On appeal as a matter of right from judgments of Battle, Judge, entered at the 5 January 1981 Criminal Session, Guilford Judge, entered at the 5 January 1981 Criminal Session, Guilford Superior Court. Defendant received concurrent life sentences upon his convictions of first degree burglary and first degree rape.
At the outset, we note that defendant has abandoned assignments of error 1, 2, 3, 4, 8 and 9 by failing to advance any argument to support them in his brief. Rule 28(a), North Carolina Rules of Appellate Procedure. By the assignments of error properly
preserved for our review, defendant raises two basic questions: (1) whether the trial court should have instructed the jury about certain lesser included offenses, as requested, and (2) whether the trial court should have instructed the jury sua sponte to disregard the district attorney's reference to the facts of a decided case in his closing argument. A careful examination of this record, and the law applicable thereto, compels us to conclude that defendant's contentions, in both regards, are void of merit.
It is, of course, clear that a judge must declare and explain the law arising on all of the evidence, G.S. 15A-1232, and that this duty necessarily requires the judge to charge upon a lesser included offense, even absent a special request therefor, whenever there is some evidence to support it. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Litte, 51 N.C. App. 64, 275 S.E.2d 249 (1981). The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense. State v. Gadsden, 300 N.C. 345, 266 S.E.2d 665 (1980); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). Here, defendant argues that there was at least some evidence to support submission of the following lesser included offenses: non-felonious breaking and entering, upon the first degree burglary charge, and attempted rape and assault with a deadly weapon, upon the first degree rape charge. To the contrary, we find that all of the pertinent evidence is susceptible to but one reasonable interpretation, to wit, that defendant, if he was guilty of anything at all, was guilty of the higher degree crimes only.
The victim testified that, upon entering her bedroom, defendant immediately asked her, "Where is Johnny?" Defendant relies upon this single fact as evidence tending to show that he did not possess the requisite felonious intent when he broke into and entered the dwelling. It is, of course, true that, to make out a case of burglary in the first degree, the State had to show that defendant broke into and entered an occupied dwelling or sleeping apartment in the nighttime with the intent to commit a felony therein. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973). Defendant contends that his inquiry about "Johnny" was at least some evidence
that he did not initially intend to commit the felony of rape when he illegally entered the victim's home; rather, he was merely trying to find an acquaintance. If this evidence truly had any tendency to negate the existence of defendant's felonious intent, it would have unquestionably required the judge to submit the lesser crime of non-felonious breaking and entering, G.S. 14-54(b), in addition to the indicted charge of first degree burglary, G.S. 14-51. See also State v. Cooper, 288 N.C. 496, 219 S.E.2d 45(1975). We are not, however, persuaded that defendant's opening query about "Johnny's" whereabouts, standing alone, had any such proclivity whatsoever. The State's uncontradicted evidence showed the following.
Ms. Womble was aroused from her sleep in the early morning hours of 23 September 1980 by someone "knocking and bamming" on the front door of her apartment. Her husband was at work. She did not get up to see who was at the door. A few minutes later, she heard someone pulling at the screen to her bedroom window. She asked, "Who is it?" and saw an individual run away. That man was wearing light-colored pants and shirt. [When police officers later apprehended defendant in Ms. Womble's apartment, he was wearing khaki pants and a white striped shirt.] Ms. Womble got up, shut the window and barred it. After her return to bed, she rolled over and glanced through the other bedroom into the kitchen. She saw a man's hand by the refrigerator. She began screaming, jumped up and locked her bedroom door. The man pushed the door open and stood there swinging an opened hawkbill knife back and forth. He asked her, "Where is Johnny?" Thereupon, Ms. Womble immediately recognized the intruder as Thomas Walter Wright, the defendant, a man who had been to her apartment once before, some two months earlier, in the company of Johnny Richardson. She told defendant that Johnny did not live there. He then asked, "What are we going to do?" Ms. Womble asked him what he wanted, and he replied, "You know what I want." Defendant put the knife against her throat and ordered her to take off her clothes. After she undressed, he pushed her onto the bed and pulled his pants down. As he continued to hold the knife against her head, defendant got on top of her and had sexual intercourse with her.
In light of these facts, it would indeed stretch one's imagination to the breaking point to say that defendant's question about
"Johnny" was some indication, however slight, that his entry into the victim's home was not precipitated by a felonious intent. First, considering defendant's overall conduct throughout this continuous series of criminal events, his question, "Where is Johnny?" can be deemed as nothing more than a means to make certain that the victim was alone and that his evil design would not be thwarted, or interrupted, by unexpected interference. Second, it is evident that an individual, having only innocent intentions, does not break into another's home in the middle of the night and break through a locked bedroom door, while carrying an opened knife, just to find out where someone else might be. In sum, the State's evidence, if believed, compelled a single rational conclusion: that defendant unlawfully entered an occupied dwelling in ...