{ "id": 8567586, "name": "STATE OF NORTH CAROLINA v. THOMAS WHEELER MYRICK, JR.", "name_abbreviation": "State v. Myrick", "decision_date": "1982-06-02", "docket_number": "No. 68A81", "first_page": "110", "last_page": "117", "citations": [ { "type": "official", "cite": "306 N.C. 110" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "18 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "221 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626100 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/221/0070-01" ] }, { "cite": "181 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565707 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0073-01" ] }, { "cite": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "184 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571126 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0549-01" ] }, { "cite": "185 S.E. 2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570160 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0142-01" ] }, { "cite": "261 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "299 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575137 ], "year": 1980, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0377-01" ] }, { "cite": "249 S.E. 2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564777 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0101-01" ] }, { "cite": "141 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571421 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0134-01" ] }, { "cite": "175 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] }, { "cite": "164 S.E. 2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "274 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560598 ], "year": 1968, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0457-01" ] }, { "cite": "223 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "316" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "254 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "5-6", "parenthetical": "quoting State v. Wilson, 289 N.C. 531, 539, 223 S.E. 2d 311, 316 (1976) and 13 Am. Jur. 2d, Burglary \u00a7 8 (1964)" }, { "page": "5-6" } ], "opinion_index": 0 }, { "cite": "297 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567060 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "127-28", "parenthetical": "quoting State v. Wilson, 289 N.C. 531, 539, 223 S.E. 2d 311, 316 (1976) and 13 Am. Jur. 2d, Burglary \u00a7 8 (1964)" }, { "page": "127-28" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0121-01" ] }, { "cite": "254 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548327 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0171-01" ] }, { "cite": "157 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "611" } ], "opinion_index": 0 }, { "cite": "272 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571146 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0108-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "284 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "304 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569411 ], "year": 1981, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0534-01" ] } ], "analysis": { "cardinality": 757, "char_count": 14837, "ocr_confidence": 0.778, "pagerank": { "raw": 4.0209451540874236e-07, "percentile": 0.9066376070573998 }, "sha256": "ac33c7fdc70c63e1ece00f4346d049a0b34854ce425422688c974325b784f891", "simhash": "1:bb13e02e463e9c7c", "word_count": 2571 }, "last_updated": "2023-07-14T20:30:26.892112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Mitchell took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. THOMAS WHEELER MYRICK, JR." ], "opinions": [ { "text": "EXUM, Justice.\nDefendant challenges the sufficiency of the state\u2019s evidence to support his conviction of felonious breaking and the adequacy of the trial court\u2019s instructions to the jury. We conclude that the trial court properly denied defendant\u2019s motion to dismiss for evidentiary insufficiency and that the jury was adequately instructed.\nThe state\u2019s evidence at trial tended to show the following:\nArthur Glidden managed the Ocean Islands Gas and Grill, Inc. in Kill Devil Hills, North Carolina. On 6 March 1979 defendant was helping Glidden lock up the store at 10 p.m. Although defendant was not at that time working for Glidden, he had done so in the past. Defendant had opened the grill for Glidden that morning because Glidden had taken his mother to the hospital. Glidden put the receipts for the day in a moneybag and placed it under the counter. Glidden locked the back door by pushing the button on the doorknob and by placing a two-by-four brace under the doorknob. He and defendant were the only people in the area. Within the next few minutes Glidden found the door unlocked three times; he re-locked the door each time it Was unlocked. When he and defendant left the grill shortly after 10 p.m., the back door was locked and the brace was in place. Glidden locked the front door as they left.\nDefendant was staying in a room in Glidden\u2019s home at the time, but he did not ride home with Glidden that evening. Glidden went to sleep shortly after reaching home. Defendant awakened him during the early morning hours of 7 March with a request to borrow his car. Defendant said he wanted to get something to eat and that his own car was not functioning correctly. Glidden told him his car keys were in his pants pocket. Also in his pants pocket were a second set of keys to the grill. Sometime later that morning Glidden awoke and found defendant had returned; defendant told Glidden he had gotten something to eat.\nGlidden opened the grill about 5:30 a.m. on 7 March. He noticed the back door was ajar approximately one to two inches. A metal rod protruded underneath the door. The two-by-four brace was still in place. Glidden notified the police; he then checked the previous day\u2019s receipts and found them to be $80 short. Glidden also stated that after a hearing in district court defendant came by his grill and told him \u201che was sorry and that he wanted me to know that he had broke into the place and he said he didn\u2019t do it to me or against me.