Matter of Mitchell , 87 N.C. App. 164 ( 1987 )

359 S.E.2d 809 (1987)

In the Matter of Tanya MITCHELL.

No. 8712DC104.

Court of Appeals of North Carolina.

September 15, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. David Gordon, Raleigh, for the State.

Asst. Public Defender Elizabeth Manton, Fayetteville, for respondent-appellant.

ARNOLD, Judge.

Respondent contends that the trial court "erred in concluding that the alleged delinquent act, burglary in the first degree, N.C.G.S. § 14-51, was proven by the State's evidence." We agree.

In order to sustain a conviction, there must be proof of every essential element of the crime charged. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The essential elements of first degree burglary include breaking and entering a dwelling at nighttime, with the intent to commit a felony therein. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976).

The felony alleged to have been intended by respondent was that of larceny. In the present case, there was no evidence that respondent intended to commit larceny. Thus, in arriving at the conclusion that respondent was guilty of first degree burglary, the trial court must have relied on the well-established McBryde presumption. McBryde held that when a party enters the dwelling of another, in the nighttime, while the inmates are asleep, the usual intent is to steal and when there is no explanation or evidence of a different intent, the fact of the nighttime entry, accompanied by flight when discovered, is some evidence of guilt and in the absence of any evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent. State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887).

There was evidence presented in the case sub judice that respondent entered the house because somebody was chasing her. This is evidence of other intent and precludes application of the McBryde inference. See State v. Moore, 62 N.C.App. 431, 303 S.E.2d 230 (1983); State v. Lamson, 75 N.C.App. 132, 330 S.E.2d 68, disc. rev. denied, 314 N.C. 545, 335 S.E.2d 318 (1985).

We find that there was insufficient evidence to sustain a verdict of first degree burglary. However, there was ample evidence that respondent was guilty of the lesser included offense of misdemeanor breaking or entering under G.S. 14-54(b). The felony charge must be stricken and the case remanded for resentencing on the lesser-included offense of misdemeanor breaking or entering. See State v. Hankins, 64 N.C.App. 324, 307 S.E.2d 440 (1983), aff'd per curiam, 310 N.C. 622, 313 S.E.2d 579 (1984).

Respondent next contends that the trial court erred in failing to state the standard of proof used in making the determination of delinquency as required by G.S. 7A-635, G.S. 7A-637 and the North Carolina and United States Constitutions. We disagree.

G.S. 7A-635 states that "(t)he allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt." G.S. 7A-637 provides that "(i)f the judge finds that the allegations in the petition have been proved as provided in G.S. 7A-635, he shall so state." (Emphasis added.) The statutory use of the word "shall" mandates trial judges to affirmatively state that the reasonable doubt standard was followed. In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984). Failure of the trial judge to follow the clear mandate of the statute is error. Id.; In re Johnson, 76 N.C.App. 159, 331 S.E.2d 756 (1985).

The crux of respondent's contention is that, at the time of the hearing, the trial judge did not mention the reasonable standard of proof required by statute. In the order entered on 20 November 1986, however, the trial court stated that after hearing all of the evidence it found "the allegations to be true beyond a reasonable doubt." This was sufficient to satisfy the requirement in G.S. 7A-635 and G.S. 7A-637. Respondent's contention on this matter is without merit.

Remanded.

JOHNSON and PARKER, JJ., concur.