{ "id": 9496937, "name": "STATE OF NORTH CAROLINA v. CHARLES REDDING SURCEY, Defendant", "name_abbreviation": "State v. Surcey", "decision_date": "2000-08-01", "docket_number": "No. COA99-937", "first_page": "432", "last_page": "437", "citations": [ { "type": "official", "cite": "139 N.C. App. 432" } ], "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": "416 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499977 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0379-01" ] }, { "cite": "409 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "760", "parenthetical": "aiding and abetting and accessory after the fact are mutually exclusive offenses, thus defendant cannot be convicted of both" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521717 ], "year": 1991, "pin_cites": [ { "page": "354", "parenthetical": "aiding and abetting and accessory after the fact are mutually exclusive offenses, thus defendant cannot be convicted of both" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0350-01" ] }, { "cite": "391 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2171202 ], "year": 1990, "pin_cites": [ { "page": "167", "parenthetical": "embezzlement and false pretenses are mutually exclusive offenses; defendant can be indicted and tried on both but cannot be convicted of both where they are based upon a single transaction" } ], "opinion_index": 0, "case_paths": [ "/sc/301/0374-01" ] }, { "cite": "326 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308335 ], "year": 1990, "pin_cites": [ { "page": "578", "parenthetical": "embezzlement and false pretenses are mutually exclusive offenses; defendant can be indicted and tried on both but cannot be convicted of both where they are based upon a single transaction" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0576-01" ] }, { "cite": "136 L. Ed. 2d 129", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11640836, 11640517, 11640572, 11640551, 11640488, 11640877, 11640624, 11640670, 11640595, 11640917, 11640761, 11640731, 11640700, 11640798, 11640639 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0873-13", "/us/519/0873-02", "/us/519/0873-04", "/us/519/0873-03", "/us/519/0873-01", "/us/519/0873-14", "/us/519/0873-06", "/us/519/0873-08", "/us/519/0873-05", "/us/519/0873-15", "/us/519/0873-11", "/us/519/0873-10", "/us/519/0873-09", "/us/519/0873-12", "/us/519/0873-07" ] }, { "cite": "467 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 892", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796165 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0892-01" ] }, { "cite": "410 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521815 ], "year": 1991, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0375-01" ] }, { "cite": "364 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "468" }, { "page": "362" } ], "opinion_index": 0 }, { "cite": "321 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572739 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0464-01" ] }, { "cite": "255 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "297 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570534 ], "year": 1979, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0410-01" ] }, { "cite": "308 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "503", "parenthetical": "emphasis added" } ], "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": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0164-01" ] }, { "cite": "12 S.E. 131", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "107 N.C. 905", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275476 ], "year": 1890, "pin_cites": [ { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/nc/107/0905-01" ] }, { "cite": "223 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "315", "parenthetical": "\"[i]f the burglarized dwelling is occupied it is burglary in the first degree; if unoccupied, it is burglary in the second degree\"" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "pin_cites": [ { "page": "538", "parenthetical": "\"[i]f the burglarized dwelling is occupied it is burglary in the first degree; if unoccupied, it is burglary in the second degree\"" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "254 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "297 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567060 ], "year": 1979, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0121-01" ] }, { "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": "170 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "276 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560017 ], "year": 1969, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0060-01" ] } ], "analysis": { "cardinality": 636, "char_count": 12775, "ocr_confidence": 0.76, "pagerank": { "raw": 1.214061152102858e-07, "percentile": 0.5967326666535385 }, "sha256": "8e128fd5226611cf76e80194da42cd8003d5fef6adaedbd2c61300d57074dd9a", "simhash": "1:0373526474324b76", "word_count": 2067 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES REDDING SURCEY, Defendant" ], "opinions": [ { "text": "SMITH, Judge.