State v. Edwards
State v. Edwards
Concurring in Part
concurring in part; dissenting in part.
I concur with that portion of the majority opinion which finds no error in defendant’s convictions. However, I respectfully dis
The indictment charging defendant with first degree burglary charged that defendant broke into and entered the victim’s motel room in the nighttime, while it was occupied, with the felonious intent to commit larceny. The trial court instructed the jurors that they must find that defendant intended to commit larceny at the time of the breaking or entering. The use of a deadly weapon is not an element of larceny; evidence of defendant’s possession or use of the deadly weapon was not necessary to prove the element, essential for conviction of first degree burglary, of defendant’s felonious intent.
The majority further states that defendant’s possession or use of the weapon was essential to prove the necessary elements of a breaking and an entry. I disagree. As pointed out in the majority opinion, a breaking may be actual or constructive; a constructive breaking may occur when some trick, such as knocking at the door, is used to induce the occupant to open the door in order for the accused to gain entry. State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976). A constructive breaking may also occur when violence, or threat thereof, is employed in order for the accused to gain entry. State v. Jolly, 297 N.C. 121, 254 S.E. 2d 1 (1979). The evidence in the case sub judice tended to show that the victim was induced to open the door by defendant’s pounding on it. After the door was opened, the defendant continued his artifice by holding up a key and telling the victim that he had left his key in the door. While doing so, defendant approached the victim, pushed him, pointed a pistol at him and backed him into the room. The evidence of defendant’s possession and use of the firearm, while certainly relevant to show the degree of violence threatened by defendant, was not essential to prove the breaking as there was other evidence of trick (knocking on the door and representing that the victim had left his key in the door) and violence (pushing the victim) sufficient to prove a constructive breaking. Since the element of entry is satisfied by proof of “the least entry with the whole or any part of the body ... for the
In my view, the evidence of defendant’s possession and use of the firearm at the time of the commission of the first degree burglary was not necessary to prove any element of that offense and was properly considered as an aggravating factor. See State v. Toomer, 311 N.C. 183, 316 S.E. 2d 66 (1984) (defendant convicted of first degree burglary, first degree sexual offense and robbery with a firearm; although use of firearm was necessary to prove essential element of joinable offense, possession of the weapon was not essential element of first degree burglary and was properly considered as a factor in aggravation of punishment for that offense); State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983) (defendant convicted of first degree rape, first degree sexual offense and first degree burglary; court properly found possession of weapon as factor in aggravation of the sentence for first degree burglary).
As long as they are not elements essential to the establishment of the offense ... all circumstances which are transac-tionally related to the . . . offense and which are reasonably related to the purposes of sentencing must be considered during sentencing. [Citations omitted.]
State v. Melton, 307 N.C. 370, 378, 298 S.E. 2d 673, 679 (1983).
Opinion of the Court
Defendant first argues that the first degree burglary charge should have been dismissed because the State’s evidence failed to show a breaking and entering of the dwelling involved. G.S. 14A-51. We disagree. A burglarious breaking and entering can be
But defendant’s contention that the trial court erred in sentencing him on the first degree burglary conviction by considering as a factor in aggravation that defendant used a deadly weapon is well taken. G.S. 15A-1340.4(a)(l) provides that “[evidence necessary to prove an element of the offense may not be used to prove any factors in aggravation”; and if the evidence that defendant used a deadly weapon was removed from the record the State would have failed to prove not one but three elements of the burglary. That defendant broke into and entered the motel room was proved only by evidence that he pointed a gun at Gissing’s head and drove him into the room; and the only felony that defendant intended to commit therein, according to the evidence, was armed robbery. Thus, the judgment imposed on the first degree burglary conviction must be vacated and the matter remanded for re-sentencing on that offense.
Defendant’s several other contentions — that the evidence was insufficient to warrant his conviction of robbery with a dangerous weapon; that the trial court erred in admitting into evidence the in-court identification of defendant by Carl Mann; and that he was denied effective assistance of counsel — are all manifestly without merit and require no discussion.
No error in the convictions; remanded for re-sentencing.
Reference
- Full Case Name
- STATE OF NORTH CAROLINA v. WILLIE LEE EDWARDS
- Cited By
- 2 cases
- Status
- Published