State v Reed, (03-1433) 06/15/2004

Appeal by defendant from judgments entered 30 January 2001 and 2 February 2001 by Judge Anthony M. Brannon in the Superior Court in Wake County. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.

Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

HUDSON, Judge.

    Defendant appeals his convictions for possession of alcoholic beverage for sale (98 CRS 30650) and second degree trespassing (99 CRS 106128).
    The State's evidence at the trial in file number 98 CRS 030650 tended to show that on 3 April 1998, Ricky Barbour, a law enforcement officer with the Wake County Board of Alcoholic Beverage Control (ABC), executed a search warrant at defendant's house and seized a total of 36 ½ liters of liquor. At that time, defendant only possessed transportation permits. Officer Barbour told defendant that to sell alcohol from his house, defendantneeded a permit from the ABC Commission.
    On 16 April 1998, Officer Barbour executed another search warrant at defendant's house. Officer Barbour seized nine half- gallon bottles, three fifths, and 18 pints of liquor from the bedroom closet and kitchen area. The amount of liquor totaled thirty-two liters. Officer Barbour also seized twenty-seven 50 milliliter bottles of sparkling wine, five 24-packs of Budweiser beer, and a 12-pack of Michelob beer. From the refrigerator, he seized two 24-packs of assorted beers and four assorted beers. A price list for Michelob beer was posted on defendant's refrigerator.
    In addition, Officer Barbour seized $5.79 in U.S. coins from defendant's person, $76.00 in U.S. currency from defendant's person and bedroom drawer, and $94.00 in U.S. one-dollar bills from a coat in defendant's closet. Officer Barbour also found a paper entitled “Harry's House Rules” and a menu posted near defendant's kitchen door. “Harry's House Rules” stated, in part, “The bar is open until 3:00 a.m. or until Harry gets drunk,” “Harry's Motto[:] Your money belongs in my pocket” “No [] begging” “No [] credit” “No [] drugs” and “You don't get nothing here free.”
     Defendant testified that he legally purchased alcohol from the ABC store for a party he was throwing for his girlfriend. Defendant presented a permit that allowed him to transport and store alcohol, but admitted he did not have a permit to sell.
    At the trial in file number 99 CRS 106128, Officer Barbour testified that when he executed the search on 3 April 1998, he tolddefendant not to enter any property owned by the Wake County ABC Board, specifically the liquor stores. Officer Barbour further testified that on 16 April 1998, he told defendant he would arrest defendant for trespassing if he went back to the ABC stores. Officer Barbour again told defendant not to enter the premises of Wake County ABC stores in March and October of 1999. On 22 December 1999, Officer Barbour received a phone call from Chief ABC Officer Joel Keith, who asked Officer Barbour to meet him at the ABC store located at the Mission Valley Shopping Center. When they arrived, Officer Keith told Officer Barbour that he had seen defendant inside the ABC store purchasing alcohol and showed Officer Barbour the alcohol. Officer Barbour approached defendant, who was sitting in Chief Keith's patrol vehicle, and arrested him for trespassing. Chief Keith testified that he and Officer Barbour, as agents of the Wake County ABC Board, have authority to ban anyone from ABC stores for any reason. Defendant presented no evidence.
    In his sole argument on appeal, defendant contends that the trial court erred in failing to dismiss the charges at the close of all the evidence based on insufficiency. Defendant, who represented himself at both trials, did not move to dismiss the charges at the close of the evidence in either trial. Where a defendant fails to move to dismiss at the close of all of the evidence, he may not attack the sufficiency of the evidence on appeal. N.C.R. App. P. 10(b)(3) (2003). Accordingly, we are precluded from reviewing the merits of defendant's argument. SeeState v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987). However, we note that even if this issue had been properly preserved for appeal, the evidence was sufficient to support his convictions.
    No error.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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