{ "id": 9131462, "name": "STATE OF NORTH CAROLINA v. LEWIS EUGENE HANNAH", "name_abbreviation": "State v. Hannah", "decision_date": "2002-04-16", "docket_number": "No. COA00-1377", "first_page": "713", "last_page": "723", "citations": [ { "type": "official", "cite": "149 N.C. App. 713" } ], "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": "321 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568524, 2572173, 2572243, 2569014, 2570966 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0123-03", "/nc/321/0123-05", "/nc/321/0123-04", "/nc/321/0123-01", "/nc/321/0123-02" ] }, { "cite": "516 U.S. 1148", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 326113, 326788, 323878, 328647, 327402, 323707, 327692, 328397, 326989, 323505, 327953, 324981, 328469, 325656, 326395 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/516/1148-04", "/us/516/1148-06", "/us/516/1148-14", "/us/516/1148-02", "/us/516/1148-01", "/us/516/1148-15", "/us/516/1148-05", "/us/516/1148-12", "/us/516/1148-09", "/us/516/1148-07", "/us/516/1148-08", "/us/516/1148-03", "/us/516/1148-11", "/us/516/1148-10", "/us/516/1148-13" ] }, { "cite": "525 U.S. 843", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11090275, 11090532, 11090373, 11090500, 11090423, 11090344, 11090570, 11090317, 11090254, 11090289, 11090615, 11090456, 11090395, 11090655 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "quoting State v. 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Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "526 S.E.2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155828 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0454-01" ] }, { "cite": "553 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "446 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549457 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0182-01" ] }, { "cite": "128 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "3" } ], "opinion_index": 0 }, { "cite": "258 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559589 ], "year": 1962, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0089-01" ] }, { "cite": "450 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "471", "parenthetical": "quoting State v. 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LEWIS EUGENE HANNAH" ], "opinions": [ { "text": "BIGGS, Judge.\nDefendant appeals his convictions of first degree burglary in violation of N.C.G.S. \u00a7 14-51, and assault inflicting serious bodily injury, in violation of N.C.G.S. \u00a7 14-32.4. For the reasons herein, we hold no error as to defendant\u2019s conviction for first-degree burglary; however, we vacate his assault conviction and order a new trial.\nThe evidence at trial tended to show the following: Jennifer Hannah (Hannah) and Lewis Hannah (defendant) had a turbulent marriage. Hannah left the marital home, with their two children on three separate occasions, due largely to defendant\u2019s drug addiction and abusiveness. Hannah finally moved into an apartment with her children after defendant told her \u201cthat [she] had made him hate [her], and he didn\u2019t realize how much he could hate somebody, and that he could snap [her] neck in a minute.\u201d\nOn the evening of 31 December 1999, Hannah put her children to bed around 11 p.m. and went to bed shortly thereafter. She was awakened by a phone call from defendant, asking her to come by his trailer the following day; she refused, and an argument ensued. Defendant abruptly hung up the phone and Hannah went back to bed. Later that evening, Hannah heard a loud truck pull up to the apartment, and immediately called 911. Defendant demanded to come in, but Hannah refused; defendant, then splintered the door, burst in, ran to Hannah, picked her up by the face, threw her onto the bed, and began to strangle her. As she lost consciousness, Hannah heard defendant shouting, \u201c[d]ie, b[], die!\u201d Upon regaining consciousness, Hannah again called 911 and reported the incident to the operator. Shortly thereafter, a police officer arrived followed by EMS and Hannah\u2019s in-laws.\nOn 10 January 2000, defendant was indicted as follows: 1) first-degree burglary, in violation of N.C.G.S. \u00a7 14-51; 2) attempted murder, in violation of N.C.G.S. \u00a7 14-17; and 3) assault with a deadly weapon with intent to kill inflicting serious injury, in violation of N.C.G.S. \u00a7 14-32(a).\nThe jury convicted defendant of first-degree burglary in violation of N.C.G.S. \u00a7 14-51, and assault inflicting serious bodily injury, in violation of N.C.G.S. \u00a7 14-32.4. The jury acquitted defendant of attempted first-degree murder. The trial court imposed consecutive sentences for the first-degree burglary and assault convictions. Defendant filed notice of appeal on 24 May 2000.\nI.