IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-7
Filed: 17 November 2020
Caldwell County No. 18 CRS 050001
STATE OF NORTH CAROLINA
v.
ZACHARY DALLAS MCDARIS, Defendant.
Appeal by Defendant from judgment entered 6 August 2019 by Judge Daniel
A. Kuehnert in Caldwell County Superior Court. Heard in the Court of Appeals 12
August 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Hugh A. Harris, for the State.
Mark L. Hayes for defendant-appellant.
MURPHY, Judge.
The trial court erred in denying a motion to dismiss a first-degree burglary
charge when it considered N.C.G.S. § 14-54(a1) as the felony underlying the first-
degree burglary charge and the evidence failed to support this theory, which was used
as the sole basis for the conviction. We reverse Defendant’s conviction and remand
for entry of judgment on the lesser included offense of misdemeanor breaking or
entering, which was supported by the evidence.
BACKGROUND STATE V. MCDARIS
Opinion of the Court
At approximately 1:00 a.m. on 1 January 2018, Defendant Zachary Dallas
McDaris (“Defendant”) woke Roy Ridenhour (“Mr. Ridenhour”) and his wife, Cynthia
Ridenhour (“Mrs. Ridenhour”), by loudly banging on the front door of their residence
in Hickory. Mr. Ridenhour looked out the window and thought a neighbor was at the
front door. When Mr. Ridenhour went to the front door and flipped the deadbolt,
Defendant violently pushed the front door open. The door struck Mr. Ridenhour and
knocked him backwards approximately six feet. After shoving the door open,
Defendant entered the house and stated, “I’m your savior. You’re going to hell for
your sins.”
Defendant then began beating Mr. Ridenhour, who shouted for his wife to call
the police and grab his pistol. Defendant struck Mr. Ridenhour multiple times,
causing him to fall down a flight of stairs and knocking him unconscious. Mr.
Ridenhour sustained a laceration to his head, a large knot on the back of his head,
and bruises and cuts to his shoulder and back. Mrs. Ridenhour entered the hall,
pointed a gun at Defendant, and told him to leave. In response, Defendant exited the
house, and Mr. Ridenhour regained consciousness and locked the door. Defendant
briefly walked in the front yard but returned and began banging on the front door
again. Caldwell County Sheriff’s Deputies arrived at the scene and detained
Defendant at the front door.
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Following these events, Defendant was indicted for first-degree burglary and
the lesser included offense of felonious breaking and entering. Defendant’s
indictment read:
The jurors for the State upon their oath present that on or about [1 January 2018], in [Caldwell County] [Defendant] unlawfully, willfully and feloniously did during the nighttime hours, break and enter a building actually occupied by Roy Ridenhour and wife, Cynthia Gail Ridenhour, used as a residence located at [Street Address], with the intent to commit a felony or larceny therein. This act was in violation to [first-degree burglary and felonious breaking and entering under N.C.G.S. § 14-54(a)].
At a pretrial hearing on 5 August 2019, Defendant waived his right to a jury
trial in accordance with N.C.G.S. § 15A-1201(b), and a bench trial began the following
day. After the State presented its evidence, Defendant unsuccessfully moved to
dismiss for insufficient evidence. Defendant presented evidence and renewed his
motion to dismiss. During both the motion and renewed motion, Defendant argued
the State had not presented sufficient evidence of his intent to commit an underlying
felony when he entered the Ridenhour house, as required for first-degree burglary.
State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996).
The trial court denied both the motion to dismiss and renewed motion. During
the subsequent charge conference, there was a discussion of potential underlying
felonies to satisfy the intent to commit a felony therein requirement of first-degree
burglary, including N.C.G.S. § 14-54(a1), assault causing serious bodily injuries, and
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attempted murder; however, the trial court’s explicit reasoning for denying
Defendant’s renewed motion to dismiss was unclear.
In suggesting potential underlying felonies, the State stated:
The first one I would contend would be [N.C.G.S. § 14- 54(a1)]. And I would note when we have the felony of breaking or entering, I would contend that that is a felony that, when the language says a felony or larceny therein, it can be considered. And I would point out to the Court that [N.C.G.S. § 14-54(a1)] is the specific language where it says, if any person who breaks or enters any building with the intent to terrorize or injure an occupant of a building is guilty of a Class H felony. Now, that is a separate or distinct way of violating, breaking or entering a building, because [N.C.G.S. § 14-54(a)], I would argue to the Court, is our more traditional approach. And it says any person who breaks or enters any building with the intent to commit any felony or larceny therein shall be punished as a Class H felony.
