STATE OF NORTH CAROLINA
v. Cabarrus County
No. 04CRS053165
LISA CAROL WARD
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Ann Stone, for the State.
Charlotte Gail Blake for defendant-appellant.
HUNTER, Judge.
Lisa Carol Ward (“defendant”) appeals from a judgment imposed
on a jury conviction of first degree burglary. Defendant was
sentenced to a term of 90 to 117 months. After a thorough review,
we find no error.
The State presented evidence tending to show that between 2:00
a.m. and 3:00 a.m. on 2 August 2004, Edward Jeffrey Rothman
(“Rothman”) heard a noise in his house. He got out of bed to
investigate and encountered defendant standing in the kitchen.
Defendant asked him for a beer and then asked to use the restroom.
Rothman declined both requests and pushed her out of the house.
Rothman shut the door behind her and locked it. As Rothman walked
to check on his children in another part of the house, he heardglass breaking. Rothman ran back and saw defendant climbing out
the window in the computer room at the front of the house.
Defendant ran out into the yard and down the street. The next day
Rothman discovered that a case containing computer games and
software was missing from the computer room.
Defendant did not present any evidence.
Defendant first contends the court erred by denying her motion
to dismiss the charge. In deciding a motion to dismiss, the trial
court determines whether there is substantial evidence to establish
each element of the offense charged and to identify the defendant
as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296
S.E.2d 649, 651 (1982). The court must consider the evidence in
the light most favorable to the State, giving it the benefit of
every reasonable inference that may be drawn from the evidence.
State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Contradictions and discrepancies in the evidence are to be
disregarded and left for resolution by a jury. State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The elements of first degree burglary are: (1) the breaking
(2) and entering (3) in the nighttime (4) with the intent to commit
a felony (5) into a dwelling house or a room used as a sleeping
apartment (6) which is actually occupied at the time of the
offense. State v. Davis, 282 N.C. 107, 116, 191 S.E.2d 664, 670
(1972). Defendant argues the evidence is insufficient to establish
she had the intent to commit a felony at the time she entered the
residence. “Intent is a mental attitude seldom provable by direct
evidence. It must ordinarily be proved by circumstances from which
it may be inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d
506, 508 (1974). “The intent with which an accused broke and
entered may be found by the jury from evidence as to what he did
within the house.” State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d
269, 274 (1967). In the case at bar, the evidence shows that
after Rothman pushed defendant out the door and locked it, Rothman
heard glass break and saw defendant exit the computer room through
the window. Rothman discovered that a box containing computer
games and software was missing from the computer room. Based upon
this evidence, a jury could reasonably infer that defendant had the
intent to steal at the time she broke and entered the computer
room. This assignment of error is overruled.
Defendant next contends that the court erred by not submitting
the lesser offense of misdemeanor breaking or entering. Defendant
concedes that because she did not request submission of the lesser
offense, appellate review is by the plain error standard. See
State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).
Defendant also argues that counsel's failure to request the
instruction constituted ineffective assistance of counsel.
Under the plain error standard, appellate review is limited to
determining whether a case is
“the exceptional case where, after reviewing
the entire record, it can be said the claimed
error is a 'fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,'
or 'where [the error] is grave error whichamounts to a denial of a fundamental right of
the accused,' or the error has '“resulted in a
miscarriage of justice or in the denial to
appellant of a fair trial”' or where the error
is such as to 'seriously affect the fairness,
integrity or public reputation of judicial
proceedings' or 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)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted)). To prove that counsel rendered
ineffective assistance in violation of constitutional standards, a
defendant must show (1) that counsel's performance was deficient
and (2) that defendant was prejudiced by counsel's deficient
performance. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241,
248 (1985). Reversal of a conviction is warranted only when, based
upon a totality of the evidence, “there is a reasonable probability
that, but for counsel's errors, there would have been a different
result in the proceedings.” Id. at 563, 324 S.E.2d at 248.
The primary distinguishing factor between burglary and the
lesser offense of misdemeanor breaking and entering is that an
intent to commit a felony after entry is not required to establish
the lesser offense. State v. Dawkins, 305 N.C. 289, 290, 287
S.E.2d 885, 887 (1982). Submission of the lesser offense is
required only when there is evidence of non-felonious intent.
State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985).
Here, the evidence is clear and uncontradicted that defendant broke
and entered the computer room and took a case containing compact
discs of computer games and software. There is no evidence thatdefendant broke and entered the computer room with anything other
than felonious intent. There is no reasonable probability that a
different verdict would have resulted.
Defendant lastly contends that she was denied her right to a
jury trial because the jury deliberated for only seventeen minutes.
Defendant did not object to the brevity of the jury's deliberative
process and she does not cite any case in support of the
proposition that a jury must deliberate for a certain minimum
period of time. In accordance with N.C.R. App. P. 30(e)(3), the
State cites an unpublished opinion of this Court in which this
Court overruled a similar contention that the defendant was denied
his rights to due process and a jury trial due to the jury's short
deliberative process. In that opinion, State v. Jenkins, 168 N.C.
App. 241, 607 S.E.2d 56 (2005), the full text of which is attached
as an addendum to the State's brief, this Court noted that the
defendant did not object to the brief deliberations (eight minutes)
of the jury, and the defendant did not cite any authority for the
proposition that a jury must deliberate for a certain minimum of
time in order to satisfy constitutional requirements. For the same
reasons, we overrule defendant's contention in this case.
We find no error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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