An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-63


Filed: 6 January 2004


v .                         Union County
                            No. 01 CRS 12480, 054111

    Appeal by defendant from judgment entered 17 October 2002 by Judge Christopher M. Collier in Union County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    William B. Gibson for defendant-appellant.

    MARTIN, Judge.

    Defendant appeals from judgments entered upon his conviction by a jury of felonious breaking or entering and felonious larceny, and his plea of guilty to being an habitual felon. The State's evidence at trial tended to show that an alarm call was received by Monroe police at approximately 9:44 p.m. on 24 September 2001 from the Goodwill Industries retail store on Stafford Street. Monroe police officers responded. Upon Officer Davey Plyler's arrival at the store, he saw that an inside office door was cracked open, and noticed a hole in the side of the office. While standing outside the store, he observed the defendant backing out of the door with what appeared to be a hand-held phone in one hand and a knife in the other hand. Officer Plyler ordered the defendant to put hishands up, at which point the defendant ducked behind a rack of clothing and started making his way through the store. The officer radioed other officers to inform them of the defendant's actions. Officers near the back of the store immediately apprehended defendant. He was carrying a cell phone and screwdriver in his hands, and was wearing a pair of gloves.
    Inside the building, officers found cabinets open and drawers pulled out in the inner office. The officers also observed a hole in the office wall and an office chair on which sheet rock dust particles were found. A golf club similar to the ones located on the back wall of the sales area was found against the chair.
    Tiffany Long, the assistant manager who had been on duty when the store closed at 9:00 p.m., testified that she had made sure all exterior doors were locked and had walked through the store to ensure that no one was inside before leaving the store at approximately 9:30 p.m. She also testified that the inside office was locked before the store closed.
    Defendant offered no evidence. The jury found defendant guilty of felonious breaking or entering and of felonious larceny. The State then moved to amend the habitual felon indictment, which had been returned by the grand jury on 17 September 2001, to allege as the underlying offense, the breaking or entering and larceny offense for which defendant had just been convicted, rather than an offense which was alleged to have occurred on 27 May 2001. The motion was allowed. The habitual felon indictment alleged defendant was an habitual felon because he had three previousfelony convictions, which occurred in 1988, 1991, and 1993. Defendant then entered a plea of guilty to being an habitual felon and was sentenced to imprisonment for a minimum term of 150 months and a maximum term of 189 months.

