{ "id": 11080461, "name": "STATE OF NORTH CAROLINA v. ALFRED LEE COOPER", "name_abbreviation": "State v. Cooper", "decision_date": "2000-06-20", "docket_number": "No. COA99-822", "first_page": "495", "last_page": "500", "citations": [ { "type": "official", "cite": "138 N.C. App. 495" } ], "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": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "208 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "285 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569924 ], "year": 1974, "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0746-01" ] }, { "cite": "303 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 804", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704405 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0804-01" ] }, { "cite": "300 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "447" }, { "page": "449" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 62", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519384 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0062-01" ] }, { "cite": "393 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 804", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309188, 5308933, 5309254, 5308262, 5307886 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0804-01", "/nc/326/0804-04", "/nc/326/0804-05", "/nc/326/0804-02", "/nc/326/0804-03" ] }, { "cite": "368 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523261 ], "year": 1988, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0185-01" ] }, { "cite": "389 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "420" }, { "page": "420" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8521038 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "80" }, { "page": "80" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0075-01" ] }, { "cite": "287 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "886-87" }, { "page": "887" } ], "opinion_index": 0 }, { "cite": "305 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567633 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "290" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0289-01" ] }, { "cite": "137 L. Ed. 2d 561", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "520 U.S. 1180", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11696515, 11696548, 11696069, 11696134, 11696167, 11696584, 11696203, 11695948, 11696270, 11696623, 11696018, 11696403, 11696437, 11696314, 11696476, 11696670 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/520/1180-12", "/us/520/1180-13", "/us/520/1180-03", "/us/520/1180-04", "/us/520/1180-05", "/us/520/1180-14", "/us/520/1180-06", "/us/520/1180-01", "/us/520/1180-07", "/us/520/1180-15", "/us/520/1180-02", "/us/520/1180-09", "/us/520/1180-10", "/us/520/1180-08", "/us/520/1180-11", "/us/520/1180-16" ] }, { "cite": "223 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "315" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "474 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "354", "parenthetical": "quoting State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867693 ], "year": 1996, "pin_cites": [ { "page": "306", "parenthetical": "quoting State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0290-01" ] }, { "cite": "142 L. Ed. 2d 216", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "525 U.S. 915", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11124480, 11124386, 11124611, 11124518, 11124424, 11124587, 11124376, 11124398, 11124564, 11124503, 11124440, 11124409, 11124540, 11124350 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/525/0915-08", "/us/525/0915-03", "/us/525/0915-14", "/us/525/0915-10", "/us/525/0915-06", "/us/525/0915-13", "/us/525/0915-02", "/us/525/0915-04", "/us/525/0915-12", "/us/525/0915-09", "/us/525/0915-07", "/us/525/0915-05", "/us/525/0915-11", "/us/525/0915-01" ] }, { "cite": "499 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "348 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659874 ], "year": 1998, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0080-01" ] }, { "cite": "35 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274790 ], "weight": 2, "year": 1852, "pin_cites": [ { "page": "246-27" } ], "opinion_index": 1, "case_paths": [ "/nc/35/0244-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 618, "char_count": 11798, "ocr_confidence": 0.737, "pagerank": { "raw": 4.271790518317415e-07, "percentile": 0.9157541617291202 }, "sha256": "aeebe9190b53c93cd488cc95e1a68f852fd334d7e03471241db74d4aed132903", "simhash": "1:9249c46cee374e7f", "word_count": 2002 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judge LEWIS dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. ALFRED LEE COOPER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nAlfred Lee Cooper (\u201cdefendant\u201d) appeals from the judgment entered upon his conviction by a jury of first-degree burglary. For the reasons discussed below, we vacate his conviction and remand this matter to the superior court.\nThe State\u2019s case was built primarily on the testimony of the complaining witness. The complainant testified that she was at home alone on the night of 13 September 1997, when she heard a noise coming from her son\u2019s bedroom. She went into the bedroom and discovered that the screen was out of the window and objects displayed on the window sill had spilled onto the floor.\nThe complainant left the room, turned on the back patio light and came back to the window with a step stool. As she was trying to shut the window, defendant reached in from outside and grabbed her arms above the elbows. The complainant screamed and stepped off the stool, breaking defendant\u2019s grip. Defendant backed away from the window and ran off. The complainant estimated that defendant had his hands on her for \u201cno more than five seconds.