State v. Boone

• Decision Date: 30 July 1979
• Docket Number: No. 39,39
• Citation: 297 N.C. 652,256 S.E.2d 683
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William BOONE.

Page 683

256 S.E.2d 683

297 N.C. 652

STATE of North Carolina v.William BOONE.

No. 39.

Supreme Court of North Carolina.

July 30, 1979.

Rufus L. Edmisten, Atty. Gen. by Amos C. Dawson, III, Asst. Atty. Gen., Raleigh, for the State.

Twiford, Trimpi & Thompson by Russell E. Twiford and John C. Trimpi, Elizabeth City, for defendant.

EXUM, Justice.

Defendant was convicted of both felonious entry under G.S. 14-54(a) and felonious larceny.The two counts were consolidated for judgment.The Court of Appeals found no error in the larceny conviction but held that since defendant entered the store in question with the implied consent of the storekeeper, his motion to dismiss the felonious entry charge should have been granted.Pursuant to this holding, it remanded for resentencing.We agree with the Court of Appeals' decision on the merits as to both the felonious entry and larceny charges, but we hold that under the circumstances of this casedefendant is not entitled to be resentenced.

The state's evidence tended to show that defendant entered Indian Imports, a clothing store in Nags Head, at about 7:15 p. m. on 18 November 1977.The store was open to the public at the time.Defendant asked for directions to Elizabeth City.He left briefly and then returned with three other people.He waited just outside the door while they went inside.They remained in the store for three to five minutes and then left with defendant.There were no other customers in the store.

Shortly after defendant and his companions left, the salesclerk in the store noticed two sweaters missing.She immediately called the police and gave them a description of defendant, his car and his companions.The police located and stopped defendant's car.He and the three persons who had entered the store were in it.Upon searching the car with defendant's consent, the police found seven sweaters belonging to Indian Imports and a cardboard "booster box."The fair market value of the sweaters was estimated to be $250.00 to $300.00.Neither defendant nor his companions had purchased the sweaters from the store.

Defendant offered no evidence.

This appeal presents two questions: (1) whether the trial court improperly admitted the "booster box" into evidence and (2) whether the trial court erred in denying defendant's motion to dismiss the felonious entry charge.

The "booster box" was described as a device used by professional shoplifters to conceal stolen merchandise.Defendant contends that the "booster box" and testimony concerning it should not have been admitted because there was no showing that it was used in the crime charged.According to his argument, this evidence tended only to show his disposition to commit a theft and was, therefore, inadmissible.

In so arguing, defendant relies in part on State v. Stone, 240 N.C. 606, 83 S.E.2d 543(1954).Defendant in Stone was charged with incest and assault with intent to commit rape.Found in his possession at the time of his arrest, some nine months after the alleged commission of the crimes charged, were two prophylactics.These were admitted into evidence over defendant's objection.On appeal, this Court found prejudicial error in the admission of the prophylactics and granted defendant a new trial.

Stone is distinguishable from the present case.We read its holding as resting on two grounds: (1) remoteness, and (2) lack of any logical relevancy between the possession of the prophylactics and the issue of defendant's guilt.Here the "booster box" was found in defendant's car along with the stolen sweaters within minutes after the sweaters were discovered missing.Defendant was charged with larceny.There was testimony that the "booster box" was a device used by professional shoplifters.Possession of the "booster box" under these circumstances is relevant because it has a logical tendency to show a design or plan on the part of defendant and one or more of his companions to steal merchandise from the store.

The present case falls squarely within the holding of State v. Fogleman, 204 N.C. 401, 168 S.E. 536(1933).Defendant in Fogleman was charged with the murder of a store owner, apparently during an attempted robbery.Introduced against him were a number of items seized from his car, including a shotgun, some shells and various burglary tools.There was no showing that any of these items was used in the commission of the crime charged.Nevertheless this Court sustained the admission of this evidence, stating, Id. at 406, 168 S.E. at 539(QuotingWigmore on Evidence): " '(T)he acquisition or possession of instruments, tools, or other means of doing the act is admissible as a significant circumstance; the possession signifies a probable design to use; the instruments need not be such as are entirely appropriate, nor such as were actually put in use.' "It is always relevant on the question whether defendant committed a certain act to show that he had a plan or design to commit it."When the very doing of the act charged is still to be proved, one of the evidential facts receivable is the person's Design or Plan to do it.This in turn may be evidenced by conduct of sundry sorts as well as by direct assertions of the design."II Wigmore on Evidence§ 304 at 202 (3d ed. 1940).This reasoning supports admission into evidence here of the "booster box."Defendant's assignments of error relating to its admission and to testimony concerning it are without merit.

