An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1627


Filed: 1 March 2005


         v.                        Robeson County
                                No. 02 CRS 55732

    Appeal by defendant from judgment entered 22 September 2003 by Judge E. Lynn Johnson in Robeson County Superior Court. Heard in the Court of Appeals 1 November 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.

    Haral E. Carlin for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Horace Jamale Glover appeals from his conviction of first-degree burglary. The State's evidence tended to show that Cabel Regan (Regan) was in his home in St. Pauls on 22 August 2002. Because his home had been broken into the previous evening, Regan was waiting in the dark with a shotgun at approximately 9:30 p.m. He saw a truck drive up in front of his home at that time. Two males got out of the truck and began coming toward Regan's home. After stepping into a bedroom, Regan called the police on his cellular telephone and told them that some people were entering his home. He heard voices and people walking around in the house before he slipped out of the house through the back bedroom window.     When Deputy Joseph Cain arrived, he and Regan walked to the rear of the house. Upon seeing one man trying to pull a refrigerator through the back door, Deputy Cain told Regan to watch the front of the house. Deputy Cain heard a second individual talking on the other side of the refrigerator and could see him moving. Deputy Cain identified himself and told the men not to move. Both men fled through the house, and Deputy Cain followed them. As Deputy Cain came out of the front door, he saw Regan standing in front of the house. Defendant and another man were lying on the front porch. Deputy Cain placed restraints on the men and transported them to the sheriff's office.
    Detective Mark McMillan spoke with defendant that same night. After waiving his rights, defendant gave a statement in which he admitted to the crime and stated that he would never make this mistake again.
    Following the close of the State's evidence, defendant did not make a motion to dismiss the charge. After declining to present any evidence, defendant again did not request that the charge be dismissed. During the charge conference, the trial court denied defendant's request to submit the lesser included offenses of second-degree burglary and felonious breaking and entering. After the jury found defendant guilty of first-degree burglary, the trial court sentenced him to a term of 103 to 133 months' imprisonment. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) failing to dismiss the charge because the evidence was notsufficient and (2) failing to submit the lesser included offenses of second-degree burglary and felonious breaking and entering to the jury.
    Defendant contends the trial court erred by not dismissing the charge of first-degree burglary because the evidence was not sufficient. However, “[a] defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action . . . at trial.” N.C.R. App. P. 10(b)(3)(2004). Because defendant failed to make a motion to dismiss the action at the close of the evidence, he has failed to preserve this issue for appeal. We overrule this assignment of error.
    In his remaining assignment of error, defendant contends that the trial court erred by failing to submit the lesser included offenses of second-degree burglary and felonious breaking and entering to the jury.
    “An instruction on a lesser included offense is only required when there is some evidence to support the particular offense.” State v. Shubert, 102 N.C. App. 419, 424, 402 S.E.2d 642, 645 (1991). The necessity for such a jury instruction is dependent upon the presence of evidence from which the jury could find an offense of lesser degree had been committed. Id. Where there is no such evidence and the State's evidence is not conflicting, the trial court should refuse to instruct the jury as to a lesser included offense. 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). The essential element which separates first-degree burglary from second-degree burglary is actual occupancy of the dwelling house at the time of the commission of the crime. See N.C. Gen. Stat. § 14-51 (2003). Where all of the evidence shows that the building was occupied at the time of the breaking and entering, the trial court is precluded “from submitting the case to the jury on the charge of burglary in the second degree[.]” State v. Morris, 215 N.C. 552, 555, 2 S.E.2d 554, 557 (1939).
    Defendant argues that the trial judge should have submitted the offense of second-degree burglary because occupancy of the dwelling was in dispute. We disagree with this contention. In the present case, the victim was waiting in his home after it had been broken into the night before. A truck pulled up to the residence, and two men got out of the vehicle and approached the home. The victim stepped into a bedroom and called the police. He then heard voices, people walking around, and other commotion inside the house. Thus, at the time of the breaking and entering, all of the evidence indicates that the victim occupied the dwelling.     Fearing for his safety, the victim slipped out of the house through the bedroom window and waited for the police. A few minutes later, the police arrived and apprehended defendant and another man inside the victim's home. Because all of the evidence showed that the home was occupied at the time of the breaking and entering and the police caught defendant in the act, the trial court acted appropriately in submitting only the charge of first- degree burglary. We overrule this assignment of error.    Defendant's final contention is that the trial court erred by failing to instruct on the lesser included offense of felonious breaking and entering. However, defendant has provided no argument or authority in support of this proposition. Therefore, this argument is deemed abandoned. See N.C.R. App. P. 28(b)(6) (2004).
    After reviewing the record, briefs, transcript, and arguments of the parties, we conclude that defendant received a fair trial, free from reversible error.
    No error.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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