{ "id": 8521786, "name": "STATE OF NORTH CAROLINA v. TROY NEWTON OWEN", "name_abbreviation": "State v. Owen", "decision_date": "1993-08-03", "docket_number": "No. 9229SC1065", "first_page": "300", "last_page": "310", "citations": [ { "type": "official", "cite": "111 N.C. App. 300" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "341 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "746-47" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523390 ], "year": 1986, "pin_cites": [ { "page": "305-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0302-01" ] }, { "cite": "235 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "293 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561358 ], "year": 1977, "pin_cites": [ { "page": "53-54" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0047-01" ] }, { "cite": "333 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "40 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "475", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "227 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620426 ], "year": 1946, "pin_cites": [ { "page": "36", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0034-01" ] }, { "cite": "142 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "264 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574916 ], "year": 1965, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0681-01" ] }, { "cite": "381 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "809" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519993 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0187-01" ] }, { "cite": "342 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "316 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700332 ], "year": 1986, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0515-01" ] }, { "cite": "172 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "276 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561421 ], "year": 1970, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0361-01" ] }, { "cite": "34 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "143", "parenthetical": "person has substantive right to evict trespasser from his home" } ], "opinion_index": 0 }, { "cite": "225 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607682 ], "year": 1945, "pin_cites": [ { "page": "357", "parenthetical": "person has substantive right to evict trespasser from his home" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0356-01" ] }, { "cite": "237 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "747", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "293 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564175 ], "year": 1977, "pin_cites": [ { "page": "354", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0353-01" ] }, { "cite": "430 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549224 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0666-01" ] }, { "cite": "291 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "604", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567497 ], "year": 1982, "pin_cites": [ { "page": "97", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0090-01" ] }, { "cite": "284 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "759-60" }, { "page": "760" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 258", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527117 ], "year": 1981, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0258-01" ] }, { "cite": "237 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "560-61" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547782 ], "year": 1977, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0188-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "252 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "710" } ], "opinion_index": 0 }, { "cite": "296 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570161 ], "year": 1979, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0711-01" ] } ], "analysis": { "cardinality": 891, "char_count": 23461, "ocr_confidence": 0.745, "pagerank": { "raw": 6.815217895340059e-08, "percentile": 0.41630940645574316 }, "sha256": "d8f3852d4acaa8cd20fde457b3b5146a3dd04a324206cde35a7a69f3cbb1a59c", "simhash": "1:9bafce2c0e7dd1b0", "word_count": 3885 }, "last_updated": "2023-07-14T15:07:55.768244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TROY NEWTON OWEN" ], "opinions": [ { "text": "GREENE, Judge.\nTroy Newton Owen (defendant) appeals from judgments and commitments, following jury verdicts, to terms of life imprisonment for first-degree burglary pursuant to N.C.G.S. \u00a7 14-51 and ten years imprisonment for assault with a deadly weapon with intent to kill pursuant to N.C.G.S. \u00a7 14-32.