STATE of North Carolina
v.
Gregory FAIRCLOTH.
No. 25.
Supreme Court of North Carolina.
June 12, 1979.*368 Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.
Michael A. Ellis, R. Gene Braswell and Herbert B. Hulse, Goldsboro, for defendant-appellant.
HUSKINS, Justice:
On direct examination Officer Goodman was requested to describe the bathroom screen and did so as follows:
"The screen was one whole screen that covered the entire window; the bottom section of the window and the top section. The screen was secured in the window by two latches on each side. These two latches had been pulled out away from the window and in the bottom left-hand corner approximately 6 inches from the corner of that screen there was an indentation marking on the window and on the screen where some object had been pried under and the screen forced out."
Upon objection by defendant, the court said:
"I'll ask the jury not to consider it. You can't draw any conclusions. You can say that you saw tool marks."
Officer Goodman was then asked: "Did you see any tool marks?" He answered: *369 "Yes, I did." Defendant objects and excepts to the suggestion of the court as to the proper form of questioning and argues that the court's remarks amounted to expression of an opinion. This is defendant's first assignment of error.
Former G.S. 1-180 has been repealed and the General Assembly has enacted in lieu thereof G.S. 15A-1222 and G.S. 15A-1232 reading respectively as follows:
"The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.
* * * * * *
In instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence. He must not express an opinion whether a fact has been proved."
Although the language in former G.S. 1-180 referred only to the charge, it was always construed as including the expression of any opinion, or intimation by the judge, at any time during the trial which was calculated to prejudice either of the parties. State v. Staley, 292 N.C. 160, 232 S.E.2d 680 (1977); State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954). Now, G.S. 15A-1222 and -1232 expressly so provide. Thus any intimation or expression of opinion by the trial judge at any time during the trial which prejudices the jury again the accused is ground for a new trial. Whether the accused was deprived of a fair trial by the challenged remarks must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973).
Applying these legal principles to the challenged comment by the court, we hold that no prejudice has been shown. It was perfectly competent for the witness to say that the two latches securing the screen had been pulled away from the window and that there was an indentation marking on the window and on the screen. The only objectionable part of the statement was the conclusion Officer Goodman drew from what he had observed, i. e., that "some object had been pried under and the screen forced out." Upon objection and motion to strike, the trial court instructed the jury not to consider the answer and informed the witness, "You can't draw any conclusions. You can say that you saw tool marks." Such an instruction to the witness was not a comment upon the credibility of the witness. It was not an expression of opinion on any question of fact to be decided by the jury nor was it an expression of opinion as to whether a fact had been proved. Rather, the statement simply limited the officer's testimony to a statement of what he saw, leaving the jury to draw its own conclusions. This was entirely proper. Defendant cites and relies upon State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936). That case is factually distinguishable, the inadvertent question by the court there clearly constituting an expression of opinion in violation of former G.S. 1-180. There is no merit in defendant's first assignment, and it is therefore overruled.
Defendant argues that there is evidence to support a finding by the jury (1) that he went to the home of Barbara Smith without any intention to commit any felony therein but in response to her invitation and (2) that entry could have been made from the outside by means other than a burglarious breaking. Defendant therefore contends the trial court erred by failing to charge on the lesser included offense of non-felonious breaking and entering. This constitutes his second assignment of error.
Where it is permissible under the bill of indictment to convict an accused of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Moreover, when *370 there is some evidence supporting a lesser included offense, "a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime." State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Conversely, if all the evidence tends to show that the crime charged in the bill of indictment was committed, and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on the unsupported lesser degree and correctly refuses to submit lesser degrees of the crime charged as permissible verdicts. State v. Alston, 293 N.C. 553, 238 S.E.2d 505 (1977); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); 4 N.C. Index 3d, Criminal Law, § 115.
When one person breaks and enters the occupied dwelling of another in the nighttime with the requisite intent to commit the felony designated in the bill of indictment, the crime of burglary is complete even though, after entering the house, the offender abandons his intent through fear or because he is resisted. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976).