\nDefendant appeals a judgment entered on conviction by a jury of first-degree burglary and discharging a firearm into an occupied dwelling. Defendant contends this Court must vacate or reverse one of the convictions because they are mutually exclusive offenses. We agree.\nThe State\u2019s evidence at trial tended to show the following: On 13 September 1998 at approximately 10:00 p.m., Lloyd Pete McLamb (McLamb), while sitting in his living room, heard a loud sound, \u201clike thunder[,] come into [his] window.\u201d McLamb testified a gun barrel had \u201cpunched out\u201d his window and was sticking \u201cabout 12 to 14 inches\u201d into the house, at a distance of \u201cabout two and a half or three foot [sic]\u201d from him. McLamb jumped from his couch, retrieved a pistol, and hid himself behind a bedroom door facing the living room. McLamb testified he saw a man he recognized as defendant, \u201csquatted down with the gun still in [his] window,\u201d and that when he stuck his head out from behind the door, defendant fired a shot that \u201csprayed the side of [McLamb\u2019s] face.\u201d McLamb further testified that he fired two shots and the second hit defendant. Defendant ran and McLamb proceeded to the front porch where he observed defendant run to a trailer located approximately 100 to 160 feet behind McLamb\u2019s residence. McLamb called 911.\nJohnston County Deputies Sean Stewart (Deputy Stewart) and Frank Godwin (Deputy Godwin), arrived to McLamb\u2019s residence at approximately 10:30 p.m. Deputy Stewart testified that upon approaching the residence they noticed \u201ca shotgun shell. . . lying on the porch\u201d below a broken window, and a \u201ctrail\u201d of blood, which they followed \u201cdown the porch ... into the back yard ... [and] to a mobile home\u201d behind McLamb\u2019s residence. The front door to the trailer was open and the deputies observed defendant sitting upright in a chair bleeding from the side of his face. Defendant told the deputies that McLamb had shot him. The deputies returned to McLamb\u2019s house and questioned him about defendant\u2019s injury.\nThe deputies recovered the .22 caliber pistol McLamb used to shoot defendant, but were unable to locate the shotgun used by defendant. McLamb testified he found a shotgun six days after the shooting on a footpath between his house and defendant\u2019s trailer, and that he immediately called the police. Deputy Rodney Lee Starling (Deputy Starling) testified he was dispatched to McLamb\u2019s residence on 19 September 1998 and retrieved a shotgun from some brush on the edge of the woods approximately 100 feet behind McLamb\u2019s residence. McLamb testified the shotgun was the same firearm defendant had fired into his house on 13 September 1998.\nDefendant was indicted 26 October 1998 for burglary and discharging a firearm into an occupied dwelling. On 17 February 1999 a jury found defendant guilty, and the trial court, consolidating the convictions, sentenced defendant to a minimum of 82 months and a maximum of 108 months imprisonment.\nDefendant contends the first-degree burglary conviction must be reversed because the indictment failed to allege \u201coccupancy of the dwelling house,\u201d an essential element of first-degree burglary.\nA valid indictment charges all essential elements of an alleged criminal offense to inform a defendant of the accusation against him and enables him to be tried accordingly. State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969).\nOur Supreme Court has held that\nthe constituent elements 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) which is actually occupied at the time of the offense (6) with the intent to commit a felony therein.