State v Copeland, 168 NC App 729 (04-534) 03/01/2005

Appeal by defendant from judgment entered 13 August 2003 by Judge Charles H. Henry in Craven County Superior Court. Heard in the Court of Appeals 31 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.

Adrian M. Lapas for defendant-appellant.

    ELMORE, Judge.

     William Earl Copeland (defendant) appeals judgments entered against him on one count of first degree burglary and one count of breaking and or entering. The State's evidence at trial tended to show that on 10 November 2002 Marcia Andre was asleep in her apartment, which is located on the second floor at 301 South Front Street in New Bern, North Carolina. At approximately 2:00 a.m., Ms. Andre and her grandson were awakened by a loud noise coming from the floor below, where the Chicago Title Insurance Company is located. Ms. Andre heard a person rattling the doorknob and then breaking through the door at the bottom of the stairwell. As the intruder came up the stairs towards her apartment door, Ms. Andrescreamed, “I've called the police, they're on their way.” She heard the person run back down the stairs and, upon looking out her bedroom window, observed a black man wearing dark clothing run out the backdoor of the building.
    Officer Ryan Matthew McCracken of the New Bern Police Department testified that at 1:56 a.m. on 10 November 2003   (See footnote 1) he received a radio call directing him to 301 South Front Street. Officer McCracken observed defendant at the top of the stairs behind the businesses and apartments on the 300 block of South Front Street. Officer McCracken ordered defendant to stop and waved him over, but defendant looked surprised and ran away. Defendant was chased by Officer McCracken on foot, and two other officers assisted in subduing and handcuffing defendant.
    Connie Banks, the manager of Chicago Title Insurance Company, testified that on 11 November 2003 she entered the front door to the office and noticed that the deadbolt lock was not engaged and that there was fingerprint powder on the door. She also observed that a big strip of wood surrounding her window had been broken off. Ms. Banks called the police and was informed that a break-in had occurred. Ms. Banks described the condition of her office as being in disarray; desk drawers were open and the medicine cabinet in the bathroom had been opened.     At the charge conference, the court asked both parties whether they were requesting specific instructions to be submitted to the jury. Also, the court provided the parties a written copy of the instructions for the opportunity to object. Defendant made no objection to the jury instructions, nor did he propose any additional instructions. The jury returned verdicts of guilty on the charges of first degree burglary and felonious breaking and entering. From the judgments entered 13 August 2003 on these verdicts, defendant appeals.
    Defendant contends that the State failed to present sufficient evidence of the specific intent to commit larceny, and thus the court was required to instruct on the lesser included offense of misdemeanor breaking and entering with respect to both offenses. Because defendant did not object to the instructions at trial, he has waived this assignment of error on appeal. N.C.R. App. P. 10(b)(2) (2004) (“A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict . . . .”). Nonetheless, defendant argues on appeal that the trial court committed plain error in failing to instruct on misdemeanor breaking and entering.
    In order to rise to the level of plain error, “the error in the trial court's jury instructions must be so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193(1993) (citation and internal quotation marks omitted). Our Supreme Court has remarked that, in light of the purpose behind Rule 10(b)(2), “it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)). A defendant is entitled to have a lesser degree of an offense submitted to the jury as an alternative verdict where supported by the evidence, but the court need not instruct on the lesser offense “[i]f the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant's denial that he committed the offense . . . .” State v. Smith, 351 N.C. 251, 267-68, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000).
    This Court has repeatedly held that the jury may infer intent to commit larceny from the defendant's conduct and other circumstances existing at the time of the breaking and entry. See, e.g., State v. Thomas, 153 N.C. App. 326, 334, 570 S.E.2d 142, 147, disc. review denied, 356 N.C. 624, 575 S.E.2d 759 (2002); State v. Evans, 99 N.C. App. 88, 93, 392 S.E.2d 441, 444 (1990); State v. Costigan, 51 N.C. App. 442, 445, 276 S.E.2d 467, 469 (1981). When no evidence of contrary intent is shown, intent to commit a larceny may be inferred from evidence that the defendant broke into a dwelling at night and fled upon being discovered. State v.Salters, 65 N.C. App. 31, 34, 308 S.E.2d 512, 515 (1983) (citing State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970)), disc. review denied, 310 N.C. 479, 312 S.E.2d 889 (1984).
    In the case sub judice, the State's evidence established that defendant was wearing dark clothing; broke into the dwelling at approximately 2:00 a.m.; ran back down the stairs in response to Ms. Andre's warning that the police were on their way; and fled after being discovered by Officer McCracken. Additional evidence showed that desk drawers and the medicine cabinet in the Chicago Title Insurance Company office had been opened. Such evidence is sufficient to support a reasonable inference that defendant intended to commit a larceny at the time of the break-in. Moreover, defendant presented no evidence to support a theory of intent different from that proffered by the State. Cf. State v. Peacock, 313 N.C. 554, 559-60, 330 S.E.2d 190, 193-94 (1985) (evidence that defendant intended to discuss rent payment he owed to landlord and that defendant was intoxicated at time of break- in); State v. Owen, 111 N.C. App. 300, 309, 432 S.E.2d 378, 385 (1993) (reversible error in failing to submit misdemeanor breaking and entering instruction where defendant's evidence indicated he entered house to retrieve his shotgun). In sum, there is no evidence to contradict the inference that defendant intended to commit a larceny at the time of the break-in.
    Accordingly, we hold that the trial court was not required to submit the charge of misdemeanor breaking and entering to the jury. After careful review, we find defendant's remaining assignments of error to be without merit.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

Footnote: 1