{ "id": 11917860, "name": "STATE OF NORTH CAROLINA v. RODNEY SCOTT MERRITT", "name_abbreviation": "State v. Merritt", "decision_date": "1995-11-21", "docket_number": "No. 9415SC455", "first_page": "732", "last_page": "743", "citations": [ { "type": "official", "cite": "120 N.C. App. 732" } ], "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": "432 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "385", "parenthetical": "reversible error in failing to submit misdemeanor breaking or entering where evidence indicated defendant merely wanted to retrieve his shotgun" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521786 ], "year": 1993, "pin_cites": [ { "page": "309", "parenthetical": "reversible error in failing to submit misdemeanor breaking or entering where evidence indicated defendant merely wanted to retrieve his shotgun" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0300-01" ] }, { "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": "254 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "5", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567060 ], "year": 1979, "pin_cites": [ { "page": "127", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0121-01" ] }, { "cite": "162 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554441 ], "year": 1968, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0546-01" ] }, { "cite": "370 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526033 ], "year": 1988, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0712-01" ] }, { "cite": "457 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "292-93", "parenthetical": "\"It is well settled that a charge on presence at the scene of the crime is unnecessary in a case in which the evidence shows that the defendant was actually present at the time the crime* was committed.\"" } ], "opinion_index": 0 }, { "cite": "339 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557374 ], "year": 1994, "pin_cites": [ { "page": "651", "parenthetical": "\"It is well settled that a charge on presence at the scene of the crime is unnecessary in a case in which the evidence shows that the defendant was actually present at the time the crime* was committed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0622-01" ] }, { "cite": "409 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "330 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508398 ], "year": 1991, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0167-01" ] }, { "cite": "431 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1639 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "154" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/us/431/0145-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "308 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "503", "parenthetical": "court erred in failing to instruct on second degree burglary where neither victim checked the back bedroom before going to sleep and defendant could have entered before victims returned home" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522872 ], "year": 1983, "pin_cites": [ { "page": "166", "parenthetical": "court erred in failing to instruct on second degree burglary where neither victim checked the back bedroom before going to sleep and defendant could have entered before victims returned home" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0164-01" ] }, { "cite": "255 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "157", "parenthetical": "failing to submit lesser-included offense of second degree burglary requires new trial where homeowners failed to check third bedroom before retiring to bed and never heard sound of breaking glass" } ], "opinion_index": 0 }, { "cite": "297 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570604 ], "year": 1979, "pin_cites": [ { "page": "424", "parenthetical": "failing to submit lesser-included offense of second degree burglary requires new trial where homeowners failed to check third bedroom before retiring to bed and never heard sound of breaking glass" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0419-01" ] }, { "cite": "155 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0 }, { "cite": "270 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569694 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "595" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0588-01" ] }, { "cite": "68 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2083738 ], "year": 1873, "pin_cites": [ { "parenthetical": "building within the curtilage of a residence, and regularly used as a sleeping room, is in contemplation of law, a \"dwelling house\" in which a burglary may be committed" } ], "opinion_index": 0, "case_paths": [ "/nc/68/0207-01" ] }, { "cite": "40 S.E. 209", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1901, "pin_cites": [ { "parenthetical": "defendant