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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