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North Carolina v. Pennell

Filed: October 20, 1981.

STATE OF NORTH CAROLINA
v.
MARVIN DAVID PENNELL



Appeal by defendant from Albright, Judge. Judgments entered 28 January 1977 in Superior Court, Forsyth County. Heard in the Court of Appeals 31 Auaguat 1981.

Morris, Chief Judge. Judges Clark and Wells concur.

Morris

Pursuant to this Court's 4 February 1981 order defendant's counsel on appeal has submitted an amended record which includes exceptions and assignments of error. Ten of these assignments of error have been preserved on appeal.

By his thirteenth assignment of error, which has been erroneously referred to as Assignment of Error No. 16, defendant argues that the trial court should have dismissed the charge of burglary with explosives because there was insufficient proof of the essential element of an alleged breaking. He emphasizes that the testimony merely shows that a window was found unlocked on the west side of the building. There was no evidence of a forceful breaking. A security officer at the Institute testified that he was told by a police officer soon after the explosion that the defendant entered the building through one of the windows on the east end. Officer T. L. Reavis admitted that he and Officer Charles Reavis did not check the windows before taking their respective positions in the building. When all of the evidence is considered in the light most favorable to the State and the State is given every reasonable inference to be drawn therefrom, we believe there is sufficient evidence to support the element of a breaking. Such evidence may be direct, circumstantial or both. The testimony showed that the two officers checked the building and found no one, that they locked the doors, that they later saw defendant in the building and that they observed muddy footprints on the outside and inside of a window ledge and on the floor nearby. The security officer testified that the windows were usually kept shut and locked at all times. This testimony constituted sufficient evidence from which a jury could find that defendant entered the building through an unlocked window. The North Carolina courts have held that when a person opens a closed, but not fastened window, a breaking condemned by the pertinent statute has been shown. See State v. McAfee, 247 N.C. 98, 100 S.E.2d 249 (1957); State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823 (1971).

In Assignment of Error No. 17 defendant argues that the trial court expressed an opinion in its jury charge by unduly emphasizing the State's contentions while downplaying those of defendant, thus requiring a new trial. We have carefully reviewed

this portion of the charge and fail to see how it could constitute an expression of opinion by the trial court. The trial court, instead, gave an accurate recapitulation of the testimony of the witnesses. At the beginning of each paragraph at issue in the charge, the court emphasized that it was charging upon either the State's or defendant's contentions. Furthermore, immediately after stating these contentions, the court informed the jury not to consider anything the court had said or done as an expression or intended expression of what their verdict should or should not be. This assignment of error is meritless.

In Assignment of Error No. 16 defendant argues that his "conviction was obtained in violation of the Constitution of the United States and of North Carolina in that the State destroyed material evidence in which may have affected the outcome of the trial, to wit: the fingerprint evidence." In support of this argument defendant cites G.S. 14-221.1 and the Jencks Act, 18 U.S.C. ยง 3500 (1979). Neither is applicable here. The uncontested testimony indicates that none of the latent fingerprints lifted at the scene was identifiable, and all of them were, therefore, thrown away. G.S. 14-221.1 provides that the destruction of evidence relevant to any criminal offense is a felony. The fingerprints at issue were unidentifiable and, thus, irrelevant. The Jencks Act applies only to criminal prosecutions brought by the United States and to statements or reports made by government witnesses.

Defendant has also assigned error to the following portion of the jury charge:

Now, members of the jury, if you do not find the defendant guilty of burglary with explosives, you must determine whether he is guilty of felonious breaking or entering. Felonious breaking or entering differs from burglary with explosives in that firstly, both a breaking and an entry are not necessary, either is sufficient.

And, secondly, it is not necessary that the defendant open anything after he enters

Defendant argues that this definition of felonious breaking or entering was insufficient as a matter of law, because the trial court failed to explain the ...


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