{ "id": 11080192, "name": "STATE OF NORTH CAROLINA v. GARY LEONARD BLYTHER", "name_abbreviation": "State v. Blyther", "decision_date": "2000-06-20", "docket_number": "No. COA99-331", "first_page": "443", "last_page": "452", "citations": [ { "type": "official", "cite": "138 N.C. App. 443" } ], "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": "478 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "345 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54214 ], "year": 1996, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0119-01" ] }, { "cite": "376 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "7", "parenthetical": "\"Clearly, the offenses of first degree burglary and first degree murder both require proof of an additional fact which the other does not.\"" }, { "page": "97-98" }, { "page": "7" }, { "page": "98" }, { "page": "7", "parenthetical": "\"Since it is clear that here at least one essential element of each crime is not an element of the other, we find no merit in defendant's contentions that he was subjected to double jeopardy.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485964 ], "year": 1989, "pin_cites": [ { "page": "97", "parenthetical": "\"Clearly, the offenses of first degree burglary and first degree murder both require proof of an additional fact which the other does not.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0094-01" ] }, { "cite": "490 U.S. 794", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605800 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "802" }, { "page": "874-75" } ], "opinion_index": 0, "case_paths": [ "/us/490/0794-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "717" }, { "page": "664-65" } ], "opinion_index": 0, "case_paths": [ "/us/395/0711-01" ] }, { "cite": "340 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "707", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "year": 1986, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "522 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241843 ], "year": 1999, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0519-01" ] }, { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "186 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572596 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0479-01" ] }, { "cite": "459 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "512", "parenthetical": "citing State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793125 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "citing State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0173-01" ] }, { "cite": "330 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724356, 4720494, 4723345, 4723509, 4719647 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0605-01", "/nc/313/0605-03", "/nc/313/0605-02", "/nc/313/0605-04", "/nc/313/0605-05" ] }, { "cite": "326 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "102" }, { "page": "102-03" }, { "page": "102", "parenthetical": "wife expressly refused defendant's request to come to the house" }, { "parenthetical": "defendant burglarized house in which he had personal belongings and had helped to financially support its residents" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524419 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0432-01" ] }, { "cite": "52 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "230 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629576 ], "year": 1949, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0272-01" ] }, { "cite": "191 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "282 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562829 ], "year": 1972, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0107-01" ] }, { "cite": "259 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "298 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574094 ], "year": 1979, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0765-01" ] }, { "cite": "279 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "303 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573967 ], "year": 1981, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0439-01" ] }, { "cite": "300 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "307 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565356 ], "year": 1983, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0628-01" ] }, { "cite": "295 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "306 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573442 ], "year": 1982, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0683-01" ] }, { "cite": "298 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "defining first degree burglary without the \"of another\" element" } ], "opinion_index": 0 }, { "cite": "307 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562686 ], "year": 1983, "pin_cites": [ { "page": "448", "parenthetical": "defining first degree burglary without the \"of another\" element" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0445-01" ] }, { "cite": "472 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1996, "pin_cites": [ { "page": "899", "parenthetical": "\"[T]he controlling question in burglary cases is one of possession or occupation rather than ownership or property interests.