properly convicted of first degree burglary where he broke into a storeroom, off of which opened an occupied sleeping apartment" } ], "opinion_index": 0 }, { "cite": "129 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662594 ], "year": 1901, "pin_cites": [ { "parenthetical": "defendant properly convicted of first degree burglary where he broke into a storeroom, off of which opened an occupied sleeping apartment" } ], "opinion_index": 0, "case_paths": [ "/nc/129/0704-01" ] }, { "cite": "50 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277787 ], "weight": 3, "year": 1858, "pin_cites": [ { "page": "431-32" }, { "page": "431" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/50/0430-01" ] }, { "cite": "43 A.L.R.2d 831", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "838" }, { "page": "834-35", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "793 S.W.2d 859", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10009784 ], "pin_cites": [ { "page": "860" } ], "opinion_index": 0, "case_paths": [ "/sw2d/793/0859-01" ] }, { "cite": "2 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1794, "opinion_index": 0 }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "520", "parenthetical": "quoting State v. Twitty, 2 N.C. 102 (1794)" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "194", "parenthetical": "quoting State v. Twitty, 2 N.C. 102 (1794)" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "60 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "year": 1864, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "631", "parenthetical": "citing State v. Jake, 60 N.C. 471, 472 (1864)" }, { "page": "630-31", "parenthetical": "storage room constituted curtilage of a dwelling house so as to sustain conviction of first degree burglary where storage room entered was at back of house just behind occupied bedroom and storage room could be entered through an outside door or a window in the bedroom" } ], "opinion_index": 0 }, { "cite": "305 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571096 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "472", "parenthetical": "citing State v. Jake, 60 N.C. 471, 472 (1864)" }, { "page": "472-73" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0463-01" ] }, { "cite": "64 L. Ed. 2d 282", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6242663, 6241351, 6241707, 6241998, 6241039, 6242940, 6242301 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0929-06", "/us/446/0929-02", "/us/446/0929-03", "/us/446/0929-04", "/us/446/0929-01", "/us/446/0929-07", "/us/446/0929-05" ] }, { "cite": "260 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "646" }, { "page": "646" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "226 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1976, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "290 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561808 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0485-01" ] }, { "cite": "81 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "240 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594845 ], "year": 1954, "pin_cites": [ { "page": "63-64" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0060-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 1133, "char_count": 24983, "ocr_confidence": 0.74, "pagerank": { "raw": 2.2660108943380018e-07, "percentile": 0.783204542040868 }, "sha256": "35b5f34692019896bb9d7ebeb75cd010f72fce246c4766a89bddd56d6e9e0594", "simhash": "1:0768ae0a2b3fb3f4", "word_count": 4178 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and MARTIN, John C. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RODNEY SCOTT MERRITT" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant was convicted of first degree burglary in violation of N.C. Gen Stat. \u00a7 14-51 (1993). He contends the trial court erred in various aspects of its jury charge. We disagree.\nThe State\u2019s evidence tended to show the following: On 2 January 1993, Laura Long (Long) was employed as house director of the Kappa Kappa Gamma sorority house located at 302 Pittsboro Street in Chapel Hill, North Carolina. Twenty-nine (29) female university students reside at the facility during the University of North Carolina\u2019s academic year. Long\u2019s duties include responsibility for matters such as menu planning, meal service, cleaning and maintenance, as well as budgeting, bookkeeping, and payroll.\nAs part of her compensation, Long and her husband (Mr. Long) receive use of a private apartment within the sorority house. The apartment occupies two floors and entry is prohibited to other residents; however, Long has free access to all portions of the building.\nDuring Christmas break at the University, the sorority house is closed and none of the students may occupy the building; however, the Longs are permitted to remain in their apartment. The Christmas vacation period relevant to the case sub judice took place from 19 December 1992 through 10 January 1993.