... Now, what else could you consider if this were being argued to the jury? Assault inflicting serious bodily injury. Another felony is attempted murder.
The trial court stated if it were a jury trial it would instruct a jury on, and as
finder of fact it was considering, larceny, attempted murder, and N.C.G.S. § 14-
54(a1).1 However, the trial court, as finder of fact, convicted Defendant of first-degree
burglary solely on the basis of N.C.G.S. § 14-54(a1), stating
So I have no doubt a jury could have found that . . . [D]efendant entered the house to attempt murder or a larceny or something to that effect, but I think what’s
1 The trial court ultimately concluded the assault inflicting serious bodily injury felony “wasn’t
brought up,” and did not consider it.
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important to the Court is . . . and from the Court’s standpoint -- I'm saying this because if the case does get appealed, . . . I want the appellate court to understand that this Court, sitting as a jury, right or wrong, believed that . ...
That [] [D]efendant . . . committed first-degree burglary by committing the felony of [N.C.G.S. § 14-54(a1)] when he broke and entered into the building with the intent to terrorize and injure the occupant, because that’s what happened. . . . ... So . . . the Court doesn’t have any reasonable doubt that [N.C.G.S. § 14-54(a1)] occurred and that [] [D]efendant intended to injure the occupants of the house once he broke in, at a minimum. He certainly terrorized them, and he may have certainly -- I think that statute applies, in other words. So the Court finds [] [D]efendant guilty of first- degree burglary.
Defendant entered written notice of appeal on 9 August 2019. On appeal,
Defendant argues the trial court erred in denying his motion to dismiss, as breaking
and entering with intent to terrorize cannot be the underlying felony for first-degree
burglary.
ANALYSIS
We review the “trial court’s denial of [Defendant’s] motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “When ruling on a
defendant’s motion to dismiss, the trial court must determine whether [the State
presented sufficient] evidence (1) of each essential element of the offense charged, and
(2) that the defendant is the perpetrator of the offense.” Id. (emphasis added); see
N.C.G.S. § 15A-1227 (2019). To be sufficient, the State must present “such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
“As always, [in our review of a ruling on] a motion to dismiss, we must view
the evidence in the light most favorable to the [S]tate and allow the [S]tate every
reasonable inference that may arise upon the evidence, regardless of whether it is
circumstantial, direct, or both.” State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d
923, 925, aff’d, 301 N.C. 374, 271 S.E.2d 277 (1980).
A. Underlying Felony
Here, Defendant only challenges the sufficiency of the evidence supporting the
felonious intent element of first-degree burglary, specifically arguing, inter alia, that
N.C.G.S. § 14-54(a1) cannot be an underlying felony for first-degree burglary because
“grammatically and logically, the initial breaking and entering must be distinct from
the crime which a burglar subsequently intends to commit therein.” We limit our
analysis to the element of felonious intent because Defendant challenges no other
element on appeal.
Also, like our Supreme Court did in State v. Reese when analyzing a motion to
dismiss, we separately analyze the independent theories for the underlying felony
element used in Defendant’s first-degree burglary jury charge in evaluating whether
the trial court erred in denying Defendant’s motion to dismiss. State v. Reese, 319
N.C. 110, 144-45, 353 S.E.2d 352, 371-72 (1987), overruled in part on other grounds
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by State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997). However, in
determining the acting with the intent to commit therein element of first-degree
burglary, the trial court acquitted Defendant of the felonies of attempted murder,
assault inflicting serious bodily injury, and larceny when it found beyond a
reasonable doubt Defendant had only committed N.C.G.S. § 14-54(a1). See State v.
Smith, 170 N.C. App 461, 473, 613 S.E.2d 304, 313 (2005), aff’d as modified by 360
N.C. 341, 626 S.E.2d 258 (2006) (quoting Francis v. Franklin, 471 U.S. 307, 313, 85
L.Ed.2d 344, 352 (1985)) (“The Due Process Clause of the Fourteenth Amendment
‘protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.’”).
Therefore, we examine the sufficiency of the evidence presented at trial
supporting the State’s theory that Defendant had felonious intent, as required by
first-degree burglary, to commit the felony of breaking or entering with intent to
terrorize or injure under N.C.G.S. § 14-54(a1) therein. See State v. Parker, 54 N.C.
