Unlocked Window, $300 Jar, and a Fatal Push
At 2:15 a.m., Corey removes the screen from an unlocked window of a house, climbs in, and takes $300 from a jar in the kitchen. He intends to take only that cash. The homeowner, Helen, wakes and confronts him in the hallway. Corey pushes Helen, who falls, strikes her head on a table, and dies two days later. Corey flees with the $300. The house is a single-family dwelling occupied by Helen. Corey has one prior misdemeanor larceny. The State charges Corey with first-degree burglary, felony murder, and common law robbery. The defense argues the taking was a misdemeanor larceny, so no burglary or felony murder. The State responds that the push made it robbery and that breaking or entering is a felony. Corey later says he pushed Helen only to get past her and did not intend to hurt her.
1. Did Corey commit first-degree burglary? Analyze each element, especially intent to commit a felony.
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First-degree burglary requires: (1) a dwelling house of another; (2) nighttime; (3) breaking; (4) entering; (5) intent to commit a felony inside; and (6) another person present or the building occupied. Corey's entry satisfies most elements. Helen's occupied single-family house is a dwelling of another; 2:15 a.m. is nighttime; removing the screen and opening the window is a breaking; Corey entered; Helen was present.
The fatal element is intent to commit a felony. Corey intended to steal $300. North Carolina's felony larceny threshold is $1,000, so $300 larceny is a misdemeanor. Intent to commit misdemeanor larceny does not satisfy burglary's felony-intent requirement. Therefore first-degree burglary fails, and second-degree burglary also fails because it too requires intent to commit a felony.
The State may, however, charge felony breaking or entering under N.C.G.S. 14-54. That offense requires intent to commit a felony or larceny inside, and misdemeanor larceny qualifies. So Corey's conduct supports felony breaking or entering, not burglary.
2. Can the death support felony murder? Consider the enumerated felonies and the robbery theory.
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Felony murder requires a death during the perpetration of an enumerated felony, such as arson, rape or another sex offense, robbery, kidnapping, or burglary, or during another felony committed with a deadly weapon. Burglary fails because Corey lacked intent to commit a felony inside. Felony breaking or entering is not enumerated, and Corey used only his hands, not a deadly weapon. So felony murder cannot rest on breaking or entering.
The robbery theory is stronger. Common law robbery requires taking personal property from the person or presence of another by force or intimidation. Corey took the cash before the push, but the taking is not complete until asportation. If Corey pushed Helen to retain the cash or to escape with it, a jury could find robbery. Helen was present when the force was used. If the jury finds robbery, the death during the robbery can support felony murder because robbery is enumerated.
The causation issue is whether the push caused Helen's fall, head injury, and death. Corey's statement that he did not intend to hurt her does not defeat felony murder if the death occurred during the robbery.
3. What offenses should the court submit to the jury, and what merger issues arise?
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The court should submit felony breaking or entering, common law robbery, and felony murder based on robbery. The court should not submit first-degree or second-degree burglary because the felony-intent element is missing. Misdemeanor larceny should be submitted as a lesser included offense of robbery if the evidence supports it.
On merger, misdemeanor larceny merges into robbery because larceny is a lesser included offense of the completed taking by force. Felony breaking or entering does not merge into robbery because each requires different elements, although the court should ensure the same evidence is not punished twice in violation of double jeopardy. If felony murder is submitted on robbery, the robbery is the predicate felony; the court should not separately punish both the robbery and felony murder in a way that violates North Carolina merger rules. The safer approach is to submit the offenses and arrest judgment on any offense that is a lesser included of the conviction.