\nOn the evening of 2 January 1993, the Longs were upstairs in their apartment when they heard a floorboard creak. The structure is old and floorboards in the Longs\u2019 apartment often creak and move when someone walks by the door leading into the main portion of the house. Shortly before the noise, between 10:30 and 11:00 p.m., Mr. Long had \u201cwalked the perimeter of the building to check doors, windows and lights\u201d and had ascertained that all were locked and undamaged. After Long telephoned police, the couple heard the sound of footsteps running down the main stairs and through the foyer. Seconds later, the alarm on the fire door in the back of the dining room went off. Long looked out her bathroom window and saw people running across the street. She observed an officer overtake and subdue one of the individuals.\nOfficer Jack Terry (Terry) testified he arrived at the sorority house in response to the dispatcher\u2019s call. As he approached the residence, he noticed a door had been broken into and communicated this observation to other officers en route to the scene. Upon arriving, these officers surrounded the house. After a few moments, they heard a noise and saw two persons running out of the dining room door. Terry identified defendant as one of those individuals, both of whom were apprehended.\nTerry further testified that his search of defendant\u2019s person uncovered a wallet later identified as belonging to Kristin Hill, a student resident of the sorority house. Terry also stated a disconnected VCR was discovered on the floor between the dining room and the living room, and stereo equipment taken from at least two rooms had been placed at the head of the stairs.\nDefendant presented no evidence and was found guilty of first degree burglary. He appeals the court\u2019s judgment sentencing him to twenty-five (25) years imprisonment.\nI.\nDefendant first maintains the trial court erred \u201cby instructing the jury that the dwelling would be occupied if the Long\u2019s (sic) were in their quarters at the time of the unauthorized entry and by refusing to submit the possible verdict of second degree burglary to the jury.\u201d We find defendant\u2019s arguments unpersuasive.\nA.\nThe indictment herein charged defendant with burglary of \u201cthe dwelling house of Tim and Laura Long located at 302 Pittsboro Street, Chapel Hill, North Carolina.\u201d Burglary is the breaking and entering of a dwelling house or sleeping apartment of another during the nighttime with intent to commit a felony therein. N.C. Gen. Stat. \u00a7 14-51 (1993). Burglary in the first degree occurs if the dwelling is occupied; if unoccupied, the crime is burglary in the second degree. Id.\nWith respect to the element of occupancy, the trial court instructed the jury as follows:\nIf you find that Mr. and Mrs. Long were in their quarters at the Kappa Kappa Gamma Sorority House at the time of the breaking and entering, then the house would be occupied.\nDefendant objected to this portion of the court\u2019s instruction and states in his brief that the instruction \u201cwas an impermissible assumption that all of the separate living units in the building constituted but one dwelling.\u201d\nN.C. Gen. Stat. \u00a7 15A-1232 (1988) states:\nIn instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.\nThis provision establishes three fundamental propositions:\n(1) That it is the duty of the judge alone to decide the legal questions presented at the trial, and to instruct the jury as to the law arising on the evidence given in the case; (2) that it is the task of the jury alone to determine the facts of the case from the evidence adduced; and (3) that \u201cno judge, in giving a charge to the petit jury,. . . shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury.\u201d\nState v. Canipe, 240 N.C. 60, 63-64, 81 S.E.2d 173, 176 (1954).\nIn State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994), the trial court instructed the jury that \u201c \u2018the apartment described for you herein located at 2655 Pendleton Drive, Apartment number one, is a sleeping apartment.\u2019 \u201d Id. at 497, 226 S.E.2d at 333. On appeal, the Supreme Court held the court\u2019s affirmative statement violated G.S. \u00a7 1-180 (predecessor to G.S. \u00a7 15A-1232) by \u201cerroneously invading the province of the jury.\u201d Id. However, this constituted harmless error on the facts of the case in that all the evidence supported the court\u2019s statement. Id.