Applying these principles to the record before us, we find no evidence of a non-felonious breaking or entering. The evidence for the State tends to show that defendant committed a breaking by removing the bathroom screen and entering the occupied dwelling of Barbara Smith in the nighttime. The evidence concerning the assault he then committed upon her tends to show that his purpose was to commit rape. On the other hand, defendant's evidence tends to show that he went to Barbara Smith's home by invitation and she helped him climb through the bathroom window. There is no evidence whatever tending to show a nonburglarious breaking or entering. Under these circumstances, the judge was not required to submit that lesser included offense. State v. Watson, 283 N.C. 383, 196 S.E.2d 212 (1973); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971).
The evidence supports only two possibilities: (1) that the defendant broke and entered Barbara Smith's home with the intention of raping her, or (2) that he entered the house by invitation, with her consent and assistance, and assaulted her only after she bit his tongue. In that posture the evidence supports only first degree burglary or not guilty. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). For these reasons, defendant's second assignment of error is overruled.
Defendant contends the trial court erred in the charge to the jury by failing to explain and apply the law to the different factual aspects of the evidence with respect to the intent to commit rape. Defendant argues that his evidence showed a complete absence of such intent while the State's evidence showed the contrary. Thus, defendant says, it was the duty of the trial judge to array the evidence on each side and apply the law thereto so as to aid the jury in determining whether the requisite intent existed. This constitutes defendant's third assignment of error.
Intent to commit a felony is an essential element of burglary. State v. Friddle, 223 N.C. 258, 25 S.E.2d 751 (1943). To support a verdict of guilty of burglary in the first degree, the evidence must show and the jury must find that the intent charged in the bill of indictment was in the mind of the intruder at the time he forced entrance into the house. State v. Thorp, 274 N.C. 457, 164 S.E.2d 171 (1968). Intent is a mental attitude which must ordinarily be proved by circumstances from which it may be inferred. It is seldom provable by direct evidence. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473 (1965); State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963). "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.. . . 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 *371 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." (Citations omitted.) State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). Moreover, when the indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged. State v. Friddle, supra; State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937).
Perusal of the charge in this case reveals that the trial judge recapitulated the evidence for the State and for the defendant. In so doing, the court called the jury's attention to defendant's testimony that he had seen Barbara Smith several times during the Spring, and had seen her on the morning in question at 3:30 a. m. at the truck stop when she invited him to come to her house; that he went there and knocked but no one answered the door; that he then went to the bathroom window and called her; that she came to the bathroom, unlocked the screen, and helped him enter the house through the window; that when an argument developed about money he told her he was going to kiss her "and that was all," but when he attempted to do so she bit him, became angry, got her pistol and shot at him as he left the house. The trial judge then told the jury: "That is my recollection of the evidence. If you disagree with that, you use your recollection and disregard mine. It is your duty to remember and consider all the evidence whether I call it to your attention or not." The judge then charged on each of the elements of first degree burglary, including defendant's intent at the time he entered Barbara Smith's home. With respect to such intent the judge charged, inter alia, that the State must prove beyond a reasonable doubt:
"That at the time of the breaking and entering the defendant intended to commit the crime of rape upon the body of Barbara Smith and rape is the attempt to have sexual intercourse with a person without consent and against the will of the person and with force sufficient to overcome resistance upon her. . . ."
In the final mandate the judge charged as follows:
"So I charge you that if you find from the evidence and beyond a reasonable doubt that on or about 5 a. m. on July 31, 1978 the defendant Gregory Faircloth did break and enter through the bathroom window the home of Barbara V. Smith's dwelling house, without her consent in the nighttime, intending at the time to have forcible sexual intercourse with her that is to rape her forcibly and without her consent and against her will and with such force sufficient to overcome any resistance which she might offer . . . it would be your duty to return a verdict of guilty as charged. If you do not so find or if you have a reasonable doubt as to one or more of these things you would not return a verdict of guilty of burglary in the first degree as charged."
The charge, while not a model of perfection, adequately presented the law with respect to every essential element of the crime of first degree burglary, including the element of intent. Furthermore, the court correctly applied the law to the different factual aspects of the evidence. The jury could not have been misled and could not have acted under a misapprehension of the law. Nothing more is required. Defendant's third assignment of error is overruled.
