{ "id": 8522877, "name": "STATE OF NORTH CAROLINA v. ARNOLD RAY MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1983-06-07", "docket_number": "No. 828SC1155", "first_page": "431", "last_page": "437", "citations": [ { "type": "official", "cite": "62 N.C. App. 431" } ], "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": "222 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568992, 8569093, 8568916, 8568951, 8569047 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0300-03", "/nc/289/0300-05", "/nc/289/0300-01", "/nc/289/0300-02", "/nc/289/0300-04" ] }, { "cite": "219 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553699 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0354-01" ] }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "298 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520138 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/60/0205-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "292 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572585, 8572619, 8572600, 8572573, 8572638 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0591-02", "/nc/305/0591-04", "/nc/305/0591-03", "/nc/305/0591-01", "/nc/305/0591-05" ] }, { "cite": "290 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572976 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0654-01" ] }, { "cite": "287 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566759, 8566791, 8566834, 8566869, 8566902 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0198-01", "/nc/304/0198-02", "/nc/304/0198-03", "/nc/304/0198-04", "/nc/304/0198-05" ] }, { "cite": "278 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "542" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170114 ], "year": 1981, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0186-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1981, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "1 S.E. 925", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1887, "pin_cites": [ { "page": "927" } ], "opinion_index": 0 }, { "cite": "97 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650537 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/nc/97/0393-01" ] } ], "analysis": { "cardinality": 600, "char_count": 11463, "ocr_confidence": 0.824, "pagerank": { "raw": 1.1073549079777745e-07, "percentile": 0.5698600574782545 }, "sha256": "6a6f2a1a0e27066cb6f4eb975321d0cf38151cd6ea2ffbec0f3f2cd29c485fe1", "simhash": "1:abe3d66256ff04b8", "word_count": 1962 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ARNOLD RAY MOORE" ], "opinions": [ { "text": "BECTON, Judge.\nDefendant has assigned error to the denial of his motion to dismiss the charge of first degree burglary, the refusal of the court to instruct on misdemeanor breaking or entering, the portion of the jury charge explaining the defense of coercion, and the State\u2019s cross-examination of him about his prior criminal charges. We find merit in each assignment of error and order a new trial.\nI\nDefendant was found guilty of first degree burglary. The State contended that defendant intended to commit larceny, felonious assault or rape. We agree with defendant that there was insufficient evidence for the jury to find that the breaking or entering was carried out with an intent to commit a felony. That charge should, therefore, have been dismissed. On a motion to dismiss, the question is whether there is substantial evidence which will support a reasonable inference of the defendant\u2019s guilt. When the evidence here is viewed in the light most favorable to the State, we deem it insufficient to support an inference of felonious intent.\nThe State\u2019s evidence tended to show that on the early morning of 6 March 1982, Janice Wright and her brother Jerome Sutton were sleeping in adjacent upstairs bedrooms in their parents\u2019 house. Janice\u2019s parents and her two younger sisters were asleep downstairs. She heard someone walking across the porch outside the second floor, and she awakened Jerome. She then saw defendant standing behind the door to an unoccupied bedroom. Jerome approached the defendant and asked him what he was doing there. Defendant indicated that someone was out to kill one of Jerome\u2019s sisters. Janice testified that defendant then told her that a man forced him into the house by threatening to cut defendant\u2019s throat. Defendant told her that this man was going to get \u201cone of the girls.