\"" }, { "page": "899" }, { "page": "899" }, { "page": "899" }, { "page": "898", "parenthetical": "defendant moved out only two days before the burglary" }, { "page": "899", "parenthetical": "rejecting defendant's argument that jury instructions were improper" } ], "opinion_index": 0 }, { "cite": "344 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867705 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "102", "parenthetical": "\"[T]he controlling question in burglary cases is one of possession or occupation rather than ownership or property interests.\"" }, { "page": "102" }, { "page": "99-100" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0095-01" ] }, { "cite": "229 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "181-82", "parenthetical": "citations omitted" }, { "page": "182", "parenthetical": "citations omitted" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "291 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557412 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "141", "parenthetical": "citations omitted" }, { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0137-01" ] }, { "cite": "188 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574848 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0287-01" ] }, { "cite": "175 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "year": 1970, "pin_cites": [ { "page": "72-73" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] }, { "cite": "325 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1985, "pin_cites": [ { "page": "222", "parenthetical": "citations omitted" }, { "page": "222", "parenthetical": "citation omitted" }, { "page": "222", "parenthetical": "citations omitted" }, { "page": "222" }, { "page": "221" }, { "page": "222" }, { "page": "222" }, { "page": "222", "parenthetical": "defendant burglarized house that he helped his girlfriend purchase" }, { "page": "222", "parenthetical": "rejecting identical arguments" } ], "opinion_index": 0 }, { "cite": "312 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750303 ], "weight": 7, "year": 1985, "pin_cites": [ { "page": "791", "parenthetical": "citations omitted" }, { "page": "791-92" }, { "page": "791" }, { "page": "789-90" }, { "page": "792" }, { "page": "792" }, { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0787-01" ] }, { "cite": "340 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "314", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715465 ], "year": 1986, "pin_cites": [ { "page": "606", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0599-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 } ], "analysis": { "cardinality": 910, "char_count": 22392, "ocr_confidence": 0.76, "pagerank": { "raw": 2.2497309110599426e-07, "percentile": 0.7812627299892774 }, "sha256": "b4cf795697ef7dca1916e57b53e061af29f4c8510c93bc0263306e317118c0da", "simhash": "1:13ee44a266358b50", "word_count": 3774 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GARY LEONARD BLYTHER" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant was indicted on 10 February 1997 for first degree murder and first degree burglary. The victim was defendant\u2019s grandmother, who was \u201csickly and weak\u201d and \u201cdidn\u2019t put up a fight\u201d according to defendant\u2019s girlfriend, Rebecca Ann DeLouise (DeLouise), who was present during the crimes. Defendant was convicted of both offenses and was sentenced on 20 May 1998 to life imprisonment without parole for first degree murder under the felony murder rule and judgment was arrested for first degree burglary.\nDeLouise testified to the following at defendant\u2019s trial: DeLouise met Gary Leonard Blyther (defendant) when they were in-patients in the psychiatric ward at Moore Regional Hospital. Upon leaving the hospital, they resided together in DeLouise\u2019s trailer. DeLouise \u201cwas having problems with the landlord because of [her] pets\u201d on or about 1 May 1996, so they moved into the home of defendant\u2019s grandmother, Hattie J. Blyther (Ms. Blyther) at 107 Blyther Street in Aberdeen, North Carolina. Defendant and DeLouise obtained a key to Ms. Blyther\u2019s home on 1 May 1996.\nDeLouise and defendant cashed their disability checks and paid Ms. Blyther $300 \u201cfor living expenses\u201d or \u201crent\u201d on 3 July 1996; they had purchased food for the household prior to that time. Of the $300, DeLouise paid $200 and defendant paid $100. Also that day, defendant and DeLouise purchased crack cocaine in Southern Pines and used it in Southern Pines, Aberdeen and Cameron. They spent the evening of 3 July in Aberdeen at the residence of Carol Campbell (Campbell), a friend of DeLouise\u2019s.\nAt Campbell\u2019s home, defendant and DeLouise met Gary Strickland (Strickland) for the first time. Defendant and DeLouise drove Strickland to cash a check and then drove him to Raeford. Strickland purchased liquid cocaine, which was \u201cshot up\u201d by \u201call of [them]\u201d at Campbell\u2019s trailer. Later that night, defendant and DeLouise \u201ccame home later than [Ms. Blyther] wanted [them] to, and she didn\u2019t want [them] to stay there because of it.