    Defendant first assigns error to the denial of his motion to dismiss the charge of breaking or entering because there was insufficient evidence that he unlawfully broke or entered the commercial building in which he was found by law enforcement officers. He maintains that his presence in the store after closing hours is not sufficient evidence that he wrongfully entered the building.
    In ruling upon a criminal defendant's motion to dismiss, the question presented to the court is whether there is substantial evidence of each essential element of the offense and that defendant was the perpetrator. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). In ruling upon the motion, the court is to consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference which may be drawn from the evidence. Id. Furthermore, "[t]he trial court need only satisfy itself that the evidence is sufficient to take the case to the jury; it need not be concerned with the weight of that evidence." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). The jury decides "whether it is convinced beyond a reasonable doubt of defendant's guilt." 171-172, 393 S.E.2d at 787.
    "[A]n entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis of a conviction for felonious entry under G.S. § 14-54(a)." State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979). However, subsequent acts may render the consent to enter void, such as when the defendant "conceals himself in a building until a time he is not authorized to be there in order to facilitate a theft." Id. at 659 n. 3, 256 S.E.2d at 687 n. 3 (citation omitted).
    The evidence in this case was sufficient to submit the charge of felonious breaking or entering to the jury. Proof that a breaking occurred is "usually accomplished by testimony showing that prior to the entry all doors and windows were closed." State v. Alexander, 18 N.C. App. 460, 462, 197 S.E.2d 272, 273 (1973), cert. denied, 283 N.C. 666, 198 S.E.2d 721, cert. denied, 284 N.C. 255, 200 S.E.2d 655 (1973). At trial, the store's assistant manager testified that she double-checked the doors to make sure they were locked. She also walked through the building to ensure that no one was left inside the store. When the officers arrived and apprehended the defendant inside the store, they discovered that a back roll-up door was partially opened about six to twelve inches. This testimony is substantial evidence that defendant wrongfully broke or entered the Goodwill store. Thus, the trial court properly denied the defendant's motion to dismiss the charge of felonious breaking or entering.
    Defendant next contends that the trial court erred in denying his motion to dismiss the felonious larceny charge. Defendant's claim is grounded upon his argument that there was insufficient evidence the alleged larceny was committed pursuant to a breaking or entering. In this case, the charge of felonious larceny is conditioned on defendant's commission of the breaking or entering. Since, as we have held, the evidence was sufficient to support the jury's verdict with respect to the charge of felonious breaking or entering, the trial court also properly denied the motion to dismiss the charge of felonious larceny.
    Finally, defendant asserts the trial court lacked jurisdiction to accept his guilty plea to being an habitual felon. He maintains the indictment charging him as an habitual felon was fatally defective in that it failed to refer to any substantive felony for which the defendant was currently charged.
    We first determine whether this Court has jurisdiction to address defendant's argument. "Pursuant to G.S. 15A-1444(a1), a defendant who has entered a plea of guilty to a felony is not entitled to appeal as a matter of right unless his sentence exceeds the presumptive term set by G.S. 15A-1340.4." State v. Farrior, 117 N.C. App. 429, 433, 451 S.E.2d 332, 335 (1994). The defendant may, however, petition this Court for review by writ of certiorari. N.C. Gen. Stat. § 15A-1444(a1) (2003). Here, the trial court entered judgment upon defendant's plea of guilty and defendantthereafter failed to move to withdraw his plea. Defendant has not petitioned for writ of certiorari, nor are any of the exceptions enumerated in G.S. § 15A-1444(e) applicable. Under these circumstances, this Court is without jurisdiction to consider the merits of defendant's direct appeal from the original judgment. However, given the severity of the sentence imposed, we elect to treat defendant's appeal as a petition for writ of certiorari. We will grant the writ and consider the assignment of error.
    The habitual felon indictment was returned by the grand jury on 17 September 2001, alleging an underlying offense committed 27 May 2001. At defendant's trial upon the 24 September 2001 breaking or entering and larceny charges, the prosecution moved to amend the habitual felon indictment to allege the 24 September 2001 offenses as the underlying offenses giving rise to recidivist punishment. When the amendment was allowed, the effect was to allege an underlying offense which occurred seven days after the habitual felon indictment had been returned by the grand jury, but the three previous felony convictions upon which defendant's recidivist status was based remained unchanged. Defendant's basic argument is that because the underlying offense alleged in the amended indictment had not been committed when the original habitual felon indictment was returned, the amended indictment is fatally defective. After careful consideration of his argument, we reject it.
    The Habitual Felons Act provides for indictment as a habitual felon of a defendant who has pled guilty to or been convicted ofthree felony offenses. State v. Allen, 292 N.C. 431, 432-33, 233 S.E.2d 585, 586-87 (1977). The effect of the Act “is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past.” Id. at 435, 233 S.E.2d at 588 (citation omitted).
    The general requirements for a habitual felon indictment are set forth in N.C. Gen. Stat. § 14-7.3 (2003):
    An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.

    The bill of indictment alleging defendant's status as an habitual felon indictment fully comports with G.S. § 14-7.3, as all of the requirements of the statute were included in the indictment. “Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (citation omitted). The plain wording of N.C. Gen. Stat. § 14-7.3 does not require the bill of indictment to allege the date of the underlying criminal offense.
    Furthermore, the purpose of the Habitual Felons Act is to "provide notice to defendant that he is being prosecuted for some substantive felony as a recidivist." Id., 453 S.E.2d at 863-64. Here, defendant had sufficient notice that he would be tried as a recidivist. The habitual felon indictment was returned more than a year before defendant's trial for the underlying criminaloffense. Because the indictment was sufficient in that all statutory provisions were met, the trial court had jurisdiction to accept defendant's plea of guilty to being an habitual felon.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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