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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed:3 July 2007
STATE OF NORTH CAROLINA
Nos. 00CRS1308 and
NATHAN WEAVER, JR.
Appeal by Defendant from judgment entered 25 May 2000 by Judge
J. B. Allen, Jr. in Superior Court, Alamance County. Heard in the
Court of Appeals 5 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
John W. Congleton, for the State.
Haral E. Carlin, for Defendant-appellant.
The breaking of a store window, accompanied by the requisite
intent to commit a felony therein, constitutes the completed
offense of breaking and entering.
(See footnote 1)
Here, Defendant Nathan Weaver,
Jr. argues that the evidence was insufficient to show breaking and
entering because the store owner testified that a person could not
enter the store through the window. Because the evidence tended to
show that Defendant broke the store's display window with the
intent to commit a felony therein, and took several items of
clothing, we find no error. The relevant facts show that on 30 January 2000, a heavy snow
fall knocked out the electricity to Rauhut Street in Burlington,
North Carolina. Officer Sam Epps of the Burlington Police
Department received a dispatch call to investigate a report of
breaking glass in the area of Rauhut Street. Upon arriving to the
area, Officer Epps approached Defendant after observing him with
several items of clothing. Defendant ran but was apprehended and
returned to the store by Officer Epps and his partner.
At the store, the officers found broken glass, spilled gray
paint, and blood on one piece of glass. Additionally, Officer Epps
observed gray paint on Defendant's coat and ear, and a recent cut
on Defendant's hand. The store's co-owner arrived at the store and
identified the merchandise taken from the display window.
Thereafter, Defendant was charged with the felonious crimes of
breaking and entering, larceny, and possession of stolen goods.
Following a jury trial, Defendant was convicted on all counts and
obtained habitual felon status.
(See footnote 2)
The trial court sentenced him toa term of 121 to 155 months for breaking or entering, entered
prayers for judgment continued on the possession of stolen goods
and larceny convictions, and ordered Defendant to pay restitution
to the store.
Defendant appeals to this Court; however, we dismiss his
attempt to appeal from the prayers for judgment continued on the
possession of stolen goods and larceny convictions because no
appeal may arise from a prayer for judgment . See N.C. Gen. Stat.
§ 15A-101(4a) (2005); State v. Southern, 71 N.C. App. 563, 566, 322
S.E.2d 617, 619 (1984) (providing that when a prayer for judgment
is continued, no judgment is entered and no appeal is possible),
aff'd, 314 N.C. 110, 331 S.E.2d 688 (1985)
. Thus, we review only
Defendant's appeal regarding the charge of felonious
, wherein he argues that
the trial court erred by (I)
denying his motion to dismiss the charge for insufficient evidence,
and (II) admitting Officer Epps' uncorroborated testimony regarding
the value of the merchandise taken by Defendant.
Defendant first argues that the trial court erred by denying
his motion to dismiss the charge of felonious
breaking or entering
at the end of all evidence. We disagree.
A motion to dismiss requires a court to determine 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).
Substantial evidence is 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). In
reviewing the evidence, the State must be afforded every reasonable
inference that may be deduced from the evidence and must leave
contradictions or discrepancies for the jury to resolve. State v.
Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
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. Williams,
330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992). Defendant argues
that the element of breaking or entering is absent because the
store owner testified that a person could not enter the store
through the display window, therefore, the trial court should have
granted Defendant's motion. We disagree.
The breaking of [a]. . . store window, with the requisite
intent to commit a felony therein, completes the offense even
though the defendant is interrupted or otherwise abandons his
purpose without actually entering the building. State v. Jones,
272 N.C. 108, 109, 157 S.E.2d 610, 611 (1967). In this case, there
was evidence to support that Defendant broke the display window and
removed the merchandise from therein. Accordingly, Defendant's
assignment of error is without merit.
Defendant next argues that the trial court erred by admitting
Officer Epps' uncorroborated testimony regarding the value of the
merchandise taken from the store's display window. We disagree.
The record shows that the trial court conditionally permitted
Officer Epps to testify regarding the value of the clothing
recovered from Defendant, subject to subsequent corroboration by
the store owner who supplied the values to the officer. However,
the co-owner who supplied the officer with the values did not
testify at the trial; rather, another owner testified stating that
she did not supply with the officer the value of the items.
Defendant argues that the trial court should have stricken Officer
Epps' testimony regarding the value of the items seized from
However, when Officer Epps testified as to the value of the
items, the trial court instructed the jury to consider the evidence
only for corroborative purposes and that if it does not
corroborate the owner's testimony, then you will disregard it.
The law presumes that the jury heeds limiting instructions that
the trial judge gives regarding the evidence. State v. Shields,
61 N.C. App. 462, 464, 300 S.E.2d 884, 886 (1983). We hold that
any error in allowing the testimony by Officer Epps regarding value
was cured by the trial court's limiting instruction to the jury.
We have reviewed Defendant's remaining contentions and find
them to be without merit.
Dismissed in part, no error in part. Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
State v. Jones,
272 N.C. 108, 109, 157 S.E.2d 610, 611
The State indicted Defendant for breaking and
trial judge instructed, and the jury returned a verdict of guilty
on breaking or
entering. Thereafter, the trial judge entered
judgment on breaking and/or
State v. Jones
Supreme Court acknowledged that defendant was charged with the
offense of breaking and
entering but found the evidence at trial
sufficient to support the pertinent language of G.S. 14-5
regarding the intent to break or
272 N.C. at 109, 157
S.E.2d at 611
(emphasis supplied); see State v. Boyd,
287 N.C. 131,
145, 214 S.E.2d 14, 22 (1975) (It has long been the law in this
State in prosecutions under this statute and its similar
predecessors that where the indictment charges the defendant with
entering, proof by the State of either a breaking or
an entering is sufficient; and instructions allowing juries to
convict on the alternative propositions are proper.) (citations
omitted); State v. Reagan
, 35 N.C. App. 140, 144, 240 S.E.2d 805,
808 (1978) (providing that there was no error when the defendantwas indicted for breaking and entering and the trial court's charge
to the jury referenced breaking or entering).
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