\nDefendant was indicted for first-degree burglary based on the underlying crime of larceny, and assault with a deadly weapon with intent to kill inflicting serious injury. The State\u2019s evidence tends to show that Kenneth McCall (Kenneth) and Angela McCall (Angela), husband and wife (the McCalls), were friends of defendant and defendant had visited them at their house on numerous occasions. Defendant entered the rear door of the McCalls\u2019 house during the early morning hours of 1 October 1991, while it was still dark. Prior to the time the McCalls retired on the previous evening, all of the doors and windows of the house were locked, with the exception of the rear door, which was closed. The McCalls had not given anyone permission to enter their house that night.\nAfter defendant entered the house, Angela heard a noise and awakened Kenneth. Kenneth got out of bed and came face-to-face with defendant, whose voice Kenneth recognized when defendant said \u201cI want my shotgun.\u201d Defendant began pushing and wrestling with Kenneth, and the altercation moved from the bedroom into the hallway and finally into the living room. Eventually, defendant subdued Kenneth and held him face down on the living room floor with a knife to his throat. Angela then emerged from the bedroom, and upon seeing her husband with the knife at his throat, moved toward a gun cabinet in the living room. Defendant then told Kenneth \u201cif she gits [sic] the gun, you\u2019re dead.\u201d Angela then ran out of the house seeking help. At that point Kenneth grabbed the knife, which was still pressed to his throat, and in his attempt to push the knife away, broke the blade. Kenneth\u2019s hand was cut when he grabbed the knife. Defendant continued to hold Kenneth down and pull his hair for several minutes afterward. Meanwhile, Angela had sought help from J. B. Owen (Owen). When Owen and Angela entered the house, defendant released Kenneth, ran to his car and left. After defendant left, Kenneth discovered that items in the pockets of his pants, which he had left on the living room couch before going to bed the previous evening, were on the living room floor. Nothing was taken from the house.\nLater in the day, after warrants for defendant\u2019s arrest were issued, defendant was brought to the office of Transylvania County Detective Keith Fisher (Fisher). Prior to questioning defendant, Fisher gave him a copy of the Transylvania County Sheriff\u2019s Department Interrogation Rights Waiver form. Fisher testified that defendant appeared calm, had no odor of alcohol about his person, and was able to communicate with Fisher \u201cquite well.\u201d Defendant read the waiver form, and Fisher then read the form to defendant and explained it to him. Initially, Fisher felt that \u201c[defendant] did not understand the Waiver portion of the rights and asked me to read and explain that to him again.\u201d Subsequently, defendant \u201cindicated that he understood his rights and the Wiaver [sic] and signed the Rights Waiver.\u201d The State moved to play the taped interview for the jury.\nThe trial court conducted a voir dire to determine the admissibility of the tape. Examination of Fisher revealed that Fisher explained \u201ceither all or portions of\u201d the waiver to the defendant twice, and that, although defendant appeared nervous, \u201che was normal. He was responsive, polite.\u201d The trial court found that defendant was properly advised of his rights and that he \u201cfreely, voluntarily and understandingly waived those rights\u201d and concluded that the taped interview was admissible.\nOn the tape defendant stated that he drove to the McCalls\u2019 house, and upon arriving, took a knife from his vehicle and placed it in his back pocket. Defendant stated that the McCalls did not invite him in, but he entered a rear door anyway and called Kenneth\u2019s name several times. When Kenneth awakened and jumped out of bed, he was wearing his pants. Defendant asked Kenneth \u201cwhere\u2019s my shotgun?\u201d Kenneth \u201cstarted for\u201d a gun, and defendant and Kenneth scuffled on the living room floor, where defendant \u201cgot him down\u201d but did not place the knife to Kenneth\u2019s throat. Defendant did not pull the knife out until \u201c[Angela] started for the gun, then I come out and pulled [the knife].\u201d Defendant told Kenneth \u201cif she gets a gun, you\u2019re dead.\u201d When asked why he entered the McCalls\u2019 house, defendant stated \u201c[t]o git [sic] my shotgun and ask [Kenneth] what was he doing with it in the first place.\u201d During the interview defendant made a brief, rambling reference to a hostile confrontation, apparently between himself and Kenneth, which had taken place several months prior to 1 October 1991. At the close of the State\u2019s evidence, defendant made a motion to dismiss, which was denied.