
254 S.E.2d 1 (1979)
297 N.C. 121
STATE of North Carolina
v.
Javan JOLLY.
No. 21.
Supreme Court of North Carolina.
April 20, 1979.
*3 Rufus L. Edmisten, Atty. Gen., by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.
Neill H. Fleishman, Fayetteville, for defendant appellant.
HUSKINS, Justice:
Defendant contends the two searches of his automobile by the police were illegal and that the items seized during the searches were erroneously admitted into evidence. Upon defendant's motion to suppress this evidence, the trial court found facts and concluded that the searches of defendant's car were valid consent searches and ruled that the items seized were admissible into evidence.
*4 Defendant does not except to the findings made by the trial court at the voir dire hearing held pursuant to defendant's motion to suppress. These findings show that Richard Bryant, a Spring Lake Police Officer, received a radio call to be on the lookout for a late model Cougar automobile with a certain license number. Officer Bryant saw an automobile matching this description enter a self-service gas station. Defendant Jolly was the driver of this automobile. Officer Bryant followed the Cougar into the service station and radioed for back-up help. When the two vehicles stopped defendant got out and headed toward the rear of his car. Officer Bryant told defendant to come to his patrol car and advised him of the radio transmission concerning an armed robbery and motor vehicle description which matched the automobile being driven by defendant. At this point Officer Welch, another Spring Lake Police Officer, arrived at the scene in response to Officer Bryant's call for help. Welch stayed with defendant Jolly while Bryant got the other two passengers out of the detained automobile. In response to a question from Welch, defendant Jolly stated he was the owner of the Cougar car. After all three passengers were out of the automobile they were informed of the radio advisory. All three suspects were searched and given the Miranda warnings. No weapons were found on any of the three suspects.
Officer Welch requested and was granted permission by defendant Jolly to look into his car. With Jolly looking on, Welch searched the interior of the car and discovered various items including a gray shoulder bag bearing a name tag with the name of a subject who lived in New York. Officer Welch placed the other items discovered by him inside the shoulder bag and left the bag in the back seat of the automobile. Welch then asked Jolly for permission to look inside the trunk. Jolly consented, took the keys out of the ignition, and opened the trunk for Welch.
The Cougar automobile was towed to the Cumberland Law Enforcement Center. Defendant and the other suspects were arrested and taken there. Defendant gave Sergeant Weldon written permission to search the Cougar automobile. Weldon first tried to enter the Cougar from the driver's side but the key would not work. Jolly said, "It does not work. You have to go to the passenger's side." Weldon entered the automobile from the passenger side and conducted his search.
The foregoing findings amply support the conclusion of the trial court that consent to both searches was voluntarily given; that neither consent was a mere submission to authority; and that the consents were not the result of duress or coercion, express or implied. When a person voluntarily consents to a search, he cannot complain that his constitutional rights were violated. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976), and cases cited therein. Consent to search freely and intelligently given renders competent the evidence thus obtained. State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973), and cases cited therein. See also, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, the trial court correctly ruled that the items seized pursuant to these searches were admissible.
Defendant also contends that the items seized during the second consent search were erroneously admitted into evidence on the ground that said search was conducted in violation of G.S. 15A-501(2) which provides that after arrest the officer "[m]ust. . . take the person arrested before a judicial official without unnecessary delay." Defendant argues that subsequent to his arrest he was not taken before a magistrate until after he had given his written consent to the second search. According to defendant this constitutes unnecessary delay within the meaning of the statute.
G.S. 15A-1446(a) states that "error may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion." Defendant failed to raise the alleged illegality of the second consent search under G.S. 15A-501(2) *5 before the trial court and therefore he cannot assert on appeal that violation of that statute renders inadmissible the items seized during the search. We note that the error asserted by defendant is not one of those which may be the subject of appellate review even though no objection, exception, or motion has been made in the trial division. See G.S. 15A-1446(d).
Notwithstanding defendant's failure to object, errors relating to rights arising under the statutory law of the State will not entitle defendant to a new trial unless he demonstrates that the error was material and prejudicial. See G.S. 15A-1443(a); State v. Curmon, 295 N.C. 453, 345 S.E.2d 503 (1978); State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971). Defendant fails to show how the alleged noncompliance with G.S. 15A-501(2) affected the voluntariness of his written consent to the search of his car.
In sum, defendant fails to show that the consents to search given by him were involuntary and further fails to demonstrate prejudice arising from the alleged violation of G.S. 15A-501(2). Defendant's first and second assignments of error are therefore overruled.
By his third assignment of error defendant contends the trial court erred in concluding his statement to police was voluntary and admissible into evidence. Defendant brings forward this assignment as the third question in his brief but makes no argument and cites no authorities upon which he relies in support of his position. Under Rule 28, Rules of Appellate Procedure, this assignment is deemed abandoned. Rule 28, supra; State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976).
Defendant assigns as error certain portions of the charge relating to first degree burglary and to the sufficiency of the evidence to sustain a conviction for first degree burglary.
Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling house or sleeping apartment of another with intent to commit a felony therein. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976); G.S. 14-51. Burglary in the second degree consists of all the elements of burglary in the first degree save the element of actual occupancy. State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967). If the dwelling house or sleeping apartment is unoccupied at the time of the alleged breaking and entry by defendant, then the offense is burglary in the second degree. Id. Thus, the sole distinction between the two degrees of burglary is the element of actual occupancy of the dwelling house or sleeping apartment at the time of the breaking and entering. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971).
Defendant contends the trial court erred by refusing to submit felonious breaking or entering as a possible verdict. Felonious breaking or entry is defined as the breaking or entry of any building with intent to commit any felony or larceny therein. G.S. 14-54(a). The statutory offense of felonious breaking or entering is a lesser included offense of burglary in the first and second degree. State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973). "The jury should be instructed on a lesser included offense when, and only when, there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979) [citations omitted]. See also State v. Haywood, 295 N.C. 709, 249 S.E.2d 429 (1978).