\nIn State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, Jolly v. North Carolina, 446 U.S. 929, 64 L. Ed. 2d 282 (1980), the trial court instructed the jury that the motel room which had been broken into was a \u201c \u2018sleeping apartment\u2019 \u201d for purposes of the burglary statute. Id. at 596-97, 260 S.E.2d at 646. Relying on Wells, the Supreme Court again held \u201csuch an affirmative statement constituted an impermissible expression of opinion, or an assumption that a material fact had been proved.\u201d Id. at 597, 260 S.E.2d at 646. However, the Nelson Court also concluded the instruction was harmless error. Id.\nThe challenged instruction of the trial court in the case sub judice constituted an indirect statement that the Longs\u2019 apartment and the common areas of the sorority house constituted a. single \u201cdwelling house\u201d for purposes of application of the burglary statute. Under Wells and Nelson, the court\u2019s statement violated G.S. \u00a7 15A-1232 by expressing an opinion as to the existence of a material fact. The issue becomes, therefore, whether the error was prejudicial. N.C. Gen. Stat. \u00a7 15A-1443(a) (1988).\nThe State contends the trial court\u2019s statement, if erroneous as an expression of opinion, nonetheless was not prejudicial because it accurately reflected the evidence. The State argues that the sorority house and the Longs\u2019 apartment indeed constitute but one \u201cdwelling house\u201d since the common areas of house traversed by the burglars lay within the \u201ccurtilage\u201d of the Longs\u2019 quarters.\n\u201cThere may be several dwelling units in a single structure, as the rooms of an inn, hotel, or lodging house. In such case, each room is regarded as the \u2018dwelling house\u2019 of its respective occupant;\u201d Charles E. Torcia, Wharton\u2019s Criminal Law \u00a7 335, at 208 (14th ed. 1980). Thus, defendant\u2019s contention is accurate to the extent that, if entered, the rooms assigned to each sorority member as well as the quarters solely occupied by the Longs would properly be considered individual dwelling houses for purposes of our burglary statute.\nHowever,\n[t]he term \u2018dwelling house\u2019 includes within it not only the house in which the owner or renter and his family, or any member of it, may live and sleep, but all other houses appurtenant thereto, and used as part and parcel thereof, . . . provided they are within the curtilage, or are adjacent or very near to the dwelling-house.\nState v. Green, 305 N.C. 463, 472, 290 S.E.2d 625, 631 (1982) (citing State v. Jake, 60 N.C. 471, 472 (1864)). \u201cThe curtilage is the land around a dwelling house upon which those outbuildings lie that are \u2018commonly used with the dwelling house.\u2019 \u201d State v. Fields, 315 N.C. 191, 194, 337 S.E.2d 518, 520 (1985) (quoting State v. Twitty, 2 N.C. 102 (1794)). In determining whether a building is within the curtilage of the dwelling house, \u201ctwo themes consistently emerge: the function of the building and its proximity to the dwelling house.\u201d Id.\nFirst, \u201cif a structure\u2019s use \u2018contributes materially to the comfort and convenience of habitation in the dwelling house,\u2019 then it will be considered part of the dwelling for purposes of the burglary statute.\u201d Stewart v. Commonwealth, 793 S.W.2d 859, 860 (199) (quoting C.S. Powell, Annotation, Burglary: outbuildings or the like as part of \u201cdwelling house,\u201d43 A.L.R.2d 831, 838 (1955).\n[T]he law throws her mantle around the dwelling of man, because it is the place of his repose, and protects, not only the house in which he sleeps, but also all the other appurtenances thereto, as parcel or parts thereof, from meditated harm. Thus the kitchen, the laundry, the meat or smoke-house and the dairy are within its protection, for they are all used as parts of one whole, each contributing, in its way, to the comfort or convenience of the place, as a mansion or dwelling. They are used with that view, and that alone, and it may be admitted that all houses, contiguous to the dwelling, are, prima facie, of that description. But when it is proved that they are used for other purposes, as for labor, as a workshop \u2014 for vending goods, as a store-house, this destroys the presumption. It then appears that they are there for purposes unconnected with the actual dwelling-house, and do not render it more comfortable or convenient as a dwelling; in short, that they are not parcel or part thereof, but are used for other and distinct purposes. The house, as a dwelling, is equally as comfortable and convenient without as with them. Their contiguity to the dwelling may afford convenience or comfort to the occupant as a mechanic, or laborer, or shop-keeper, but none to him as a house-keeper.\nState v. Jenkins, 50 N.C. 430, 431-32 (1858).\nThe record herein reflects Long\u2019s testimony that her numerous daily responsibilities in maintaining the house required full access to every portion of the building. She stated \u201cit\u2019s not unusual for me to be in other parts of the house as part of my job.