\nAt the outset, we note that while defendant sets forth seventeen assignments of error, those that he has failed to address in his brief are deemed abandoned pursuant to Rule 28(a) of the North Carolina Rules of Appellate Procedure.\nDefendant first assigns as error the trial court\u2019s denial of his motion to dismiss the felony assault charge, contending that the evidence was insufficient to show the victim suffered \u201cserious bodily injury.\u201d We need not address this contention. We hold that assault inflicting serious bodily injury, the offense for which the defendant was convicted, is not a lesser-included offense of assault with a deadly weapon with intent to kill and inflict serious injury, the offense charged in the indictment; therefore, the court committed reversible error in submitting the former to the jury. Accordingly, defendant\u2019s conviction of assault inflicting serious bodily injury must be vacated, and a new trial granted.\n\u201c[I]t is fundamental to due process that a defendant cannot be convicted of a crime with which he has not been charged.\u201d State v. Gibson, 333 N.C. 29, 39, 424 S.E.2d 95, 101 (1992), overruled on other grounds by State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). \u201cWhen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment.\u201d State v. Hudson, 345 N.C. 729, 732-33, 483 S.E.2d 436, 438 (1997) (citation omitted).\nIn the present case, defendant was charged by indictment with the offense of assault with a deadly weapon with intent to kill or inflicting serious injury, under N.C.G.S. \u00a7 14-32(a) (1999). The indictment read in pertinent part, \u201cdefendant . . . did assault Jennifer Katherine Hannah with his hands, a deadly weapon, with the intent to kill and inflicting serious injury.\u201d In addition to submitting the offense charged in the indictment to the jury, on the felony assault, the court also submitted as a lesser-included offense, assault with a deadly weapon inflicting serious injury, under N.C.G.S. \u00a7 14-32(b) (1999), and assault inflicting serious bodily injury under N.C.G.S. \u00a7 14-32.4 (1999). While the trial court is required to submit all lesser-included offenses raised by the evidence, State v. Conaway, 339 N.C. 487, 453 S.E.2d 824, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995), \u201ca defendant may not [be] lawfully convicted of an offense not embraced within the offense charged in the bill of indictment.\u201d State v. Perry, 18 N.C. App. 141, 142, 196 S.E.2d 369, 369 (1973).\nThis Court has long held that \u201cthe definitions accorded the crimes determine whether one offense is a lesser included offense of another crime.\u201d State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). \u201cIf the lesser crime has an essential element which is not completely covered by the greater [offense], it is not a lesser[-]included offense.\u201d Id. Our Supreme Court rejected the argument that an offense which was not ordinarily a lesser-included offense could become a lesser-included offense under specific factual circumstances. Id. at 635, 295 S.E.2d at 379. In the case sub judice, the charge of assault with a deadly weapon inflicting serious injury is a lesser-included offense of the crime charged, and was properly submitted to the jury. See generally, State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249, disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001). However, we conclude that all of the essential elements of assault inflicting serious bodily injury are not fully embraced in the offense with which defendant was charged in the indictment, assault with a deadly weapon with intent to kill and inflict serious injury; thus, it was error for the court to submit to the jury the charge of assault inflicting serious bodily injury.\nAssault inflicting serious bodily injury requires proof of two elements: (1) the commission of an assault on another, which (2) inflicts serious bodily injury. State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (2001); see also, N.C.G.S. \u00a7 14-32.4 (1999). While it is clear that the first element of this offense is also an element of the indicted offense in this case, we conclude the second is not. Based on our review of the relevant statutes and case law, we conclude that \u201cserious bodily injury\u201d requires proof of more severe injury than the \u201cserious injury\u201d element of the indicted offense. See State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (holding that victim\u2019s injuries went beyond serious injury necessary to indict for an assault with a deadly weapon with intent to kill or inflict serious injury, and constituted the permanent disfigurement contemplated by N.C.G.S. \u00a7 14-32.4).\nOur Courts have declined to define \u201cserious injury\u201d for purposes of assault prosecutions, other than stating that \u201c \u2018[t]he injury must be serious but it must fall short of causing death\u2019 and that \u2018[fjurther definition seems neither wise nor desirable.