{ "id": 4684833, "name": "STATE OF NORTH CAROLINA v. EDDIE LEWIS SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1984-06-05", "docket_number": "No. 66A84", "first_page": "145", "last_page": "150", "citations": [ { "type": "official", "cite": "311 N.C. 145" } ], "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": "310 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": -1 }, { "cite": "65 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525816 ], "year": 1984, "opinion_index": -1, "case_paths": [ "/nc-app/65/0770-01" ] }, { "cite": "223 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "316" }, { "page": "316" } ], "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "538" }, { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "310 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "117" }, { "page": "118", "parenthetical": "Johnson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525816 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "773" }, { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0770-01" ] } ], "analysis": { "cardinality": 544, "char_count": 11247, "ocr_confidence": 0.796, "pagerank": { "raw": 1.670820711483089e-07, "percentile": 0.6959351684210161 }, "sha256": "6b094a28cb2d4fa3ad95b8d65476106beb850d8494a2b72ea0595f0145093184", "simhash": "1:027d2ff26344c25b", "word_count": 1868 }, "last_updated": "2023-07-14T21:17:48.934020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. EDDIE LEWIS SMITH" ], "opinions": [ { "text": "EXUM, Justice.\nThe sole issue before the Court is whether the evidence is sufficient to support defendant\u2019s guilt of first degree burglary on a theory of constructive breaking \u2014 the only theory upon which the trial court instructed. Defendant contends the evidence supports defendant\u2019s guilt of this crime, if at all, only upon the theory that he acted in concert with others, a theory upon which the trial court did not instruct. We conclude, as did the Court of Appeals, that the evidence supports a constructive breaking theory, but our reasoning in support of that conclusion differs from the reasoning of the Court of Appeals. We therefore modify and affirm.\nI.\nOn 9 February 1982 defendant and John Richardson visited Jerome Chavis at Chavis\u2019s house. Richardson, testifying for the state, indicated that during this visit, defendant went to the bathroom and told Richardson afterwards that he had opened the bathroom window. The two left, went to defendant\u2019s house, and entered an automobile driven by Erick Kea. They drove by Chavis\u2019s house and defendant told Kea to stop. Defendant produced keys, which he apparently had obtained while in Chavis\u2019s house, and tried unsuccessfully to open the trunk of Chavis\u2019s car. Kea made a similar effort and succeeded in opening the trunk. They removed two tool boxes from the car.\nDefendant then attempted to open the door to Chavis\u2019s house. When he was unsuccessful, he remembered that he had opened the bathroom window. At defendant\u2019s direction, Richardson, with a boost from both defendant and Kea, crawled through the bathroom window and proceeded through the house to open the front door. Kea and defendant entered Chavis\u2019s house after Richardson opened the door. The three men searched the house, taking various items. During this episode, one of them dropped an item which awakened Chavis. At this point, defendant, Richardson, and Kea ran from Chavis\u2019s house.\nDefendant was indicted for and convicted of first degree burglary, breaking or entering a motor vehicle, and larceny. He and Kea were tried jointly, but only defendant is a party to this appeal. Richardson pled guilty to a lesser offense and testified against defendant and Kea.\nThe Court of Appeals reversed defendant\u2019s convictions for breaking or entering a motor vehicle and larceny. It held that the trial court\u2019s failure to give acting in concert instructions with regard to these two charges was fatal, since the state\u2019s evidence failed to show that defendant personally broke or entered the motor vehicle or took and carried away any of Chavis\u2019s property. These holdings are not before us for review. With regard to the first degree burglary conviction, the majority of the Court of Appeals held that \u201cdefendant\u2019s act of procuring and using Richardson to open the door constituted a constructive breaking, obviating any need for instructions on acting in concert. . . .\u201d Judge Johnson dissented on that issue, and defendant appeals this aspect of the decision. N.C. R. App. P. 16(b).\nII.\nDefendant\u2019s contention on appeal is that the evidence was insufficient to support his conviction for first degree burglary on the theory of a constructive breaking and the trial court erred in submitting this theory to the jury. Defendant argues defendant could be found guilty only on a theory of acting in concert which the trial court did not submit.\nTo establish defendant\u2019s guilt of first degree burglary, the state must prove, beyond a reasonable doubt, that defendant broke and entered an occupied dwelling or sleeping apartment with intent to commit a felony therein during the night. N.C. Gen. Stat. \u00a7 14-51. A \u201cbreaking\u201d is an essential element of first degree burglary. State v. Wilson, 289 N.C. 531, 538, 223 S.E. 2d 311, 316 (1976). The trial court instructed the jury regarding a constructive breaking as follows:\nNow, I charge that for you to find the defendant, Eddie Lewis Smith, or the defendant, Erick George Kea, guilty of burglary in the first degree the State must prove seven things beyond a reasonable doubt, and that is as to each defendant.\nFirst, that there was a breaking by the defendant. Now, a breaking need not be actual. That is, the person breaking need not physically remove the barrier himself. Going through the front door of Mr. Chavis\u2019 home after it was opened by Tommy Richardson would be a constructive breaking, and such a constructive breaking is as sufficient as a breaking \u2014 is sufficient as a breaking for the purpose of this offense as any physical removal by the defendant of a barrier to entry.\nThe Court of Appeals found this instruction sufficient in its statement of the applicable law. State v. Smith, 65 N.C. App. at 773, 310 S.E. 2d at 117.\nThe law regarding constructive breakings was explicated by this Court more than 130 years ago.\nConstructive breaking, as distinguished from actual forcible breaking, may be classed under the following heads:\n1. When entrance is obtained by threats, as if the felon threatens to set fire to the house unless the door is opened.