{
  "id": 8527785,
  "name": "STATE OF NORTH CAROLINA v. EUGENE WATTS, JR.",
  "name_abbreviation": "State v. Watts",
  "decision_date": "1985-09-17",
  "docket_number": "No. 8419SC1202",
  "first_page": "656",
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  "casebody": {
    "judges": [
      "Judges Which ard and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EUGENE WATTS, JR."
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant assigns error to the trial court\u2019s denial of his motion to dismiss for insufficiency of the evidence. The constituent elements of first degree burglary are the breaking and entering in the nighttime into a dwelling house or a room used as a sleeping apartment which is occupied at the time of the offense with the intent to commit a felony therein. State v. Person, 298 N.C. 765, 259 S.E. 2d 867 (1979). There was sufficient evidence in this case to allow the jury to find each of these elements.\nUnder this assignment, defendant first contends that the State failed to prove that the structure at 52 Bell Street was a dwelling house, relying principally upon State v. Potts, 75 N.C. 129 (1876), which held that a building occupied by a watchman for the sole purpose of keeping guard on property contained therein was not a dwelling. The case at bar is clearly distinguishable. The State\u2019s evidence showed that Timothy Williams was living in a dwelling house at 52 Bell Street. The facts that Williams was not paying rent and that he was living in the house to protect it and its contents for its owners do not negate the evidence which clearly showed that the structure was a dwelling house. A structure does not lose its status as a dwelling house because it is being occupied by someone other than the owner. See State v. Beaver, 291 N.C. 137, 229 S.E. 2d 179 (1976).\nDefendant next contends that the State failed to prove lack of consent to entry, because the evidence failed to show that the owner of the structure did not consent to defendant\u2019s entry. Defendant concedes that Williams did not consent to defendant\u2019s entry. While consent to entry by the owner of a dwelling house constitutes a defense to burglary, State v. Thompson, 59 N.C. App. 425, 297 S.E. 2d 177, disc. rev. denied, 307 N.C. 582, 299 S.E. 2d 650 (1983), in order to convict a person of burglary it is not necessary to show non-consent by the owner when the premises are occupied by another, but only non-consent by the occupant. State v. Beaver, supra.\nDefendant next contends that the State\u2019s evidence did not prove a breaking or entering. It is well established that the mere pushing or pulling open of an unlocked door, even in the slightest degree, constitutes a breaking. See State v. Sweezy, 291 N.C. 366, 230 S.E. 2d 524 (1976); State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967). The evidence in this case shows clearly that defendant entered through an unlocked door onto the porch of the house. This was sufficient to show a breaking and an entering.\nUnder another assignment of error, defendant contends that the trial court erred in failing to submit to the jury the lesser included offense of felonious breaking and entering, because the evidence was in conflict on the issue of dwelling house status and the issue of whether defendant both broke and entered the house. We have resolved these issues against defendant, and this assignment is therefore overruled.\nDefendant next contends that the trial court committed \u201cplain error\u201d in failing to submit the lesser included offense of attempted burglary. Again, defendant relies on an asserted conflict in the evidence as to whether there was an entry. Having resolved this issue against defendant, we overrule this assignment of error.\nNo error.\nJudges Which ard and Phillips concur.\n. Defendant did not request an instruction as to this lesser included offense, nor object at trial to the trial court\u2019s failure to give such an instruction.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General George W. Boylan for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender Geoffrey C. Mangum for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EUGENE WATTS, JR.\nNo. 8419SC1202\n(Filed 17 September 1985)\nBurglary and Unlawful Breakings \u00a7 5.8\u2014 burglary of residence \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of first degree burglary for insufficient evidence where the victim was living in a dwelling house without paying rent to protect it and its contents for its owners; the evidence did not show that the owner did not consent to entry; and defendant entered through an unlocked door. A structure does not lose its status as a dwelling house because it is occupied by someone other than the owner; it is not necessary to show non-consent by the owner when the premises are occupied by another; and the mere pushing or pulling open of an unlocked door, even in the slightest degree, constitutes a breaking.\nAPPEAL by defendant from Cornelius, Judge. Judgment entered in CABARRUS County Superior Court 12 July 1984. Heard in the Court of Appeals 27 August 1985.\nDefendant was charged in a proper indictment with first degree burglary. At trial, the State\u2019s evidence tended to show the following events and circumstances. On 12 December 1983, Timothy Williams was the sole occupant of a residence at 52 Bell Street in Concord. At about 7:00 p.m., Williams was cooking in the kitchen when he observed the door leading from the kitchen to a screened-in back porch \u201cease\u201d open. Williams immediately went to the adjacent hallway, obtained a shotgun, and returned to the hall door which led to the porch. Through the glass portion of the hall door, Williams observed two black males; he immediately pursued the men. As the men fled, Williams shot one of them in the back. After going into the house for more shotgun shells, Williams returned to the yard but saw no one.\nLater the same night, Officer Hatley of the Concord police found defendant at the emergency room of Cabarrus Memorial Hospital. Medical personnel removed shotgun pellets from defendant\u2019s buttocks and legs. The pellets were the same type fired by Williams. Defendant was arrested and gave a statement implicating Harold Bost.\nBost, a witness for the State, testified that he and Williams went to the house at 52 Bell Street on the night in question after defendant had told Bost they could break in the house and get some guns and stereo equipment. Bost and defendant went onto the porch, where defendant kicked \u201cthe door.\u201d When Williams came out with a gun, Bost and defendant ran away and Bost hid under a nearby house. About half an hour later defendant told Bost that defendant had been shot. Defendant went to the hospital against Bost\u2019s advice.\nDefendant testified to the effect that he and Bost, who lived next door to 52 Bell Street, went to those premises, where Bost went on the porch while defendant remained in the yard. When Bost ran in defendant\u2019s direction saying a man had a gun, both ran away, and defendant was shot. Later, at defendant\u2019s house, Bost told defendant\u2019s wife that defendant had nothing to do with the break-in.\nFrom a sentence of imprisonment entered on the jury\u2019s verdict of guilty, defendant has appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General George W. Boylan for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Geoffrey C. Mangum for defendant appellant."
  },
  "file_name": "0656-01",
  "first_page_order": 690,
  "last_page_order": 693
}
