An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-566

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

STATE OF NORTH CAROLINA

v .                         Carteret County
                             Nos. 04 CRS 50432
LAWRENCE THORNTON ROWE, JR. 04 CRS 50433
    Defendant.                    04 CRS 50434

    Appeal by defendant from judgment entered 31 August 2004 by Judge Russell J. Lanier, Jr. in Carteret County Superior Court. Heard in the Court of Appeals 29 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, for the State.

    Woodruff, Reece & Fortner, by Michael J. Reece, for defendant.

    SMITH, Judge.

    Lawrence Thornton Rowe, Jr. (“defendant”) appeals his convictions for attempted felony breaking or entering, damage to real property, and malicious conduct by a prisoner. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error for damage to real property and malicious conduct by a prisoner. We reverse defendant's conviction for attempted felonious breaking or entering and remand that matter for a new trial.
    The facts and procedural history pertinent to the instant case are as follows: On the evening of 27 January 2004, Tommy Field was watching television at his home on Lydia Drive in Newport, NorthCarolina when he heard loud banging on the front storm door and breaking glass. He looked outside and saw defendant with whom he had been acquainted for fifteen years. Mr. Fields observed his storm door was broken and his refrigerator, which had been stored on the front porch, was overturned and broken. He called his stepson and the Carteret County Sheriff's Department.
    Deputy Sheriff Terry S. Miller (“Deputy Miller”) was dispatched to the Field home. When Deputy Miller arrived at the residence, he looked up the road and saw defendant. Deputy Miller pulled up to defendant who got in the patrol car and said, “I was waiting on you to get here.” Defendant, who appeared to be extremely intoxicated, told Deputy Miller he had been at Mr. Field's home because he wanted to get some money. Deputy Miller returned to Mr. Field's home and spoke with Mr. Field concerning the events of the evening. Deputy Miller observed the front storm door was broken and a refrigerator leaning against a steel railing at an angle. Deputy Miller assisted Mr. Field in standing the refrigerator upright. Deputy Miller arrested defendant for attempted breaking or entering and damage to property.
    Deputy Miller transported defendant to Carteret General Hospital to get clearance for the county jail due to defendant's intoxication. Upon their arrival at the hospital, defendant was placed in a triage room to await being seen in the emergency room. Deputy Miller was assisted by Lori Birch, a safety security supervisor at the hospital. During the wait of more than two hours, defendant vacillated between calm and violent behavior. AsDeputy Miller and Ms. Birch attempted to place defendant in a wheelchair when defendant was called to the emergency room, defendant spat at Deputy Miller. The spittle landed on the deputy's face. The deputy then placed a mask on defendant. Hospital personnel gave Deputy Miller saline solution with which to clean himself. Defendant was cleared for placement in the Carteret County jail and was transported to the jail by Deputy Miller.
    Defendant was tried at the 31 August 2004 session of Carteret County Superior Court on charges of attempted felonious breaking or entering pursuant to G.S. 14-54(a), injury to real property pursuant to G.S. 14-127, and malicious conduct by a prisoner pursuant to G.S. 14-258.4. At the close of the State's evidence, defendant's motion to dismiss was denied. Defendant did not present any evidence. The jury convicted defendant of all three charges. Defendant appeals.

