An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-711


Filed: 4 May 2004


         v.                            Gaston County
                                    No. 01CRS66881

    Appeal by defendant from judgments entered 15 January 2003 by Judge Marvin K. Gray in Gaston County Superior Court. Heard in the Court of Appeals 19 April 2004.

    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).

*** Converted from WordPerfect ***