\u2019 \u201d State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) (quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). In 1997, however, the legislature created the offense of assault inflicting serious bodily injury, and specifically defined serious bodily injury as:\na bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, or a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.\nN.C.G.S. \u00a7 14-32.4.\nA review of the case law would suggest that our courts have found serious injury in situations that may not rise to the level of serious bodily injury as defined under N.C.G.S. \u00a7 14-32.4, for example: shards of glass in the arm and shoulder of a victim of a drive-by shooting into the victim\u2019s vehicles, coupled with an officer\u2019s observation that the victim was shaken, State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994); a bullet that pierced through the shoulder of the victim, creating two holes in his upper body, State v. Streeter, \u2014 N.C. App. -, 553 S.E.2d 240 (2001); gunshot wound which resulted in multiple broken bones of the victim\u2019s arm, State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249 (2001); stab wound to the back and shoulder, State v. Grigsby, 351 N.C. 454, 526 S.E.2d 460 (2000); and a broken wrist, chewed fingers and a gash in the head, State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563.\nThus, while there may be factual situations in which the elements of \u201cserious bodily injury\u201d and \u201cserious injury\u201d are in apparent identity, this does not satisfy the definitional approach required to determine whether one offense is a lesser included offense of another. See State v. Hudson, 345 N.C. 729, 483 S.E.2d 436 (1997). Proof of the greater offense, in this case assault with a deadly weapon with intent to kill and inflict serious injury, is not necessarily sufficient to find proof of the lesser, assault inflicting serious bodily injury. We note further, that in creating the offense of assault inflicting serious bodily injury, the legislature made it a Class F felony, while the corresponding offense of assault inflicting serious injury is a misdemeanor under N.C. Gen. Stat. \u00a7 14-33 (1999).\nWe conclude that, because the element of \u201cserious bodily injury\u201d requires proof of more severe injury than the element of \u201cserious injury\u201d, assault inflicting serious bodily injury is not a lesser-included offense of assault with a deadly weapon with intent to kill and inflict serious injury. Accordingly, it was error for the trial court to submit assault inflicting serious bodily injury as a lesser-included offense to the jury. We vacate defendant\u2019s conviction on the felony assault charge, and remand for a new trial on that issue.\nII.\nDefendant next assigns as error the trial court\u2019s denial of his motion to dismiss the burglary charge, arguing that the evidence was insufficient to show that he broke and entered with a felonious intent. We find no error.\nFirst-degree burglary is defined as the unlawful breaking and entering of an occupied dwelling or sleeping apartment, in the nighttime, with the intent to commit a felony therein. Defendant contends that the State lacked compelling and direct evidence to establish that he broke into Hannah\u2019s home with intent to cause her serious injury. We find this contention without merit, for the reasons below.\nA conviction of first-degree burglary requires proof that the intent to commit a felony assault existed at the time of the breaking and entering. See generally, State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994). \u201cIntent is a mental attitude seldom provable by direct evidence^] [i]t must ordinarily be proved by circumstances from which it may be inferred.\u201d State v. Bostic, 121 N.C. App. 90, 99, 465 S.E.2d 20, 25 (1995); State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798 (1995). The determining factor, then, is whether there was sufficient evidence from which a reasonable juror could infer that defendant possessed the requisite intent to commit serious injury. See, State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994) (when determining whether an element exists, a jury may rely on its common sense and knowledge it has acquired through everyday experience).\nIn the case sub judice, Hannah testified to the following: prior to the day of the assault, defendant threatened to kill her if she ever left him; defendant told her that she had made him hate her and that he did not realize how much he could hate somebody and that he could \u201csnap [her] neck in a minute\u201d; immediately prior to the assault the two had a heated argument over the phone, which ended abruptly with defendant hanging up the phone; when Hannah refused to open the door, defendant \u201cshattered\u201d the door and broke through, running for her; defendant immediately attacked Hannah in that \u201c[h]e picked [her] up by [the] face and threw [her] backwards into [her] bed and began to strangle [her] and [told her] to \u2018die, bitch, die.