Before Judge Donald L. Smith at the 16 May 1977 Session of Halifax Superior Court and on bills of indictment proper in form defendants were tried and convicted of first degree burglary and felonious larceny. Each defendant was sentenced to imprisonment for life on the burglary conviction and imprisonment for ten years on the larceny conviction to run concurrently with the life sentence. Defendants appeal pursuant to G.S. 7A-27(a). We permitted initial review of the larceny conviction pursuant to G.S. 7A-31(a). The case was docketed and argued as No. 5 at the Spring Term 1978.
Exum, Justice. Justice Brock took no part in the consideration or decision of this case. Justice Huskins dissenting as to defendant Lyles. Justice Carlton joins in the dissenting opinion.
Defendants' principal assignment of error challenges the trial court's denial of their motion to dismiss at the close of the state's evidence. We hold that the evidence was sufficient to go to the jury as to defendant Rose but not as to defendant Lyles. With regard to the remaining points raised, we hold: (1) there was no error in the consolidation of the trials of the two defendants; (2) the trial court did not err to defendant Rose's prejudice in its rulings on the evidence; (3) defendant Rose had no standing to object to a search of defendant Lyles' car; and (4) the trial court did not err in giving the jury additional instructions requested by the state.
The state's evidence showed that E. L. Johnson was working as a night auditor at the Howard Johnson's Motel in Roanoke Rapids on the morning of 24 February 1977. Around 2:30 a.m. he heard someone fumbling with the knob of the door outside his office. Thinking it was a guest seeking admission, Johnson went over, pulled back a curtain, and motioned for the man to come to the front door. When the man saw Johnson he whirled and ran away. Johnson identified the man he saw as defendant Rose.
Johnson then called the police. Officers Whitton and Bobbitt arrived within four to five minutes after his call. Johnson described the man he had seen to them. Upon searching the area they did not find the man he described, but they did find the doors to two motel rooms ajar. Room 206 turned out to be unoccupied. Room 204 was occupied by Mr. Cecil Coletrain. After some difficulty, the officers managed to awaken him about 4:00 a.m. Coletrain was missing $140.00, which he had laid on a table in the room before going to bed. He had locked his door before retiring. He did not know either defendant and had not given either of them permission to enter his room.
Officer Whitton stated that there were no physical signs of forced entry on the door to Coletrain's room. He also testified: "I drove through the motel lot two more times that night and made a visual check of the premises. We looked at each individual car on the lot. We found some to be locked and some to be unlocked, but none appeared to have been tampered with. I know that Douglas [Lyles] drives a 1967 Chevrolet Malibu station wagon. I did not see that automobile during the periodic checks that I made throughout the night."
About 5:30 a.m. Johnson called Mr. Al Matta, manager of the motel. Johnson told Matta about the break-in and described the man he had seen. Matta came to the motel about 6:15 a.m. and walked around it. He saw a car parked in the laundry room area where usually none were parked. He started toward the office to see if the car was registered and was interrupted by a guest seeking directions. When he returned to look at the car he came within ten feet of it and saw two men sitting inside. He recognized the passenger as looking like the man Johnson had described to him. Matta apparently looked away and when he looked back the passenger was down in the front seat out of sight. The
car then backed out and started away. Matta identified the driver as defendant Lyles and the passenger as defendant Rose.
Mr. G. C. Southerland was also a guest at the motel, staying in Room 413. He discovered shortly after he awoke around 7:00 a.m. on 24 February 1977 that he was missing a watch, some jewelry and $75.00 to $80.00. He then noticed his door was slightly ajar. He did not otherwise notice the condition of the door. Southerland stated he had closed and locked the door before going to bed. He did not know either Lyles or Rose and had not given them permission to enter his room.
Danny Rogers, a Roanoke Rapids police officer, found a car fitting the description of the one seen by Matta around noon on 24 February 1977. The car was parked at Walser Motor Company where defendant Lyles worked. It was registered to him. Matta identified it as the car he had seen. At approximately 3:30 p.m. the police searched the car and found, among other things, a bedspread and a key. The bedspread was similar in color, design and shape to those used at Howard Johnson's, but it was not positively identified as being from there.
The key was behind a "kick panel" on the passenger side of the car. Matta identified it as a motel master key. It was tried on the doors of the rooms broken into, and it opened them.
Defendants offered no evidence. At the close of the state's evidence, they made a motion to dismiss for insufficiency of the evidence to sustain a conviction. This motion was allowed as to the charges arising out of the alleged Southerland burglary and theft and denied as to the charges arising out of the alleged Coletrain burglary and theft.
We deal at the outset with defendants' contention that their motions to dismiss should have been allowed as to all the charges. Defendants concede there was sufficient evidence to establish the commission of the crimes charged. They argue, however, that the evidence was insufficient to identify them as the perpetrators.
The case against these defendants consists of circumstantial evidence. The test of the sufficiency of the evidence to go to the jury in such a case was stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383-84, 93 S.E.2d 431, 433-34 (1956):
"Taking the evidence in the light most favorable to the State, if the record . . . discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this court must affirm the trial court's ruling on the motion. The rule for this and for the trial court is the ...