An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1384


Filed: 1 July 2003


         v.                        Forsyth County
                                No. 01 CRS 58228, 33843

    Appeal by defendant from judgment entered 11 April 2002 by Judge Melzer Morgan in Forsyth County Superior Court. Heard in the Court of Appeals 30 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Haakon Thorsen for defendant-appellant.

    TYSON, Judge.

    Robert Theodore Harshaw (“defendant”) appeals from his conviction of attempted first degree burglary, second degree burglary, and possession of cocaine. He pled guilty to habitual felon status. He was sentenced to two consecutive terms of 85-111 months. We find no error.

I. Background

    Nancy Zimmerman left her residence at 721 Summit Street in Winston-Salem at approximately 7:15 p.m. on 17 August 2001. She returned to the residence at approximately 9:00 p.m. to get her dog and a pair of shoes before venturing to a birthday party for her sister. Nancy returned from the party around midnight and noticed: (1) a dresser drawer was on her bed, (2) boxes of jewelry weremissing from a chest of drawers, (3) her stereo and camera were gone from the kitchen, and (4) a window was ajar. She called the police.
    Officer Donald Taylor responded to the dispatch at approximately 1:15 a.m. on 18 August 2001. Ms. Zimmerman related to him the events of the evening and named the items that she observed were missing, including a silver box containing pieces of jewelry.
    About midnight the next evening, 18 August 2001, Mrs. Mari Walsh Valoras went to bed in her residence located at 419 South Poplar Street in Winston-Salem, about a minute and a half by automobile from Ms. Zimmerman's residence. Mrs. Valoras was awakened at approximately 1:30 a.m. by her barking dog. Mrs. Valoras heard sounds against a window. Mrs. Valoras walked to the window and saw a man outside, with a shiny metal object in his hand, “working on the window.” The man was wearing dark pants and white tennis shoes with a design on them. Mrs. Valoras immediately called 911 for help.
    Officers J. D. McCready and Brad Underwood responded to the dispatch at approximately 1:30 to 1:40 a.m. on 19 August 2001. As Officer McCready talked to Mrs. Valoras, Officer Underwood searched the area for a suspect. About two to three houses away from the Valoras residence, Officer Underwood observed a man step from behind some bushes in the rear of a residence at 415 South Poplar Street. The man, identified as defendant, had a knife or screwdriver in his hand. He was wearing dark clothing, pinkgardening gloves, and white shoes. He was carrying a black bookbag. At Officer Underwood's command, defendant threw down the item in his hand. Officer Underwood searched the bag and found several boxes of jewelry. Officer Underwood also searched defendant's person at the jail and found in defendant's pants pocket two pieces of a substance subsequently analyzed as crack cocaine. The next day Officer Underwood found a screwdriver on the ground in the area behind 415 South Poplar Street where he had seen defendant throw an object.
    Meanwhile, Officer Taylor arrived at the Valoras residence to assist with the investigation. He brought Ms. Zimmerman to the Valoras residence. Ms. Zimmerman identified the black backpack and the jewelry as hers. One of the pieces of jewelry had her monogram on it. She also identified a Canon camera as hers based upon the aftermarket case she had purchased for it. The camera was with the stereo in her kitchen. Defendant did not present any evidence.
II. Issue

    Defendant assigns as error the denial of his motion to dismiss at the close of all the evidence.
III. Motion to Dismiss

    In ruling on a motion to dismiss, the court determines whether the State has presented substantial evidence of each element of the offense and of perpetration of the offense by the accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The court must examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may bedrawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). If the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged, then the case should be submitted to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
    Burglary, whether in the first or second degree, is the breaking and entering of a dwelling house during the nighttime with the intent to commit a felony therein. State v. Cooper, 288 N.C. 496, 499, 219 S.E.2d 45, 47 (1975). The distinction between first and second degree burglary is that the former requires that the dwelling actually be occupied. State v. Tippett, 270 N.C. 588, 595, 155 S.E.2d 269, 274 (1967). The requisite “breaking” is any act of force, however slight, employed to effect an entrance through a place of ingress. State v. Wilson, 289 N.C. 531, 539, 223 S.E.2d 311, 316 (1976).     
    Defendant contends the evidence is insufficient to identify him as the perpetrator of the offense at the Zimmerman residence and to show that the breaking and entering occurred during the nighttime. We disagree. When a defendant is found in possession of property identified as having been stolen pursuant to a breaking and entering, and his possession of the property is recently after its taking, it may be presumed that the defendant broke and entered the premises and stole the property. State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981). Here, defendant was found in possession of items identified by Ms. Zimmerman as having been taken from her residence the previous night. A jury couldreasonably find that defendant broke into Ms. Zimmerman's residence and took the items based upon this evidence.
    It is nighttime within the meaning of the law when it is so dark that a person's face may not be identified except by aid of moonlight or artificial light. State v. Frank, 284 N.C. 137, 145, 200 S.E.2d 169, 175 (1973). According to The Old Farmer's Almanac, of which we take judicial notice, sunset occurred in Winston-Salem at 8:09 p.m. Eastern Daylight Time on 17 August 2001. The evidence shows that at the time Ms. Zimmerman returned to her residence at 9:00 p.m., she did not observe that anything was amiss, other than the presence of dog vomitus on the kitchen floor. When she returned at midnight, however, she observed that her residence had been burglarized. Based upon a foregoing evidence, a jury could reasonably find that the Zimmerman residence was broken into sometime between 9:00 p.m. and midnight, and that it was nighttime at the time.
     Defendant also contends that the evidence is insufficient to identify him as the perpetrator of the offense at the Valoras residence and to show an attempted breaking and entering of the residence. The offense of attempted first degree burglary is complete when an act is done with the intent to commit the crime but the act falls short of actual commission of the intended offense. State v. Goodman, 71 N.C. App. 343, 345, 322 S.E.2d 408, 410 (1984), disc. rev. denied, 313 N.C. 333, 327 S.E.2d 894 (1985). The evidence shows defendant was found, standing behind bushes two to three houses away from the Valoras residence, within minutesafter Mrs. Valoras discovered the strange man “working” and making noises at her window with a shiny object in his hand. Defendant was wearing clothing similar in description to those the intruder was described as wearing. Defendant was in possession of items identified as having been stolen from Ms. Zimmerman's residence. He was seen throwing down an object later retrieved by Officer Underwood and identified as a screwdriver. Although a screwdriver may have other legitimate uses, under the suspicious circumstances demonstrated by the State's evidence here, a reasonable inference may be drawn that the screwdriver was intended to be used as an instrument of housebreaking. See State v. Robinson, 115 N.C. App. 358, 363, 444 S.E.2d 475, 478, disc. review denied, 337 N.C. 697, 448 S.E.2d 538 (1994).
IV. Conclusion

    Based upon the foregoing evidence, a jury could reasonably find that defendant was the person Mrs. Valoras saw at her window and that he was attempting to break into her residence at the time. We hold the court properly denied defendant's motion to dismiss the charges.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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