dismissing burglary charge where evidence showed window screen had been removed but there was no specific evidence establishing that defendant, as opposed to his cohort, had been the one to remove it
How later courts described this case
- dismissing burglary charge where evidence showed window screen had been removed but there was no specific evidence establishing that defendant, as opposed to his cohort, had been the one to remove it
- "The court failed to instruct on acting in concert. Accordingly, defendant's conviction may be upheld only if the evidence supports a finding that he personally committed each element of the offense."
Written by the judges who cited it.
Distinguished
Distinguished by State v. McNair, 196 N.C. App. 178 (2009)
We disagree with defendant because we conclude that the facts sub judice are more similar to those in State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419 (1986), than Foster and Evans.
The opinion
Judge Eagles
concurring.
I concur but wish to note my concerns with our disposition of the second degree burglary charge. At the outset I note that the presumptive sentence for second degree burglary is 12 years, while the presumptive for breaking or entering is 3 years.
While there is ample precedent for the disposition ordered (for example, State v. Corley, 310 N.C. 40 , 311 S.E. 2d 540 (1984)), I would prefer to defer to the constitutional authority of the elected district attorney to exercise his discretion in the prosecution of the criminal cases of his district. I would prefer not to remand the second degree burglary case for entry of judgment on a conviction of breaking or entering but to order a new trial.
In my judgment, the better rule would be that where the failing on the original charge arises because of deficiencies in the indictment, it is appropriate for remand for entry of a judgment of conviction of the lesser included offense with which defendant was properly charged. However, where a conviction on the charge originally selected by the district attorney is required to be reversed because of prejudicial inadequacies in the jury instructions, the appellate court should defer to the district attorney and remand the matter for a new trial on the original charge or such other charge as the district attorney in his prosecutorial discretion selects.
By our decision we have, consistent with precedent, risked two competing injustices: first, the defendant is denied a fair trial *280 with proper instructions on the original charge of which he was informed by the indictment, and second, the State may be forced to give a defendant who could be proven guilty of the more serious offense an unwarranted benefit by preventing the district attorney from exercising his discretion to try the defendant on the original charge.
I concur because there is ample case authority for the disposition ordered and because the State’s brief seems to encourage this disposition, but the better course of action would be to remand for a new trial to permit the elected district attorney to exercise his constitutional authority.