STATE OF NORTH CAROLINA
v. Forsyth County
No. 01 CRS 52994
PAUL ANTHONY MITCHELL,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth L. Oxley, for the State.
Lynne Rupp, for defendant-appellant.
HUDSON, Judge.
Defendant was charged with first degree burglary and robbery
with a dangerous weapon. The State's evidence tended to show that
Michael Dzybon (Dzybon) lived in a two-bedroom upstairs apartment
in the Woods Mill Apartment Complex with his girlfriend, Regina
Myers (Myers) and her three-year-old son. On the evening of 5
April 2001, Dzybon and Myers entertained two friends. Myers went
to bed at around 11:30 p.m. After their last guest left at
approximately 1:00 a.m. the next morning, Dzybon placed his
“Fossil” brand watch and his wallet containing about $240 in cash
on the edge of the counter near the kitchen/living room area. He
then went to bed. At approximately 4:00 a.m., Myers was awakened by someone in
the bedroom rummaging through their closet and dresser. After the
person left the room, Myers asked Dzybon if he had let someone
spend the night in the apartment. Dzybon stated he had not and
asked her why she asked the question. When Myers responded that
she had seen someone in the apartment, Dzybon got out of bed and
went to the bedroom door. The stove light was on and Dzybon
observed a man wearing dark clothes standing at the counter where
he had placed his wallet and watch.
Dzybon ran toward the man and tackled him. Dzybon recognized
the man as defendant, whom he had met two months ago through a
mutual friend, Adam Glasgow. Dzybon realized defendant had a
sawed-off shotgun in his hand and began wrestling defendant for the
gun. When Dzybon got hold of the barrel of the gun and defendant
held the butt, Dzybon told defendant to leave and he did so. After
defendant left, Dzybon discovered that he had bruises on his face
and that his watch and the money from his wallet were gone. Dzybon
also found a roll of duct tape and a latex glove, both apparently
left by defendant. The screen was gone from a window near the
dining area.
Officers from the Winston-Salem Police Department responded to
the call regarding a break-in at the Woods Mill Apartment complex.
Dzybon overheard Myers make a comment to the police, looked outside
and saw defendant's gray Astrovan drive by the apartment. Officers
followed defendant from the apartment complex to the parking lot at
the Pantry Kitchen, and into the Pantry Kitchen. The officers thenordered defendant to get on the ground, and noticed that his hands
appeared to be bruised and swollen. Upon searching defendant,
police found $273.00. Police also searched defendant's van and
found a “Fossil” watch in the front seat (later identified as
belonging to Dzybon), a shotgun wrapped in a pink towel underneath
the rear seat, a latex glove next to the shotgun and a wrapper from
a roll of duct tape on the floor behind the front seat.
Defendant testified that at approximately 1:00 a.m. on the
morning in question he and an acquaintance, Shawn Barber, drove to
Barber's girlfriend's house at Woods Mill Apartments in defendant's
van. Twenty minutes after they arrived, Barber told defendant that
he needed to borrow his van to pick up someone. Defendant threw
him the keys to his van and went to sleep on the couch. Defendant
testified that Barber returned around 4:30 a.m. and rushed him out
of the apartment. He further testified that while he was at the
Texaco, police came into the store with guns drawn and told him to
get down. Defendant testified that he was unaware that the gun,
latex glove, and watch were in his van. Adam Glasgow testified
that Dzybon used and sold ecstacy and cocaine. Glasgow further
testified that Dzybon told him he “did not know who had robbed him”
and that the police told him Dzybon did it “so that's what he is
going by.” On cross-examination, Glasgow admitted that he had not
contacted the police with information that Dzybon had been unable
to identify the intruder.
A jury found defendant guilty as charged. After finding that
one factor in aggravation outweighed one factor in mitigation, thetrial court sentenced defendant to two consecutive sentences of 80
to 105 months imprisonment. Defendant appeals.
Defendant first contends that the trial court erred by denying
his motion to dismiss the charge of first degree burglary.
Defendant argues that the State failed to present sufficient
evidence that he intended to commit robbery when he entered the
apartment. We disagree.
In ruling on a motion to dismiss, the court considers “whether
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). Substantial evidence is that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994). In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State, 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 arising from the evidence are properly left for the
jury to resolve and do not warrant dismissal.” State v. King, 343
N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
To prevail against defendant's motion to dismiss the charge of
first degree burglary, the State must have presented substantial
evidence of the following five elements: (1) breaking and entering
(2) at night (3) into the dwelling of another (4) that is occupiedat that time (5) with the intent to commit a felony therein. State
v. Simpson, 303 N.C. 439, 448-49, 279 S.E.2d 542, 548 (1981). The
issue here is whether the State's evidence was sufficient to show
that defendant intended, upon breaking and entering, to commit the
felony of robbery. Armed robbery is the taking of the personal
property of another in his presence or from his person without his
consent by endangering or threatening his life with a firearm, with
the taker knowing that he is not entitled to the property and the
taker intending to permanently deprive the owner of the property.
State v. Davis, 301 N.C. 394, 397, 271 S.E.2d 263, 264 (1980).
“Intent is a mental attitude seldom provable by direct evidence.
It must ordinarily be proved by circumstances from which it may be
inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508
(1974), overruled in part on other grounds by State v. Collins, 334
N.C. 54, 431 S.E.2d 188 (1993).
The indictment alleged that defendant broke into the apartment
with intent to commit robbery. The State presented evidence
showing that defendant, carrying a loaded shotgun and duct tape,
broke into the apartment in the middle of the night while Dzybon
and his girlfriend slept. Defendant took Dzybon's Fossil watch and
the cash from his wallet, threatened him with a loaded shotgun when
confronted and then fled. This evidence supports an inference that
when defendant entered the apartment he intended to commit a
robbery, thus satisfying the fifth element of burglary as charged.
The evidence that he then proceeded to actually commit a robbery
with a dangerous weapon constituted a separate offense. Accordingly, the trial court properly denied defendant's motion to
dismiss the charge of first degree burglary.
Defendant also argues that because robbery is an essential
element of the crime of burglary, the imposition of consecutive
sentences punishes him twice for the robbery and violates his right
against double jeopardy. Defendant, however, did not include his
double jeopardy argument in his assignment of error. Rather,
defendant assigned as error his consecutive sentences for first
degree burglary and armed robbery. Defendant, therefore, has
failed to preserve this issue for appellate review. See N.C.R.
App. P. 10(b)(1). Furthermore, defendant waived his double
jeopardy claim by failing to raise it at trial. Thus, we do not
address it here. State v. Roope, 130 N.C. App. 356, 362, 503
S.E.2d 118, 123, disc. review denied, 349 N.C. 374, 525 S.E.2d 189
(1998) (holding that failure of defendant to properly raise the
issue of double jeopardy before the trial court precludes reliance
on the defense on appeal), State v. McKenzie, 292 N.C. 170, 176,
232 S.E.2d 424, 428 (1977) (“double jeopardy protection may not be
raised on appeal unless the defense and the facts underlying it are
brought first to the attention of the trial court”).
No error.
Judges MCGEE and GEER concur.
Report per rule 30(e).
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