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    Initially, we note defendant's brief contains arguments supporting only three of five assignments of error. Pursuant to N.C.R. App. P. 28(b)(6), the assignments of error for which no argument is made are deemed abandoned. Our review, therefore, is limited to the assignments of error properly preserved by defendant on appeal.
    The issues on appeal are whether the trial court: (I) committed plain error by failing to submit the lesser included offense of attempted misdemeanor breaking or entering to the jury; (II) committed plain error by failing to instruct the juryconcerning the offense of assault on a government official; and (III) erred by failing to hold a recorded charge conference.
    Defendant contends the trial court committed plain error by failing to submit the lesser included offense of attempted misdemeanor breaking or entering to the jury. We agree.
    In order to preserve the issue for appellate review, Rule 10(b)(2) of the Rules of Appellate Procedure requires that a party must object to jury instructions before the jury retires to consider its verdict. Where a party fails to object at trial, this Court may review the alleged error under the plain error rule. The plain error rule “is always to be applied cautiously and only in the exceptional case where . . . it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation and citation omitted). “In order to prevail under a plain error analysis, a defendant must show: (1) there was error; and (2) without this error, the jury would probably have reached a different verdict.” State v. Hamilton, 150 N.C. App. 558, 565, 563 S.E.2d 292, 296 (2002).
    A defendant is entitled to an instruction on a lesser included offense “if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quotation marks and citation omitted). “The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince arational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). “Only when the 'evidence is clear and positive as to each element of the offense charged' and there is no evidence supporting a lesser included offense may the judge refrain from submitting the lesser offense to the jury.” State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995) (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)).
    “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. Gray, 322 N.C. 457, 460, 368 S.E.2d 627, 629 (1988) (citing N.C. Gen. Stat. § 14-54(a)). “The elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense.” State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996). Attempted misdemeanor breaking or entering is a lesser included offense of attempted felonious breaking or entering. See State v. O'Neal, 77 N.C. App. 600, 606, 335 S.E.2d 920, 924 (1985). The distinguishing factor between attempted felonious breaking or entering and attempted misdemeanor breaking or entering is the intent with which the defendant attempted to break or enter. Intent is an attitude or condition of the mind which is ordinarily susceptible of proof only by circumstantial evidence. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). When “the factual issue whichseparates the greater offense from the lesser, i.e., intent, is not susceptible to clear cut resolution[,]” the trial court must submit the lesser offense to the jury. State v. Banks, 295 N.C. 399, 416, 245 S.E.2d 743, 754 (1978), overruled on other grounds, State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).
    In the instant case, Mr. Field testified he heard loud noises including banging on his front storm door and glass shattering. Mr. Field looked out a window, saw defendant beating on his door, and called the Sheriff's Department. When Deputy Miller arrived at the Field residence he saw defendant. When Deputy Miller pulled up to defendant in his patrol car, defendant said, “I was waiting on you to get here.” Defendant also told the deputy he had gone to the Field house to get money. The only evidence from which the jury could have found intent to commit a felony or larceny was defendant's ambiguous statement that he had gone to Mr. Field's house to get money. We note the evidence discloses that defendant was intoxicated at the time of the incident. Our Supreme Court “has found that evidence of a defendant's drunkenness at the time of a breaking [or] entering may require an instruction on the lesser included offense of misdemeanor breaking [or] entering.” State v. Peacock, 313 N.C. 554, 560, 330 S.E.2d 190, 194 (1985) (citing State v. Feyd, 213 N.C. 617, 197 S.E. 171 (1938)). We hold the court's failure to submit the lesser included offense of attempted misdemeanor breaking or entering for the jury's consideration was prejudicial error. Accordingly, we reverse andremand for a new trial on the charge of attempted felonious breaking or entering.
    Next, we consider defendant's contention that the trial court committed plain error by failing to instruct the jury on the offense of assault on a government official. We disagree.
    Defendant contends assault on a government official is a lesser included offense of malicious conduct by a prisoner. Defendant's argument lacks merit. This Court addressed the issue squarely in State v. Crouse, 169 N.C. App. 382, 388, 610 S.E.2d 454, 458, review denied, 359 N.C. 637, 616 S.E.2d 923 (2005), and held that assault on a government official is not a lesser included offense of malicious conduct by a prisoner. Thus, the trial court did not err by failing to instruct the jury on the charge of assault on a government official as a lesser included offense of malicious conduct by a prisoner. This assignment of error is overruled.
    Lastly, we consider defendant's contention the trial court erred by failing to hold a recorded charge conference. N.C. Gen. Stat. § 15A-1231(b) provides:
        Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not    constitute grounds for appeal unless his failure, not corrected     prior to the end of the trial, materially prejudiced the case of the defendant.

“When the court fails to hold a recorded charge conference and does not correct such failure prior to the end of the trial, the defendant must show how he was materially prejudiced.” State v. Brunson, 120 N.C. App. 571, 574, 463 S.E.2d 417, 418, cert. denied, 346 N.C. 181, 486 S.E.2d 211 (1995). “[D]efendant . . . may not assign error to the lack of recordation where he had the opportunity to object to the charge but declined to do so.” State v. Wiley, 355 N.C. 592, 631, 565 S.E.2d 22, 49 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
    In the instant case, the record discloses that after instructing the jury, the trial judge inquired of counsel, “Any requests for additions or corrections?” Defense counsel replied, “No, sir.” Thus defendant had an opportunity to object or correct the instructions as given and “declined to do so.” He may not now assign error to the failure to record any instruction conference or the failure to hold an instruction conference. In addition, defendant has failed to show how he was materially prejudiced by the court's failure to conduct a recorded charge conference. Therefore, this assignment of error is overruled.
    No error in part, reversed and remanded for a new trial on the charge of attempted felonious breaking or entering.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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