\nDefendant\u2019s evidence consisted of his testimony at trial, which was substantially the same as his statement given to Fisher, but also included a claim by defendant that he \u201cdid not go there intentionally that morning to hurt [Kenneth]. I just wanted my shotgun and wondered why it was at his house.\u201d Defendant had seen the shotgun at the McCalls\u2019 house on an earlier visit.\nFurther testimony from defendant\u2019s witnesses indicated that he has had numerous psychiatric hospitalizations, and had been diagnosed as schizophrenic. Defendant failed to renew his motion to dismiss at the end of all evidence.\nDefendant\u2019s counsel requested that the jury be instructed on misdemeanor breaking and entering, assault with a deadly weapon, and self-defense. These requests were denied. The trial court instructed on first-degree burglary, felonious breaking and entering, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weapon with intent to kill. The jury returned verdicts of guilty of first-degree burglary and assault with a deadly weapon with intent to kill.\nThe issues presented are whether (I) defendant has waived his right to assert the trial court\u2019s denial of his motion to dismiss the charge of first-degree burglary on appeal; (II) defendant\u2019s waiver of his right against self-incrimination was effective; (III) the trial court erred in failing to instruct the jury on self-defense; and (IV) the trial court erred in failing to submit to the jury the issues of (A) assault with a deadly weapon and (B) misdemeanor breaking and entering.\nI\nDefendant first argues that the trial court erred in failing to grant his motion to dismiss the charge of first-degree burglary made at the close of the State\u2019s evidence, as the State had not proven two of the necessary elements of first-degree burglary; first, that the breaking and entering alleged occurred at night; and, second, that defendant intended to commit a felony or larceny when he entered the McCalls\u2019 house. Defendant, however, introduced evidence after the State rested its case, thereby waiving his motion for dismissal. N.C. R. App. P. 10(b)(3) (1993). \u201cSuch a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\u201d Id. Defendant may preserve his right to appeal after such waiver by making a motion to dismiss at the close of all evidence, id., but defendant failed to do so, and accordingly, defendant\u2019s right to appellate review on this issue is waived.\nII\nDefendant next contends that the trial court erred in admitting the incriminating statements in defendant\u2019s taped interview with Fisher into evidence because defendant indicated that he did not understand the waiver of his constitutional right against self-incrimination, and, in the alternative, that defendant\u2019s mental condition was such that he could not voluntarily consent to waive his rights.\nAfter having been advised of his constitutional rights, an accused may waive them if the waiver is voluntarily, knowingly, and intelligently made. State v. Steptoe, 296 N.C. 711, 716, 252 S.E.2d 707, 710 (1979). When the admissibility of statements made pursuant to such a waiver is questioned, the trial court must conduct a voir dire hearing to determine whether the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), have been met. See State v. Waddell, 34 N.C. App. 188, 191, 237 S.E.2d 558, 560-61 (1977). At the conclusion of the voir dire, the trial court should make findings of fact in support of its ruling. State v. Wade, 55 N.C. App. 258, 259, 284 S.E.2d 758, 759-60 (1981). The trial court\u2019s findings \u201cwill not be disturbed on appeal if there is any competent evidence [in the record] to support them.\u201d Id. at 260, 284 S.E.2d at 760.\nThe trial court conducted a voir dire, and found that defendant\u2019s waiver of his rights was freely, voluntarily, and understandingly made. There is ample evidence in the record to support this finding. Although it is true that Fisher did make a statement that he initially had a concern as to whether defendant understood the waiver, Fisher indicated that he explained the waiver to defendant a second time, and that he was then satisfied that defendant understood it. A review of the taped interview reveals that defendant indicated that he had read the waiver, that Fisher also read the waiver to defendant, and that defendant twice indicated that he understood it. There was no indication that defendant was confused about his rights or that he was under the influence of any drugs or alcohol. Although Fisher testified that defendant appeared nervous, he also indicated that defendant was responsive and able to communicate. This evidence amply supports the trial court\u2019s findings.