\u2019 \u201d\nWe conclude, upon consideration of the evidence in the light most favorable to the State, that substantial evidence was presented that defendant possessed the requisite felonious intent at the time of the breaking and entering to inflict serious injury; thus, the judge properly allowed the jury to decide whether the defendant satisfied all elements of attempted first-degree burglary. Accordingly, this assignment is overruled.\nIII.\nIn defendant\u2019s next two assignments, he contends that the trial court erred by failing to instruct the jury on the lesser-included offenses of misdemeanor breaking and entering as a lesser-included offense of first-degree burglary, and misdemeanor assault as a lesser-included offense of assault inflicting serious injury with intent to kill and inflict serious injury. Because we have vacated the felony assault charge, we will only address defendant\u2019s contentions related to the burglary charge.\nAt the outset, we note that defense counsel neither objected to the jury charges at trial, nor requested instructions on misdemeanor breaking and entering. Thus, we must review this assignment for plain error. (\u201cIn criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d N.C.R. App. P. 10(c)(4) (emphasis added)). Plain error is error \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). The North Carolina Supreme Court has chosen to review such \u201cunpreserved issues for plain error when ... the issue involves either errors in the trial judge\u2019s instructions to the jury or rulings on the admissibility of evidence.\u201d State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).\nWe thus consider whether the trial court\u2019s failure to instruct on a lesser included offense amounted to plain error. Our Supreme Court has held that a trial court must instruct the jury on a lesser-included offense only if there is evidence that the defendant might be guilty of the lesser-included offense. State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). Evidence of a lesser-included offense must be evidence that might convince a rational trier of fact to convict of the lesser offense. State v. Peacock, 313 N.C. 554, 330 S.E.2d 190, 193 (1985). If the State\u2019s evidence is clear and positive as to each element of the charged offense, and if there is no evidence of the lesser-included offense, there is no error in refusing to instruct on the lesser offense. Id.\nDefendant contends that the jury should have been instructed on misdemeanor breaking and entering as a lesser included offense of first-degree burglary because there was evidence presented from which the jury could find that the breaking and entering was done without a felonious intent. We conclude that there was no evidence of the lesser included offense, and further conclude that the trial court did not err in declining to instruct on misdemeanor breaking and entering as a lesser included offense of first-degree burglary. Accordingly, this assignment of error is overruled.\nIV.\nDefendant next argues that the trial court erred in admitting irrelevant and unfairly prejudicial evidence about defendant\u2019s prior drug use, unrelated to the burglary and assault. We find no error.\nRelevant evidence is evidence \u201chaving any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1999). In the context of burglary and assault, \u201cevidence is relevant if it ltend[s] to shed light upon the circumstances surrounding the [breaking and entering]\u2019 \u201d with intent to commit an assault inflicting serious bodily harm. State v. Richmond, 347 N.C. 412, 428, 495 S.E.2d 677, 685, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998) (quoting State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991)), cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). Such evidence is generally admissible unless \u201cits probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403. The decision whether to exclude relevant evidence under Rule 403 lies within the sound discretion of the trial court, State v. Braxton, 352 N.C. 158, 531 S.E.2d 428, cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2000), and \u201c \u2018its ruling may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision,\u2019 \u201d State v. Richmond, 347 N.C. at 429, 495 S.E.2d at 686 (quoting State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996)).\nThe admissibility of specific acts of misconduct by the defendant is governed by N.C.G.S. \u00a7 8C-1, Rule 404(b) (1999), which provides:\n(b) Other crimes, wrongs, or acts.