforcement officers after he was placed in the patrol car. Specifically, defendant argues that the statement in question was made during a custodial interrogation and, thus, Miranda warnings were required. We disagree.
    It is well settled that the State may not introduce statements elicited during a custodial interrogation of the defendant unless it demonstrates that Miranda warnings were given prior to the statement. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966); State v. Wiggins, 334 N.C. 18, 431 S.E.2d. 755 (1993) (citations omitted). Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom” of action in any significant way. State v. Holcomb, 295 N.C. 608, 611, 247 S.E.2d 888, 890-91 (1978). Although this Court “must examine all the circumstances surrounding the interrogation”, the“definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d. 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997) (citation omitted). “'Spontaneous statements made by an individual while in custody are admissible despite the absence of Miranda warnings.'” State v. Frazier, 142 N.C. App. 361, 369, 542 S.E.2d 682, 688 (2001) (quoting State v. Lipford, 81 N.C. App. 464, 468, 344 S.E.2d 307, 310 (1986)).
    In reviewing the denial of a motion to suppress, the findings by the trial court are conclusive and binding on appeal if supported by competent evidence in the record. State v. Corley, 310 N.C. 40, 311 S.E.2d 540 (1984); see also State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992). “This is true even though the evidence is conflicting.” Corley, 310 N.C. at 52, 311 S.E.2d at 547 (citation omitted). “ The trial court's conclusions of law, however, are fully reviewable by [the] appellate courts.” Id. (citation omitted).
    In the case sub judice, the trial court conducted a voir dire hearing on defendant's motion to suppress. Officer Caughey testified, during the hearing, that after defendant had been placed in custody, defendant asked “what was going on?” Officer Caughey informed the defendant that he would probably be charged with first-degree burglary. In response, according to Officer Caughey, defendant made the following statement:
        . . . [H]e was approached by Melvin Brooks, [which was the other suspect,] along with twoother black males, who fled on foot when Officer Holbrooks pulled up. . . . The other three suspects had asked to use his .380 caliber handgun to do a home invasion at 605 West Garrison Boulevard, not 601. . . . [H]e agreed to let them use his handgun as long as he got a quarter of the cut of whatever they got out of the the robbery. . . . [T]here was supposed to be about a kilo of cocaine and $20,000 in cash at 605 West Garrison Boulevard. . . . [H]e did not know either of the black males names, but one was dressed in all black and had a black ski mask, and the other was wearing black pants and a blue and white shirt.
    At the close of Officer Caughey's testimony, followed by arguments of counsel, the trial court made the following findings:
        . . . All of the evidence presented by Officer Caughey clearly indicates that there was no questioning done by the police officer or officers at the scene at any time. And the evidence clearly shows that there was no atmosphere of interrogation at the scene. The evidence further shows and the Court finds and concludes as a matter of law that the constitutional rights of the Defendant on this occasion were not impaired or infringed upon in any way. The MOTION is therefore DENIED.

    Defendant does not contest these findings; thus, “they are presumed to be supported by competent evidence and are binding on appeal.” Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982) (citations omitted); see also Baker v. Log Systems, Inc., 75 N.C. App. 347, 350-51, 330 S.E.2d 632, 635 (1985) (where appellant does not challenge the trial court's findings, he is deemed to have abandoned them under N.C.R. App. P. 28(b)(5)).
    We further hold that these findings support the trial court's conclusions of law that defendant's constitutional rights had notbeen violated and that his motion to dismiss should be denied.
    Our Courts have consistently held that spontaneous statements made while a defendant is in custody are admissible despite the absence of Miranda warnings. In State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888, our Supreme Court held that spontaneous statements made by defendant, while in custody, regarding the discovery of the murder weapon did not result from a custodial interrogation. The Court reasoned that although the defendant was in police custody at the time the statements were made, there was no questioning initiated by the police concerning the murder weapon; thus, the gun was properly admitted into evidence though no Miranda warnings had been given. Id.
    