\u201d For example, Long frequently entered the students\u2019 rooms to check for safety hazards such as curling irons which occupants had failed to disconnect or turn off. Mr. Long also had \u201copen access to all of the first floor portions of the house\u201d and would often check the house at night for security purposes.\nIn addition, Long testified:\n[T]here\u2019s the large TV out in the main house living room, which is where we will go if we have friends or such over, because our apartment area is very small, and we can\u2019t entertain. So we would be maybe out in the main house living room.\nLong further indicated that at the time in question she and her husband kept their \u201croad bikes, fifteen speed bikes,\u201d in the living room along with a training stand, \u201csomething you put the back tire of the bike up on so that you can ride it as a stationary bike.\u201d The training stand was \u201cset up so that we could be training in the winter on the bike and watching the TV.\u201d\nMoreover, Long declared that when \u201cdoing holiday cooking and such, or we were entertaining, I need to go into the main house refrigerator and freezer,\u201d but that \u201c[w]hen I\u2019m receiving my meals, when the house was open at the sorority house, I don\u2019t need to have as much refrigerator-freezer space.\u201d\nFinally, Long stated she had personal items, including \u201csewing and crafts supplies and odds and ends\u201d stored in a closet in the main house hallway which was \u201conly accessible from a doorway [in the main house] that goes into the main house hallway.\u201d An additional closet in the main house was used by the Longs for storage of \u201cluggage and out-of-season clothing and that kind of thing.\u201d Long and her husband also parked their vehicle in one of the twenty-nine spaces allocated to residents of the house.\nBased on the foregoing, we conclude the main portion of the sorority house contributed \u201cin its way, to the comfort or convenience\u201d of the Longs\u2019 apartment \u201cas a dwelling.\u201d Jenkins, 50 N.C. at 431.\nMoreover, the common areas of the sorority house are contiguous to the Longs\u2019 apartment, prima facie evidence of status as a portion of the \u201cdwelling house.\u201d Id. at 431. The apartment is under the same roof and has one exterior entrance and three interior entrances, including a door which opens into their bedroom from the main hallway. There is also a primary entrance to the Longs\u2019 quarters located in the house foyer.\nUnder the facts of the case sub judice, we therefore hold that the common areas of the sorority house, appurtenant to the Longs\u2019 private apartment, are within the curtilage and a portion of the Long\u2019s \u201cdwelling house\u201d for purposes of the burglary statute. See State v. Green, 305 N.C. at 472-73, 290 S.E.2d at 630-31 (storage room constituted curtilage of a dwelling house so as to sustain conviction of first degree burglary where storage room entered was at back of house just behind occupied bedroom and storage room could be entered through an outside door or a window in the bedroom). See also State v. Foster, 129 N.C. 704, 40 S.E. 209 (1901) (defendant properly convicted of first degree burglary where he broke into a storeroom, off of which opened an occupied sleeping apartment); State v. Mordecai, 68 N.C. 207 (1873) (building within the curtilage of a residence, and regularly used as a sleeping room, is in contemplation of law, a \u201cdwelling house\u201d in which a burglary may be committed).\nOur holding is consistent with the legislative purpose in specifying nighttime forcible entry to the occupied home of another as viola-tive of the criminal law. \u201cIt is well to remember that the law of burglary is to protect people, not property.\u201d Fields, 315 N.C. at 196, 337 S.E.2d at 521.\nIt is evident that the offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished. . . . Such attempted immunity extended to a man\u2019s dwelling or mansion house has been said to be attributable to the early common-law principle that a man\u2019s home is his castle.\nParnell, supra, 43 A.L.R.2d at 834-35 (citation omitted).\nMr. Long testified the noises he and his wife heard in the main portion of the house were \u201cdirectly next to us and through one wall\u201d and outside their bedroom door which opens into the main hallway. The trial court noted this circumstance during the charge conference:\nCertainly, at one point, the burglars were very close to the room that was being occupied by the Longs, just in the hall right outside their bedroom door.\nThus, the protection afforded those occupying a \u201cdwelling house\u201d includes the common areas of the house as part and parcel of the Longs\u2019 \u201cdwelling.