\u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nRule 404(b) is a general rule of inclusion of relevant evidence of other crimes, and wrongs committed by a defendant and is subject to only one exception which requires exclusion of such evidence if offered only to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged. State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Moreover, in applying Rule 404(b), the courts have consistently held that evidence that would otherwise show \u201cbad character\u201d is admissible if it is offered to show something other than bad character, such as \u201cmalice . . ., intent or ill will against the victim.\u201d State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996).\nIn the case sub judice, the evidence regarding defendant\u2019s prior drug use is relevant, because it tends to explain the nature of his relationship with Hannah and to establish defendant\u2019s ill will towards Hannah. It explains Hannah\u2019s reason for leaving defendant, which led to his threats against her. Thus, the evidence is relevant to issues other than defendant\u2019s propensity to commit the crimes for which he is charged. We therefore hold that the evidence of defendant\u2019s prior drug use was admissible under Rule 404(b).\nFurther, assuming arguendo that it was error to allow testimony regarding defendant\u2019s drug use, we find such error harmless. Where there is no reasonable possibility that, had the evidence not been admitted, a different result would have been reached at trial, then such error is harmless. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, disc. review denied, 321 N.C. 123, 361 S.E.2d 602 (1987). In the present case, the testimony of Hannah regarding defendant\u2019s drug habit was minimal. We hold that there was substantial evidence that defendant committed the crimes of which he was convicted, irrespective of defendant\u2019s drug use. Accordingly, this assignment of error is overruled.\nWe hold that defendant is entitled to a new trial on the felonious assault, and we find no error of his conviction of first-degree burglary.\nNo error on burglary conviction; vacate assault conviction, new trial.\nJudges McGEE and TIMMONS-GOODSON concur.", "type": "majority", "author": "BIGGS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.", "Rudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEWIS EUGENE HANNAH\nNo. COA00-1377\n(Filed 16 April 2002)\n1. Assault\u2014 with a deadly weapon inflicting serious injury\u2014 lesser included offense \u2014 assault inflicting serious bodily injury\nThe trial court erred by submitting to the jury assault inflicting serious bodily injury as a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury. \u201cSerious bodily injury\u201d requires proof of more severe injury than \u201cserious injury.\u201d\n2. Burglary and Unlawful Breaking or Entering\u2014 intent at time of breaking and entering \u2014 infliction of serious injury \u2014 sufficiency of evidence\nSubstantial evidence was presented that defendant possessed the requisite felonious intent at the time of a breaking and entering to inflict serious injury and thus to support his conviction of first-degree burglary where the victim testified that defendant had threatened to kill her if she ever left him; defendant told her that she had made him hate her, that he had not realized how much he could hate someone, and that he could snap her neck in a minute; immediately prior to the assault, the two had a heated argument over the phone which ended with defendant hanging up; defendant \u201cshattered\u201d the victim\u2019s door when she refused to open it; and defendant immediately ran to the victim, picked her up, threw her on her bed, and began to strangle her, saying \u201cdie, bitch, die.\u201d\n3. Burglary and Unlawful Breaking or Entering\u2014 first-degree burglary \u2014 lesser included offense \u2014 misdemeanor breaking and entering\nThere was no plain error in the trial court\u2019s failure to instruct on misdemeanor breaking and entering as a lesser included offense of first-degree burglary where there was no evidence of the lesser offense.\n4. Evidence\u2014 assault \u2014 defendant\u2019s prior drug use\nEvidence of defendant\u2019s prior drug use was relevant in a prosecution which resulted in convictions for first-degree murder and assault inflicting serious bodily injury because the prior drug use explains the victim leaving defendant and his ill will towards her. Moreover, testimony regarding the drug use was minimal and there was substantial evidence that defendant committed the crimes of which he was convicted.\nAppeal by defendant from judgment entered 19 May 2000 by Judge J. Marlene Hyatt in Haywood County Superior Court. Heard in the Court of Appeals 17 October 2001.\nAttorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.\nRudolph, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant." }, "file_name": "0713-01", "first_page_order": 747, "last_page_order": 757 }