App. 522, 525, 284 S.E.2d 132, 134 (1981) (“[The d]efendant first assigns error to the
trial court’s denial of his motion to dismiss the charges of breaking or entering and
larceny. . . . We [] note that no prejudicial error could have been committed by the
court’s denial of the defendant’s motion to dismiss the breaking or entering charges,
because [the] defendant was acquitted of these charges. Our sole task under this
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assignment of error is then to determine whether the trial court erred in failing to
grant the motion to dismiss the larceny charges.”).
[I]n order for a defendant to be convicted of first[-]degree burglary, the State must present substantial evidence that there was ‘(i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein.’
State v. Goldsmith, 187 N.C. App. 162, 165, 652 S.E.2d 336, 339 (2007) (quoting State
v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996)); see N.C.G.S § 14-51 (2019)
(“If the crime be committed in a dwelling house . . . and any person is in the actual
occupation of any part of said dwelling house . . . at the time of the commission of
such crime, it shall be burglary in the first[-]degree.”). “The intent to commit a felony
must exist at the time of entry.” State v. Norris, 65 N.C. App. 336, 338, 309 S.E.2d
507, 509 (1983). “Intent is a mental attitude seldom provable by direct evidence. It
must ordinarily be proved by circumstances from which it may be inferred.” State v.
Baskin, 190 N.C. App. 102, 109, 660 S.E.2d 566, 572 (2008).
Under N.C.G.S. § 14-54(a1), “[a]ny person who breaks or enters any building
with intent to terrorize or injure an occupant of the building is guilty of a Class H
felony.” N.C.G.S. § 14-54(a1) (2019). In order to evaluate N.C.G.S. § 14-54(a1) as an
underlying felony for first-degree burglary, we must read the requirements of
N.C.G.S. § 14-54(a1) in conjunction with the relevant elements of first-degree
burglary. For N.C.G.S. § 14-54(a1) to satisfy the felonious intent element of first-
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degree burglary, a defendant must (1) break and enter a dwelling (2) with the intent
to therein (3) break or enter a building (4) with the intent to terrorize or injure an
occupant. Logically, this result could only occur if a building is encompassed within
a dwelling.2 However, the evidence presented below did not support such an
application of N.C.G.S. § 14-54(a1).
Viewing the evidence in the light most favorable to the State, sufficient
evidence was not presented to support the inference that Defendant broke and
entered the Ridenhours’ residence with the intent to subsequently break or enter
another building within the residence and therein terrorize the Ridenhours. As a
result, Defendant’s motion to dismiss should have been granted as to N.C.G.S. § 14-
54(a1). See Goldsmith, 187 N.C. App. at 166, 652 S.E.2d at 340 (holding the
defendant’s motion to dismiss a charge of first-degree burglary should have been
granted where the victim was pulled out of the home and robbed because no evidence
was presented that the defendant intended to commit a felony inside the victim’s
home).
The trial court wrongly considered N.C.G.S. § 14-54(a1) to be a supported
underlying felony for the first-degree burglary charge. Since the trial court based its
conviction of Defendant solely on N.C.G.S. § 14-54(a1) as the underlying felony, which
2 According to N.C.G.S. § 14-54(c), “‘building’ shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.” N.C.G.S. § 14-54(c) (2019).
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was unsupported by the evidence, we must reverse Defendant’s first-degree burglary
conviction.
B. Remedy
When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment.
State v. Weaver, 306 N.C. 629, 633, 295 S.E.2d 375, 377 (1982), overruled in part on
other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). Generally,
when vacating a conviction for first-degree burglary on motions to dismiss where the
evidence of felonious intent was insufficient, we find “there was sufficient evidence to
sustain a verdict of [the lesser included offense of] misdemeanor breaking or
entering.” Goldsmith, 187 N.C. App. at 166, 652 S.E.2d at 340; see e.g., State v.
Cooper, 138 N.C. App. 495, 499, 530 S.E.2d 73, 76, aff’d per curiam, 353 N.C. 260, 538
S.E.2d 912 (2000); State v. Dawkins, 305 N.C. 289, 290-91, 287 S.E.2d 885, 886 (1982).