We next hold that the Court of Appeals correctly reversed the trial court's denial of defendant's motion to dismiss the felonious entry charge.Felonious entry is defined in G.S. 14-54(a) as follows:

"Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2."

Defendant argues that in order for an entry to be punishable under this section it must be a wrongful entry, I. e., without the consent of the owner.He points out that the store was open to the public at the time he entered.Therefore, according to his argument, his entry was not without the consent of the owner, and he did not violate G.S. 14-54(a).The Court of Appeals agreed with this argument.We agree with the Court of Appeals.

The question whether an entry must be without the owner's consent in order to sustain a conviction under statutes similar to G.S. 14-54(a) is one that has sharply divided courts in other jurisdictions.SeeAnnotation, Burglary Entry with Consent, 93 A.L.R.2d 531.The primary basis for this split, however, appears to be differing statutory requirements in the various jurisdictions.Smith v. State, 362 P.2d 1071(Alaska1961).Our primary task here, then, is discerning the meaning of G.S. 14-54(a).

Felonious entry is a statutory crime.State v. Mumford, 227 N.C. 132, 41 S.E.2d 201(1947).The first statute in North Carolina that punished nonburglarious breaking was Chapter 166 of the Laws and Resolutions of the State of North Carolina1874-75.It read as follows:

"That any person who shall wilfully break into a storehouse where any merchandise or other personal property is kept, or any uninhabited house, with intent to commit a felony, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment in the county jail or State's prison for not less than four months nor more than ten years."

This statute was amended by Chapter 323 of the Laws and Resolutions of the State of North Carolina1879 to include within its coverage the "entering of a dwelling house in the night time otherwise than by breaking" with intent to commit a felony.The nonburglarious breaking or entry statute was subsequently embodied in Revisal§ 3333 as follows:

"If any person shall break or enter a dwelling-house of another otherwise than by a burglarious breaking; or shall break and enter a store-house, shop, warehouse, banking-house, counting-house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or other infamous crime therein; every such person shall be guilty of a felony, and imprisoned in the state's prison or county jail not less than four months, nor more than ten years."

Defendant in State v. Goffney, 157 N.C. 624, 73 S.E. 162(1911), was tried and convicted of a violation of Revisal§ 3333.The state's evidence in Goffney showed that defendant was apprehended as he broke and entered Mr. Barnes' store.The evidence also showed, however, that Barnes had instructed an employee of his to induce defendant to commit the offense.On these facts, this Court held that a directed verdict of not guilty should have been entered, stating, Id. at 628, 73 S.E. at 164:

"In the case at bar the owner himself gave permission for the defendant to enter, which destroyed the criminal feature and made the entry a lawful one.

"Upon the facts in evidence no crime was committed, because the entry was with the consent and at the instance of the owner of the property."

Goffney, then, clearly stands for the proposition that an entry, even if with felonious intent, cannot be punished when it is with the owner's consent.

The state here argues that Goffney was an entrapment case and that its holding should be limited to circumstances where the owner of the property actively induced the crime.We do not agree.The result in Goffney was not based on entrapment.It instead rested on the court's holding that under the statute an entry must be without consent and the well-established proposition that "(i)f want of consent is an element of a crime, an act done with the consent of the person affected cannot be made the basis of a criminal charge."State v. Nelson, 232 N.C. 602, 604, 61 S.E.2d 626, 628(1950).

Defendants in State v. Friddle, 223 N.C. 258, 25 S.E.2d 751(1943), were tried and convicted of a violation of C.S. § 4235, the...