STATE of North Carolina
v.
Boyd Steven FREEMAN.
No. 514A82.
Supreme Court of North Carolina.
January 11, 1983.*378 Rufus L. Edmisten, Atty. Gen. by George W. Boylan, Asst. Atty. Gen., Raleigh, for the State.
J. Melvin Bowen and James R. Batchelor, Jr., Williamston, for defendant-appellant.
MEYER, Justice.
I
Defendant first assigns as error the trial court's denial of his motion to dismiss the burglary charge for insufficient evidence on the question of his intent to commit the felony of rape.
For a jury to properly convict a defendant of first degree burglary, the State must produce sufficient evidence at trial that a breaking and entering of an occupied dwelling occurred during the nighttime and that the defendant had the intent to commit a felony therein. N.C.Gen.Stat. § 14-51 (1981); State v. Jones, 294 N.C. 642, 243 S.E.2d 118 (1978); State v. Garrison, 294 N.C. 270, 240 S.E.2d 377 (1978); State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976). The intent element of the crime of burglary is ordinarily a question of fact for the jury, and is generally proved by circumstantial evidence. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). The felonious intent proven must be the felonious intent alleged in the indictment. State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980); State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977).
"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. at 750, 208 S.E.2d at 508. For example, in Bell, this Court held that the following evidence was sufficient to carry the case to the jury and to support a permissible inference that defendant intended to commit the felony of rape.
[D]efendant entered the sleeping apartment of Bonnie Louise Whicker in the nighttime by cutting the window screen; that he got in bed with his intended victim, placed a hand over her mouth when he was discovered, threatened to cut her throat if either she or her sister screamed, and pulled up his outside pants and ran from the room when the other girls appeared and turned on the light. Id.
By contrast, in State v. Dawkins, 305 N.C. 289, 287 S.E.2d 885 (1982), we reversed a defendant's first degree burglary conviction where the evidence of intent included the fact that the defendant broke into the victim's home in the early morning hours wearing shorts, a raincoat, a knee-high cast and a gym shoe. We held that this evidence was "too ambiguous, standing alone, to do more than raise a possibility or conjecture that the defendant had the intent to commit rape as charged in the bill of indictment." Id. at 290, 287 S.E.2d at 886.
The circumstances surrounding the incident in the case now before us present an even weaker argument than those in Dawkins for finding an intent to commit the felony of rape. There was nothing in *379 defendant's dress or demeanor to suggest an intent to commit rape. The only words spoken by the defendant, apart from requesting the use of a telephone, were "You shouldn't have enticed me." These words were spoken only after Miss McGinnis pushed defendant out of the apartment for the second time. In light of Miss McGinnis' testimony that she was fully clothed and in no way encouraged the defendant, the words are at best ambiguous and, in the context of the incident, are virtually meaningless.
"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). See State v. Bell, 285 N.C. 746, 208 S.E.2d 506. There is, however, no evidence in this case to support a finding that at the time defendant broke and entered the apartment, he intended to rape Miss McGinnis, or even that the assault upon Miss McGinnis was committed with the intent to commit rape. Rather, it appears from this victim's own testimony that the assault was committed to effectuate defendant's efforts to gain entrance into the apartment. On the record before us we find the evidence insufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant broke into Miss McGinnis' apartment with the intent to commit the felony of rape. We hold that the trial court erred in denying defendant's motion to dismiss the burglary charge.
II
Defendant further contends that the trial court erred in refusing to set aside the verdicts as inconsistent. He argues that the same intent to commit rape is an element of both the offenses of burglary and attempted rape, and therefore "by acquitting of attempted rape and convicting of assault on a female, the jury did not find that the defendant had the intent to commit rape."
We note first that there are two elements of attempted rape: the intent to commit the rape and an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). The jury might well have found the requisite intent to commit the rape, thus justifying defendant's conviction of first degree burglary, yet found insufficient evidence, under the instructions given, of an overt act going beyond mere preparation. As discussed above, Miss McGinnis' own testimony indicated that the defendant assaulted her in an effort to gain entrance into her apartment. On this issue the trial judge instructed as follows:
So, I charge if you find from the evidence beyond a reasonable doubt that on or about the 20th of October, 1981, the defendant, Boyd Steven Freeman, intended to rape and carnally know Melanie Ann McGinnis, and that in furtherance of that intent he broke into the apartment of the said Miss McGinnis, grappled with her and grabbed her arms, legs, and her thighs to bring this about, and that in the ordinary and likely course of things, he would have completed the crime of rape had he not been stopped or prevented from completing his apparent course of action, it would be your duty to return a verdict of guilty of attempted rape. However, if you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
We note further that although intent to commit a felony for purposes of a first degree burglary charge may be inferred from a defendant's actions once he has gained entry,
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 *380 of burglary. State v. Reid [230 N.C. 561, 53 S.E.2d 849], supra; State v. Hooper, 227 N.C. 633, 44 S.E.2d 42; State v. McDaniel, 60 N.C. 245. The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived. State v. Allen, 186 N.C. 302, 119 S.E. 504.
State v. Tippett, 270 N.C. at 594, 155 S.E.2d at 274.
For the reasons stated, we hold that the jury's acquittal of the defendant on the charge of attempted rape does not preclude a finding of guilt of first degree burglary.
First degree burglary and second degree burglary under G.S. § 14-51 and felonious breaking and entering under G.S. § 14-54(a) require, for conviction, proof of intent to commit a felony. Misdemeanor breaking and entering, G.S. § 14-54(b), requires only proof of the wrongful breaking or entry into any building. Thus we hold, as we did in State v. Dawkins, 305 N.C. at 291, 287 S.E.2d at 887, that by finding the defendant guilty of burglary, the jury "necessarily found facts which would support a conviction of misdemeanor breaking and entering," where, as here, the evidence of intent to commit a felony is insufficient.
Upon the record before us, as demonstrated by the foregoing review of the testimony given at trial, there is ample evidence to support defendant's conviction of assault on a female, and as to defendant's trial on that charge we find no error.
Because of our disposition of the burglary conviction, we need not address defendant's contention that he is entitled to a new trial for the trial court's failure to submit non-felonious breaking and entering to the jury for a possible verdict.
For lack of sufficient evidence of intent to commit the alleged felony of attempted rape, the judgment upon the verdict of first degree burglary must be and is hereby vacated. The cause is remanded to Superior Court, Martin County, for entry of a judgment as upon a verdict of guilty of misdemeanor breaking and entering and resentencing thereon. Defendant is entitled to be present for resentencing and to be represented by counsel.
VACATED AND REMANDED.