Similarly, in State v. Lipford, 81 N.C. App. 464, 344 S.E.2d 307, this Court held that defendant's spontaneous statement made after he was placed into police custody was admissible. In Lipford, after an officer informed defendant that he had a warrant for his arrest on charges of conspiracy to traffic cocaine, defendant inquired, “What is this [expletive deleted] all about?” Id. at 468, 344 S.E.2d at 310. In response to this inquiry, the officer “told him that he was suppose [sic] to be at Arby's on Monday night.” Id. Defendant replied, “I was down there. . . .” (emphasis added). Id. This Court held that “[d]efendant's statement was not the result of a custodial interrogation; rather, it was a spontaneous response to the officer's elaboration on the charges against defendant made at defendant's request.”     Id. Accordingly, this Court concluded that the testimony regarding thestatement was properly admitted although no Miranda warnings were given.
    In the present case, after being placed in custody, defendant initiated the dialogue with the officer by asking “what was going on”. Following the officer's response that defendant would likely be charged, defendant offered the inculpatory statement. We conclude that the statement was spontaneous, and not made in response to a custodial interrogation; thus, the trial court properly concluded that it was admissible despite the absence of Miranda warnings.
    Accordingly, this assignment of error is overruled.
II.
    Defendant contends next that the trial court erred in denying his motion to dismiss for insufficiency of evidence. He argues that there was insufficient evidence that defendant possessed the “intent to commit a felony” which is an essential element of first- degree burglary. We disagree.
    A motion to dismiss is properly denied if “there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). “When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to theState, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies in the evidence are for resolution by the jury.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    To overcome a motion to dismiss on the charge of first-degree burglary, the State must present substantial evidence of the following five elements: “(1) breaking and entering (2) at night (3) into the dwelling of another (4) that is occupied at that time (5) with the intent to commit a felony therein.” State v. Cunningham, 140 N.C. App. 315, 321, 536 S.E.2d 341, 346 (2000); State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); see also, N.C.G.S. § 14-51 (2001).
    “The intent to commit the felony must be present at the time of entrance.” State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995); see generally, State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994). It is well settled that “[i]ntent is a mental attitude seldom provable by direct evidence[;][i]t must ordinarily be proved by circumstances from which it may be inferred.” State v. Bostic, 121 N.C. App. 90, 99, 465 S.E.2d 20, 25 (1995); State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798 (1995). “The fact that a defendant has broken into and entered a dwelling at night permits an inference of the intent to commit the felony of larceny.” State v. Cooper, 138 N.C. App. 495, 498, 530 S.E.2d 73, 75 (2000). In State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976), our Supreme Court reasoned that         people do not usually enter the dwellings of others in the night time, when the [occupants] are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the night time, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent.

Id. at 384, 230 S.E.2d at 535 (quoting State v. McBryde, 97 N.C. 393, 397, 1 S.E. 925, 927 (1887)).
    The evidence in the present case, taken in the light most favorable to the State can be summarized as follows: defendant was found hiding in the bushes beside the house when the police arrived at 10:00 p.m.; when Officer Caughey ordered Brooks out of the house, defendant also came out from the bushes with his hands raised, although Caughey was unaware of his presence at the time; Kersey testified that he did not know the defendant or Brooks; a gun and a ski mask were discovered in the area near the location where defendant was hiding; the officers seized live ammunition on defendant's person which could be used with the gun found by the officers; and defendant admitted that he previously agreed to lend his gun to the other suspects in exchange for a portion of the loot they planned to steal from Kersey's neighbor. We conclude that there is substantial evidence from which a jury would likely find that the defendant had the intent to commit a felony at the time of the breaking.
    Though defendant relies on State v. Cook, 242 N.C. 700, 89S.E.2d 383 (1955), we find the facts of that case clearly distinguishable from those before us. The trial court properly denied defendant's motion to dismiss; accordingly, this assignment of error is overruled.
III.
    Lastly, defendant contends that the trial court incorrectly instructed the jury on the theory of acting in concert. We disagree.
    “'Under the principle of acting in concert, [an instruction on an offense may be given and] a person may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.'” State v. Lea, 126 N.C. App. 440, 447, 485 S.E.2d 874, 878 (1997) (quoting State v. Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988)). Neither the communication nor the intent have to be verbal, but may be inferred from the circumstances, including his relation to the other perpetrator. State v. Goode, 350 N.C. 247, 512 S.E.2d 414 (1999).
    In the case sub judice, defendant, through his own admission, stated that Brooks approached him about a “home invasion”, albeit at another residence; defendant agreed to loan his gun for the commission of the crime so long as he received a portion of “whatever they got in the robbery”; defendant was present at the residence on the night of the burglary; defendant was behind a bush where a gun and a ski mask were found; and a gun and ski mask werealso found inside Kersey's den where Brooks was discovered by the officer.
    We conclude that there was substantial evidence supporting an instruction on “acting in concert”. Accordingly, this assignment of error is overruled.
    No error.
     Chief Judge EAGLES and Judge WALKER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***