\u201d Ms. Blyther did not let them in her house and she asked them not to stay there anymore. Defendant and DeLouise were not able to enter the house at that time, and they spent the night instead at Campbell\u2019s trailer. The next day, 4 July 1996, DeLouise and defendant again stayed at Campbell\u2019s trailer where \u201cthere was consumption of more drugs.\u201d\nOn the evening of 5 July 1996, Strickland, his son, defendant, DeLouise and Campbell were together at Campbell\u2019s house. Defendant and DeLouise had no money, but defendant procured more drugs and owed Strickland and Campbell approximately $200 or $250 for the drugs. Defendant and DeLouise planned to go to Ms. Blyther\u2019s house \u201cto take her money,\u201d and defendant planned \u201cto kill her.\u201d They left Campbell\u2019s house in DeLouise\u2019s car at around midnight. DeLouise and defendant first drove to an abandoned house to smoke crack as they had done on prior occasions. They decided to leave the car at that location \u201cbecause it was secluded, and the car wouldn\u2019t be seen.\u201d\nThey walked to Ms. Blyther\u2019s house. The screen door was locked, and defendant unlocked it with his finger through a hole in the screen. He then opened the inside door with his key. Both defendant and DeLouise entered the house, and DeLouise walked to Ms. Blyther\u2019s bedroom door. DeLouise testified that defendant took a pillow from a couch and walked into Ms. Blyther\u2019s room, where she was sleeping on her back. DeLouise saw defendant put a pillow over Ms. Blyther\u2019s face and heard Ms. Blyther mumble, \u201cLord Jesus.\u201d Defendant held Ms. Blyther with his left hand and with his right hand took money out from under her brassiere, where she normally kept money. A few minutes later defendant walked or \u201crun-wa!k[ed]\u201d out the back door. DeLouise left the house through the back door, closing it behind her. Defendant presented evidence at trial but did not testify himself. Defendant was convicted of first degree murder and first degree burglary. Defendant appeals.\nDefendant first contends that the trial court erred in denying his motion to dismiss the burglary charge and denying his request to submit to the jury the issue of whether the defendant had a claim of right to enter Ms. Blyther\u2019s residence. He argues that a person cannot be guilty of burglarizing his own house, and that defendant was living in the home he broke into and entered the morning of 6 July 1996. Defendant presented evidence that he had been staying overnight with his girlfriend in one room of the house for approximately two months before the murder, all of his belongings were in the house, he and DeLouise had paid $300 for household expenses or rent, and Ms. Blyther had given him a key to the house.\nWithin his first argument, defendant also argues the trial court erred in denying his written request for a jury instruction on burglary. Defendant requested the following instruction:\nNow with respect to the element of whether the house at 107 Blyther Street was the dwelling house of another, I instruct you that the State has the burden of proving beyond a reasonable doubt that the Defendant was not a resident of 107 Blyther St. at the time of the entry. If Mr. Blyther was entitled to have access to 107 Blyther street at the time of the alleged offense then he would be not guilty of the offense of burglary. The element of breaking and entering the dwelling house of another means that the dwelling must be exclusively the dwelling of Hattie Blyther and not the dwelling of Hattie Blyther and the defendant. In considering this element you may take into account, among other things, whether the Defendant\u2019s clothes and personal belongings were located there.\nThe trial court declined to instruct the jury as requested by defendant and instead used a pattern jury instruction. The trial court also omitted the word \u201ctenant,\u201d denoted as an alternative to \u201cowner,\u201d in the pattern instruction as the individual who may give consent. N.C.P.I., Crim. 214.10. Defendant argues this omission prejudiced him in that \u201ca tenant has similar rights to an owner in burglary cases.\u201d Moreover, defendant insists the trial court\u2019s instruction referring to \u201cher\u201d consent \u201celiminat[ed] any possibility the jury could conclude the defendant resided in the house as a tenant.\u201d\nFirst and second degree burglary are codified in N.C. Gen. Stat. \u00a7 14-51 (1999):\nThere shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house . . . and any person is in the actual occupation of any part of said dwelling house ... at the time of the commission of such crime, it shall be burglary in the first degree.\nMs. Blyther was \u201cin the actual occupation\u201d of the house when she was murdered, and thus if defendant committed burglary, it was burglary in the first degree. At common law,\n[t]he elements of the crime of burglary in the first degree are: (1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used as a sleeping apartment (5) of another (6) which is actually occupied at the time of the offense (7) with the intent to commit a felony therein.