An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-468


Filed: 3 May 2005


v .                                 Beaufort County
                                    No. 02 CRS 052221

    Appeal by defendant from judgment entered 30 July 2003 by Judge Thomas D. Haigwood in Beaufort County Superior Court. Heard in the Court of Appeals 31 January 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

    Brannon Strickland, PLLC, by Anthony M. Brannon, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (Wayne Levon Johnson) was charged with first-degree burglary and second-degree rape. At trial, the State presented evidence which tended to show the following: For approximately five to seven years prior to June 2002, defendant and Delores Gilmore were involved in a consensual sexual relationship. In approximately early June 2002, Gilmore decided to end this relationship. At approximately 11:15 p.m. on 22 June 2002, defendant knocked on the back door to Gilmore's home. She told him to leave. Gilmore decided to check the back door again before going to bed. Upon seeing that defendant was still there, she again told him to leave. After changing into her nightclothes, Gilmore checked the back doora third time. According to Gilmore, approximately thirty minutes had elapsed since defendant first knocked on her door, and he had not yet left, so she threatened to call his wife or his mother.
    Defendant then asked to use Gilmore's telephone to call for a ride. Gilmore handed him her cordless telephone, but after noticing that he had a bicycle with him, she demanded that defendant return her phone. After defendant refused, Gilmore opened her screen door, stepped on the porch, and grabbed her phone. Defendant then “snatched” her arm and threw her down the three steps leading up to her porch. Gilmore landed on her back, and defendant straddled her and struggled with her to keep her from screaming. According to Gilmore, defendant told her that he hated her, spat on her, stated, “I don't want to see you or hear your name again,” and threatened to kill her son if she called the police. Gilmore testified that defendant told her to get up so that they could go in the house. When she asked why, defendant responded, “I'm going to do what I want to to you and then I don't want to see you or hear your name. . . .I can do it out here or in [the house].” During part of the time that he was on top of Gilmore and talking to her, defendant had a broken beer bottle in his hand. Defendant later discarded the bottle.
    Eventually, despite Gilmore's requests that defendant discontinue the attack, defendant told her to go into the house. Gilmore complied with this directive, and she and defendant entered the house and walked into her bedroom. Once in her bedroom, defendant ordered Gilmore to remove her clothes. Gilmore wascrying and again asked defendant to cease the attack, to which defendant replied, “Take them off.” Once Gilmore removed her panties, defendant ordered her to get into bed, at which point he undressed, got into bed, and briefly inserted his penis into Gilmore's vagina. Gilmore testified that defendant “didn't stay on [her] long because [she] wasn't cooperating with him like he wanted . . . .”
    Shortly after this brief intercourse, defendant fell asleep. Gilmore quietly exited the bedroom, awakened her sleeping son, ushered him out of the dwelling, and called the police. When Corporal Ron Black of the Washington Police Department arrived at the scene, he found Gilmore and her son in their front yard. The officer noticed that Gilmore was trembling and crying and that she was bleeding from her mouth and chin and had bruises on her face. Detective Brad Boyd, also with the Washington Police Department, was called to the scene. His investigation indicated that there was a track of sand and dirt, which was consistent with the loose dirt near the back door of Gilmore's home, leading from the back door of the home into Gilmore's bedroom. There was also an unusual amount of such dirt on Gilmore's bed.
    After the incident, defendant called Gilmore on numerous occasions. The following August, Gilmore and defendant again entered into a consensual sexual relationship.
    Defendant did not present any evidence, and the trial court denied the defendant's motions to dismiss. The jury convicted defendant of first-degree burglary and second-degree rape, and thetrial court entered a consolidated judgment imposing a sentence of 107 to 138 months' imprisonment. Defendant now appeals. We hold that he received a fair trial, free of prejudicial error.

