An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-48


Filed: 1 June 2004


v .                         Guilford County
                            No. 01 CRS 85168


    Appeal by defendant from judgment entered 7 March 2002 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 12 November 2003.

    Attorney General Roy Cooper, by Special Attorney General Judith Robb Bullock for the State.

    John T. Hall for the defendant-appellant.

    ELMORE, Judge.

    Dequan Sintiilis Cobb (defendant) had a fight with his girlfriend, Beverly Womack (Womack), who usually stayed with her close friend, Ms. McCray, after such fights. That night, she had instead gone to a motel. At about 3:00 am that night, after Ms. McCray and her daughter had gone to bed, Ms. McCray awoke to someone standing over her with a bandana tied around his face. He was wearing a white cap. The person said “shh, be quiet.” He had a knife. Ms. McCray screamed at him to take what he wanted and leave them alone. She struggled with the person, and in the struggle her hand was deeply cut. She then chased the person out of her house. When the police arrived she told them what happenedbut did not identify the defendant as her assailant until the next day. Womack identified the knife and bandana that had been used in the burglary, which were found in a dumpster. She said they had come out of her apartment.
    Defendant was charged with first degree burglary. The first indictment alleged that the defendant intended to commit the felony of assault with a deadly weapon inflicting serious injury, but a superceding indictment did not specify the intended felony. Defendant was found guilty of first degree burglary by a jury, and was sentenced to 120-153 months active time. Defendant appeals his conviction.

    Defendant's first assignment of error argues that the trial court erred to the unfair prejudice of defendant by denying his motion to dismiss the charge of first degree burglary made at the close of the evidence due to the insufficiency of the evidence. We discern no error.
    Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). “If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.” Id. at 98, 261S.E.2d at 117 (citations omitted). In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. Id.
    Defendant made a motion to dismiss at the close of the evidence based on lack of intent to commit a felony. The elements of first-degree burglary are: (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein. N.C. Gen. Stat. § 14-51 (2003); State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). The crime has been committed even though, after entering the house, the accused abandons his intent to commit the designated felony. State v. Cunningham, 140 N.C. App. 315, 320, 536 S.E.2d 341, 345 (2000).
    When a person breaks into a house at night, armed, there is a reasonable inference recognized by our courts that the person has intent to commit a larceny. State v. Sweezy, 291 N.C. 366, 384, 230 S.E.2d 524, 535 (1976). The original indictment had specified an intent to commit assault with a deadly weapon inflicting serious injury, but was superceded. The evidence is sufficient at the least to show that defendant broke in, was armed, had concealed his identity, and approached the victim. There seems to be no legitimate reason for those actions. A reasonable inference ofintent to commit a felony, even if not a larceny, allowed the issue to go to the jury. We therefore discern no error.
    The defendant also argues that the trial court committed plain error to the unfair prejudice of defendant by failing to instruct the jury on the lesser included offense of misdemeanor breaking and entering.
    We initially note that defendant failed to make any objection to the instruction given. Accordingly, our analysis of this issue is limited to a review for plain error. State v. Sexton, 357 N.C. 235, 238, 581 S.E.2d 57, 59 (2003). To reach the level of “plain error” the error in the trial court's jury instructions must be so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached. State v. Finney, 358 N.C. 79, 89, 591 S.E.2d 863, 869 (2004).
    Unless there was sufficient evidence that defendant broke in without the requisite intent, which he did not argue to the jury at trial despite his motion to dismiss, then a lesser included offense is not relevant. Defendant's theory of the case was that he could not run, and Ms. McCray testified that she had chased the burglar out of her house, therefore the burglar must be someone else.
    In State v. Ward, 118 N.C. App. 389, 455 S.E.2d 666 (1995), this Court held that “[a] trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him ofthe greater.” Id. at 398, 455 S.E.2d at 671 (quoting State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986)). However, if the State tries the case on an “all or nothing basis,” seeking a conviction only on the greater offense, then the trial court needs to present an instruction on the lesser included offense only when the “defendant presents evidence thereof or when the State's evidence is conflicting.” Id. at 398, 455 S.E.2d at 671 (quoting State v. Bullard, 97 N.C. App. 496, 498, 389 S.E.2d 123, 124, disc. review denied, 327 N.C. 142, 394 S.E.2d 181 (1990)). See also State v. Woody, 124 N.C. App. 296, 307, 477 S.E.2d 462, 467 (1996).
    Defendant did not present evidence at trial of the lesser included offense of misdemeanor breaking and entering. Although it may be plausible that the defendant could have entered the house that night with intent only to talk to his estranged girlfriend, the fact that he broke in and carried a knife while in the apartment would tend to negate that argument. The fact that the thrust of his argument at trial was mistaken identity also tends to negate the possibility of a lesser offense. We therefore hold that any possible error in the trial court's jury instruction was not so fundamental as to amount to a miscarriage of justice or to have probably resulted in the jury reaching a different verdict than it otherwise would have reached.
    No error.
    Judge TIMMONS-GOODSON concurs.
    Judge WYNN concurs in result only.
    Report per Rule 30(e).

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