STATE OF NORTH CAROLINA
v. Robeson County
No. 02 CRS 55732
HORACE JAMALE GLOVER
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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