Opinion
No. 8419SC734
Filed 2 July 1985
1. Burglary and Unlawful Breakings 5 — first degree burglary — constructive breaking — evidence sufficient The trial court did not err by refusing to dismiss a first degree burglary charge where an occupant of a motel room was awakened at 4:00 a.m. by a loud pounding on his door, looked outside and saw no one, stepped outside and saw defendant about twenty-five feet away, was approached by defendant and forced into his room with a pistol in his face, was bound and gagged by two other men, and was robbed of money, jewelry, and other personal property. A constructive breaking may be accomplished by tricking an occupant into opening the door or by threatening the occupant with a deadly weapon. G.S. 14A-51.
2. Criminal Law 138 — first degree burglary — use of deadly weapon as aggravating factor — error The trial court erred when sentencing defendant for first degree burglary by considering as a factor in aggravation that defendant used a deadly weapon where the breaking and entering was proved by evidence that defendant pointed a gun at the victim's head and drove him into the motel room and the only felony defendant intended to commit therein was armed robbery. G.S. 15A-1340.4 (a)(1).
APPEAL by defendant from Helms, Judge. Judgment entered 27 July 1983 in Superior Court, CABARRUS County. Heard in the Court of Appeals 5 March 1985.
Attorney General Edmisten, by Special Deputy Attorney General T. Buie Costen, for the State.
Corriher, Whitley Busby, by James A. Corriher, for defendant appellant.
Judge MARTIN concurring in part and dissenting in part.
Defendant was convicted of first degree burglary and robbery with a firearm. The State's evidence tended to show that: On 14 April 1983, Michael Gissing, staying in a room at the Holiday Inn in Concord, was awakened at approximately 4 o'clock in the morning by a loud pounding noise on his door. Looking through both the door peephole and the window and seeing no one, he then opened the door, stepped outside, and saw defendant about twenty-five feet away. Defendant approached Gissing, put a pistol in his face, forced him back into his room, and told him to lie face-down on the bed. Two other men then entered the room and bound and gagged Gissing. After the three men removed Gissing's money, jewelry and other personal property from the room and left, Gissing removed the bindings and reported the incident to the police. Carl Mann, a motel security guard, noticed a man near Gissing's room at or near the time of the robbery and described him and a two-tone green car that other evidence showed belonged to the defendant's grandfather and was often used by defendant.
Defendant's evidence tended to show that he was in Charlotte the night involved and did not participate in either crime.
Defendant first argues that the first degree burglary charge should have been dismissed because the State's evidence failed to show a breaking and entering of the dwelling involved. G.S. 14A-51. We disagree. A burglarious breaking and entering can be constructive, as well as actual. State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979). A constructive breaking may be accomplished in a number of different ways. State v. Henry, 31 N.C. 463 (1849). One way is by tricking the occupant into opening the door, State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976), another is by threatening the occupant with a deadly weapon, State v. Rodgers, 216 N.C. 572, 5 S.E.2d 831 (1939), and the evidence tends to show that in this instance the defendant did both.
But defendant's contention that the trial court erred in sentencing him on the first degree burglary conviction by considering as a factor in aggravation that defendant used a deadly weapon is well taken. G.S. 15A-1340.4 (a)(1) provides that "[e]vidence necessary to prove an element of the offense may not be used to prove any factors in aggravation"; and if the evidence that defendant used a deadly weapon was removed from the record the State would have failed to prove not one but three elements of the burglary. That defendant broke into and entered the motel room was proved only by evidence that he pointed a gun at Gissing's head and drove him into the room; and the only felony that defendant intended to commit therein, according to the evidence, was armed robbery. Thus, the judgment imposed on the first degree burglary conviction must be vacated and the matter remanded for re-sentencing on that offense.
Defendant's several other contentions — that the evidence was insufficient to warrant his conviction of robbery with a dangerous weapon; that the trial court erred in admitting into evidence the in-court identification of defendant by Carl Mann; and that he was denied effective assistance of counsel — are all manifestly without merit and require no discussion.
No error in the convictions; remanded for re-sentencing.
Judge WEBB concurs.
Judge MARTIN concurs in part and dissents in part.