Such an approach is appropriate here.3 In finding Defendant committed first-degree
3 We note that although “[f]elonious breaking or entering, N.C.[G.S. §] 14–54(a), is a lesser
included offense of . . . burglary,” the elements of felonious breaking and entering are not proven by Defendant’s conviction of first-degree burglary. State v. McCoy, 79 N.C. App. 273, 275, 339 S.E.2d 419, 421 (1986). Like first-degree burglary, felonious breaking or entering requires a defendant to break or enter and subsequently intend to commit a felony or larceny therein. N.C.G.S. § 14-54(a) (2019) (“Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.”). Therefore, the same flaw in applying N.C.G.S. § 14-54(a1) to first-degree burglary is present in any application to felonious breaking or entering and we cannot remand for entry of judgment for felonious breaking or entering.
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burglary the trial court, as finder of fact, necessarily found that all elements of
misdemeanor breaking or entering were satisfied. See N.C.G.S. § 14-54(b) (2019)
(“Any person who wrongfully breaks or enters any building is guilty of a Class 1
misdemeanor.”). Therefore, we remand for entry of judgment for misdemeanor
breaking or entering and resentencing.
Additionally, although the trial court, as finder of fact, found all the elements
of N.C.G.S. § 14-54(a1) to be met, we cannot remand for entry judgment upon this
offense. Generally, “where the indictment does sufficiently allege a lesser-included
offense, we may remand for sentencing and entry of judgment thereupon.” State v.
Bullock, 154 N.C. App. 234, 245, 574 S.E.2d 17, 24 (2002). See State v. Nixon, 263
N.C. App. 676, 680, 823 S.E.2d 689, 692-93 (2019) (“an indictment for one offense may
permit a defendant to be lawfully convicted of lesser included offenses”). See also
Goldsmith, 187 N.C. App. at 166, 652 S.E.2d at 340; Dawkins, 305 N.C. at 290-91,
287 S.E.2d at 886; State v. Jolly, 297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979) (vacating
judgment of first-degree burglary and remanding for entry of judgment on the lesser
included offense of second-degree burglary where evidence was insufficient to prove
the greater offense). However, where an offense is not a lesser included offense of the
offense a defendant was indicted on and convicted of, we cannot remand for entry of
judgment on such an offense. State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353,
356 (1986) (“It has long been the law of this State that a defendant must be convicted,
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if convicted at all, of the particular offense charged in the warrant or bill of
indictment.”). N.C.G.S. § 14-54(a1) is not a lesser included offense of first-degree
burglary and we cannot remand for entry of judgment on N.C.G.S. § 14-54(a1) based
on Defendant’s conviction of first-degree burglary.
“As a lesser included offense, ‘all of the essential elements of the lesser crime
must also be essential elements included in the greater crime.’” State v. Hinton, 361
N.C. 207, 210, 639 S.E.2d 437, 439-440 (2007) (quoting State v. Weaver, 306 N.C. 629,
635, 295 S.E.2d 375, 379 (1982)). “[T]wo crimes are separate and distinct only if both
have a unique element or fact, one not shared with the other. If the elements of either
crime are wholly contained in the other, then the two crimes are not distinct, and one
is a lesser-included offense of the other.” State v. Edmondson, 70 N.C. App. 426, 428,
320 S.E.2d 315, 317 (1984). Here, N.C.G.S. § 14-54(a1) and first-degree burglary each
require unique elements. Unlike first-degree burglary, N.C.G.S. § 14-54(a1) requires
the “intent to terrorize or injure an occupant of the building [broken or entered into].”
N.C.G.S. § 14-54(a1) (2019). Unlike N.C.G.S. § 14-54(a1), first-degree burglary
requires “(i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling
house or sleeping apartment (v) of another (vi) which is actually occupied at the time
of the offense (vii) with the intent to commit a felony therein.” Singletary, 344 N.C.
at 101, 472 S.E.2d at 899. Each offense has unique elements, which are not
encompassed within the other’s elements. Therefore, N.C.G.S. § 14-54(a1) is not a
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lesser included offense of first-degree burglary and we cannot remand for entry of
judgment based on N.C.G.S. § 14-54(a1).
CONCLUSION
In light of the lack of sufficient evidence of first-degree burglary due to the
erroneous consideration of N.C.G.S. § 14-54(a1) as the underlying felony, the trial
court’s ruling on the motion to dismiss the charge of first-degree burglary is reversed.
We remand for entry of judgment on misdemeanor breaking or entering under
N.C.G.S. § 14-54(b) and a new sentencing hearing.
REVERSED AND REMANDED. Judge HAMPSON concurs. Judge YOUNG concurs in result only.
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