State v. Ellis

HEDRICK, Chief Judge.

At the outset, we note that the printed record on appeal in this case was mailed from this Court on 23 February 1990. Defendant’s brief was therefore due on 26 March 1990. N.C. App. R. 13(a). On 26 March 1990, defendant’s counsel filed a motion for an extension of time to file defendant’s brief, and this Court on 27 March 1990 allowed the motion extending the time to 26 April 1990. On 24 April 1990, defendant’s counsel again filed a motion for an extension of time to file defendant’s brief. On 25 April 1990, this Court allowed the motion extending the time to 31 May 1990. Defendant’s brief was thereafter filed on 4 June 1990. Even though assignments of error were noted in the record on appeal as to each judgment in this case and there were extensions of time for filing defendant’s brief totalling sixty-five days, only one assignment of error as to one judgment has been brought forward and argued on appeal.

In the one assignment of error argued on appeal, defendant contends the trial court erred “in refusing to dismiss the charge or to set aside the verdict and in entering judgment on the conviction for breaking and entering a motor vehicle.” G.S. § 14-56 provides:

If any person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, containing any goods, wares, freight, or other thing of value, or, after having committed any felony or larceny therein, breaks out of any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind containing any goods, wares, freight, or other thing of value, that person is guilty of a Class I felony. It is prima facie evidence that a person entered in violation of this section if he is found unlawfully in such a railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft.

The evidence in this case is not sufficient to support a verdict of guilty to defendant’s having violated G.S. § 14-56. There is no evidence that defendant “broke or entered” the automobile of Margaret Rhodes with intent to commit a felony therein. All the evidence tends to show that defendant grabbed the victim and at gunpoint forced her back into her automobile, and that defendant bound her, kidnapped her, committed an armed robbery and returned the victim to the hospital parking lot. The evidence supports the convictions for second degree kidnapping and robbery with a dangerous weapon and might have supported verdicts for other offenses had they been charged, but does not support the conviction for breaking or entering a motor vehicle.

The result is that defendant had a fair trial, free from prejudicial error with respect to the convictions for second degree kidnapping and robbery with a dangerous weapon and the judgments imposing prison sentences in those cases will be affirmed; the judgment imposing a prison sentence for breaking or entering a motor vehicle will be reversed.

No error in part; reversed in part.

Judges ARNOLD and COZORT concur.