\u201d\nAt the conclusion of the State\u2019s case, defendant moved to dismiss the charge of first-degree burglary. He argued that the State failed to adduce evidence of his intent to commit a felony at the time of the alleged break-in. The State responded that the evidence demonstrated defendant\u2019s intent to commit \u201crape or some kind of sexual offense.\u201d The court denied defendant\u2019s motion.\nThe trial court then asked the State to identify the felony it would submit to the jury on the intent portion of the burglary charge. The State asked for an instruction on second-degree sexual offense. Defense counsel reiterated his position that the charge should be dismissed, arguing that the State had failed to show \u201csome overt act\u201d by defendant suggestive of an intention to commit a sexual offense. The court responded, \u201cI\u2019ve already denied the motion to dismiss[.]\u201d The court instructed the jury that in order to find defendant guilty of first-degree burglary, it had to find \u201cthat at the time of the breaking and entering the defendant intended to commit a second degree sexual offense.\u201d The court then defined second-degree sexual offense. The court also instructed the jury on the lesser offense of non-felonious breaking and entering.\nThe jury found defendant guilty of first-degree burglary. After his sentence of 120 to 153 months imprisonment was announced by the trial judge, defendant noted his appeal in open court.\nOn appeal, defendant contends that the trial court erred in denying his motion to dismiss the burglary charge. He maintains that the State did not prove a \u201cbreaking\u201d into complainant\u2019s house. In addition, defendant insists there was no evidence that he intended to commit a second-degree sexual offense when he reached into the window. On a related point, defendant argues that the trial court committed plain error in instructing the jury on second-degree sexual offense, absent any supporting evidence. Because we agree that the evidence was insufficient to support defendant\u2019s conviction for first-degree burglary, we need not address defendant\u2019s second argument.\nIn reviewing the denial of a defendant\u2019s motion to dismiss, this Court determines only whether the evidence adduced at trial, when taken in the light most favorable to the State, was sufficient to allow a rational juror to find defendant guilty beyond a reasonable doubt on each essential element of the crime charged. State v. Warren, 348 N.C. 80, 102, 499 S.E.2d 431, 443, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998). The State is entitled to all inferences that may be fairly derived from the evidence. Id.\n\u2018To convict a defendant of burglary, \u2018the State\u2019s evidence must show that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein.... If the burglarized dwelling is occupied it is burglary in the first degree.\u2019 \u201d State v. Ball, 344 N.C. 290, 306, 474 S.E.2d 345, 354 (1996) (quoting State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976)), cert. denied, 520 U.S. 1180, 137 L. Ed. 2d 561 (1997).\nWe find that the State presented sufficient circumstantial evidence of a \u201cbreaking\u201d by defendant. Complainant heard a noise from her son\u2019s bedroom. When she went to investigate, the screen was missing from the window, the lock on the window was broken and items on the window sill were on the floor. Defendant then grabbed complainant through the window from outside. These facts permit an inference that defendant opened the window and/or removed the screen in order to enter complainant\u2019s home.\nWe agree with defendant, however, that the State failed to meet its evidentiary burden on the issue of intent. Generally, the fact that a defendant has broken into and entered a dwelling at night permits an inference of the intent to commit the felony of larceny. See State v. Dawkins, 305 N.C. 289, 290, 287 S.E.2d 885, 886-87 (1982). However, where the State proceeds on the theory that the defendant intended to commit a sex offense, it is obliged to prove defendant\u2019s sexual intent. Id. at 290, 207 S.E.2d at 887. Sexual intent may be proved circumstantially by inference, based upon a defendant\u2019s actions, words, dress, or demeanor. State v. Robbins, 99 N.C. App. 75, 80, 392 S.E.2d 449, 452, aff'd, 327 N.C. 628, 398 S.E.2d 331 (1990). There must, however, be evidence of \u201c \u2018some overt manifestation of an intended forcible sexual gratification^]\u2019 \u201d State v. Robinson, 97 N.C. App. 597, 602, 389 S.E.2d 417, 420 (quoting State v. Davis, 90 N.C. App. 185, 188, 368 S.E.2d 52, 54 (1988)), appeal dismissed and disc, review denied, 326 N.C. 804, 393 S.E.2d 904 (1990).\nIn State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, aff'd per curiam, 308 N.C. 804, 303 S.E.2d 822 (1983), a shirtless defendant entered the victim\u2019s bedroom window at night while she was sleeping. He told the victim, \u201cDon\u2019t holler, don\u2019t scream, I got a gun, I\u2019ll shoot you.\u201d Id. at 63, 300 S.E.2d at 447. When the victim moved away to the head of her bed, defendant grabbed her arm. When she tried to turn on the light, defendant ordered her not to move. When the victim began to scream, defendant covered her mouth with his hand. He fled only when the victim\u2019s child started to scream. We found the evidence insufficient to permit an inference that the defendant entered the victim\u2019s dwelling with the intent to commit rape. Id. at 67, 300 S.E.2d at 449.