\u201d When Officer Pate of the Kinston Police Department arrived at the scene, the defendant also told him that a man who lived in Carver Courts had forced him to enter the Suttons\u2019 house. Defendant was crying and in a drunken condition. He was frisked, but no weapons were found. Officer Pate discovered that a piece of cardboard which had been taped over an upstairs window had been partially pushed away. After defendant was taken to the police station, he gave the following statement: \u201cI was walking home and a man Cogman from Mitchell Wooten Courts, and he held a knife to my throat and said he was going to kill me if I didn\u2019t break into 314 East Grainger Avenue (the Suttons\u2019 address).\u201d\nDefendant testified that he lived two blocks from the Sut-tons\u2019 residence. On the evening of 5 March 1982 defendant had been at Mitchell Wooten Courts with a man who said his name was Cogman. As he was returning home around 3:00 a.m., he saw a man standing by the stairway to the Suttons\u2019 house. This man asked defendant to go into the house and tell one of the female occupants to \u201cquit messing around\u201d or \u201che was going to kick her ass.\u201d When defendant refused, the man placed a knife to his neck and told him to start walking up the stairs. Defendant then climbed the stairs believing that the man was behind him. Upon reaching the second floor porch, defendant opened the door and walked into the house. He heard someone in the house and hid behind a door to one of the rooms. After defendant was discovered in the house he did not flee but stayed until the police arrived.\nNothing in this evidence supports a finding that defendant entered the Suttons\u2019 home with the intent to commit either felonious assault or rape. The State apparently recognizes this fact, since it merely argues that \u201cthere was more than a scintilla of evidence to infer intent to commit larceny on the part of the defendant.\u201d In support of its argument that there was a sufficient showing of intent to commit larceny, the State has relied upon the following language in State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887):\nThe intelligent mind will take cognizance of the fact, that people do not usually enter the dwellings of others in the night time, when the inmates are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the night time, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent. (Emphasis added.)\nId. at 396-97, 1 S.E. at 927. The State\u2019s reliance upon this language is misplaced. It is uncontested that defendant entered the Suttons\u2019 house at night while they were home and without their consent. The facts and circumstances, as presented by both the defendant and the State, however, support the inference that defendant entered the home because he was coerced and rebut the inference that defendant entered with the intent to steal. Pursuant to the McBryde rule, we conclude that there was insufficient evidence to sustain a verdict of felonious breaking or entering. Consequently, the felony count against defendant must be stricken.\nII\nShould the jury on retrial disbelieve defendant\u2019s evidence of coercion, the remaining evidence would support only a conviction of the lesser included offense of misdemeanor breaking and entering, the wrongful breaking or entering of any building. N.C. Gen. Stat. \u00a7 14-54(b) (1981). The trial court, therefore, erred in failing to instruct on this misdemeanor. Our Appellate Courts have consistently found error when trial courts have failed to instruct on misdemeanor breaking or entering in situations \u201cwhere the only evidence of the defendant\u2019s intent to commit a felony in the building or dwelling was the fact that the defendant broke and entered a building or dwelling containing personal property.\u201d State v. Thomas and State v. Christmas and State v. King, 52 N.C. App. 186, 196, 278 S.E. 2d 535, 542 (1981); disc. review allowed, State v. Christmas, 304 N.C. 198, 287 S.E. 2d 127 (1981), later vacated, 305 N.C. 654, 290 S.E. 2d 613 (1982); cert. denied, State v. Thomas, 305 N.C. 591, 292 S.E. 2d 16 (1982).\nIII\nAt trial defendant admitted that he had previously pleaded guilty to two counts of misdemeanor breaking and entering. Defendant now assigns error to the following portions of the State\u2019s cross-examination regarding each prior conviction:\nQ. You plead guilty in that incident as a result of a plea bargain did you not?\nA. Yes I did.\nQ. On which the charge was reduced?\nMR. Duke: Objection.\nCOURT: Overruled.\nQ. The charge was reduced from first degree burglary to breaking and entering?\nA. Yes.\nQ. As a result of a plea bargain signed by you and your attorney, Mr. Pollock, at that time?\nA. Yes sir.\nMr. DUKE: I\u2019d like to approach the bench, Your Honor.\n(Mr. Duke and Mr. Heath approach the bench.)