Our review of the record impels the conclusion that defendant has had a fair trial free from prejudicial error. The verdict and judgment must therefore be upheld.
NO ERROR.
COPELAND, J., took no part in the consideration or decision of this case.
EXUM, Justice, dissenting:
I respectfully dissent from that portion of the majority opinion which holds that defendant was not entitled to have the jury consider the lesser included offense of non-felonious *372 breaking and entering. Generally the majority correctly states the legal principles governing this question. I disagree, however, with the majority's application of these principles to the facts. As the majority correctly notes, an essential element of burglary is an intent at the time of entry to commit a felony inside the dwelling. Certainly the state's evidence is such that a jury could find that the defendant's entry here was with intent to commit rape, as charged in the indictment. Defendant's evidence tends to show, however, that there was no such intent on his part and, furthermore, that his entry was with consent of the occupant. His evidence, if fully believed, would render him not guilty of any offense. A jury is, of course, not required to accept all of his testimony. It may believe any part or none of it.
His testimony, though, does constitute positive evidence conflicting with that of the state as to the essential element of felonious intent. I find this case indistinguishable in principle from State v. Drumgold, 297 N.C. 267, 254 S.E.2d 531 (1979). There this Court said, id. at 271, 254 S.E.2d at 533.
"It is well settled that `a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.' State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977). On the other hand, the trial court need not submit lesser degrees of a crime to the jury `when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.' State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972). (Emphasis added.)"
In Drumgold the state's evidence tended to show that defendant raped Mrs. Epps overcoming her resistance with the use of a deadly weapon. Defendant's evidence tended to show that he had consensual sex with Mrs. Epps and did not have in his possession a deadly weapon, I. e., that he was not guilty of any offense. We held defendant was not only entitled to have the jury consider whether he was guilty of first degree rape or not guilty, but that the lesser included offense of second degree rape should likewise have been submitted because defendant's testimony conflicted with that of the state on an essential element of first degree rape, I. e., the use of a deadly weapon.
So it is here. Defendant testified in effect that he had no intent to rape Barbara Smith when he entered her dwelling. He also testified that he did not have sexual intercourse with her once inside; instead, he merely tried to kiss her and told her "that's all I am going to do." This is positive evidence of a lack of the requisite felonious intent at the time of entry, which, if believed by the jury, would render defendant guilty at most of non-felonious breaking and entering even if the jury further believed that he entered the dwelling unlawfully, i. e., without Barbara Smith's consent.
Under the majority's view a defendant testifying in his own behalf would apparently have to admit that he entered the dwelling wrongfully but did so with no intent to commit rape in order to raise a factual issue regarding his intent at the time of entry. If, however, he denies both the wrongful entry and the felonious intent, he is not entitled to have the jury consider, independently of the question of wrongful entry, the question of his intent upon entering. This is not the law. Where there is conflicting evidence as to all elements of a criminal offense, the jury need not accept all or none of either the state's or the defendant's evidence. It may believe only part of the evidence on either or both sides. That defendant's evidence, if fully believed, would be a complete defense should not bar him from the benefit of a partial defense which would arise if his evidence is only partially believed.
This case is unlike State v. Allen, decided this day, 297 N.C. 429, 255 S.E.2d 362, where the defendant denied he was the victim's assailant and introduced evidence tending to show alibi and mistaken identity. *373 A defendant is not entitled to rely on the possibility that the jury may believe only a part of the state's evidence as a ground for submission of a lesser included offense. In such a case there is no positive, contradictory evidence of a lesser offense and the jury need decide only whether defendant was indeed the perpetrator. State v. Lentz, 270 N.C. 122, 153 S.E.2d 864, cert. denied, 389 U.S. 866, 88 S.Ct. 133, 19 L.Ed.2d 139 (1967).
Here, however, the question is not whether defendant was the perpetrator. The question is what crime, if any, he committed. There is positive evidence to support either burglary in the first degree, non-felonious breaking and entry, or not guilty.