State v. Smith , 65 N.C. App. 770 ( 1984 )

Judge JOHNSON

concurring in part and dissenting in part.

I concur in the majority’s opinion in reversing defendant’s convictions for breaking or entering and larceny. I dissent in the majority’s opinion in finding no error in defendant’s conviction on the burglary charge.

Defendant argues that except under the theory of acting in concert, the evidence is insufficient to show that he committed the essential element of a breaking. In my opinion, defendant is correct. Burglary requires a breaking and entering. The State’s evidence shows only that the defendant, with intent to commit a felony in violation of G.S. 14-54, entered the Chavis’ home through an opened door; the door having in fact been opened by Tommy Richardson, an accomplice. Where a defendant is present with another person and with a common purpose does some act which forms a part of the offense charged, the judge is required to explain and apply the law of “acting in concert.” State v. Mitchell, 24 N.C. App. 484, 211 S.E. 2d 645 (1975).

In my opinion, the majority errs in holding that the defendant constructively broke into the Chavis’ home by procuring an inmate (Richardson) of the Chavis’ home to open the door. Richardson, an accomplice, may not be properly characterized as an “inmate.” An inmate is a person who “lodges or dwells in the same house with another, occupying different rooms but using the same door for passing in and out of the house.” Black’s Law Dictionary (4th Edition, 1951). None of the evidence shows or supports the inference that, at the time in question, Richardson was “lodging” or “dwelling” within the Chavis’ home. Therefore, neither a breaking nor a constructive breaking by defendant was established by the evidence produced at trial, and consequently the trial court erred by failing to charge the jury on acting in concert. State v. Mitchell, supra; State v. Cox, 303 N.C. 75, 277 S.E. 2d 376 (1981). The only theory of defendant’s guilt that could properly be submitted to the jury on this evidence was that of acting in concert. This the trial court did not do. Nonetheless, defendant is not entitled to have the burglary conviction reversed. The State’s evidence shows that the defendant entered the Chavis’ home through an opened door with intent to commit a felony, in violation of G.S. 14-54, a lesser degree of the offense of burglary punishable by imprisonment not to exceed ten years under G.S. 14-1.1. Defendant was sentenced to a term of 15 years. Accordingly, the judgment and sentence imposed for first degree burglary should be vacated and the case should be remanded for resentencing. See State v. Cox, 281 N.C. 131, 187 S.E. 2d 785 (1972).