\nWe find even less evidence of defendant\u2019s sexual intent here than in Rushing. The State\u2019s proffer on this issue consists of defendant\u2019s failure to flee when complainant appeared in the bedroom, his act of grabbing her arms above the elbows for five seconds, and his flight when she screamed. However, we note that defendant did not speak to complainant in a sexual manner. Cf. Robbins, 99 N.C. App. at 80, 392 S.E.2d at 452. Nothing about his clothes or demeanor was suggestive of a sexual intent. Defendant wore jeans and a t-shirt, and his face was described by complainant as one \u201cyou would not be afraid to see if you were walking down the street.\u201d Defendant did not remove his own clothing or attempt to remove complainant\u2019s clothing. Cf. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974); Robbins, 99 N.C. App. at 80, 392 S.E.2d at 453; Robinson, 97 N.C. App. at 602, 389 S.E.2d at 420.\nDefendant\u2019s burglary conviction must be vacated. Because the jury necessarily found facts that would support defendant\u2019s conviction for non-felonious breaking and entering, N.C. Gen. Stat. \u00a7 14-54(b) (1999), we remand the cause for entry of an appropriate judgment and sentence. See Dawkins, 305 N.C. at 291, 287 S.E.2d at 887.\nVacated and remanded.\nJudge SMITH concurs.\nJudge LEWIS dissents.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." }, { "text": "Judge Lewis\ndissenting.\nI believe there is evidence sufficient from which a jury could infer an intent by the defendant to commit a felony. The State contends the defendant intended to commit a second-degree sexual offense. Such a crime is defined as engaging in a sexual act by force and against the will of another person. N.C. Gen. Stat. \u00a7 14-27.5(a)(l) (1999). The State did not suggest that the defendant intended to rape Ms. Sellew.\nThe evidence is clear that it was 0130 to 0200 in the early morning. The defendant had no right or reasonable business at that home. Ms. Sellew had heard noises and found the window raised with personal property scattered on the floor from its previous position on the windowsill. The defendant, outside, had not been detected. He could have departed. He did not. He reached in and seized Ms. Sellew by both her arms. Had he intended larceny, he could have already done that or waited and perhaps entered after Ms. Sellew had left the room. He did not. He reached into the room and physically grabbed Ms. Sellew.\nMany cases have recited more physical facts as being sufficient to infer an intent by a defendant. In State v. Boon, 35 N.C. 244 (1852), a defendant entered a bedroom in which a female slept, seized her feet but fled after she screamed. In that opinion, by Pearson, J., (later Chief Justice) the court said in part:\nThe evidence of the intent charged is certainly very slight, but we cannot say there is no evidence tending to prove it. The fact of the breaking and entering was strong evidence of some bad intent; going to the bed and touching the foot of one of the young ladies tended to indicate that the intent was to gratify lust. Taking hold of \u2014 \u201cgrasping\u201d (as the case expresses it) \u2014 the ankle, after the foot was drawn up, and the hasty retreat without any attempt at explanation, as soon as the lady screamed, was some evidence that the purpose of the prisoner, at the time he entered, was to gratify his lust by force. It was, therefore, no error to submit the question to the jury.\nId. at 246-27.\nNo error was found in that case, though the felony there intended was rape. I believe that case is sufficiently similar to this case whereby the jury should have the question of intent submitted to it. The intent for second-degree sexual offense must be inferred here. I do not believe as a matter of law this was insufficient. Therefore, I would vote to find no error.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Angel E. Gray, for the State.", "Thigpen, Blue, Stephens & Fellers, by Carlton E. Fellers, for defendant-appellant" ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALFRED LEE COOPER\nNo. COA99-822\n(Filed 20 June 2000)\nBurglary and Unlawful Breaking or Entering\u2014 sexual intent\u2014 evidence insufficient\nA burglary conviction based upon the intent to commit a sexual offense was vacated where the complainant heard a noise from her son\u2019s bedroom, she found the screen missing from the window when she went to investigate, the lock on the window was broken and items from the sill were on the floor, and defendant grabbed the complainant through the window from the outside. The fact that a defendant has broken into and entered a dwelling at night permits an inference of intent to commit felonious larceny, but the State must prove sexual intent when it proceeds on that theory. The State\u2019s proffer consisted of defendant\u2019s failure to flee when complainant appeared in the bedroom, his act of grabbing her arms above the elbows for five seconds, and his flight when she screamed; however, defendant did not speak in a sexual manner, nothing about his clothes or demeanor was suggestive of sexual intent, and defendant did not remove his clothing or attempt to remove complainant\u2019s clothing. The case was remanded for judgment and sentence on non-felonious breaking and entering.\nJudge Lewis dissenting.\nAppeal by defendant from judgment entered 21 April 1998 by Judge W. Osmond Smith in Superior Court, Wake County. Heard in the Court of Appeals 30 May 2000.\nAttorney General Michael F. Easley, by Associate Attorney General Angel E. Gray, for the State.\nThigpen, Blue, Stephens & Fellers, by Carlton E. Fellers, for defendant-appellant" }, "file_name": "0495-01", "first_page_order": 525, "last_page_order": 530 }