\n2. When, in consequence of violence commenced or threatened in order to obtain entrance, the owner, with a view more effectually to repel it, opens the door and sallies out, and the felon enters.\n3. When entrance is obtained by procuring the servants or some inmate to remove the fastening.\n4. When some process of law is fraudulently resorted to for the purpose of obtaining an entrance.\n5. When some trick is resorted to to induce the owner to remove the fastening and open the door, and the felon enters; as, if one knock at the door, under pretense of business, or counterfeits the voice of a friend, and, the door being opened, enters.\nIn all these cases, although there is no actual breaking, there is a breaking in law or by construction; \u2018for the law will not endure to have its justice defrauded by such evasions.\u2019 In all other cases, when no fraud or conspiracy is made use of or violence commenced or threatened in order to obtain an entrance, there must be an actual breach of some part of the house.\nState v. Henry, 31 N.C. (9 Ire.) 463, 467-68 (1849). Accord Wilson, 289 N.C. at 539-40, 223 S.E. 2d at 316.\nIn applying this statement of the law to the facts here, the Court of Appeals determined that defendant constructively broke into the Chavis home by having Richardson enter the house through the open bathroom window and open the front door for defendant. The majority of the Court of Appeals felt that this action fell within the third type of constructive breaking outlined in Henry. In essence, that court concluded that Richardson was \u201csome inmate\u201d who removed the fastening to Chavis\u2019s front door. As Judge Johnson stated in his dissent, Richardson cannot be considered an \u201cinmate\u201d of the Chavis home within the ordinary meaning of the word. Smith, 65 N.C. App. at 775, 310 S.E. 2d at 118 (Johnson, J., dissenting). Although we disagree with the analysis employed by the majority below, we are convinced that the facts involved in this case are sufficient to establish a constructive breaking by defendant.\nIn general, a constructive breaking is \u201c[a] breaking made out by construction of law . . . [a]s where a burglar gains an entry into a house by threats, fraud, or conspiracy.\u201d Black\u2019s Law Dictionary 284 (5th ed. 1979). Contrary to defendant\u2019s contention, the list of five types of possible constructive breakings contained in Henry is not exhaustive but illustrative. The list provides merely a series of examples which illustrate certain general types of fact situations that might give rise to a constructive breaking, i.e., a breaking in law. A constructive breaking in the law of burglary occurs, quite simply, \u201c[w]hen an opening is made not by the defendant but by . . . some other person and, under the circumstances, the law regards the defendant as the author thereof. ...\u201d 3 C. Torc\u00eda ed. Wharton\u2019s Criminal Law \u00a7 330 at 200 (14th ed. 1980). See W. LaFave & A. Scott, Criminal Law 708-09 (1972). A constructive breaking occurs when a \u201cconfederate within the house opens the door to admit\u201d defendant. R. Perkins, Criminal Law 195 (2d ed. 1969). The \u201cconfederate\u201d or \u201cother person\u201d who actually creates the opening need not be an \u201cinmate,\u201d or someone who regularly resides in the dwelling. It is enough if that person is acting at the direction, express or implied, of defendant, or is acting in concert with defendant, or both.\nRichardson testified that defendant told him that he had opened the bathroom window in Chavis\u2019s house. When the three men were unsuccessful in their efforts to use a key to open the front door to Chavis\u2019s house, defendant instructed Richardson to go through the open bathroom window and unlock the front door. Richardson accomplished this task, aided in part by a boost up to the window by defendant and Kea. These facts clearly disclose an opening made by a person other than defendant under defendant\u2019s direction. They support the trial court\u2019s instruction on constructive breaking.\nAccordingly, we modify the reasoning of the Court of Appeals and affirm its conclusion that the evidence supports a finding of defendant\u2019s guilt on a theory of constructive breaking by \u201cprocuring and using Richardson to open the door . . . obviating the need for instructions on acting in concert. . . .\u201d The decision of the Court of Appeals, affirming defendant\u2019s conviction of first degree burglary, is\nModified and affirmed.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Marilyn R. Rich, Assistant Attorney General, for the State.", "Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDDIE LEWIS SMITH\nNo. 66A84\n(Filed 5 June 1984)\n1. Burglary and Unlawful Breakings \u00a7 1.2\u2014 constructive breaking \u2014 door opened by another\nA constructive breaking occurs when a \u201cconfederate\u201d within the house opens the door to admit defendant. The \u201cconfederate\u201d or \u201cother person\u201d who actually creates the opening need not be an \u201cinmate\u201d or someone who regularly resides in the dwelling, but it is enough if that person is acting at the direction, express or implied, of defendant, or is acting in concert with defendant, or both.\n2. Burglary and Unlawful Breakings \u00a7 5\u2014 first degree burglary \u2014 constructive breaking \u2014 sufficiency of evidence\nThe evidence supported a verdict finding defendant guilty of first degree burglary on a theory of constructive breaking by procuring and using another person to open the door where it tended to show that defendant had opened the bathroom window of the victim\u2019s house when he visited the victim earlier on the night of the crime; when defendant and two companions were unsuccessful in their efforts to use a key to open the front door of the victim\u2019s house, defendant instructed one companion to go through the bathroom window and unlock the front door; and the companion accomplished this task, aided in part by a boost up to the window by defendant and the second companion.\nDefendant appeals a decision by a divided panel of the Court of Appeals, 65 N.C. App. 770, 310 S.E. 2d 115 (1984), affirming a judgment imposed on defendant\u2019s conviction of first degree burglary by Judge James D. Llewellyn presiding during the 19 April 1982 Session of the New HANOVER County Superior Court.\nRufus L. Edmisten, Attorney General, by Marilyn R. Rich, Assistant Attorney General, for the State.\nAdam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., for defendant appellant." }, "file_name": "0145-01", "first_page_order": 189, "last_page_order": 194 }