\nState v. Ledford, 315 N.C. 599, 606, 340 S.E.2d 309, 314 (1986) (citation omitted); State v. Harold, 312 N.C. 787, 791, 325 S.E.2d 219, 222 (1985) (citations omitted); see State v. Accor and State v. Moore, 277 N.C. 65, 72-73, 175 S.E.2d 583, 588 (1970), aff'd, 281 N.C. 287, 188 S.E.2d 332 (1972).\nOur Supreme Court has recognized a two-fold purpose for establishing the element of ownership:\nThere are only two reasons for requiring ownership of the house to be stated in the indictment for burglary: (1) for the purpose of showing on the record that the house alleged to have been broken into was not the dwelling house of the accused, inasmuch as one cannot commit the offense of burglary by breaking into one\u2019s own house, and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense.\nState v. Beaver, 291 N.C. 137, 141, 229 S.E.2d 179, 181-82 (1976) (citations omitted).\nThe Court in Beaver discussed the meaning of \u201cowner\u201d for purposes of burglary.\n[I]n a burglary indictment, \u201cthe occupant of the building at the time of the burglary is the owner,\u201d and it is unnecessary to allege ownership of the title to the building. The decisions of this Court require only that the breaking and entering in the nighttime with intent to commit a felony be into a dwelling or a room used as a sleeping apartment which is actually occupied at the time of the offense.\nId. at 141, 229 S.E.2d at 182 (citations omitted). Thus, in burglary cases, occupation or possession of a dwelling or sleeping apartment is tantamount to ownership. Id.; Harold, 312 N.C. at 791-92, 325 S.E.2d at 222 (citation omitted) (\u201c[I]n burglary cases occupation or possession of a dwelling is equivalent to ownership, and actual ownership of the premises need not be proved.\u201d); State v. Singletary, 344 N.C. 95, 102, 472 S.E.2d 895, 899 (1996) (\u201c[T]he controlling question in burglary cases is one of possession or occupation rather than ownership or property interests.\u201d). Indeed, a burglary frequently has been said to require \u201conly that the breaking and entering in the nighttime with intent to commit a felony be into a dwelling or a room used as a sleeping apartment which is actually occupied at the time of the offense,\u201d which eliminates the \u201cof another\u201d language. Beaver, 291 N.C. at 141, 229 S.E.2d at 182; see also State v. Freeman, 307 N.C. 445, 448, 298 S.E.2d 376, 378 (1983) (defining first degree burglary without the \u201cof another\u201d element). Accord State v. Meadows, 306 N.C. 683, 689, 295 S.E.2d 394, 398 (1982), overruled on other grounds by State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983); State v. Simpson, 303 N.C. 439, 449, 279 S.E.2d 542, 548 (1981); State v. Person, 298 N.C. 765, 768, 259 S.E.2d 867, 868 (1979); State v. Davis, 282 N.C. 107, 116, 191 S.E.2d 664, 670 (1972).\nHowever, our Supreme Court has specified that \u201c[t]he requirement that the dwelling house or sleeping apartment broken into be that of someone other than the defendant was an element of burglary at common law and is implicitly incorporated in N.C.G.S. 14-51.\u201d Harold, 312 N.C. at 791, 325 S.E.2d at 222 (citations omitted). \u201c[I]t is incumbent upon the State to produce substantial evidence tending to show that the premises broken into is the dwelling house of another.\u201d Id. at 792, 325 S.E.2d at 222. Indeed, at least three North Carolina cases have focused on the requirement that a breaking and entering must occur on property \u201cof another\u201d to constitute a burglary.\nIn Harold, the defendant and his former girlfriend had purchased a house and lived in it together until the week before he murdered her. Harold, 312 N.C. at 789-90, 325 S.E.2d at 221. The defendant was convicted of first degree burglary, and also first degree murder based on premeditation and deliberation. He argued that the jury instructions should not have read \u201cwithout her consent\u201d and that they should have required a finding that he had no ownership interest in the house to permit a burglary conviction. Id. at 791, 325 S.E.2d at 222. Our Supreme Court stated that the defendant\u2019s emphasis on ownership was \u201cmisplaced,\u201d explaining that \u201cthe reason for prohibiting the offense of first degree burglary \u2018is to protect the habitation of men, where they repose and sleep, from meditated harm.\u2019 \u201d Id. (quoting State v. Surles, 230 N.C. 272, 275, 52 S.E.2d 880, 882 (1949)). The Harold Court held that the evidence was sufficient to find the residence to be a \u201cdwelling house of another,\u201d where the victim had lived in the house for five months preceding her death and had occupied the house when she was murdered. Harold, 312 N.C. at 792, 325 S.E.2d at 222.