STATE of North Carolina
v.
Terry Ray HILL.
No. 785SC320.
Court of Appeals of North Carolina.
September 19, 1978.*296 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Norman M. York, Jr., Raleigh, for the State.
George H. Sperry, Wilmington, for defendant-appellant.
ARNOLD, Judge.
Defendant first contends that the trial court erred in failing to dismiss the charge *297 of felonious breaking or entering, and in charging the jury as to his intent to commit larceny. We disagree.
N.C.G.S. § 14-54 makes it a crime to break or enter any building "with intent to commit . . . larceny therein." An essential element of the crime is that the intent exist at the time of the breaking or entering. Defendant argues that the evidence, considered as it must be in the light most favorable to the State, State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971), is not sufficient to show his intent to commit larceny inside the building.
Defendant relies on State v. Cochran, 36 N.C.App. 143, 242 S.E.2d 896 (1978), for the proposition that intent must be proved by acts or conduct. However, the "conduct" in Cochran was a later written statement by defendant that "he and Miller were looking for a Christmas tree when they began discussing the break-in." Supra at 897. The court makes no reference to that statement in reaching its decision, but instead follows the settled rule that "in absence of any other proof or evidence of lawful intent, one can reasonably infer an intent to commit larceny from an unlawful entry . . . in the nighttime." Supra at 897. See also State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Redmond, 14 N.C.App. 585, 188 S.E.2d 725 (1972). This Court in Cochran makes clear that such inferred intent is sufficient to avoid dismissal: "In this case, there was an unlawful entry . . ., and there was no showing of any lawful motive.. . . These facts, without more, produce the reasonable inference of an intent to commit larceny. That inference was sufficient to carry the case to the jury." Supra at 897.
A number of other North Carolina cases with facts similar to the instant case reach the same conclusion. In State v. Lakey, 270 N.C. 786, 154 S.E.2d 900 (1967), and State v. Hunt, 14 N.C.App. 157, 187 S.E.2d 366 (1972), the respective defendants were seen running from buildings which had been broken into, but from which it appears nothing was taken. In both cases the evidence was sufficient to go to the jury. Accord, State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936); State v. Hargett, 196 N.C. 692, 146 S.E. 801 (1929).
The fact that the evidence is circumstantial does not make it insufficient. State v. Oakley, supra, 210 N.C. at 210, 186 S.E. at 246. ("The evidence in the present case is circumstantial, although sufficient to be submitted to a jury.") "Intent . . . is a mental attitude, which seldom can be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred; . . . the jury may consider the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged." 4 Strong, N.C. Index 3d, Criminal Law, § 2, p. 34. The test for going to the jury on circumstantial evidence is "whether there is substantial evidence against the accused of every essential element that goes to make up the offense charged." State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956). That evidence of every material element is present here.
Defendant also assigns error to the judge's response to a jury request for further instructions. After the charge to the jury the following took place:
JUROR NO. ONE: Your Honor, can you enumerate the four charges again, please?
COURT: You mean the four things that is [sic] necessary for you to be satisfied of beyond a reasonable doubt in order to find the defendant guilty of resisting arrest?
JUROR NO. ONE: No. The whole thing.
At this point the judge called the lunch recess, after which the interchange continued:
COURT: Now, Ladies and Gentlemen,. . . [i]s the question `What you may find the defendant guilty or not guilty of?'
JUROR NO. ONE: Yes, sir. The four things, two or three words each.
*298 The judge then enumerated the jury's possible findings: guilty of felonious breaking or entering, or guilty of non-felonious breaking or entering, or not guilty of breaking or entering; also, guilty or not guilty of resisting arrest.
Counsel for defendant argues that the judge did not inquire sufficiently into the precise matters about which the jury was confused. We disagree again. The judge asked whether the jury wanted further instruction on resisting arrest and was told, "No. The whole thing." Then after the lunch recess the judge inquired whether the question was "What you may find the defendant guilty or not guilty of?" and was answered "Yes." After the judge's re-enumeration of the possible verdicts the jury asked no further questions but retired and returned a verdict after 15 minutes. We agree with the State's contention that these were actions of a jury that was not confused, and we find that the judge sufficiently inquired into the jury's request for further instructions.
Defendant finally contends that the charge of resisting arrest should have been dismissed for lack of sufficient evidence, arguing that there was evidence of flight but not of resisting. However, both deputies testified for the State that defendant was pulling away and struggling and had to be restrained while they handcuffed him. This was sufficient evidence to go to the jury. See State v. Fuller, 24 N.C.App. 38, 40, 209 S.E.2d 805, 806 (1974) (sufficient evidence to go to the jury on resisting arrest where defendant "had run . . . and actively resisted the officer's attempt to handcuff him").
Having reviewed all of defendant's assignments of error we hold that defendant received a fair trial free from prejudicial error.
No error.
BROCK, C. J., and HEDRICK, J., concur.