\u201d\nOfficer James Gradeless of the Kill Devil Hills Police Department responded to Glidden\u2019s call on 7 March. At the grill he noted that the rod inserted under the door was a concrete reinforcement rod about 36 or 40 inches long. It protruded inside the grill approximately 12 to 18 inches. The door had been beaten, which caused indentations in the wood of the door and the doorjamb. The door \u201cwas ajar enough so that the bolt [the part of the lock that extends into the doorjamb] was out of the assembly to the jamb, not much more than that.\u201d He found a piece of channel lock pliers about 15 to 18 feet from the door. There were a set of footprints leading from the back door to a set of tire tracks, along which he found another piece of the pliers. An impression made from the footprints was examined by an expert from the State Bureau of Investigation and found to match a pair of defendant\u2019s tennis shoes. Expert testimony also indicated that the indentations on the door and doorjamb had been made by a rounded tool such as the pliers. A metallic flake from the pliers was found imbedded in the wood around the door.\nDefendant told the investigating officers that he had gone out in Glidden\u2019s car to get something to eat and had gotten stuck in sand. He said he used a jack and some pliers to free the car. He had borrowed the pliers from a Pizza Hut and had attempted to borrow other tools from a 7-Eleven. Employees from both businesses testified that defendant had asked to borrow tools between midnight and 2 a.m. on 7 March. Defendant told the police that while attempting to extricate the car he had broken the pliers and had thrown them into some nearby brush in a fit of anger. After he got the car unstuck he returned home and went to bed.\nThe state offered additional evidence that tended to show that the sandy area where defendant said he had been stuck showed no signs of a vehicle having been there. The Pizza Hut and 7-Eleven were about five miles from where defendant said he had been stuck. That place was about one-fourth to one-half mile from where Glidden lived and about one-fourth mile from the grill. The channel lock pliers were found in a place different from where defendant said he had gotten stuck.\nDefendant presented no evidence.\nDefendant asserts in his first assignment of error that the evidence of a breaking was insufficient to allow the case to be submitted to the jury. Thus, he contends, the trial court erred in failing to grant his motion to dismiss at the close of all the evidence.\nThe test of the sufficiency of the evidence in a criminal case is whether there is substantial evidence of all the material elements of the offense charged and that the defendant was the perpetrator of the offense. State v. Locklear, 304 N.C. 534, 538, 284 S.E.2d 500, 502 (1981); State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). As stated in Powell, id. at 99, 261 S.E.2d at 117:\nThe evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.\nDefendant concedes that there was sufficient evidence \u201cto identify him as the perpetrator of the crime.\u201d He contends, however, that the evidence was insufficient as a matter of law to support a finding that a breaking had occurred because the two-by-four brace was still in place.\nGeneral Statute 14-54(a), the statute which defines the offense for which defendant was charged, provides: \u201cAny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.\u201d (Emphasis supplied.) Thus, by the disjunctive language of the statute, the state meets its burden by offering substantial evidence that defendant either \u201cbroke\u201d or \u201centered\u201d the building with the requisite unlawful intent. The state need not show both a breaking and an entering. State v. Jones, 272 N.C. 108, 157 S.E.2d 610 (1967); State v. Barnett, 41 N.C. App. 171, 254 S.E.2d 199 (1979).\nIn the instant case there is substantial evidence of at least a breaking. The door had been opened from one to two inches, and the bolt had been dislodged from its locked position. \u201cA breaking in the law of burglary constitutes any act of force, however slight, \u2018employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.\u2019 \u201d State v. Jolly, 297 N.C. 121, 127-28, 254 S.E.2d 1, 5-6 (1979) (quoting State v. Wilson, 289 N.C. 531, 539, 223 S.E. 2d 311, 316 (1976) and 13 Am. Jur. 2d, Burglary \u00a7 8 (1964)). Thus, this Court has held that \u201c[t]he breaking of the store window, with the requisite intent to commit a felony therein, completes the offense even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building.\u201d State v. Jones, supra, 272 N.C. at 109, 157 S.E. 2d at 611. Thus, the dislocation of the door from its locked position was a sufficient breaking even if defendant did not otherwise enter the building.\nThe state also has offered substantial evidence that defendant possessed the requisite intent to commit larceny, charged by the indictment, when he broke into the grill. His intent \u201cmay be inferred from the circumstances surrounding the occurrence.\u201d State v. Thorpe, 274 N.C. 457, 464, 164 S.E. 2d 171, 176 (1968). Without other explanation for breaking into the building or a showing of the owner\u2019s consent, intent may be inferred from the circumstances. State v. Accor, 277 N.C. 65, 175 S.E. 2d 583 (1970).\nIn the instant case the state offered evidence that defendant was aware that the day\u2019s receipts were hidden under a counter in the grill. There was evidence that defendant had unlocked the back door to the grill several times while assisting the manager in locking up. Defendant offered no explanation for breaking into the grill, nor did he offer evidence that he was acting with the manager\u2019s consent. Thus, there was substantial circumstantial evidence from which the jury could infer that defendant broke into the grill with the intent to commit larceny.