State v. Costigan

276 S.E.2d 467 (1981)

STATE of North Carolina v. Sean Peter COSTIGAN.

No. 8010SC1043.

Court of Appeals of North Carolina.

April 7, 1981.

*468 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Gordon, Raleigh, for the State.

William A. Smith, Jr., Raleigh, for defendant-appellant.

ROBERT M. MARTIN, Judge.

By his appeal, defendant challenges the sufficiency of the evidence to justify submission to the jury of the issue of felonious breaking and entering in violation of N.C. Gen.Stat. § 14-54(a). More specifically, the defendant argues that the State failed to present sufficient evidence of an essential element of the crime as charged, i. e., an intent to commit larceny. We disagree.

N.C.Gen.Stat. § 14-54(a) makes it a crime to break or enter any building "with intent to commit ... larceny therein." An essential element of the crime is the specific intent to steal existing at the time of the breaking or entering. State v. Hill, 38 N.C.App. 75, 247 S.E.2d 295 (1978). After examining the evidence in the record, considering it, as we must, in the light most favorable to the State, State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971), we conclude that the State presented substantial evidence of defendant's intent to commit larceny in Mrs. Kelly's home, justifying submission of the case to the jury.

Upon motion to nonsuit it is incumbent upon the trial court to consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence regardless of whether the evidence is direct, circumstantial, or both, and if there is evidence from which a jury could find that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be overruled. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). Intent is a mental attitude and can seldom be proved by direct evidence and is most often proved by circumstances from which it can be inferred. State v. Kendrick, 9 N.C.App. 688, 177 S.E.2d 345 (1970). Also in State v. Smith, 266 N.C. 747, 748-749, 147 S.E.2d 165 (1966), it was stated: "Under G.S. 14-54, if a person breaks or enters one of the buildings described therein with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent..."

State v. Harlow, 16 N.C.App. 312, 315, 191 S.E.2d 900, 902 (1972).

The State offered proof at trial that after the defendant had gained entry to the Kelly home by breaking the glass in the rear door, Mr. Long had heard the sounds of a drawer in the kitchen being opened, silverware being handled, and the drawer being closed. The defendant then had proceeded to climb the stairway leading to the bedrooms. After *469 being confronted by Mr. Long, the defendant had fled. In our opinion, this circumstantial evidence was sufficient to justify submission of the issue of defendant's intent to the jury. "The fact that the evidence is circumstantial does not make it insufficient." State v. Hill, supra at 79, 247 S.E.2d at 297. The jury may infer the requisite specific intent to commit larceny at the time of the breaking or entering from "`the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged.' 4 Strong, N.C. Index 3d, Criminal Law, § 2, p. 34." Id.

After carefully examining the record on appeal, we conclude that the defendant received a fair trial, free from prejudicial error.

No error.

MORRIS, C. J., and WHICHARD, J., concur.