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North Carolina v. Rush

Filed: April 20, 1982.

STATE OF NORTH CAROLINA
v.
KEVIN L. RUSH



Appeal by defendant from Rouse, Judge. Judgment entered 12 February 1981 in Superior Court, New Hanover County. Heard in the Court of Appeals 6 April 1982.

Vaughn, Judge. Judges Martin (Robert M.) and Arnold concur.

Vaughn

Defendant raises several assignments of error. None of them disclose prejudicial error.

Defendant argues that the court erred in denying his motion to dismiss. He contends that the State's circumstantial evidence created no more than a suspicion on him and was insufficient to submit the charges to the jury. We disagree.

On a motion to dismiss, all evidence is to be viewed in the light most favorable to the State. To survive the motion, the State need not convince the court that the evidence is sufficient to establish each element of the offense beyond a reasonable doubt. The State is required, however, to offer substantial evidence of all material elements of the offense. State v. Parker, 268 N.C. 258, 150 S.E.2d 428 (1966).

"The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury."

{PA}

Page 790} State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930). It is immaterial whether the evidence is direct or circumstantial. State v. Parker, supra.

In the present case, the evidence is sufficient to find that someone broke into the Chadwick home on South Third Street and stole stereo equipment valued between $1000.00 and $1,300.00. The issue is whether there is competent evidence to support a finding that defendant was involved in the breaking and entering and larceny.

There is no direct evidence that defendant was in "recent possession" of any stolen property. The circumstantial evidence viewed as a whole, however, reasonably leads to the conclusion that defendant was a perpetrator of the offenses committed at 605 South Third Street.

That evidence shows that defendant and another man were seen running along the street of the Chadwick residence around 3:00 a.m., September 27th, a time approximating when the theft occurred. They were both carrying large square objects, consistent with the size of stereo speakers and tape deck. The two men were running together before they split at the intersection of Third and Queen Streets. The second man then ran between two houses. Less than an hour later, police recovered from that area a tape player stolen from the Chadwick residence.

It is reasonable to assume that the tape player was left by someone involved with the breaking and entering of the Chadwick home. Circumstantial evidence also raises the presumption that it was the second unknown man who possessed and then discarded the stolen tape player. Direct evidence links defendant to that man. Compare with State v. Parker, supra. From such evidence, we conclude that a jury could reasonably infer that defendant acted in concert with another in committing the offenses of felonious breaking and entering and felonious larceny. Defendant's assignment of error is overruled.

Assignment of error No. 6 is that the trial court committed reversible error in failing to instruct the jury on the lesser included offense of misdemeanor larceny. A trial court is not required to submit instructions on a lesser included offense unless there is ...


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