\nState v. Person, 298 N.C. 765, 768, 259 S.E.2d 867, 868 (1979). See N.C.G.S. \u00a7 14-51 (1999). The \u201csole distinction\u201d between first-degree and second-degree burglary is the essential element of actual occupancy. State v. Jolly, 297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979). See State v. Wilson, 289 N.C. 531, 538, 223 S.E.2d 311, 315 (1976) (\u201c[i]f the burglarized dwelling is occupied it is burglary in the first degree; if unoccupied, it is burglary in the second degree\u201d). Accordingly, an indictment for burglary which fails to allege that the dwelling house was occupied by someone during commission of the crime, alleges only burglary in the second-degree. State v. Fleming, 107 N.C. 905, 908, 12 S.E. 131, 132 (1890).\nIn the instant case, the caption of the indictment refers to the offenses of \u201cFirst Degree Burglary\u201d and \u201cDischarge [of a] Firearm Into [an] Occupied Dwelling,\u201d however, the indictment on the burglary offense, reads as follows:\nI. The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did during the nighttime hours of 10:00 p.m. and 11:00 p.m. on September 13, 1998, break and enter the dwelling house of Lloyd McLamb located at 1691 Holly Grove Church Road, Benson, North Carolina. The defendant broke and entered with the intent to commit a felony therein.\nThe State\u2019s failure to allege that the dwelling house was occupied at the time of the breaking and entering results in the indictment only alleging second-degree burglary. As a result of this omission, and for the reasons hereinafter stated, we reverse the conviction for first-degree burglary.\nDefendant also contends this Court \u201cmust vacate either the burglary or the discharging a firearm into occupied property conviction because . . . the two verdicts are mutually exclusive.\u201d Defendant argues the burglary offense requires that defendant \u201cent[er]\u201d into the house, whereas the charge of discharging a firearm requires that a defendant fire \u201cinto\u201d occupied property while remaining outside such property, requiring \u201cdefendant\u2019s body to be in two different places at the same time.\u201d Though we agree with defendant\u2019s contention, it is not necessary for us to take such action in light of our reversal of the burglary conviction.\n\u201cBurglary is defined as the breaking and entering of a dwelling . . . during the nighttime with intent to commit a felony therein,\u201d and occupancy determines whether the offense is first-degree or second-degree. State v. Simmons, 65 N.C. App. 164, 166, 308 S.E.2d 502, 503 (1983) (emphasis added). See G.S. \u00a7 14-51. Our Supreme Court in State v. Gibbs, 297 N.C. 410, 418, 255 S.E.2d 168, 174 (1979), adopted the following in regards to the element of \u201centry\u201d for burglary:\nLiterally, entry is the act of going into the place after a breach has been effected, but the word has a broad significance in the law of burglary, for it is not confined to the intrusion of the whole body, but may consist of the insertion of any part for the purpose of committing a felony. Thus, an entry is accomplished by inserting into the place broken the hand, the foot, or any instrument with which it is intended to commit a felony.\nId. (citing 13 Am. Jur. 2d Burglary \u00a7 10). Therefore in the case sub judice, defendant, in pushing the shotgun through McLamb\u2019s window and firing, effectively committed a burglary by virtue of the gun, which is considered to be an implement of his person, for \u201centry\u201d into McLamb\u2019s home. See id.\nRegarding the conviction for discharging a firearm into an occupied dwelling, the State was required to prove defendant \u201cwillfully or wantonly discharge [d] or attempt[ed] to discharge ... [a] firearm into any building. . . .\u201d N.C.G.S. \u00a7 14-34.1(2) (1999) (emphasis added). In State v. Mancuso, 321 N.C. 464, 364 S.E.2d 359 (1988), the defendant was charged with discharging a firearm into an occupied motor vehicle, a violation of the same statute as defendant in the instant case is alleged to have violated. In Mancuso, the defendant contended he could not be convicted of discharging firearm \u201cinto\u201d the occupied vehicle because he was standing outside the automobile and holding a gun inside the automobile when he shot the victim. Id. at 468, 364 S.E.2d at 362. The Mancuso court rejected this argument and held that \u201ca firearm can be discharged \u2018into\u2019 occupied property even if the firearm itself is inside the property, so long as the person discharging it is not inside the property,\u201d reasoning that it did not believe the Legislature intended \u201ca person should escape liability for this crime by sticking his weapon inside the occupied property before shooting.