Criminal Practice – Burglary – ‘Entry’ – Breaking or Entering – Robbery – Show-Up ID – Restitution

State v. Watkins (Lawyers Weekly No. 12-07-0070, 29 pp.) (Douglas McCullough, J.) Appealed from Mecklenburg County Superior Court. (Yvonne Mims Evans, J.) N.C. App. Click here for the full-text opinion.

Holding: Where the state showed only that the butt of a shotgun entered the victim’s home as it broke a window – after which defendant heard the victim inside the home and ran away – the state failed to show the “entry” required to convict defendant of first-degree burglary.

However, in convicting defendant of burglary, the jury necessarily found all the elements of felonious breaking or entering.

We vacate defendant’s conviction of first-degree burglary and remand for entry of judgment on a conviction of felonious breaking or entering. We find no error in defendant’s convictions of conspiracy to commit first-degree burglary, possession of a weapon of mass destruction, common law robbery, and first-degree kidnapping.

Even though the second victim (Victor Smith) was still physically present in his car after defendant pointed a BB gun pistol at Smith, got into the passenger seat, and ordered Smith to drive, defendant’s actions were still sufficient to bring the car under his sole control. The state presented sufficient of a taking to go to the jury on the charge of common law robbery.

Where Smith had ample opportunity to view defendant at the time of the crime; there is no suggestion that Smith’s description of the robber was in any inaccurate; during the show-up, Smith stood in close proximity to defendant, and defendant was illuminated by spotlights and a flashlight; Smith said he was “sure” defendant was the perpetrator; and the testimony indicates that the length of time from the moment defendant approached Smith to the time Smith appeared at the show-up was relatively short, the pretrial show-up identification was not impermissibly suggestive. Since the out-of-court identification was admissible, there is no danger that it impermissibly tainted Smith’s in-court identification of defendant. Defendant failed to show plain error as to the trial court’s admission of Smith’s pretrial show-up identification of defendant.

Where the state presented evidence that Smith had recently paid $3,790 to his roommate to buy the car that defendant hijacked and wrecked, the evidence supports the trial court’s order requiring defendant to pay restitution for the car.

No error in part; remanded for judgment in part.