\nDefendant further contends that his mental state was such that an effective waiver of his rights was impossible. The record reveals that defendant had been hospitalized numerous times for mental problems, and that he had been diagnosed as schizophrenic prior to the incidents which gave rise to the charges. Evidence that a defendant is mentally disturbed is pertinent to a determination of whether a defendant\u2019s waiver is effective, but \u201c[p]ast indicia of mental instability are not necessarily dispositive on this issue.\u201d State v. Vickers, 306 N.C. 90, 97, 291 S.E.2d 599, 604 (1982) (citation omitted), overruled on other grounds, State v. Barnes, 333 N.C. 666, 430 S.E.2d 223 (1993). Rather, the defendant\u2019s condition at the time the waiver was made will be considered. See id.\nA review of defendant\u2019s statement to Fisher reveals that he was able to understand and answer questions, appeared calm, and that, for the most part, defendant seemed lucid. Defendant was able to ask questions when he did not understand the inquiries made by Fisher. Defendant points to a short passage in the statement in which defendant appears to ramble about an incident which occurred several months prior to the incident which led to the charges against defendant. While defendant is correct in stating that this portion of the statement indicates some confusion on defendant\u2019s part, it is not enough to dispel the overall impression that defendant was alert, understood his rights and had the mental capacity to waive them.\nAccordingly, the trial court\u2019s finding of fact that defendant voluntarily, knowingly, and intelligently waived his rights is supported by competent evidence in the record, and that finding will not be disturbed.\nIll\nDefendant next argues that the trial court erred in refusing to give his requested jury instruction on self-defense. Defendant seeks a self-defense instruction based on his own testimony that, after he had entered the McCalls\u2019 house armed with a knife and without the McCalls\u2019 permission, Kenneth, upon seeing the defendant in his bedroom, \u201cwas tryin\u2019 [sic] to go for his gun . . . [and] I throwed [sic] him down\u201d and put the knife to his throat. Defendant testified that he did this because \u201cI didn[\u2019]t want [Kenneth] to hurt me.\u201d The trial court must instruct the jury on all essential features of a case, and where there exists evidence that the defendant acted in self-defense, \u201che is entitled to have this evidence considered by the jury under proper instruction from the court.\u201d State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977) (citations omitted). Generally, one who is at fault in starting a confrontation is not entitled to a self-defense instruction. Id. Thus, one who \u201cvoluntarily, that is aggressively and willingly, [without legal provocation or excuse,] enters into a fight\u201d will not be afforded an instruction on self-defense \u201cunless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.\u201d Id. (citations omitted).\nDefendant admits that he entered the McCalls\u2019 house and bedroom without permission. As such, defendant was at fault in starting the conflict. See State v. Spruill, 225 N.C. 356, 357, 34 S.E.2d 142, 143 (1945) (person has substantive right to evict trespasser from his home). Upon Kenneth\u2019s discovery of defendant, defendant \u201caggressively and willingly ... enter[ed] into a fight\u201d with Kenneth. Defendant did not attempt to withdraw from the fight, nor did he attempt to communicate his desire to withdraw. Accordingly, defendant was not entitled to an instruction on self-defense.\nIV\nDefendant next argues that he was entitled to a jury instruction on the offenses of misdemeanor assault with a deadly weapon and misdemeanor breaking and entering.\nThe trial court is required to give instructions on other possible verdicts if (1) those charges for which the instruction is sought are lesser included offenses of the charge for which defendant was indicted, see State v. Riera, 276 N.C. 361, 368, 172 S.E.2d 535, 540 (1970); and (2) any evidence is presented which would permit the jury to convict the defendant of the lesser offense. State v. Whitaker, 316 N.C. 515, 520, 342 S.E.2d 514, 518 (1986). The presence or absence of such evidence is the factor which determines whether the instruction must be given. State v. Harrington, 95 N.C. App. 187, 189, 381 S.E.2d 808, 809 (1989). Error in the failure to submit lesser offenses to the jury is not cured when the defendant is convicted of the greater offense, as it can never be known if the jury would have found the defendant guilty of the lesser offense if given the opportunity. Id.