\nQ. Now Mr. Moore, in that instance, is it not a fact that you were charged on the 8th of January with during the night time between the hours of 2:00 A.M. and 2:30 A.M., of breaking and entering the dwelling of Dexter Mills while it was occupied?\nA. Yes sir.\nQ. And you plead guilty as a result of a plea bargain to a lesser charge?\nA. No sir.\nQ. You didn\u2019t plead guilty with a plea bargain as a lesser charge?\nA. I plead guilty to breaking and entering and probation.\nQ. You got probation in that case?\nA. Yes sir.\nQ. In 1979?\nA. Yes.\nQ. And the second breaking and entering you have talked about, did that occur on January 21, 1980, almost exactly a year later?\nA. Yes sir.\nQ. And in that case you plead guilty to misdemeanor breaking and entering and you got a two-year active sentence did you not?\nA. Yes sir.\nQ. And that was the result of a plea bargain between yourself and the State of North Carolina was it not?\nA. Yes sir.\nQ. And in that case weren\u2019t you originally charged on the 21st of January, 1980 in Lenoir County.\nMr. Duke: Objection to what he was charged with.\nCOURT: Overruled.\nWe agree with defendant that this cross-examination violated the rule set out in State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971): A defendant\u2019s character may not be impeached by asking about or referring to prior arrests, indictments or charges. In a recent case before our Court, we applied the Williams rule and ordered a new trial when the State asked the defendant if several counts of larceny against him had been reduced to one count of larceny, and if he had pleaded guilty to that charge. State v. Woodrup, 60 N.C. App. 205, 298 S.E. 2d 439 (1982). We noted that \u201c[t]hese questions clearly had the effect of asking the defendant whether he had been indicted for two counts of larceny.\u201d Id. at 207, 298 S.E. 2d at 440. In the case sub judice, the questions had the effect of asking defendant whether he had been indicted for two counts of first degree burglary. This the State is not allowed to do.\nIV\nThe court failed to inform the jury that the defense of coercion is merely a denial that defendant committed the alleged offense, and that the burden remained on the State to prove defendant\u2019s guilt beyond a reasonable doubt. See, State v. Strickland, 307 N.C. 274, \u2014 S.E. 2d \u2014 (1983), State v. Kearns, 27 N.C. App. 354, 219 S.E. 2d 228 (1975), disc. review denied, 289 N.C. 300, 222 S.E. 2d 700 (1976), and Pattern Jury Instructions N.C.P.I. Crim. \u2014 310.10. The trial court\u2019s instruction on coercion in the case sub judice did not comply fully with the mandate of State v. Strickland.\nFor the foregoing reasons, defendant must have a\nNew trial.\nJudges Wells and Eagles concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Richard H. Carlton, for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARNOLD RAY MOORE\nNo. 828SC1155\n(Filed 7 June 1983)\n1. Burglary and Unlawful Breakings \u00a7 6.2\u2014 first degree burglary \u2014 insufficient evidence of felonious intent\nThe evidence was insufficient to support a verdict of felonious breaking or entering where the facts and circumstances, as presented by both the defendant and the State, supported the inference that defendant entered the home because he was coerced and rebutted the inference that defendant entered with the intent to steal. Further, nothing in the evidence supported a finding that defendant entered the home with the intent to commit either felonious assault or rape.\n2. Burglary and Unlawful Breakings \u00a7 7\u2014 failure to instruct on misdemeanor breaking and entering \u2014 error\nThe trial court erred in failing to instruct on misdemeanor breaking and entering where, should the jury disbelieve defendant\u2019s evidence of coercion, the only evidence of the defendant\u2019s intent to commit a felony in the residence was the fact that the defendant broke and entered a building containing personal property.\n3. Criminal Law \u00a7 86.4\u2014 impeachment of defendant \u2014 prior indictments for crime\nIt was error for the trial court to allow defendant to be cross-examined regarding two prior convictions for misdemeanor breaking and entering by questioning whether he had been indicted for two counts of first degree burglary.\nAppeal by defendant from Reid, Judge. Judgment entered 22 April 1982 in Superior Court, Lenoir County. Heard in the Court of Appeals 14 April 1983.\nDefendant was indicted for first degree burglary. From a verdict of guilty as charged and a judgment imposing a fifteen-year sentence, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Richard H. Carlton, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant." }, "file_name": "0431-01", "first_page_order": 463, "last_page_order": 469 }