\nDefendant assigns error to several portions of the trial court\u2019s instructions to the jury. First, he asserts that the trial court erred in its charge that \u201cforcing of the door out of its locked position would be a breaking\u201d and that the jury could find him guilty if they found beyond a reasonable doubt that defendant \u201cforced open a locked door\u201d with the intent to commit larceny. These instructions were a correct statement of the law regarding a breaking. See State v. Jolly, supra, 297 N.C. at 127-28, 254 S.E. 2d at 5-6.\nSecond, defendant asserts error in the trial court\u2019s explanation of the element of the intent to commit larceny. The court correctly told the jury that in order to find defendant guilty they must find beyond a reasonable doubt \u2018\u2019that at the time of the breaking or entering the defendant intended to commit larceny.\u201d See State v. Jones, 264 N.C. 134, 141 S.E. 2d 27 (1965). It also correctly defined the elements of larceny when it stated, \u201c[L]arceny is the taking and carrying away of the personal property of another, without his consent, and with the intent to deprive him of its possession permanently.\u201d See, e.g., State v. Carswell, 296 N.C. 101, 249 S.E. 2d 427 (1978). See also N.C.P.I.-Crim. 214.30. Thus, this assignment of error is without merit.\nNext, defendant argues that the trial court erred by failing to instruct on an attempted breaking. As stated in State v. Simpson, 299 N.C. 377, 381, 261 S.E. 2d 661, 663 (1980):\nThe trial court is required to submit lesser included degrees of the crime charged in the indictment when and only when there is evidence of guilt of the lesser degrees. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Carnes, 279 N.C. 549, 184 S.E. 2d 235 (1971). The presence of such evidence is the determinative factor. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show the commission of a crime of lesser degree, the principle does not apply and it would be erroneous for the court to charge on the unsupported lesser degree. State v. Griffin, supra; State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971); State v. Manning, 221 N.C. 70, 18 S.E. 2d 821 (1942).\nHere all the evidence shows a completed breaking. There is no evidence of an attempt to break. Therefore failure to instruct on attempt to break was not error.\nDefendant also asserts that the trial court failed to instruct on what would not be a breaking. Since all the evidence shows a completed breaking and there is no version of the evidence which, if believed, would constitute something short of a breaking, this assignment of error has no merit.\nFinally, defendant presents several questions regarding the proof and instructions on entering. Specifically, he contends that the evidence offered by the state is insufficient to show an entry and that the trial court erred in its charge on what would constitute an entry, in refusing to instruct on attempted entry, and in failing to instruct on what would not constitute an entry.\nThe jury specified that it found defendant \u201c[g]uilty of felonious breaking and entering.\u201d Under our statute, as already demonstrated, the state need only prove a breaking. We have found that the state offered substantial evidence of felonious breaking, and that the jury was properly instructed. Thus, we do not address defendant\u2019s contentions regarding an entry because any error would perforce be harmless.\nNo error.\nJustice Mitchell took no part in the consideration or decision of this case.\n. Defendant does not contest the fact that a building, as defined in G.S. 14-54(c), was the object of the breaking.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Evelyn M. Coman, Associate Attorney, for the state.", "Steven D. Michael, attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THOMAS WHEELER MYRICK, JR.\nNo. 68A81\n(Filed 2 June 1982)\n1. Burglary and Unlawful Breakings \u00a7 5.9\u2014 breaking or entering and larceny \u2014 sufficiency of evidence\nThe evidence was sufficient under G.S. 14-54(a) to find defendant guilty of felonious breaking of business premises where the evidence tended to show that defendant had helped the owner of the business premises close the store; that several times before leaving the owner had to relock the back door; that the defendant was aware that the day\u2019s receipts were hidden under a counter; that the door to the business had been opened from one to two inches, and the bolt had been dislodged from its locked position; and that defendant offered no explanation for breaking into the grill, nor did he offer evidence that he was acting with the manager\u2019s consent.\n2. Burglary and Unlawful Breakings \u00a7 6\u2014 breaking or entering and larceny instructions proper\nIn a prosecution for breaking or entering, the trial court properly instructed the jury concerning the elements of larceny, the element of the intent to commit larceny, what constitutes a breaking, what would constitute an entry, and the trial court properly failed to instruct on an attempted breaking and on what would not be a breaking.\nJustice Mitchell took no part in the consideration or decision of this case.\nBEFORE Judge James C. Davis, presiding at the 19 September 1979 Criminal Session of Dare Superior Court, defendant was found guilty of felonious breaking. He was sentenced to six to ten years imprisonment. Defendant gave notice of appeal on 21 September 1979 but withdrew that appeal in open court accompanied by counsel. On 2 February 1980 he filed a pro se motion for appropriate relief, alleging that he had never been told he had the right to appointed counsel for his appeal. On 14 April 1980 Judge Wood appointed counsel to prepare a petition for writ of certiorari to the Court of Appeals. That writ was denied on 24 July 1980, and defendant petitioned this Court for a writ of cer-tiorari. We granted the writ on 2 December 1980, and the case was argued on 15 October 1981.\nRufus L. Edmisten, Attorney General, by Evelyn M. Coman, Associate Attorney, for the state.\nSteven D. Michael, attorney for defendant appellant." }, "file_name": "0110-01", "first_page_order": 138, "last_page_order": 145 }