    In his first argument on appeal, defendant contends that the trial court erred by denying his motion to dismiss the first-degree burglary charge. We do not agree.
    When ruling on a motion to dismiss, “the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). “'Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.'” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002) (citation omitted). “'In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.'” Id. (citation omitted). “'The trial court must also resolve any contradictions in the evidence in the State's favor.'” Id. (citation omitted). “'The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.'” Id. (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence iscompletely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
    The essential elements of burglary are: (1) the breaking, (2) and entering, (3) at night, (4) into a dwelling of another, (5) that is occupied, and (6) with the intent to commit a felony therein. State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). A breaking can be actual or constructive; “[a] constructive breaking occurs when entrance is obtained as the result of violence commenced or threatened by a defendant.” State v. Parker, 350 N.C. 411, 425, 516 S.E.2d 106, 117 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). “At the time of entrance, the intent to commit the felony must be present, and 'this can but need not be inferred from the defendant's subsequent actions.'” Id. (citation omitted). “If the crime [is] committed in a dwelling house, . . . and any person is in the actual occupation of any part of said dwelling house . . . at the time of the commission of such crime, it shall be burglary in the first degree.” N.C. Gen. Stat. § 14-51 (2003).
    Defendant argues that the State presented no evidence that he broke into Gilmore's house and that there was no evidence that he intended to commit a rape at the time that he entered the house. However, Gilmore testified that defendant grabbed her, threw her down a flight of steps, pinned her to the ground, held a broken beer bottle up to her, and told her to go inside of her home. This testimony provided sufficient evidence from which the jury could find that a constructive breaking occurred. Moreover, Gilmoretestified that, prior to entering the home, defendant told her that he was “going to do what [he] want[ed] to [her]” and that, once inside, he engaged in brief sexual intercourse with her against her will. This testimony provided evidence from which the jury could infer that defendant intended to commit a felony, rape, at the time of his illegal entry.
    The trial court properly denied defendant's motion to dismiss the first-degree burglary charge. This assignment of error is overruled.
    In his second argument on appeal, defendant contends that the trial court erred by denying his motion to dismiss the second- degree rape charge. We do not agree.
    “A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person . . . [b]y force and against the will of the other person[.]” N.C. Gen. Stat. § 14- 27.3(a)(1) (2003). “Constructive force, applied through fear, fright, or coercion, suffices to establish the element of force in second-degree rape.” State v. Scercy, 159 N.C. App. 344, 352, 583 S.E.2d 339, 344, disc. review denied, appeal dismissed, 357 N.C. 581, 589 S.E.2d 363 (2003).
    In the instant case, Gilmore testified that defendant attacked her, told her to go inside, and followed her into her bedroom. She further testified that, notwithstanding her protests, defendant then directed her to remove her clothes and briefly inserted his penis into her vagina and that she did not cooperate with defendantduring this encounter. This testimony provided evidence from which the jury could find that defendant engaged in vaginal intercourse with Gilmore against her will by using actual or constructive force.
    The trial court properly denied defendant's motion to dismiss the second-degree rape charge. This assignment of error is overruled.
    In his third argument on appeal, defendant contends that he was prejudiced by ineffective assistance of counsel. We disagree.
    Ineffective assistance of counsel claims brought on direct review “will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). “Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An [ineffective assistance of counsel] claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance.” Id. at 167, 557 S.E.2d at 525 (citation omitted).
    In the instant case, defendant contends that he received ineffective assistance of counsel in that his attorney (1) admittedthat she had only been practicing criminal defense law for one and a half years and asked the court if it had any question as to whether she was experienced enough to proceed; (2) requested that she be allowed to cross-examine the victim after a lunch recess so that she could have time to gather her thoughts; (3) failed to properly subpoena a witness; (4) attempted to introduce exhibits during the State's case-in-chief and failed to mark such exhibits; (5) was prompted by the court to have a witness authenticate some documentary exhibits; (6) did not request that misdemeanor breaking and entering be submitted as a lesser included offense for first- degree burglary; (7) stipulated to the prior record level alleged by the State where her calculation indicated that the prior record level was correct but that the total number of points assigned to defendant by the prosecution was incorrect; and (8) failed to present evidence of mitigating factors.
    Having carefully reviewed the transcript of defendant's trial and sentencing hearing, we conclude that defendant's ineffective assistance of counsel claim may be decided by this Court on direct review. We further conclude that, even assuming arguendo that the performance of defendant's trial counsel fell below an objectively reasonable standard, the trial would not have had a different outcome in the absence of such allegedly ineffective assistance. This assignment of error is overruled.
    In his final argument on appeal, defendant contends that the trial court committed plain error by not submitting misdemeanorbreaking and entering to the jury as a lesser included offense for first-degree burglary. This contention lacks merit.
    A judge must charge the jury upon a lesser included offense, even absent a request by counsel, where there is evidence to support it. State v. Little, 163 N.C. App. 235, 240, 593 S.E.2d 113, 116, disc. review denied, 358 N.C. 736, 602 S.E.2d 366 (2004). “If there is any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense, the judge is obligated to give such an instruction.” Id. However, where a defendant is charged with first-degree burglary, and there is
        “evidence of the defendant's intent to commit the felony named in the indictment in the building or dwelling, such as evidence that the felony was committed . . . or evidence that the felony was attempted, . . . or . . . evidence that the felony was planned, and there is no evidence that the defendant broke and entered for some other reason, then the trial court does not err by failing to submit the lesser included offense of misdemeanor breaking and entering to the jury as a possible verdict.”

Id. at 241, 593 S.E.2d at 117 (quoting State v. Patton, 80 N.C. App. 302, 305-06, 341 S.E.2d 744, 746-47 (1986) (citation omitted)).
    In the instant case, the State offered positive evidence from which the jury could conclude that defendant intended to commit a rape at the time he entered Gilmore's home, and there was no evidence tending to establish that defendant lacked such intent or entered for some other purpose. Thus, the trial court properlydeclined to submit misdemeanor breaking and entering to the jury. This assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge ELMORE concur.
    Report per Rule 30(e).

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