\nIn Singletary, the defendant and his wife left their home in Winston-Salem and the wife leased an apartment alone in Greensboro, as the sole lessee. Singletary, 344 N.C. at 102, 472 S.E.2d at 899. The defendant moved into his wife\u2019s apartment one month later, but then moved out following an argument. He returned his key to his wife and took most or all of his belongings with him. Two days later he broke and entered into the apartment. In his motion to dismiss the burglary charge, the defendant argued that he did not break and enter into the dwelling house \u201cof another\u201d in that the apartment was his residence and he had left it only for a \u201ccooling off\u2019 period, as they had argued many times previously but had not permanently separated. Id. at 101, 472 S.E.2d at 899. He also challenged the jury instructions on this issue. Our Supreme Court held that the evidence did not support a finding that the apartment was the defendant\u2019s dwelling where his wife had maintained exclusive possession for the two days prior to defendant\u2019s breaking and entering. Id. at 102, 472 S.E.2d at 899. In so holding, the Court adopted the reasoning of a decision from the Florida Supreme Court that a husband can be guilty of burglary if he makes a nonconsensual entry onto the premises which are under the sole possession of his wife with the intent to commit an offense. Id.\nSimilarly, in State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100, disc. review denied, 313 N.C. 605, 330 S.E.2d 612 (1985), the defendant, his wife and their daughter had lived together in a rented house until the defendant moved out, which to his wife signified a permanent separation. The defendant continued to visit his daughter and contribute to the support of his family. A year after the defendant had lived apart from his wife and daughter, he telephoned his wife one night at around midnight asking permission to come to the house. When she refused, he asked to speak to their daughter, but his wife said she was spending the night elsewhere. This led to an argument, after which the wife hung up the telephone. Shortly thereafter she heard the defendant exit his truck outside the house, and defendant knocked on the door calling her name. Once the defendant had kicked down the door, he stabbed a man who was in the house. Id. at 435, 326 S.E.2d at 102. The defendant argued that his motion to dismiss the charge of first degree burglary should have been granted because he and his wife were still married and he kept clothing and tools in the house, but our Court rejected the argument. We held the defendant entered the dwelling \u201cof another\u201d where the evidence showed that the defendant had lived elsewhere for more than a year while his wife occupied the house, paid rent and utilities, and forbade him to enter the home that night. Id. at 436-37, 326 S.E.2d at 102-03.\nWe follow the reasoning in Harold, Singletary and Cox to hold that defendant committed burglary in this case. As in each of those cases, the victim in this case had exclusive possession of her residence at the time defendant broke and entered into it. Furthermore, Ms. Blyther had expressly refused to allow defendant entry into her house, and the screen door had been locked to keep others, including defendant and DeLouise, outside. See Cox, 73 N.C. App. at 435, 326 S.E.2d at 102 (wife expressly refused defendant\u2019s request to come to the house). The facts that defendant had a key, paid rent, kept personal belongings in the house, and had recently lived there, do not change this result. See id. (defendant burglarized house in which he had personal belongings and had helped to financially support its residents); Harold, 312 N.C. at 792, 325 S.E.2d at 222 (defendant burglarized house that he helped his girlfriend purchase); Singletary, 344 N.C. at 99-100, 472 S.E.2d at 898 (defendant moved out only two days before the burglary). For the same reasons, we also reject defendant\u2019s argument challenging the jury instructions. See Harold, 312 N.C. at 791, 325 S.E.2d at 222 (rejecting identical arguments); Singletary, 344 N.C. at 102, 472 S.E.2d at 899 (rejecting defendant\u2019s argument that jury instructions were improper).\nIn his second argument, defendant claims the trial court erred in denying his motion to dismiss the first degree burglary conviction notwithstanding the verdict. He insists the jury\u2019s verdicts were inconsistent and should be set aside pursuant to the double jeopardy clause of the United States and North Carolina Constitutions. Defendant finds inconsistency in the finding of specific intent to murder as one of the elements of burglary, without a finding of premeditation and deliberation required for first degree murder. He contends that if the jury did not find premeditation and deliberation, the jury could not have logically found the specific intent required for burglary, and that he was prejudiced by essentially being tried twice on this issue.\nThe Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall \u201cbe subject for the same offense to be twice put in jeopardy of life or limb[.]\u201d U.S. Const. amend. V. \u201cThe North Carolina Constitution does not have a Double Jeopardy Clause, but the protection against double jeopardy has been considered an integral part of the Law of the Land Clause.