{
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  "name": "STATE OF NORTH CAROLINA v. BILL DAVID WALTON",
  "name_abbreviation": "State v. Walton",
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  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge COZORT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BILL DAVID WALTON"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nThis appeal presents the sole question of whether the State presented sufficient evidence of defendant\u2019s intent to commit rape in order to have submitted the charges of felonious breaking and entering and attempted second-degree rape to the jury. Having thoroughly reviewed the evidence, we conclude that the trial court did not err in denying defendant\u2019s motion to dismiss.\nA trial court properly denies a defendant\u2019s motion to dismiss made at the close of all the evidence where the State has adduced substantial evidence of each element of the offense and has shown that defendant actually perpetrated the crime. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982). When ruling on a motion to dismiss, the trial court must view all of the evidence and reasonable inferences derived therefrom in the light most favorable to the State. State v. Griffin, 319 N.C. 429, 355 S.E. 2d 474 (1987). In the present case, the evidence viewed in the light most favorable to the State tends to show that:\nOn the afternoon of 25 December 1985, defendant broke into and entered the home of the complaining witness while she was alone and sleeping in her bedroom. Defendant shook her awake and said, \u201cI think I\u2019ll just get in your bed.\u201d She then told defendant to \u201cget out\u201d and defendant left through the back door. The complaining witness left the back door unlocked to allow her children access to the house and because having heard defendant leave the house, she believed he bore her no further threat. Defendant again returned later that afternoon and woke the victim by getting on top of her and trying to kiss her. The defendant kept pulling at the victim\u2019s robe and saying, \u201cI\u2019ve been wanting you, and now I\u2019m going to have you.\u201d At one point, defendant put his hand in her panties and said, \u201cHere it is, I\u2019m going to eat it.\u201d The complaining witness then tried to throw herself off the bed and began screaming. When she told defendant that she could not breathe, defendant allowed her to sit up on the bedside. Defendant did not thereafter attempt to further assault her. Shortly after, the complaining witness led defendant to the back door where she told him to \u201cget out of this house.\u201d Defendant replied, \u201cDon\u2019t call the police. If you call the police I will have to go to jail. So I might as well just [go] ahead and rape you anyway. . . .\u201d Defendant then left.\nTo support a conviction for felonious breaking and entering under G.S. \u00a7 14-54(a), there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein. State v. White, 84 N.C. App. 299, 352 S.E. 2d 261 (1987); State v. Litchford, 78 N.C. App. 722, 338 S.E. 2d 575 (1986). Moreover, there must be a showing that a breaking or entering occurred in a building \u201cwith intent to commit a felony or other infamous crime therein\u201d to satisfy the felony requirement of this statute. State v. Jones, 264 N.C. 134, 141 S.E. 2d 27 (1965), and the intent proven must be that which was alleged by the State. State v. Alston, 310 N.C. 399, 312 S.E. 2d 470 (1984).\nIn its indictment, the State alleged that defendant herein broke into and entered the victim\u2019s dwelling \u201cwith the intent to commit a felony therein, to wit: Rape\u201d; therefore, the State was required to present substantial evidence that defendant intended to commit rape.\nOn its second charge of attempted second-degree rape, pursuant to G.S. \u00a7\u00a7 14-27.3 and 27.6, the State was required to show the existence of an intent on the part of defendant to engage in vaginal intercourse by force and against the will of the victim. State v. Whitaker, 316 N.C. 515, 342 S.E. 2d 514 (1986); State v. Hosey, 79 N.C. App. 196, 339 S.E. 2d 414 (1986). Citing to our decision in In re Howett, 76 N.C. App. 142, 331 S.E. 2d 701 (1985), defendant argues that the State\u2019s evidence was not sufficiently substantial on the element of intent to have allowed both charges to prevail over defendant\u2019s motion to dismiss. We disagree.\nIn Howett, this Court held that the State had failed to produce sufficient evidence of intent to commit rape required by G.S. \u00a7\u00a7 14-27.3 and 27.6 where defendant made no verbal references to sexual activity; the victim\u2019s only resistance consisted of struggling and spreading her legs to keep defendant from pulling her shorts down; and when the victim told the defendant to leave, he did so with no objection. However, the decision in Howett is inap-posite to the present case.\nIn the case before us, the State\u2019s evidence tended to show that defendant broke into and entered the victim\u2019s home twice. At first defendant stated, \u201cI think I\u2019ll just get into your bed.\u201d When defendant next entered the house, he got into the victim\u2019s bed, kissed her and held her down while repeating: \u201cI\u2019ve been wanting you, and now I\u2019m going to have you.\u201d Later, defendant put his hand into the victim\u2019s panties and said, \u201cHere it is, I\u2019m going to eat it.\u201d Finally, defendant admitted to having intended rape when he stated he \u201cmight as well [go] ahead and rape you anyway.\u201d\nThe foregoing facts constitute sufficient evidence of defendant\u2019s intent to engage in vaginal intercourse by force and against the will of the victim to have allowed the case to go to the jury. Our holding today is supported by decisions in previous cases where defendant\u2019s verbal expression of an intent to engage in a sexual activity or references thereto were held to be significant in finding an intent to commit rape. See State v. Whitaker, supra; State v. Allen, 297 N.C. 429, 255 S.E. 2d 362 (1979); State v. Bradshaw, 27 N.C. App. 485, 219 S.E. 2d 561 (1975), disc. rev. denied, 289 N.C. 299, 222 S.E. 2d 699 (1976); Cf. State v. Rushing, 61 N.C. App. 62, 300 S.E. 2d 445, affirmed, 308 N.C. 804, 303 S.E. 2d 822 (1983). Accordingly, defendant\u2019s first and only briefed assignment of error is overruled and we find\nNo error.\nChief Judge HEDRICK and Judge COZORT concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Jane T. Friedensen, for the State.",
      "Public Defender\u2019s Office, by Assistant Public Defender Frederick G. Lind, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BILL DAVID WALTON\nNo. 8718SC1036\n(Filed 21 June 1988)\nRape and Allied Offenses 8 5; Burglary and Unlawful Breakings 8 5.11\u2014 felonious breaking and entering \u2014 attempted second degree rape \u2014 evidence sufficient\nThere was sufficient evidence of defendant\u2019s intent to engage in vaginal intercourse by force and against the will of the victim to submit charges of felonious breaking and entering and attempted second degree rape to the jury where the State\u2019s evidence tended to show that defendant broke into and entered the victim\u2019s home twice; made verbal references to an intent to engage in sexual activity; on one occasion got into the victim\u2019s bed, kissed her, and held her down; and on another occasion put his hand into her panties. N.C. G.S. \u00a7 14-27.3, N.C.G.S. \u00a7 14-27.6, N.C.G.S. \u00a7 14-54(a).\nAppeal by defendant from DeRamus, Judson D., Jr., Judge. Judgment entered 26 June 1987 in Guilford County Superior Court. Heard in the Court of Appeals 2 May 1988.\nDefendant was indicted 2 March 1987 for the offenses of felonious breaking and entering and attempted second-degree rape pursuant to G.S. \u00a7\u00a7 14-54(a) and 27.3. Defendant was convicted of both offenses and sentenced to a total of 20 years imprisonment.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Jane T. Friedensen, for the State.\nPublic Defender\u2019s Office, by Assistant Public Defender Frederick G. Lind, for defendant-appellant."
  },
  "file_name": "0532-01",
  "first_page_order": 562,
  "last_page_order": 565
}