An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1332


Filed: 6 December 2005


    v.                            Mecklenburg County
                                No. 03 CRS 253533

    Appeal by defendant from judgment entered 8 June 2004 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.

    Kelly Scott Lee for defendant-appellant.

    GEER, Judge.

    Defendant Jeffrey Porter appeals from his conviction of felonious breaking and entering. On appeal, he contends that the trial court erred in denying his motion to dismiss based on the sufficiency of the evidence and erred in failing to instruct the jury on the lesser included offense of misdemeanor breaking and entering. We hold that defendant received a trial free of prejudicial error.
    At trial, the State presented evidence tending to show the following. James Brooks left his home in Charlotte, North Carolina at 6:00 p.m. to visit a friend in Greensboro. The next morning, Mr. Brooks received a call from his home security provider, informing him that someone had broken into his home atapproximately 5:00 a.m. Mr. Brooks returned to his home at approximately 8:15 a.m. to discover that a microwave, vacuum cleaners, televisions, household appliances, jewelry, and cameras were missing.
    Mr. Brooks observed that an air conditioner had been kicked out of one back bedroom window and that the lower left glass pane was broken out of another back bedroom window. He also found that someone had kicked open an attached outside utility room, removed sheetrock from its ceiling, and then entered his home by crawling through the attic. He testified that he had lived in his home for 25 years, that he did not know defendant, and that he had never allowed defendant into his home.
    Larry Griffin, a crime scene search supervisor, processed Mr. Brooks' home for fingerprints. He located four fingerprints on the sash of the bedroom window with the broken pane of glass. In describing a photograph of where he located the prints, Officer Griffin stated that "[t]his is the edge of the window sash area just below the broken window. These are latent prints that became visible after processing inside that broken area." After photographing the fingerprints, Officer Griffin used lifting tape to transfer the four latent prints to a fingerprint card. Kathleen Ramseur, the latent fingerprint supervisor for the Charlotte- Mecklenburg Police Department Crime Lab, placed the fingerprint information from the latent lift card into AFIS (automatic fingerprint identification system) to obtain a list of suspect candidates for comparison. Ms. Ramseur then manually compared thelatent prints from the crime scene with the known fingerprints of the suspect candidates and determined that all four latent prints lifted from the window sash belonged to defendant.
    On 15 December 2003, the Mecklenburg County grand jury indicted defendant on charges of felony larceny and felonious breaking or entering. The trial court allowed the State's motion for joinder of the offenses for trial. A jury subsequently found defendant not guilty of felony larceny, but guilty of felonious breaking or entering. The trial court then sentenced defendant to a term of six to eight months imprisonment. From the trial court's judgment, defendant appeals.
    Defendant first assigns error to the trial court's denial of his "Motion to Dismiss at the close of the State's evidence since no reasonable juror could find based on the evidence that Defendant was guilty[.]" Defendant, however, waived this argument when he introduced evidence after the close of the State's evidence. If, after a trial court denies a motion to dismiss, the "defendant then introduces evidence, his motion for dismissal . . . made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal." N.C.R. App. P. 10(b)(3).
    We note that at the close of all the evidence, defense counsel stated: "I need to renew my motions that were made at the end of the State's evidence." The trial court pointed out that defendant had only moved to dismiss the larceny charge at the close of the State's evidence and defense counsel then stated: "Then I wouldrenew that motion." Defendant does not argue on appeal that the trial court should have dismissed the breaking and entering charge at the close of the evidence and, therefore, we do not address that issue. But see N.C.R. App. P. 10(b)(3) ("A defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion. If the motion at the close of all the evidence is denied, the defendant may urge as ground for appeal the denial of his motion made at the conclusion of all the evidence.").     Defendant next contends the trial court erred by denying his request for jury instructions on the lesser included offense of misdemeanor breaking or entering. While a defendant is entitled to have the lesser degree of an offense submitted to the jury as an alternative verdict when it is supported by the evidence, a trial 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, 121 S. Ct. 151 (2000). "The possibility that a jury might partially accept or reject the State's evidence against a defendant is not sufficient to require instruction on the lesser included offense." State v. Barnette, 96 N.C. App. 199, 202, 385 S.E.2d 163, 164 (1989).
    Defendant argues that his fingerprints were only found on the outside window sill of the master bedroom and that a reasonablejuror could, therefore, "have found that [defendant] was not there on the day in question, but had instead placed his hand on the window at another date or time other than on September 5, 2003." Defendant then suggests that "[i]f Mr. Porter had merely placed his hand on the window sill of the bedroom, this would not constitute felony breaking and entering since he did not enter the residence."
    In distinguishing the felonious offense from the misdemeanor offense, however, the focus is on the intent with which a defendant broke or entered. "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). If, however, there is evidence that supports a finding that a defendant wrongfully broke into or entered a building, but did not have the intent to commit any felony or larceny at the time of the breaking or entering, an instruction on misdemeanor breaking or entering is warranted. State v. Dozier, 19 N.C. App. 740, 742, 200 S.E.2d 348, 349-50 (1973), cert. denied, 284 N.C. 618, 201 S.E.2d 690 (1974). Defendant's factual theory that he may have left his fingerprints on a window sill some other day does not address his intent in breaking and entering Mr. Brooks' home on 5 September 2003.
    Under very similar circumstances, this Court has already held that a trial court properly refused to instruct as to misdemeanor breaking or entering. In State v. Hamilton, 132 N.C. App. 316, 317, 512 S.E.2d 80, 82 (1999), the jury convicted the defendant of felonious breaking or entering, but acquitted the defendant offelonious larceny. The evidence established that someone had entered a store through the roof and merchandise valued at $24,000.00 was missing. Id. Police officers determined that access to the roof had been attained by using an awning and the defendant's fingerprints were found on the awning. Id. at 317-18, 512 S.E.2d at 82. In holding that there was no evidence of misdemeanor breaking or entering as opposed to felonious breaking or entering, this Court observed that (1) defendant had offered no evidence of any alternative reason for his entry into the store, and (2) items indeed were stolen from the premises, even though the jury ultimately found the defendant not guilty of larceny. Id. at 322, 512 S.E.2d at 85. The Court held, based on this evidence, "there was no need to instruct the jury on the lesser included offenses of misdemeanor breaking or entering or first degree trespass." Id.
    Similarly, here, defendant offered no evidence that he broke and entered into Mr. Brooks' home on 5 September 2003 for some reason other than larceny. See id. at 321-22, 512 S.E.2d at 85 ("Defendant did not testify or present any evidence that he broke or entered for any non-felonious purpose. The indictment alleges larceny, and no other explanation was given for the unauthorized entry into the store."). Further, also as in Hamilton, the State offered evidence that items were actually stolen from Mr. Brooks' home on that date. Under Hamilton, therefore, the trial court properly refused to instruct the jury as to misdemeanor breaking or entering. See also Barnette, 96 N.C. App. at 202, 385 S.E.2d at164 (holding that the trial court properly declined to instruct on misdemeanor breaking or entering when the defendant's fingerprints were found on a window frame and defendant did not present evidence of an alternative explanation for the presence of his fingerprints on the window frame, although the defendant had offered evidence that he had been at the house on prior occasions).
    In his final contention, defendant asserts without argument or citation to authority that the trial court erred by denying his motion for a directed verdict. Because he has neither cited any authority nor stated any argument in support of this assignment of error, it is deemed abandoned. N.C.R. App. P. 28(b)(6).

    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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