Proposed Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Unpublished Opinion No. 2004-UP-638
Submitted December 1, 2004 – Filed December 16, 2004

PER CURIAM: A Beaufort County grand jury indicted Maurice Wally on one count of burglary in the first degree. Following trial, Wally was convicted and sentenced to a term of fifteen years. On appeal, Wally argues the trial court erred in failing to direct a verdict of not guilty on the burglary charge because the State failed to present evidence that Wally entered the dwelling with the intent to commit a crime therein. We affirm. [1]

Around 4:00 a.m. on December 6, 2001, William and Starletta Hairston were asleep in the upstairs portion their home when they were awakened by the chirping of their alarm system. [2] William got out of bed and went to check on his three boys who were sleeping in an adjacent bedroom. After ensuring the children were in bed, he went back to his bedroom and retrieved a shotgun from a locked compartment behind his bed. Starletta turned on the bedroom lights and called the police.

With the shotgun in hand, Mr. Hairston rushed to the top of the stairs where he noticed Wally moving from the interior of the house towards the front door. William testified he cocked the shotgun to let Wally know he “was ready,” and then ordered him to stop in his tracks. Wally complied and did not move. William then asked Wally what he was doing in the house and Wally replied, “the gate told [me] to come in.” William then ordered Wally to get down on the floor where he was held at gunpoint until the police arrived and placed him under arrest.

William testified Wally did not have anything in his hands when this confrontation took place and an inspection of the house the next morning revealed nothing was missing. William estimated Wally was in the home for a little over two minutes before he was confronted.

At the close of evidence, defense counsel moved for a directed verdict asserting that Wally did not attempt to take anything out of the home and the State failed to prove he intended to commit a crime in the house. The trial court denied the motion, found Wally guilty but mentally ill, and sentenced him to fifteen years imprisonment. [3]

Wally’s sole argument on appeal is “[t]he trial court erred in failing to grant a directed verdict to the charge of burglary because the state failed to present any substantial evidence . . . that appellant entered the dwelling with the intent to commit a crime.” We disagree.

“In considering a motion for directed verdict in a criminal case, all evidence is viewed in the light most favorable to the State.” State v. Smith, 352 S.C. 133, 136, 572 S.E.2d 473, 474 (Ct. App. 2002). To this end, “[t]he Court of Appeals is concerned with the existence or non-existence of evidence, not its weight.” State v. Nesbitt, 346 S.C. 226, 230, 550 S.E.2d 864, 866 (Ct. App. 2001). As such, we can only reverse the trial court if the record contains no evidence justifying its ruling. State v. Douglas, 359 S.C. 187, 203, 597 S.E.2d 1, 9 (Ct. App. 2004). Thus, an accused is entitled to a directed verdict when the State fails to present evidence of the crime charged. Id.

A person is guilty of first-degree burglary when “the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and . . . (3) the entering or remaining occurs in the nighttime.” S.C. Code Ann. § 16-11-311 (2003). Essentially Wally argues that because nothing was missing from the house and none of the homeowners’ belongings were in his possession when he was caught, there is no evidence he intended to commit a crime in the house.

This assertion, however, is completely without merit. As our supreme court noted in State v. Haney, 257 S.C. 89, 91, 184 S.E.2d 344, 345 (1971), “[a]bsent an admission by the defendant, proof of intent necessarily rests on inference from conduct.” The court went on to explain that “[w]hen the building entered is a dwelling house, the weight of authority holds that the unexplained breaking and entry in the night is itself evidence of intent to commit larceny . . . . The fundamental theory, in the absence of evidence of other intent or explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.” Id. at 91-92, 184 S.E.2d at 345.

Accordingly, because intent to commit a crime—i.e., larceny—can be inferred from the breaking and entering itself, we find there is evidence to support the trial court’s ruling. Accordingly, we find the trial court did not err in failing to grant Wally’s directed verdict motion and as such, the ruling is

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Mr. Hairston explained that the alarm would chirp when one of the home’s doors or windows were opened.

[3] At trial, defense counsel brought to the court’s attention the fact that Wally’s mental evaluation indicated he had a family history of psychotic illness and mental retardation. He also noted Wally received treatment in the past for hearing voices and a personality disorder. Although the court took this history into consideration and sentenced Wally accordingly, Wally’s mental condition is not at issue in this appeal.