\u201d\nThe evidence revealed that the intruders traversed the hallways, stairs, foyer, and dining room of the sorority house \u2014 all common areas of the house within the curtilage of the Longs\u2019 apartment. The trial court\u2019s \u201cassumption\u201d that the Longs\u2019 apartment and the common areas of the sorority house \u201cconstituted but one dwelling\u201d was therefore neither, in defendant\u2019s word, \u201cimpermissible,\u201d nor inaccurate. Accordingly, under Long and Nelson, the trial court\u2019s erroneous expression of opinion, based upon its proper, albeit tacit, consideration of the Longs\u2019 quarters and the common areas of the Kappa Kappa Gamma sorority house as a single \u201cdwelling house,\u201d was non-prejudicial.\nB.\nDefendant requested that the lesser-included offense of second degree burglary be submitted to the jury on the basis that it could find the dwelling house was not actually occupied. The State did not disagree. However, the trial court stated \u201cit\u2019s my opinion that as far as the law is concerned, the sorority house was occupied.\u201d The court thereupon ordered the clerk to prepare a verdict form which allowed but two possible verdicts: guilty of first degree burglary or not guilty.\nTo justify a charge on second degree burglary, there must be evidence from which the jury could find that the dwelling house or sleeping apartment in question was unoccupied at the time of the breaking. State v. Tippett, 270 N.C. 588, 595, 155 S.E.2d 269, 274 (1967), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994).\nThe record reveals that Mr. Long checked the entire premises before retiring to the Long\u2019s sleeping quarters and discovered nothing unusual. Shortly thereafter, the couple heard floorboards creaking and other sounds of movement within the main portion of the residence. Officers also located a door which had been broken, but which Mr. Long testified had not been damaged when he observed it during his security check of the premises. No evidence indicated either Mr. Long or his wife exited the premises prior to hearing the sounds of intruders.\n\u201c[W]here all the evidence is to the effect that the building was actually occupied at the time of the breaking and entry, the court is not authorized to instruct the jury that it may return a verdict of burglary in the second degree.\u201d State v. Tippett, 270 N.C. at 595, 155 S.E.2d at 274. Cf. State v. Powell, 297 N.C. 419, 424, 255 S.E.2d 154, 157 (1979) (failing to submit lesser-included offense of second degree burglary requires new trial where homeowners failed to check third bedroom before retiring to bed and never heard sound of breaking glass); State v. Simons, 65 N.C. App. 164, 166, 308 S.E.2d 502, 503 (1983) (court erred in failing to instruct on second degree burglary where neither victim checked the back bedroom before going to sleep and defendant could have entered before victims returned home).\nHaving previously determined the Long\u2019s apartment and the common areas of the sorority house to constitute the \u201cdwelling house of Tim and Laura Long located at 302 Pittsboro Street\u201d charged in the indictment, we conclude the evidence was uncontradicted that the house was, in the words of that indictment, \u201c[a]t the time of the breaking and entering actually occupied by Tim and Laura Long.\u201d The trial court thus did not err in refusing to instruct the jury on the lesser included offense of second degree burglary.\nII.\nDefendant next contends the trial court erred in its instruction to the jury on \u201cacting in concert\u201d by failing to include the element of presence at the scene. We disagree.\nAt trial, counsel for defendant submitted numerous proposed instructions to the jury; none contained any requested instruction on the legal theory of acting in concert. Moreover, defendant concedes in his appellate brief that he interposed no timely objection at trial to the court\u2019s jury charge or responses to jury inquiries. See N.C.R. App. P. 10(b)(2). Assuming arguendo that the court committed error, therefore, defendant may not prevail on appeal unless the alleged error constitutes \u201cplain error,\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).\nHowever, only in the \u201crare case\u201d will an improper instruction \u201cjustify reversal of a criminal conviction when no objection has been made in the trial court.\u201d Id. at 661, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)). As defendant further concedes, moreover, the court\u2019s failure to instruct on presence may constitute plain error only when there is not substantial evidence of the defendant\u2019s actual or constructive presence at the scene of the crime. State v. Gilmore, 330 N.C. 167, 171, 409 S.E.2d 888, 890 (1991). See also State v. Hunt, 339 N.C. 622, 651, 457 S.E.2d 276, 292-93 (1994) (\u201cIt is well settled that a charge on presence at the scene of the crime is unnecessary in a case in which the evidence shows that the defendant was actually present at the time the crime* was committed.