State v. Johnson. (Lawyers Weekly No. 10-07-1174, 11 pp.) (Sanford L. Steelman Jr., J.) Appealed from Washington County Superior Court. (Quentin T. Sumner, J.) N.C. App. Click here for the full text of the opinion.
Holding: The state contends that, when they walked past the victim’s house and stopped to talk to the victim four days before the shooting incident, defendant and his accomplice were “casing the joint” so they could rob it. The state’s evidence does no more than raise a suspicion that defendant and his accomplice intended to rob the victim; therefore, the trial court erred when it denied defendant’s motion to dismiss the charge of attempted armed robbery.
We reverse defendant’s conviction of attempted armed robbery. We vacate the felony entering conviction and remand for entry of judgment on misdemeanor entering. We find no error in defendant’s conviction of discharging a firearm into an occupied dwelling inflicting serious injury.
Where the predicate felony for defendant’s conviction of felony entering was attempted robbery, but where the jury necessarily found that the state had proven all of the elements of felony entering, we remand for entry of judgment on the lesser included offense of misdemeanor entering.
Even though defendant’s accomplice was able to momentarily force his gun into the house as the victim was trying to close the door, the evidence showed that the accomplice pulled the gun back outside as the door closed. The accomplice then shot through the door, wounding the victim. Thus, convictions of misdemeanor entering and discharging a firearm into an occupied dwelling are not mutually exclusive.
It is true that entering through an unlocked door onto the porch of a house is sufficient to show a breaking and entering. Defendant’s accomplice fired through the door into the victim’s residence. Whether he was standing on the porch or in the yard, his actions created the same sort of danger to the occupants of the victim’s dwelling.
Further, the evidence shows that the victim considered the interior of his home a separate and more protected area than his screened-in porch. There was a deadbolt lock on the door between the victim’s porch and his home. We hold that defendant and his accomplice were not in the victim’s dwelling when standing on his screened-in porch for purposes of the offense of discharging a firearm into an occupied dwelling.