State v. Dula

313 S.E.2d 899 (1984) STATE of North Carolina v. Princess Oheeda DULA. No. 8325SC358. Court of Appeals of North Carolina. April 17, 1984. *900 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Walter M. Smith, Raleigh, for the State. Whisnant, Simmons & Groome by G.C. Simmons, III, Lenoir, for defendant-appellant. WEBB, Judge. In her first assignment of error, the defendant contends it was error not to dismiss the charges against her. She argues that there was insufficient evidence for the jury to find that Ramona F. Barlow occupied the apartment and that the defendant did not have consent to enter the apartment. The indictment alleged that Ramona Barlow occupied the apartment. The evidence showed that Miss Barlow's sister had leased the apartment and Miss Barlow paid the rent on it and lived there. We believe this evidence shows she occupied the apartment. Occupancy of the premises is not made an element of breaking or entering by G.S. 14-54. Our Supreme Court has held that it is necessary to allege occupancy in an indictment in housebreaking cases for the purpose of showing that the house that was allegedly broken or entered was not the house of the accused and for the purpose of so identifying the house that the accused may be protected from a second prosecution for the same offense. See State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976). We believe both these purposes were fulfilled by the indictment and proof in this case. It was not necessary to show who had legal title to the apartment. The defendant also contends the State failed to prove a breaking or entering because it did not show that Jane Flemming, who had leased the apartment, and Jean Hollifield, who lived in the apartment with Miss Barlow, did not give her permission to enter the apartment. The defendant testified on cross-examination that no one gave her permission to enter the apartment. This is sufficient evidence for the jury to find that she did not have such permission. The defendant next assigns error to the charge. The court charged the jury, among other things, that in order to convict the defendant they must be satisfied beyond a reasonable doubt that Ramona F. Barlow did not give the defendant permission to break or enter the apartment. The defendant contends that there were at least two other persons who could have given her permission to enter the apartment and the court expressed an opinion on the evidence by saying that the State only had to prove Miss Barlow did not give such permission. We do not believe this statement by the court was prejudicial to the defendant. See G.S. 15A-1443(a). Permission to enter the apartment was not at issue in the trial. The defendant testified she did not have permission to enter the apartment. We hold she was not prejudiced by this statement in the charge. The defendant's last assignment of error is to a condition of probation. The court required the defendant, as a condition of probation, to make restitution of $918.90 to Miss Barlow, this being the value of the stereo equipment that was not recovered and the amount of damage to the equipment *901 that was recovered. G.S. 15A-1343(d) provides in part: "As a condition of probation, a defendant may be required to make restitution to an aggrieved party ... for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant." The defendant, relying on State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970) and State v. Bass, 53 N.C.App. 40, 280 S.E.2d 7 (1981) argues that she was acquitted of the larceny charge and the loss to Miss Barlow was not related to the breaking or entry. The defendant was convicted of breaking or entry with intent to commit larceny. We believe the evidence shows the loss and damage to Miss Barlow was caused by and arose out of this crime as required by G.S. 15A-1343(d). We do not believe that Caudle or Bass govern in this case. In each of those cases the trial court was reversed for requiring restitution for damages not related to the crime to which the defendant was found guilty. No error. PHILLIPS, J., concurs. EAGLES, J., concurs in part and dissents in part. EAGLES, Judge, concurring in part and dissenting in part. I concur in the majority opinion except for that portion which approves restitution of $918.90 as a condition of probation from which I respectfully dissent. As the majority notes, the $918.90 figure is the value of unrecovered stolen property plus the amount of damages to stereo equipment damaged in the course of the breaking and entering. Because the defendant was acquitted of the charge of larceny, restitution to the victim for the value of unrecovered stolen property, $360.00, is inappropriate. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970); State v. Bass, 53 N.C.App. 40, 280 S.E.2d 7 (1981). I would remand for modification of the judgment's conditions of probation to provide for restitution of $558.90, the value of damages to property incurred in the course of the breaking and entering.