\u201d State v. Rambert, 341 N.C. 173, 175 n.1, 459 S.E.2d 510, 512 (1995) (citing State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972)). \u201cAlso, the United States Supreme Court has held that the Double Jeopardy Clause of the United States Constitution is applicable to the states through the Fourteenth Amendment.\u201d Rambert, 341 N.C. at 175 n.1, 459 S.E.2d at 512 (citing Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707 (1969). It \u201cprotects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.\u201d State v. Gilley, 135 N.C. App. 519, 521, 522 S.E.2d 111, 113 (1999); State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (citations omitted); North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 802, 104 L. Ed. 2d 865, 874-75 (1989).\nFirst, defendant has not been prosecuted a second time for the same offense after acquittal. First degree murder, based upon- either deliberation and premeditation or the felony-murder rule, is not the same offense as first degree burglary, because each offense contains an element not included in the other. State v. Parks, 324 N.C. 94, 97, 376 S.E.2d 4, 7 (1989) (\u201cClearly, the offenses of first degree burglary and first degree murder both require proof of an additional fact which the other does not.\u201d). Therefore, a jury may properly convict defendant of first degree burglary while not finding the existence of an element required for first degree murder. State v. Parks, the case cited by defendant, defeats his own position. Parks held that a defendant could not sustain a double jeopardy claim where he was convicted of premeditated first degree murder and first degree burglary, for the reason that the crimes were not the same. Id. at 97-98, 376 S.E.2d at 7. Defendant argues double jeopardy because here, unlike Parks, there was no conviction of premeditated murder. This distinction does not invoke double jeopardy because first degree felony-murder, for which defendant was convicted, also is an offense different from first degree burglary. Thus, defendant was not prosecuted a second time for the same offense following an acquittal. Id. at 98, 376 S.E.2d at 7 (\u201cSince it is clear that here at least one essential element of each crime is not an element of the other, we find no merit in defendant\u2019s contentions that he was subjected to double jeopardy.\u201d).\nSecond, defendant has not been prosecuted a second time for an offense after conviction. Finally, defendant has not been punished more than once for the same offense. He has not been punished more than once for his first degree murder conviction pursuant to the felony-murder rule, and his sentence on the underlying felony of burglary was arrested by the trial court. See State v. Wilson, 345 N.C. 119, 125, 478 S.E.2d 507, 512 (1996).\nFor the reasons above, we hold that the trial court did not err.\nNo error.\nJudges EAGLES and HORTON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Marilyn R. Mudge, for the State.", "Bruce T. Cunningham, Jr., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GARY LEONARD BLYTHER\nNo. COA99-331\n(Filed 20 June 2000)\n1. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 dwelling house of another \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the first-degree burglary charge and by denying his request to submit to the jury the issue of whether defendant had a claim of right to enter his grandmother-victim\u2019s residence because: (1) the victim had exclusive possession of her residence at the time defendant broke and entered into it; (2) the victim expressly refused to allow defendant entry into her house, and the screen door had been locked to keep others, including defendant and his girlfriend, outside; and (3) the facts that defendant had a key, paid rent, kept personal belongings in the house, and had recently lived there, do not change this result.\n2. Constitutional Law\u2014 double jeopardy \u2014 first-degree burglary \u2014 first-degree murder under felony murder rule \u2014 no violation\nDefendant\u2019s double jeopardy rights were not violated by his convictions of first-degree murder under the felony murder rule and first-degree burglary based on defendant\u2019s claim of an alleged inconsistency in the finding of specific intent to murder as one of the elements of burglary, without a finding of premeditation and deliberation required for first-degree murder, because: (1) defendant has not been prosecuted a second time for the same offense after acquittal since first-degree murder based on either deliberation and premeditation or the felony murder rule is not the same offense as first-degree burglary; (2) defendant has not been prosecuted a second time for an offense after conviction; and (3) defendant has not been punished more than once for the same offense since his sentence on the underlying felony of burglary was arrested.\nAppeal by defendant from judgment entered 20 May 1998 by Judge W. Douglas Albright in Moore County Superior Court. Heard in the Court of Appeals 14 February 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Marilyn R. Mudge, for the State.\nBruce T. Cunningham, Jr., for defendant." }, "file_name": "0443-01", "first_page_order": 473, "last_page_order": 482 }