Opinion
No. COA02-1678
Filed 18 November 2003 This case not for publication
Appeal by defendant from judgments entered 16 July 2002 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State. Lynne Rupp, for defendant-appellant.
Forsyth County No. 01 CRS 52994.
Defendant was charged with first degree burglary and robbery with a dangerous weapon. The State's evidence tended to show that Michael Dzybon (Dzybon) lived in a two-bedroom upstairs apartment in the Woods Mill Apartment Complex with his girlfriend, Regina Myers (Myers) and her three-year-old son. On the evening of 5 April 2001, Dzybon and Myers entertained two friends. Myers went to bed at around 11:30 p.m. After their last guest left at approximately 1:00 a.m. the next morning, Dzybon placed his "Fossil" brand watch and his wallet containing about $240 in cash on the edge of the counter near the kitchen/living room area. He then went to bed. At approximately 4:00 a.m., Myers was awakened by someone in the bedroom rummaging through their closet and dresser. After the person left the room, Myers asked Dzybon if he had let someone spend the night in the apartment. Dzybon stated he had not and asked her why she asked the question. When Myers responded that she had seen someone in the apartment, Dzybon got out of bed and went to the bedroom door. The stove light was on and Dzybon observed a man wearing dark clothes standing at the counter where he had placed his wallet and watch.
Dzybon ran toward the man and tackled him. Dzybon recognized the man as defendant, whom he had met two months ago through a mutual friend, Adam Glasgow. Dzybon realized defendant had a sawed-off shotgun in his hand and began wrestling defendant for the gun. When Dzybon got hold of the barrel of the gun and defendant held the butt, Dzybon told defendant to leave and he did so. After defendant left, Dzybon discovered that he had bruises on his face and that his watch and the money from his wallet were gone. Dzybon also found a roll of duct tape and a latex glove, both apparently left by defendant. The screen was gone from a window near the dining area.
Officers from the Winston-Salem Police Department responded to the call regarding a break-in at the Woods Mill Apartment complex. Dzybon overheard Myers make a comment to the police, looked outside and saw defendant's gray Astrovan drive by the apartment. Officers followed defendant from the apartment complex to the parking lot at the Pantry Kitchen, and into the Pantry Kitchen. The officers then ordered defendant to get on the ground, and noticed that his hands appeared to be bruised and swollen. Upon searching defendant, police found $273.00. Police also searched defendant's van and found a "Fossil" watch in the front seat (later identified as belonging to Dzybon), a shotgun wrapped in a pink towel underneath the rear seat, a latex glove next to the shotgun and a wrapper from a roll of duct tape on the floor behind the front seat.
Defendant testified that at approximately 1:00 a.m. on the morning in question he and an acquaintance, Shawn Barber, drove to Barber's girlfriend's house at Woods Mill Apartments in defendant's van. Twenty minutes after they arrived, Barber told defendant that he needed to borrow his van to pick up someone. Defendant threw him the keys to his van and went to sleep on the couch. Defendant testified that Barber returned around 4:30 a.m. and rushed him out of the apartment. He further testified that while he was at the Texaco, police came into the store with guns drawn and told him to get down. Defendant testified that he was unaware that the gun, latex glove, and watch were in his van. Adam Glasgow testified that Dzybon used and sold ecstacy and cocaine. Glasgow further testified that Dzybon told him he "did not know who had robbed him" and that the police told him Dzybon did it "so that's what he is going by." On cross-examination, Glasgow admitted that he had not contacted the police with information that Dzybon had been unable to identify the intruder.
A jury found defendant guilty as charged. After finding that one factor in aggravation outweighed one factor in mitigation, the trial court sentenced defendant to two consecutive sentences of 80 to 105 months imprisonment. Defendant appeals.
Defendant first contends that the trial court erred by denying his motion to dismiss the charge of first degree burglary. Defendant argues that the State failed to present sufficient evidence that he intended to commit robbery when he entered the apartment. We disagree.
In ruling on a motion to dismiss, the court considers "whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
To prevail against defendant's motion to dismiss the charge of first degree burglary, the State must have presented substantial evidence of the following five elements: (1) breaking and entering (2) at night (3) into the dwelling of another (4) that is occupied at that time (5) with the intent to commit a felony therein. State v. Simpson, 303 N.C. 439, 448-49, 279 S.E.2d 542, 548 (1981). The issue here is whether the State's evidence was sufficient to show that defendant intended, upon breaking and entering, to commit the felony of robbery. Armed robbery is the taking of the personal property of another in his presence or from his person without his consent by endangering or threatening his life with a firearm, with the taker knowing that he is not entitled to the property and the taker intending to permanently deprive the owner of the property. State v. Davis, 301 N.C. 394, 397, 271 S.E.2d 263, 264 (1980). "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. 746, 750, 208 S.E.2d 506, 508 (1974), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).
The indictment alleged that defendant broke into the apartment with intent to commit robbery. The State presented evidence showing that defendant, carrying a loaded shotgun and duct tape, broke into the apartment in the middle of the night while Dzybon and his girlfriend slept. Defendant took Dzybon's Fossil watch and the cash from his wallet, threatened him with a loaded shotgun when confronted and then fled. This evidence supports an inference that when defendant entered the apartment he intended to commit a robbery, thus satisfying the fifth element of burglary as charged. The evidence that he then proceeded to actually commit a robbery with a dangerous weapon constituted a separate offense. Accordingly, the trial court properly denied defendant's motion to dismiss the charge of first degree burglary.
Defendant also argues that because robbery is an essential element of the crime of burglary, the imposition of consecutive sentences punishes him twice for the robbery and violates his right against double jeopardy. Defendant, however, did not include his double jeopardy argument in his assignment of error. Rather, defendant assigned as error his consecutive sentences for first degree burglary and armed robbery. Defendant, therefore, has failed to preserve this issue for appellate review. See N.C.R. App. P. 10(b)(1). Furthermore, defendant waived his double jeopardy claim by failing to raise it at trial. Thus, we do not address it here. State v. Roope, 130 N.C. App. 356, 362, 503 S.E.2d 118, 123, disc. review denied, 349 N.C. 374, 525 S.E.2d 189 (1998) (holding that failure of defendant to properly raise the issue of double jeopardy before the trial court precludes reliance on the defense on appeal), State v. McKenzie, 292 N.C. 170, 176, 232 S.E.2d 424, 428 (1977) ("double jeopardy protection may not be raised on appeal unless the defense and the facts underlying it are brought first to the attention of the trial court").
No error.
Judges MCGEE and GEER concur.
Report per rule 30(e).