\nA\nAssault with a deadly weapon, a misdemeanor punishable by not more than two years imprisonment, is a lesser included offense of the charge under which defendant was indicted, assault with a deadly weapon with intent to kill inflicting serious injury. State v. Weaver, 264 N.C. 681, 683, 142 S.E.2d 633, 635 (1965); N.C.G.S. \u00a7 14-33 (Supp. 1992); N.C.G.S. \u00a7 14-32 (1986). Accordingly, if there was any evidence from which the jury could find defendant guilty of assault with a deadly weapon, it was error for the trial court to fail to submit that offense to the jury.\nA person will not be found guilty of assault with a deadly weapon if \u201chis conduct is covered under some other provision of law providing greater punishment\u201d for the assault. N.C.G.S. \u00a7 14-33. Assault with a deadly weapon with intent to kill pursuant to N.C.G.S. \u00a7 14-32(c) is one such provision of law which provides a greater punishment for assault, in that it is punishable by imprisonment of up to ten years. N.C.G.S. \u00a7 14-32(c) (1986); N.C.G.S. \u00a7 14-1.1 (1986). Thus, if the additional element of intent to kill is shown by the evidence, defendant was not entitled to the instruction on the lesser offense.\n\u201cIntent to kill is a mental attitude which must normally be proven by circumstantial evidence.\u201d Harrington, 95 N.C. App. at 189, 318 S.E.2d at 809 (citation omitted). Such \u201cintent may be inferred from the nature of the assault, the manner in which it is made, the conduct of the parties, and other relevant circumstances.\u201d State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474, 475 (1946) (citations omitted).\nIn this case, it is uncontroverted that defendant took a knife into the McCalls\u2019 house, that he threw Kenneth to the floor and held the knife to his throat, that he threatened to kill Kenneth, and that the knife was removed from Kenneth\u2019s throat only when Kenneth grabbed it and broke the blade. The only evidence which would negate the intent to kill is the defendant\u2019s denial that he would have killed Kenneth. Therefore, on this record, we find no error in the trial court\u2019s refusal to submit the requested instruction.\nB\nThe crime of burglary exists when there is a breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Williams, 314 N.C. 337, 355, 333 S.E.2d 708, 720 (1985). The felonious intent proven must be the felonious intent alleged in the indictment. State v. Wilson, 293 N.C. 47, 53-54, 235 S.E.2d 219, 223 (1977). In prosecutions for burglary when larceny is alleged as the underlying offense, \u201clarceny shall be deemed a felony.\u201d N.C.G.S. \u00a7 14-51 (1986). The lesser included offense of misdemeanor breaking and entering must be submitted to the jury if there is substantial evidence that the defendant broke and entered for some non-felonious reason other than that alleged in the indictment. See State v. Patton, 80 N.C. App. 302, 305-06, 341 S.E.2d 744, 746-47 (1986).\nIn this case, the indictment alleges larceny as the felony underlying the charge of burglary. The defendant\u2019s evidence supports a contrary view of why he broke and entered the premises; specifically, that he did not have the intent to commit larceny, but instead broke and entered with the intent to retrieve his shotgun which he had earlier seen in the McCalls\u2019 house. There is substantial evidence in the record to support defendant\u2019s position. The McCalls testified that defendant had been a visitor in their house before, and thus could have seen the shotgun, and that as soon as they encountered defendant in their house on the night in question, he began to shout that he wanted his shotgun. Defendant testified that his only purpose for entering the house was to retrieve the shotgun. Thus the trial court erred in refusing to submit to the jury the lesser included offense of misdemeanor breaking and entering and defendant is entitled to a new trial on the burglary charge.\nIn so holding, we reject the State\u2019s argument that there is \u201cuncontradicted\u201d evidence that defendant did have the intent to commit larceny when he entered the house. This evidence consists of Kenneth\u2019s testimony that he had left his pants on the couch prior to retiring the evening that defendant entered the house, and after the defendant left, Kenneth found that the contents of his pants were \u201cdumped out into the floor.\u201d This evidence is not uncontradicted, however, in that in his statement given on the day of the incident and his testimony at trial, defendant maintains that Kenneth was wearing his pants during their struggle. In addition, the State admits that the altercation between Kenneth and defendant took place in the living room, and a reasonable juror could believe that the pants were, simply thrown about in that struggle and the contents thereby thrown on the floor.