IN THE MATTER OF: Durham County
L.A.L. No. 04 J 154
Attorney General Roy Cooper, by Assistant Attorney General
Lisa C. Glover, for the State.
M. Victoria Jayne for respondent-appellant.
CALABRIA, Judge.
L.A.L. (“respondent”) appeals from a juvenile adjudication
order finding him guilty of felonious breaking and entering and
felonious larceny. We affirm.
The State presented evidence tending to show that
at
approximately 9:30 a.m. on 13 May 2005, William Smith (“Smith”)
returned to his home to investigate the activation of a burglar
alarm at his home. At the time Smith returned home, officers from
the Durham Police Department had already arrived at the scene, and
Smith and a police officer walked through the house and found a
bedroom window that had been pushed in and placed on the floor.
Smith also saw a pair of tennis shoes in the backyard that did not
belong to any members of his family. At that time, Smith noticed
that nothing was missing from the home. Later that afternoon, the
burglar alarm at Smith's residence was again activated. Smithreturned home and discovered a window in the same bedroom had been
broken, and he was missing a .22 caliber pistol and an X-box unit
with associated games.
While on the way to investigate the second incident, Officer
Moses Irving (“Officer Irving”) observed three juveniles sitting on
the street near Smith's residence. After returning to the
residence, Officer Irving, accompanied in separate vehicles by
Smith and other officers, returned to the location where Officer
Irving had seen the three juveniles. One of the three juveniles
was not wearing any shoes. The officers frisked the juveniles, one
of whom was later identified as respondent. The officers found an
X-box unit and games in the backpack of one of the juveniles, and
the juvenile who was not wearing any shoes removed a firearm from
his pocket. The officers found nothing on respondent's person.
Smith identified the items found on the juveniles as the .22
caliber pistol and the X-box with games taken from his residence.
Also relevant, police officers found fingerprints identified as
respondent's on the broken window.
All three juveniles were transported to the police department.
Respondent's mother was called, but she was unable to leave the day
care where she worked to come to the police station. After an
officer read respondent his rights, respondent twice stated that he
did not want his mother present. After waiving his rights,
respondent gave statements in which he admitted breaking and
entering the residence with the other two juveniles.
In the first of two assignments of error, respondent contendsthe trial court erred by denying his motion to suppress his
statement. Respondent argues that his statement should not have
been admitted into evidence because the trial court failed to make
a requisite finding of fact that the juvenile “knowingly, willingly
and understandingly waived his juvenile rights” prior to admitting
the statement. At trial, however, respondent did not argue the
statement should have been excluded on the ground his waiver of
rights was not knowing or intelligent; rather, he argued the
statement should have been excluded on the ground his arrest was
illegal. Because the issue raised on appeal was not presented to
the trial court, it may not be considered for the first time on
appeal. N.C. R. App. P. 10(b)(1) (2006); State v. Benson, 323 N.C.
318, 322, 372 S.E.2d 517, 519 (1988) (“Defendant may not swap
horses after trial in order to obtain a thoroughbred upon appeal”).
Accordingly, we do not consider this issue.
In his remaining assignment of error, respondent contends the
court erred by denying his motion to dismiss for insufficient
evidence. Respondent specifically argues the evidence is
insufficient to prove he took anything from the residence or
intended to commit a felony or larceny. We hold respondent's
argument is without merit.
To withstand a motion to dismiss in a juvenile delinquency
petition, the State must present substantial evidence of each of
the material elements of the offense alleged. In re Bass, 77 N.C.
App. 110, 115, 334 S.E.2d 779, 782 (1985). In ruling upon a motion
to dismiss, the court considers the evidence in the light mostfavorable to the State, giving it the benefit of every reasonable
inference of fact that may be drawn from the evidence. Id.
Felonious breaking or entering consists of (1) the breaking or
entering (2) of any building (3) with the intent to commit a felony
or larceny therein. State v. Williams, 330 N.C. 579, 585, 411
S.E.2d 814, 818 (1992). A person's intent at the time he or she
breaks and enters a house may be inferred from evidence of what he
did after he entered the house. State v. Gray, 322 N.C. 457, 461,
368 S.E.2d 627, 629 (1988). Larceny is the felonious taking and
carrying away of the goods or personal property of another, without
that person's consent, and with the intent to permanently deprive
the owner of his property. State v. McCrary, 263 N.C. 490, 492,
139 S.E.2d 739, 740 (1965).
The law is settled that a person is a party to an offense and
is equally guilty as a principal perpetrator if he or she either:
(1) actually commits the offense or does some act which forms a
part thereof; (2) assists in the actual commission of the offense
or of any act which forms part thereof; or (3) directly or
indirectly counsels or procures any person to commit the offense or
to do any act forming a part thereof. State v. Keller, 268 N.C.
522, 526, 151 S.E.2d 56, 58 (1966). If two or more persons join in
a purpose to commit a crime, each of them, if actually or
constructively present, is guilty as a principal of any crime
committed by the others in pursuance of the common purpose or as a
natural or probable consequence thereof. State v. Barnes, 345 N.C.
184, 233, 481 S.E.2d 44, 71 (1997). The State's evidence established that respondent's
fingerprints were found on the broken window through which the
juveniles made entry inside Smith's residence. Additionally,
respondent confessed that he broke into and entered the residence
with the two other juveniles and that after entering the residence,
he assisted one of the juveniles in entering. Respondent further
stated that he examined the pistol the juveniles found in the
residence and decided to allow one of the other juveniles to keep
it. Also after the juveniles left the Smith residence, respondent
remained with the two other juveniles, who retained physical
possession of the items taken from the residence. Based on the
evidence, we hold that the State presented substantial evidence of
each element of the respective offenses, and the trial court did
not err in denying respondent's motion to dismiss.
Affirmed.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***