To justify submission of felonious breaking or entering as a permissible verdict there must be evidence tending to show that defendant could have gained entry to victim's motel room by means other than a burglarious breaking, i. e., a forcible entry. State v. Bell, supra; State v. Chambers, 218 N.C. 442, 11 S.E.2d 280 (1940). Here, all the evidence tends to show a burglarious breaking. A breaking in the law of burglary constitutes any act of force, however slight, "employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or *6 closed." State v. Wilson, 289 N.C. 531, 223 S.E.2d 311 (1976). A breaking may be actual or constructive. Id. A constructive breaking occurs where entrance is obtained in consequence of violence commenced or threatened by defendant. Id. The evidence in this case tends to show that defendant gained entry into victim's motel room by pushing victim into the room as he opened the door. This clearly constitutes a constructive breaking. Accordingly, it was not error for the trial court to exclude felonious breaking or entering as a permissible verdict. This portion of defendant's fifth assignment of error is overruled.
In a related assignment defendant argues that the evidence does not justify a jury instruction on constructive breaking. This contention is unsound in light of our conclusion that the evidence in this case tends to show a constructive breaking. Defendant's sixth assignment of error is overruled.
Defendant challenges portions of the jury charge in which the elements of burglary are defined. We have carefully reviewed the challenged portions of the charge and find them free of error. The charge on burglary accurately defines the elements of the offense and correctly applies the law to the evidence. Defendant's seventh, eighth and ninth assignments of error are overruled.
Defendant contends the trial court erred in failing to charge as to the possible punishment for all the offenses submitted to the jury. This contention is without merit. The trial judge is not required to instruct the jury regarding punishment. Such an instruction may be given or withheld in the court's discretion, and the exercise of that discretion will not, absent abuse, be disturbed on appeal. State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977). Accord, State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). No abuse of discretion is shown. This contention, which constitutes part of defendant's fifth assignment of error, is overruled.
At the close of all the evidence defendant moved to dismiss the action for insufficiency of the evidence to sustain a conviction for first degree burglary and armed robbery. The motion was denied. Failure to dismiss as to first degree burglary is assigned as error.
A motion to dismiss will be treated the same as a motion for judgment as of nonsuit. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977). Defendant's motion for nonsuit draws into question the sufficiency of all the evidence to go to the jury. Id. On motion for nonsuit the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from it. State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978). All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the court in ruling on the motion. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). If there is substantial evidencewhether direct or circumstantial, or bothto support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made out and nonsuit should be denied. Id. Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant nonsuit. Id. On the other hand, evidence which is sufficient only to raise a suspicion or conjecture of guilt is insufficient to withstand nonsuit. State v. Lee, supra.
Specifically, defendant contends there was no substantial evidence from which a jury could find that the motel room was occupied at the time of the alleged breaking and entry by defendant. If at the time the breaking and entry occurs, the house is unoccupied, "however momentarily, and whether known to intruder or not, the offense is burglary in the second degree." State v. Tippett, supra. Thus, if there is no substantial evidence from which a jury could find actual occupancy then nonsuit as to first degree burglary should have been granted.
With respect to the element of occupancy, the State's evidence tends to show that defendant ran behind the victim as the *7 victim approached the door to his motel room. Victim opened the door to the motel room. As victim was stepping inside the door he was pushed into the room by defendant. When the foregoing evidence is considered in the light most favorable to the State, and the State is given every reasonable inference to be drawn therefrom, it fails to show that victim was in the actual occupation of the motel room at the time the breaking and entry occurred. Since there was no substantial evidence of "actual occupation," it follows that the trial judge erred in submitting first degree burglary to the jury. Defendant's motion for nonsuit on first degree burglary should have been allowed and second degree burglary should have been submitted.
As previously noted, the sole distinction between the two degrees of burglary is the element of actual occupancy. State v. Allen, supra. Otherwise, the elements of the two offenses are identical. State v. Tippett, supra. Thus, in finding defendant guilty of first degree burglary, the jury necessarily had to find facts establishing the offense of burglary in the second degree. Since there was insufficient evidence from which a jury could find actual occupancy of the motel room at the time of the breaking and entering, it follows that the verdict returned by the jury must be considered a verdict of guilty of burglary in the second degree. Compare State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972). Hence, leaving the verdict undisturbed but recognizing it for what it is, the judgment upon the verdict of guilty of first degree burglary is vacated and the cause is remanded to the Superior Court of Cumberland County for pronouncement of a judgment as upon a verdict of guilty of burglary in the second degree. The Clerk of the Superior Court of Cumberland County shall thereupon issue a revised commitment with respect to the revised judgment on the first count in case number 77CRS52772 bearing the same date as the original commitment for first degree burglary. The effect will be, and it is so intended, that defendant will receive credit upon the new commitment for all the time heretofore served for first degree burglary.
The valid judgment of imprisonment for ten to fifteen years for armed robbery pronounced on the second count in the bill of indictment was made to begin at the expiration of the life sentence imposed on the first count. Upon remand of this case the valid judgment for armed robbery shall be modified to provide that the ten-to-fifteen year sentence shall commence at the expiration of the sentence which may be imposed on the burglary count, or shall run concurrently with it, as the court in its discretion may determine. A new commitment shall issue accordingly.
Defendant's tenth assignment relates to the charge and is based on Exceptions 20 and 21. We have examined the challenged portion and find that it correctly states and applies the law. Defendant's final assignment is overruled without discussion.
As to the burglary countRemanded for Judgment as for Verdict of Guilty of Second Degree Burglary.
As to the armed robbery countNo Error.