\nNo error \u2014 assault with a deadly weapon with intent to kill.\nNew trial \u2014 first-degree burglary.\nJudges EAGLES and LEWIS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Francis W. Crawley, for the State.", "Ramsey, Hill, Smart, Ramsey & Pratt, P.A., by Michael E. Pratt, and Richard N. Adams, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TROY NEWTON OWEN\nNo. 9229SC1065\n(Filed 3 August 1993)\n1. Criminal Law \u00a7 648 (NCI4th)\u2014 motion to dismiss at close of State\u2019s evidence \u2014evidence introduced by defendant \u2014failure to renew motion \u2014 waiver of right to appeal issue\nWhere defendant introduced evidence after the State rested its case, he waived his motion for dismissal of the first-degree burglary charge made at the close of the State\u2019s evidence, and defendant\u2019s failure to renew his motion to dismiss at the close of all evidence constituted waiver of his right to appeal this issue. N.C. R. App. P. 10(b)(3).\nAm Jur 2d, Appeal and Error \u00a7\u00a7 545 et seq.\n2. Evidence and Witnesses \u00a7 1274 (NCI4th)\u2014 waiver of rights\u2014 voluntariness \u2014understanding \u2014sufficiency of evidence\nEvidence was sufficient to support the trial court\u2019s finding that defendant\u2019s waiver of his rights was freely, voluntarily, and understandingly made where the evidence tended to show that defendant indicated that he had read the waiver of rights; a detective in the sheriff\u2019s department read the waiver to defendant; defendant twice indicated that he understood it; there was no indication that defendant was confused about his rights or that he was under the influence of any drugs or alcohol; and the detective indicated that, though defendant appeared nervous, he was also responsive and able to communicate. Furthermore, though defendant had been hospitalized numerous times for mental problems and had been diagnosed as schizophrenic prior to the incidents which gave rise to these charges, there was not enough evidence to dispel the overall impression that defendant was alert, understood his rights, and had the mental capacity to waive them.\nAm Jur 2d, Criminal Law \u00a7\u00a7 633, 638.\n3. Assault and Battery \u00a7 100 (NCI4th) \u2014 self-defense \u2014 defendant at fault in bringing on affray \u2014no instruction required\nDefendant was not entitled to an instruction on self-defense when he entered the victims\u2019 house and bedroom without permission and thus was at fault in starting the conflict, and defendant did not attempt to withdraw from the fight with the victim or attempt to communicate his desire to withdraw.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 69 et seq.\n4. Assault and Battery \u00a7 116 (NCI4th)\u2014 assault with deadly weapon with intent to kill \u2014sufficiency of evidence of intent to kill\nIn a prosecution of defendant for assault with a deadly weapon with intent to kill, the trial court did not err in failing to submit to the jury the lesser-included offense of assault with a deadly weapon, since defendant was not entitled to the instruction on the lesser offense if the element of intent to kill was shown by the evidence; in this case, it was uncon-troverted that defendant took a knife into the victims\u2019 house, threw one victim to the floor and held the knife to his throat; defendant threatened to kill the victim; and the knife was removed from the victim\u2019s throat only when the victim grabbed it and broke the blade.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 48 et seq.\n5. Burglary and Unlawful Breakings \u00a7 164 (NCI4th)\u2014 first-degree burglary \u2014larceny as underlying felony \u2014 insufficiency of evidence\nIn a prosecution of defendant for first-degree burglary based on the underlying crime of larceny, the trial court erred in refusing to submit to the jury the lesser included offense of misdemeanor breaking and entering, since there was substantial evidence in the record to support defendant\u2019s contention that he did not have the intent to commit larceny when he broke and entered the premises, but instead broke and entered with the intent to retrieve his shotgun which he had earlier seen in the victims\u2019 house.\nAm Jur 2d, Burglary \u00a7\u00a7 44 et seq.\nAppeal by defendant from judgments entered 29 May 1992 in Transylvania County Superior Court by Judge Zoro J. Guice, Jr. Heard in the Court of Appeals 7 July 1993.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Francis W. Crawley, for the State.\nRamsey, Hill, Smart, Ramsey & Pratt, P.A., by Michael E. Pratt, and Richard N. Adams, for defendant-appellant." }, "file_name": "0300-01", "first_page_order": 330, "last_page_order": 340 }