State v. Hankins , 64 N.C. App. 324 ( 1983 )

WEBB, Judge.

We believe we are bound by State v. Rushing, 61 N.C. App. 62, 300 S.E. 2d 445, aff’d, 308 N.C. 804, 303 S.E. 2d 822 (1983) to hold there was not sufficient evidence that the defendant intended to commit rape at the time he entered the house for a charge of first degree burglary to have been submitted to the jury. In Rushing there was evidence that the prosecuting witness was awakened by the defendant as he came through her bedroom window. When she asked for his identity the defendant said, “Don’t holler, don’t scream, I got a gun, I’ll shoot you,” and came to the side of the bed at which time he seized the prosecuting witness’ arm. She tried to turn on the light and the defendant told her not to move. She screamed which woke her small child who also screamed. The defendant then fled. A panel of this Court held, with one dissent, and was affirmed by the Supreme Court without an opinion, that this was not sufficient evidence for the jury to find the defendant intended to commit rape when he entered the bedroom. We believe the evidence in Rushing was stronger against the defendant than it is in this case. We hold that we are bound by Rushing to hold there was insufficient evidence for the jury to find the defendant intended to rape anyone when he entered the dwelling. The State relies on State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937). We agree that under Smith there might be sufficient evidence that the defendant in this case intended to commit rape when he entered the house. Smith was not cited by this Court or the Supreme Court in their opinions. In light of our Supreme Court’s affirmation of Rushing, we do not believe we should follow Smith.

We also hold there was not sufficient evidence to submit to the jury the question whether the defendant intended to commit larceny. The State relied on State v. Simpson, 303 N.C. 439, 279 S.E. 2d 542 (1981) and State v. Redmond, 14 N.C. App. 585, 188 S.E. 2d 725 (1972) for the rule that “a reasonable inference of felonious intent may be drawn from the fact that an individual broke and entered the dwelling of another in the night.” How much validity this rule now has in light of our Supreme Court’s decision in Rushing we do not believe we have to decide. In this case we believe the manner of the defendant’s entry into the house does not give rise to an inference that he intended to commit larceny. The defendant was apparently confused when he entered the house. After Ms. Coates and Ms. Ashley left him alone he did not try to take anything. We do not believe there is a logical inference from the manner of the defendant’s entry into the house that he intended to commit larceny.

The court did not submit the first degree burglary charge on the basis of armed robbery or assault with a deadly weapon with intent to kill inflicting serious bodily injury. We do not have to determine whether there was sufficient evidence to have so submitted a charge of first degree burglary.

We believe the evidence that defendant pushed the screen door open and came into the house was evidence from which the jury could have found the defendant guilty of wrongful breaking or entry, a misdemeanor under G.S. 14-54(b). See State v. Wade, 14 N.C. App. 414, 188 S.E. 2d 714 (1972). This is a lesser included offense of first degree burglary and we remand for sentencing on that charge. See State v. Rushing, supra.

Reversed and remanded.

Judge Hedrick concurs. Judge HILL dissents.