State v. Holt

639 S.E.2d 65, 181 N.C. App. 328, 2007 N.C. App. LEXIS 22
CourtCourt of Appeals of North Carolina
DecidedJanuary 2, 2007
DocketNo. COA05-1613.
StatusPublished

This text of 639 S.E.2d 65 (State v. Holt) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holt, 639 S.E.2d 65, 181 N.C. App. 328, 2007 N.C. App. LEXIS 22 (N.C. Ct. App. 2007).

Opinion

*66MARTIN, Chief Judge.

Defendant, Anthony Rheim Holt, was charged with first degree burglary and attempted first degree rape. At the close of the State's evidence, the trial court dismissed the charge of attempted first degree rape, and the trial proceeded upon the issue of defendant's guilt or innocence of first degree burglary and attempted second degree rape. Defendant's motion to dismiss at the close of all the evidence was denied, and the jury found defendant guilty of first degree burglary but acquitted him of attempted second degree rape. He appeals from a judgment imposing an active sentence of imprisonment.

The evidence at trial tended to show that defendant attended a cookout at the residence of his girlfriend, Tanya Hudson, on the night of 11 September 2004. Defendant had stayed at Ms. Hudson's house the night before, and they had sexual relations at that time. The defendant and Ms. Hudson apparently planned for him to sleep over the night of the cookout as well, and there was some evidence suggesting that defendant and Ms. Hudson were living together. During the evening, both defendant and Ms. Hudson consumed alcohol along with the cookout guests.

Defendant and Ms. Hudson got into an argument, apparently stemming from the defendant's mistaken belief that Ms. Hudson intended to drive a woman named Kelly, who was intoxicated, to her home and leave him behind. Defendant pushed Ms. Hudson with sufficient force for her to come out of her sandals. He then cursed and tried to flip the coffee table onto Kelly. During the altercation, Ms. Hudson called 911. Ms. Hudson explained to defendant that she had not intended to leave him and succeeded in calming him. Kelly went home and Ms. Hudson told defendant she had called the police and asked him to leave so that he would not get in trouble. Defendant apologized and went out of the house, after which Ms. Hudson secured the door and deadbolt. Defendant remained outside, asking to be let back in, but Ms. Hudson refused.

About midnight, as Ms. Hudson sat in her living room, defendant suddenly kicked in the back door. Ms. Hudson dialed 911 and placed the phone where she hoped defendant would not see it. Defendant choked Ms. Hudson and started ripping her clothes off. When defendant saw that she could not catch her breath, he released Ms. Hudson.

Ms. Hudson subsequently retreated to her bedroom and locked the door. She had begun to put her clothes on when defendant kicked in the bedroom door. He explained that he wanted to make sure that Ms. Hudson was all right, and Ms. Hudson told him to leave her alone. She left the house to call the police. At the time of her departure from the residence, defendant was fully clothed.

Officers from the Burlington Police Department responded to Ms. Hudson's call. Corporal J.R. Marshal, the first officer on the scene, observed Ms. Tucker standing next to the road with her cell phone. The officer testified at trial that she was "very upset, hysterical, crying. She stated that her ex-boyfriend had broken into her residence, held her down and tore her clothes off, and which she had believed to be attempting him having sex with her." The officer requested the support of additional units, and four other officers arrived at the scene. They tried the door to the Hudson residence and found it locked. Corporal Summers knocked, and defendant opened the door. He was not wearing any clothes. The officers took defendant into custody, assisted him with his clothing and escorted him to a police car.

Defendant brings forward arguments in support of two of the four assignments of error contained in the record on appeal. His remaining assignments of error will, therefore, not be reviewed. See N.C.R.App. P. 28(b)(6) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.").

Defendant first assigns error to the trial court's denial of his motion to dismiss the charges at the end of the State's evidence and at the close of all the evidence. Because defendant offered evidence following the denial of his motion to dismiss at the close of the State's evidence, only the denial of the *67motion made at the close of all the evidence is properly before us. See State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985).

In reviewing a motion to dismiss on the grounds of sufficiency of the evidence, the issue is "whether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense." State v. Glover, 156 N.C.App. 139, 142, 575 S.E.2d 835, 837 (2003). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). A motion to dismiss should be denied if there is substantial evidence, whether direct, circumstantial, or both, that the defendant committed the offense charged. State v. Thaggard, 168 N.C.App. 263, 281, 608 S.E.2d 774, 786 (2005). "The trial court must consider the evidence `in the light most favorable to the State,' and the State is entitled to every reasonable inference to be drawn from it." State v. Quinn, 166 N.C.App. 733, 739, 603 S.E.2d 886, 889 (2004) (quoting State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980)).

The elements of the offense of first degree burglary are: "(1) [t]he breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used as a sleeping apartment (5) which is actually occupied at the time of the offense (6) with the intent to commit a felony therein." State v. Rich,

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Related

State v. Haywood
550 S.E.2d 38 (Court of Appeals of North Carolina, 2001)
State v. Glover
575 S.E.2d 835 (Court of Appeals of North Carolina, 2003)
State v. Thaggard
608 S.E.2d 774 (Court of Appeals of North Carolina, 2005)
Viar v. North Carolina Department of Transportation
610 S.E.2d 360 (Supreme Court of North Carolina, 2005)
State v. Bruce
337 S.E.2d 510 (Supreme Court of North Carolina, 1985)
State v. Griffin
525 S.E.2d 793 (Court of Appeals of North Carolina, 2000)
State v. Rich
502 S.E.2d 49 (Court of Appeals of North Carolina, 1998)
State v. Bright
271 S.E.2d 368 (Supreme Court of North Carolina, 1980)
State v. Freeman
298 S.E.2d 376 (Supreme Court of North Carolina, 1983)
State v. Quinn
603 S.E.2d 886 (Court of Appeals of North Carolina, 2004)
State v. Wells
226 S.E.2d 325 (Supreme Court of North Carolina, 1976)
State v. Vick
461 S.E.2d 655 (Supreme Court of North Carolina, 1995)

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Bluebook (online)
639 S.E.2d 65, 181 N.C. App. 328, 2007 N.C. App. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holt-ncctapp-2007.