An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1598
            
                                          &nb sp; 
NORTH CAROLINA COURT OF APPEALS
        
                                          &nb sp; 
Filed: 16 August 2005


STATE OF NORTH CAROLINA

         v.                        Edgecombe County
                                No. 02 CRS 50847-49
MILTON DOUGLAS CHERRY

    On a writ of certiorari from judgments entered 4 September 2002 by Judge Quentin T. Sumner in Edgecombe County Superior Court. Heard in the Court of Appeals 15 August 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper and Assistant Attorney General Donald W. Laton, for the State.

    Thomas R. Sallenger, for defendant.

    LEVINSON, Judge.

     Milton Douglas Cherry (defendant) was found guilty on 4 September 2002 of assault with a deadly weapon with intent to kill inflicting serious injury and felonious breaking or entering. He was sentenced to consecutive terms of imprisonment. His petition for a writ of certiorari was allowed by this Court on 22 March 2004.
     The State presented evidence tending to show that on the morning of 17 March 2002, defendant came to the residence of his estranged wife, Katie Cherry, beat on the front door of the residence with a baseball bat, and attempted to enter the house. Mrs. Cherry and her male companion, Melvin Batts, stood at the doorand prevented defendant from entering. Defendant then walked around to the back door of the residence and broke the back door window with the baseball bat. He stuck the bat and a knife through the opening he had created and hit Batts on the arms, fracturing one of Batts' arms and lacerating the other. He also struck Batts' head, causing lacerations to it. Batts ran out the front door of the house into the yard. Defendant came around to the front of the house.
    About that time police officers responding to Mrs. Cherry's call for help arrived at the scene and saw defendant charging at Batts with a baseball bat. One officer observed defendant strike Batts in the head with the bat. The officers displayed their guns and ordered defendant to put the bat down. Defendant complied with the officers' command. A videotape recorded by equipment in the police vehicle depicted defendant charging at Batts with the baseball bat in his hand.
    Defendant gave a statement in which he admitted going to his wife's house, kicking open and jumping through a window, and hitting Batts both inside and outside the house.
    Batts incurred medical bills in excess of $13,000 as a result of the assault.
    Defendant testified that he went to his wife's residence to attempt to talk to her about reconciling. When his wife refused to open the front door, he walked around to the back door and kicked it. The window of the door “popped” and then Batts reached through the window to grab defendant. Defendant jumped back and Batts felldown. Defendant “hit the glass” with the bat. He looked inside and saw that Batts' arm was gashed. Batts went to the front of the house and stood beside a car. As defendant approached him, Batts came charging at defendant. Defendant swung and hit Batts across the arm with the bat. He hit Batts one more time before the police arrived.
    Defendant presents two assignments of error by which he contends the court erred in denying his motions to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury and of felonious breaking or entering.     When a motion to dismiss is made, a court is required to determine whether there is substantial evidence of each essential element of the charged offense and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The court must consider all of the evidence actually admitted, whether competent or incompetent, in the light most favorable to the State. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
    The essential elements of assault with a deadly weapon with intent to kill inflicting serious injury in violation of N.C.G.S. § 14-32(a) are: (1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death. State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780(1994). Defendant argues substantial evidence is lacking to establish the third element, namely, that he had the intent to kill.
     “An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.” State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956). “[T]he nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred.” State v. White, 307 N.C. 42, 49, 296 S.E.2d 267, 271 (1982).
    Viewed in the light most favorable to the State, the evidence shows that on the morning of the assault defendant called his estranged wife and told her that he had “the devil in [him] now.” Armed with a baseball bat and a knife, he arrived at his wife's residence, where a man with whom his wife had started a new romantic relationship had just stayed overnight. After unsuccessfully attempting entry through the front door, he walked around to the back door and broke out the window with the baseball bat. He swung at Batts, his wife's male companion who was clad only in his underwear, with the knife and bat through the broken window of the door. He struck Batts in the head with the bat. He also caused lacerations to Batts' arms and head. Thereafter, defendant struck Batts again in the head with the baseball bat. Defendant stopped the assault when the police intervened. Basedupon the foregoing evidence a jury could reasonably infer that defendant intended to kill Batts. Defendant's first assignment of error pertaining to the charge of assault with a deadly weapon with intent to kill inflicting serious injury is overruled.
    To support a conviction for felonious breaking or entering under N.C.G.S. § 14-54(a), there must be substantial evidence of each of the following elements of the offense: (1) the breaking or entering; (2) of any building; (3) with the intent to commit a felony or larceny therein. State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 103 (1988). Defendant contends the evidence is insufficient to establish that he entered the dwelling.
    We have held that evidence is sufficient to establish the above offense if it shows either a breaking or an entering; it need not show both. State v. Barnett, 41 N.C. App. 171, 173, 254 S.E.2d 199, 200 (1979). A breaking is any act of force, however slight, to effect an entrance through any place of ingress. State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 580 (1982). The breaking of a window with the requisite felonious intent is sufficient to complete the offense even though the defendant may not physically enter the building. State v. Jones, 272 N.C. 108, 109, 157 S.E.2d 610, 611 (1967).
    The evidence in the case at bar shows that defendant broke out the window of the back door and actually reached inside the house as he struck Batts with the baseball bat and knife. Not only does the evidence establish a breaking, it establishes an entry by defendant. Defendant's second assignment of error pertaining tothe offense of felonious breaking or entering is overruled.
    No error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***