\u201d).\nThe uncontradicted evidence in the record reveals that defendant was identified as one of two persons who hurriedly exited the dining room of the sorority house and that he was apprehended running from the residence by police who had surrounded the building. The evidence further reflects that a wallet belonging to one of the house residents was recovered from defendant\u2019s person. Suffice it to observe the foregoing comprises substantial evidence of defendant\u2019s actual and constructive presence at the scene. See, e.g., State v. Ruffin, 90 N.C. App. 712, 716, 370 S.E.2d 279, 281 (1988). Defendant\u2019s claim of \u201cplain error\u201d is therefore unavailing.\nIII.\nDefendant final assignments of error are directed at the trial court\u2019s failure to instruct the jury on the possible verdicts of felonious and non-felonious breaking or \u00e9ntering. These contentions are unfounded.\nWhile the statutory offense of felonious breaking or entering is a lesser included offense of burglary in the first degree, State v. Fowler, 1 N.C. App. 546, 548-49, 162 S.E.2d 37, 39 (1968), submission of this lesser included offense is required only when the evidence tends to show that defendant could have gained entry into the building in question by means other than a burglarious breaking. State v. Jolly, 297 N.C. 121, 127, 254 S.E.2d 1, 5 (1979) (citations omitted). No such indication may be found in the evidence sub judice.\nThe lesser included offense of misdemeanor breaking and entering must be submitted to the jury if there is substantial evidence 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). The indictment herein alleged defendant intended to commit larceny. The record indicates no other explanation for the unauthorized entry into the sorority house; submission to the jury of misdemeanor breaking or entering was therefore not required. Cf. State v. Owen, 111 N.C. App. 300, 309, 432 S.E.2d 378, 385 (1993) (reversible error in failing to submit misdemeanor breaking or entering where evidence indicated defendant merely wanted to retrieve his shotgun).\nNo error.\nJudges COZORT and MARTIN, John C. concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General, David, N. Kirkman, for the State.", "Assistant Appellate Defender, Charlesena Elliott Walker, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RODNEY SCOTT MERRITT\nNo. 9415SC455\n(Filed 21 November 1995)\n1. Burglary and Unlawful Breakings \u00a7 140 (NCI4th)\u2014 burglary at sorority house \u2014 director\u2019s apartment and main house as one dwelling \u2014 court\u2019s expression of opinion\u2014 error not prejudicial\nThe trial court\u2019s instruction constituted an indirect statement that the apartment of the victim, who was the resident, director of a sorority house, and the common areas of the sorority house constituted a single \u201cdwelling house\u201d for purposes of application of the burglary statute, and such statement violated N.C.G.S. \u00a7 15A-1232 by expressing an opinion as to the existence of a material fact; however, because the common areas of the sorority house, appurtenant to the victim\u2019s apartment, were within the curtilage and a portion of the victim\u2019s \u201cdwelling house\u201d for purposes of the burglary statute, the trial court\u2019s erroneous expression of opinion was non-prejudicial.\nAm Jur 2d, Burglary \u00a7\u00a7 67 et seq.\n2. Burglary and Unlawful Breakings \u00a7 162 (NCI4th)\u2014 residence occupied \u2014 failure to instruct on second-degree burglary \u2014 no error\nThe trial court did not err in refusing to instruct the jury on the lesser included offense of second-degree burglary when the evidence was uncontradicted that the house was actually occupied by the victims at the time of the breaking and entering.\nAm Jur 2d, Burglary \u00a7 69.\n3. Criminal Law \u00a7 793 (NCI4th)\u2014 instruction on acting in concert \u2014 failure to include presence at scene \u2014 no plain error\nThe trial court did not commit plain error in its instruction to the jury on acting in concert by failing to include the element of presence at the scene where there was substantial evidence of defendant\u2019s actual and constructive presence at the scene.\nAm Jur 2d, Trial \u00a7\u00a7 723 et seq.\nAppeal by defendant from judgment entered 19 January 1994 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 24 January 1995.\nAttorney General Michael F. Easley, by Assistant Attorney General, David, N. Kirkman, for the State.\nAssistant Appellate Defender, Charlesena Elliott Walker, for defendant-appellant." }, "file_name": "0732-01", "first_page_order": 766, "last_page_order": 777 }