STATE OF NORTH CAROLINA
v. Gaston County
No. 01CRS66881
JOHN S. LEE
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General T. Lane Mallonee, for the State.
Allen W. Boyer for defendant-appellant.
HUNTER, Judge.
On 4 March 2002, the Gaston County grand jury indicted John S.
Lee (“defendant”) on charges of felonious breaking and entering,
felonious larceny, and felonious possession of stolen goods. At
trial beginning on 14 January 2003, the State introduced evidence
tending to show the following: On 15 November 2001, Eugene Falls
(“Falls”) left his house for work at approximately 6:30 a.m. after
securing his house. His neighbor, Virgil Harper (“Harper”), saw a
vehicle pull into Falls' driveway at approximately 11:00 a.m.
About two or three minutes later, Harper saw someone crossing and
jumping off of Falls' front porch. Harper wrote down the vehicle's
license number, then went around the back of Falls' house. He sawan individual coming from the back doorway onto the back porch.
The individual, whom Harper identified as defendant, appeared to
have a gun in his hand. After defendant “came on out of the
house,” Harper saw him setting items down on the porch. Harper was
between ten and fifteen feet away at the time.
Harper asked defendant what his purpose in being there was,
and defendant replied that he thought the house was deserted and
that he was interested in the house. After Harper told defendant
that the house was occupied and pointed out two vehicles parked at
the house with current license plates, defendant apologized for
being there and left. When Harper returned to the back of the
house, he observed a shotgun and a clock sitting on the porch.
Harper then called the police. He gave officers the license plate
number of the vehicle driven by defendant. Although he initially
selected another individual from a photographic lineup, Harper
realized his mistake after seeing an enlarged picture of defendant.
Officer John Gardner (“Officer Gardner”) spoke with defendant
after another officer located the vehicle with the license plate
number given to police by Harper. In a statement given to police,
defendant said he had been looking for his lost dog when Harper
approached him at Falls' house that day. Falls told Officer
Gardner that he last saw the shotgun and clock during the first
week of November in a bedroom of his house. He stated that he was
certain that his back door was locked when he left, but was
unlocked upon his return. Falls testified that he did not give
defendant permission to enter his house or to take the shotgun andclock. Officer Gardner testified that Harper told him that he saw
defendant come out of Falls' house.
Defendant made a motion to dismiss the charges at the close of
the State's evidence, which the trial court denied. He presented
no evidence and then renewed his motion to dismiss. The trial
court again denied his motion. After the trial court instructed
the jury, they deliberated and found defendant to be guilty of all
of the charges on 15 January 2003. After arresting the conviction
for felonious possession of stolen goods, the trial court imposed
consecutive sentences having a combined term of twelve to sixteen
months imprisonment. The trial court then suspended the sentences
and placed defendant on supervised probation. From the trial
court's judgments, defendant appeals.
In his sole argument on appeal, defendant contends the trial
court erred by denying his motion to dismiss the charges at the
close of all the evidence. He argues the State's evidence of his
guilt did not rise above the level of suspicion or conjecture.
Defendant asserts that the jury was asked to infer that an
individual other than Falls had taken the two items from the house
and that defendant was that individual because of his proximity to
those items on the porch. He further argues that he was not seen
entering or inside the house, but was only seen coming from the
doorway area of the house. We are not persuaded by defendant's
arguments.
When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to theState; the State is entitled to every reasonable inference which
can be drawn from the evidence presented, and all contradictions
and discrepancies are resolved in the State's favor. State v.
Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). “If there is
substantial evidence -- whether direct, circumstantial, or both --
to support a finding that the offense charged has been committed
and that defendant committed it, a case for the jury is made and
nonsuit should be denied.” State v. McKinney, 288 N.C. 113, 117,
215 S.E.2d 578, 582 (1975).
When viewed in the light most favorable to the State, the
testimony of Harper and Officer Gardner was that defendant came out
of Falls' house with some items. Harper saw defendant set the
items on the back porch. Defendant left after Harper confronted
him, and Harper subsequently found a shotgun and clock on the
porch. Falls testified those items had been stored in a bedroom
inside of his house. Falls further testified that the back door
was secure when he left that morning and that he had not given
defendant permission to enter his house.
“The essential elements of felonious breaking or entering are
(1) the breaking or entering (2) of any building (3) with the
intent to commit any felony or larceny therein.” State v.
Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993). The
elements of larceny are that an individual “(1) took the property
of another; (2) carried it away; (3) without the owner's consent;
and (4) with the intent to deprive the owner of his property
permanently.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810,815 (1982). Here, the State's evidence was that defendant was seen
exiting Falls' house with items which had been stored in a bedroom
of the house. Falls had secured the back door less than five hours
earlier, and he had not given defendant permission either to enter
his house or to remove the two items. Drawing all reasonable
inferences from the State's evidence, the testimonies of Harper,
Falls, and Officer Gardner were sufficient to support a finding
that defendant entered Falls' house, took the shotgun and clock
from the bedroom without Falls' consent, and carried those items to
the back porch with the intent to deprive Falls of those items
permanently. Thus, the trial court did not err by denying
defendant's motion to dismiss the charges and by submitting the
charges to the jury.
No error.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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