713 S.E.2d 793
No. COA10-1362North Carolina Court of Appeals
Filed 7 June 2011 This case not for publication
New Hanover County No. 09 CRS 54036.
Appeal by defendant from judgment entered 7 July 2010 by Judge Gary E. Trawick in New Hanover County Superior Court. Heard in the Court of Appeals 23 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State.
Michael J. Reece, for defendant-appellant.
CALABRIA, Judge.
Larry Darnell Miller, Jr. (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of first degree burglary. We find no error.
On 3 April 2009, Barbara Hines (“Hines”) was staying at the Best Western Coastline Inn (“the Best Western”) in Wilmington, North Carolina. At approximately 11:30 p.m., Hines went to her suite and
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prepared for bed. Hines placed her pocketbook, watch and jewelry on a chest near the end of her bed. Inside her pocketbook were her checkbook, credit cards, keys, camera and glasses. She then went to sleep.
When Hines awoke the next morning, she went to get her watch, and discovered that it was missing. Hines then noticed that her pocketbook was also missing. She walked to the front room of the suite, and found that the chain lock, which she had attached the night before, had been broken off the door and left dangling. Hines called the front desk and reported that someone had broken into her room. The Best Western’s general manager, Jacqueline Hodge (“Hodge”), then alerted law enforcement of the burglary.
Officer Fred Clark (“Officer Clark”) of the Wilmington Police Department (“WPD”) responded to the call and arrived at the Best Western sometime between 6:30 and 6:45 a.m. Hines told Officer Clark that her room had been broken into and gave him a list of items that had been taken. Meanwhile, Hodge retrieved videotape footage from the Best Western which showed an unknown man in a stairwell holding a purse. Hodge assisted police in printing out still images from the videotape. The photographs were all time stamped from 3 April 2009, from between the hours of 1:00 and 3:00 a.m. Hines later viewed the videotape and identified her purse, which she described as “orange and bulky.”
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Detective Jason Oakes of the WPD reviewed the still images from the videotape, attached the photographs to an email and sent it to all WPD personnel. His immediate supervisor, Sergeant A.S. Hayes, viewed one of the photographs and recognized the suspect as defendant. Defendant and Sgt. Hayes were cousins.
On 3 August 2009, defendant was indicted for the offenses of first degree burglary and felony larceny. Beginning 6 July 2010, defendant was tried by a jury in New Hanover County Superior Court. On 7 July 2010, the jury returned verdicts finding defendant guilty of both offenses. Following the verdicts, the trial court arrested judgment for the offense of felony larceny. For the offense of first degree burglary, the trial court sentenced defendant to a minimum term of 146 months to a maximum term of 185 months in the North Carolina Department of Correction. Defendant appeals.
Defendant’s sole argument on appeal is that the trial court erred by failing to instruct the jury on the lesser included offense of misdemeanor breaking or entering. Defendant contends that there was no evidence that he intended to commit a larceny when he broke and entered into Hines’ hotel room. We disagree.
“An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and acquit him of the greater.” State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998) (citing State
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v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (1995)). “If the State’s evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant’s denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense.” State v. Smith, 351 N.C. 251, 267-68, 524 S.E.2d 28, 40
(2000). Moreover, “[a] defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State’s evidence but not all of it.” State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991).
The elements of first degree burglary are “(1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or . . . a sleeping apartment [of another] (5) which is actually occupied at the time of the offense (6) with the intent to commit a felony therein.”State v. Person, 298 N.C. 765, 768, 259 S.E.2d 867, 868 (1979); see also
N.C. Gen. Stat. § 14-51 (2009). “The intent to commit the felony must be present at the time of entrance, and this can but need not be inferred from the defendant’s subsequent actions.” State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995).
In the instant case, the State presented positive evidence of each element of first degree burglary that was sufficient to submit the offense to the jury. Hines testified that she placed her purse on a bench in her hotel room before she went to bed at night, and
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she woke up the next morning to find her purse missing and the lock to her room broken. Photographic evidence was introduced showing defendant, holding Hines’ purse, in the stairwell of the hotel the same night Hines’ purse was taken.
However, defendant contends that there was conflicting evidence on the issue of defendant’s intent at the time of the breaking and entering. Thus, defendant argues, the lesser included instruction on breaking and entering was appropriate because “[t]he intent to commit a felony following a breaking and entering distinguishes burglary from the lesser included offense of misdemeanor breaking and entering. . . .” State v. Dawkins, 305 N.C. 289, 290, 287 S.E.2d 885, 887 (1982). At trial, defendant’s counsel argued that defendant may have lacked felonious intent when he entered Hines’ room. Counsel argued that, with hotel rooms, “sometimes people just break in there to watch TV or something along those lines, which is not a felonious intent.”
However, no evidence was presented to support counsel’s argument, and the arguments of counsel are not evidence. See State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996). Since no evidence was presented to suggest that defendant’s intent was anything other than to commit a felony within Hines’ room, defendant was not entitled to an instruction on the lesser included offense of breaking and entering. See State v. Martin, 191 N.C. App. 462, 473, 665 S.E.2d 471, 478 (2008).
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Therefore, we conclude that the trial court properly denied defendant’s request for an instruction on misdemeanor breaking or entering. Defendant received a fair trial, free from error.
No error.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).
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