\u201d Id. The evidence in the case at bar is uncontradicted that at the time defendant fired the shot at McLamb, he was standing on McLamb\u2019s porch outside the residence and was holding the shotgun inside McLamb\u2019s living room window. Accordingly, defendant\u2019s position outside the house while holding the shotgun inside the house was sufficient evidence to support a charge of discharging a firearm into an occupied dwelling, because the shot was fired \u201cinto\u201d McLamb\u2019s home while defendant remained outside the residence.\nHowever, while defendant may properly be convicted of either offense, he may not be convicted of both because they are mutually exclusive offenses requiring that defendant \u201center,\u201d or be inside the residence for burglary, and that he shoot \u201cinto\u201d the dwelling while remaining outside McLamb\u2019s home for the offense of discharging a firearm \u201cinto\u201d an occupied dwelling. \u201cWhere several offenses charged allegedly arise from the same transaction, and the offenses are mutually exclusive, a defendant may not be convicted of more than one of the mutually exclusive offenses.\u201d State v. Hall, 104 N.C. App. 375, 386, 410 S.E.2d 76, 82 (1991) (offenses mutually exclusive because determination that defendants entered into one agreement to commit a series of unlawful acts over a period of time is inconsistent with a determination that multiple agreements to commit same series of acts over same period of time were made; \u201ceither one agreement was made or two agreements were made. . . . Both views cannot exist at the same time\u201d), aff\u2019d, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519 U.S. 873, 136 L. Ed. 2d 129 (1996). See State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990) (embezzlement and false pretenses are mutually exclusive offenses; defendant can be indicted and tried on both but cannot be convicted of both where they are based upon a single transaction), and State v. Jewell, 104 N.C. App. 350, 354, 409 S.E.2d 757, 760 (1991) (aiding and abetting and accessory after the fact are mutually exclusive offenses, thus defendant cannot be convicted of both), aff\u2019d, 331 N.C. 379, 416 S.E.2d 3 (1992).\nTherefore, we reverse the first-degree burglary conviction, an offense for which defendant was never indicted, and find no error in the conviction of discharging of a firearm into an occupied dwelling.\nNo error in part and reversed in part.\nJudges WALKER and TIMMONS-GOODSON concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Marilyn R. Mudge, for the State.", "Appellate Defender Malcolm Ray Hunter; Jr., by Assistant Appellate Defender Bobbi Jo Markert, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES REDDING SURCEY, Defendant\nNo. COA99-937\n(Filed 1 August 2000)\n1. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary and discharging a firearm into an occupied dwelling \u2014 occupancy of dwelling not alleged \u2014 second-degree burglary\nA defendant was not properly indicted for first-degree burglary where the State failed to allege that the dwelling house was occupied at the time of the breaking and entering, although the caption of the indictment referred to the offenses of \u201cFirst Degree Burglary\u201d and \u201cDischarge [of a] Firearm Into [an] Occupied Building.\u201d The indictment alleged only second-degree burglary and the first-degree burglary conviction was reversed in part upon these grounds.\n2. Burglary and Unlawful Breaking or Entering; Firearms and Other Weapons\u2014 weapon fired with barrel inside house\u2014 burglary and discharging a weapon into an occupied dwelling \u2014 mutually exclusive\nA first-degree burglary conviction was reversed where defendant pushed a shotgun barrel through a window in the victim\u2019s house before firing. Defendant was convicted and sentenced for first-degree burglary and discharging a firearm into an occupied dwelling, but was not properly indicted for first-degree burglary, and the two offenses were mutually exclusive in that defendant must enter the dwelling for burglary (for which the gun may be an implement of the person), but is required to shoot into the dwelling while remaining outside (even if the gun is inside) for discharging the firearm into an occupied dwelling.\nAppeal by defendant from judgment entered 17 February 1999 by Judge Donald W. Stephens in Johnston County Superior Court. Heard in the Court of Appeals 18 May 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Marilyn R. Mudge, for the State.\nAppellate Defender Malcolm Ray Hunter; Jr., by Assistant Appellate Defender Bobbi Jo Markert, for defendant-appellant." }, "file_name": "0432-01", "first_page_order": 464, "last_page_order": 469 }