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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
v. Montgomery County
No. 05 CRS 50135, 50138
ROBERT DEAN LACEN, JR.
Appeal by defendant from judgments entered 20 July 2006 by
Judge James Edward Hardin, Jr. in Superior Court, Montgomery
County. Heard in the Court of Appeals 27 August 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph E. Herrin, for the State.
Gilda C. Rodriguez, for defendant-appellant.
This appeal arises out of Defendant Robert Dean Lacen, Jr.'s
conviction on the charges of
first-degree burglary, discharging a
weapon into an occupied property, injury to personal property, and
injury to real property
. We find no error in his trial.
The underlying facts tend to show that on 25 January 2005
sometime after 3:30 a.m., Annette Warner heard a noise outside her
after her husband had departed for a construction job in
Virginia. She walked out of her first floor bedroom and down the
hallway to investigate. As she walked into the living room, she
heard commotion coming from the carport adjoining the living
room. She noted that the door to the carport area was unlocked. As
she was locking the deadbolt lock, she noticed the door handleturn. She heard the voice of Defendant, who was her neighbor.
Frightened, she communicated to Defendant that she was calling 911,
then she proceeded to the office area of her residence and to call.
As she talked to the 911 dispatcher, she heard gunshots and
ran upstairs to her daughter's bedroom. Again, she dialed 911
after she heard glass breaking. Subsequently, she heard the police
sirens arriving at the residence and the dispatcher reported that
the police had a suspect in custody. After the residence was
secured, Ms. Warner proceeded downstairs where she noticed a broken
window and a window blind on the floor. She also observed blood on
the floor of the mud room, walls, bed sheets, and door handle of
the front door to the residence. Additionally, her car window was
Officer Robert Scott Macfayden of the Montgomery County
Sheriff's Department testified that at approximately 5:00 a.m. on
25 January 2005 he received a dispatch regarding a possible break-
in at 540 Substation Road. He arrived at the residence and spoke
to Ms. Warner. Shortly thereafter he received a radio
communication that another officer had apprehended Defendant as he
stepped out of some woods onto the main roadway. Defendant had in
his possession a .243 caliber rifle and blood was oozing from a
laceration on his hand.
Officer Macfayden observed that the back glass of the vehicle
parked in the garage/carport was shattered, that a bullet hole was
in the headrest of the driver's seat, that two gunshot holes were
in the front windshield of the vehicle, that two spent .243 calibershell casings were located in front of the vehicle, that a .22
caliber pistol was laying near the vehicle
(See footnote 1)
and that a bullet hole
was present in a boat shed right across from the vehicle. The
officer also observed outside the residence that an air compressor
was turned over at a broken window. Inside the residence he
observed that blood was spattered on the wall of the hallway, the
floor, and a bed.
Defendant testified that on the night the incident occurred,
he was having hallucinations of people trying to blow [him] up,
blow the house up and that he went to the Warner residence seeking
Mr. Warner's help. He thought that Mr. Warner had the weapons he
could use to shoot the people who were trying to kill him. He
banged on the door of the Warner residence and hollered to Ms.
Warner asking to be let into the house because people were trying
to kill him. He saw two people coming toward him so, he fired a
shot through the windshield of the Toyota vehicle which downed one
attacker and fired a second shot which downed the second attacker.
Fearing that others were coming to kill him, he broke into the
residence looking and hollering for Mr. Warner. When he realized
Mr. Warner was not inside the residence, he walked out the front
door and through the woods. He surrendered to law enforcement.
Following a jury trial, Defendant was convicted of first-
degree burglary, discharging a weapon into an occupied property,
injury to personal property, and injury to real property; andsentenced to a minimum term of seventy-seven months and a maximum
term of one hundred two months imprisonment for the first degree
burglary conviction. As for the remaining convictions, Defendant
received a minimum term of twenty-nine months and maximum term of
fourty-four months suspended for sixty months to start at the
expiration of first degree burglary sentence. Defendant appeals,
contending to this Court that: (I) the trial court erred by denying
his motion to dismiss the first degree burglary charge and (II) it
was ineffective assistance of counsel not to effectively cross-
examine the State's witnesses.
Defendant first contends the trial court erred by denying his
motion to dismiss the charge of first degree burglary. We
A motion to dismiss is to be denied if substantial evidence is
presented to establish every element of the charged offense and to
identify the defendant as the perpetrator. State v. Powell, 299
N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is
that amount of relevant evidence necessary to persuade a rational
juror to accept a conclusion. State v. Scott, 356 N.C. 591, 597,
573 S.E.2d 866, 869 (2002).
In deciding a motion to dismiss, a
court must examine 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).
The defendant's evidence is to be disregarded unless it isfavorable to the State or does not conflict with the State's
evidence. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649,
653 (1982). The test is the same whether the evidence is direct or
circumstantial, and if the motion calls into question the
sufficiency of circumstantial evidence, the issue for the court is
whether a reasonable inference of the defendant's guilt may be
drawn from the circumstances. State v. Vause, 328 N.C. 231, 237,
400 S.E.2d 57, 61 (1991). The court is not required to determine
that the evidence excludes every reasonable hypothesis of innocence
before denying a motion to dismiss. State v. Stephens, 244 N.C.
380, 383-84, 93 S.E.2d 431, 433 (1956).
The elements of first degree burglary are: (i) the breaking
(ii) and entering (iii) in the nighttime (iv) into the dwelling
house or sleeping apartment (v) of another (vi) which is actually
occupied at the time of the offense (vii) with the intent to commit
a felony therein. State v. Singletary, 344 N.C. 95, 101, 472
S.E.2d 895, 899 (1996). Defendant contends that the evidence is
insufficient to establish the seventh element, i.e., that he
entered with the intent to commit a felony therein. Defendant
does not challenge the sufficiency of the evidence to establish the
other elements or his perpetration thereof.
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 evidenceas to what he did within the house. . . .
However, the fact that a felony was actually
committed after the house was entered is not
necessarily proof of the intent requisite for
the crime of burglary. It is only evidence
from which such intent at the time of the
breaking and entering may be found.
Conversely, actual commission of the felony,
which the indictment charges was intended by
the defendant at the time of the breaking and
entering, is not required in order to sustain
a conviction of burglary.
State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d 269, 274
Viewed in the light most favorable to the State, the evidence
shows that Defendant came to the Warner residence armed with a .243
caliber rifle, that he fired shots into Ms. Warner's vehicle and
the boat shed, that he broke and entered the residence and went
into Ms. Warner's bedroom, and that he had possession of the rifle
when he was apprehended. Based upon this evidence, we conclude a
jury could reasonably infer that defendant had the intent to commit
a felony, namely, assault with a deadly weapon with intent to kill,
when he entered the residence.
Defendant next contends that he was denied effective
assistance of counsel. We dismiss this argument because this issue
is not properly before this Court.
The scope of appellate review is limited to those issues
raised in an assignment of error set out in the record on appeal,
N.C. R. App. P. 10(a), and where no assignment of error can fairly
be considered to encompass an additional issue that a party seeks
to raise at the appellate level, that issue is not properly beforethe appellate court. State v. Burton
, 114 N.C. App. 610, 615, 442
S.E.2d 384, 387 (1994).
Defendant did not raise this issue by an assignment of
error listed in the record on appeal and this Court denied
Defendant's motion to amend the record to add an assignment of
error raising the issue.
Accordingly, this contention is
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
Mrs. Warner stated, that she has never seen the pistol in
question prior to the incident.
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