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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. STEVEN LEWIS BROOKS
Filed: 20 June 2006
1. Burglary and Unlawful Breaking or Entering_entry beyond public area_initial
consent void ab initio
An entry with the owner's consent cannot be punished, even if it is with felonious intent,
but subsequent conduct can render the consent void ab initio. The trial court here correctly
denied motions to dismiss charges of felonious breaking or entering and felonious larceny where
defendant entered a law firm which had a reception area open to the public, went beyond that
area to commit a theft, and lied to a member of the firm about his reason for being there.
2. Evidence_videotapes not authenticated_activity admitted by defendant_admission
There was no prejudicial error in the admission of videotapes that may not have been
properly authenticated where defendant admitted the activity shown on the tapes.
Appeal by defendant from judgment entered 13 April 2005 by
Judge Thomas D. Haigwood in Forsyth County Superior Court. Heard
in the Court of Appeals 9 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Brent D. Kiziah, for the State.
Appellate Defender Staple Hughes, by Assistant Appellate
Defender Matthew Wunsche, for defendant appellant.
Steven Lewis Brooks (defendant) appeals from conviction and
judgment for felonious breaking or entering and felonious larceny.
We hold that defendant received a fair trial, free from prejudicial
On 18 August 2004 between 10:00 a.m. and 11:30 a.m., defendant
and Janice Perkins entered the law offices of Grace Holt Tisdale &Clifton in Winston-Salem, North Carolina. The law firm is open to
people seeking legal representation, and it is arranged so that
people visiting the firm may enter the reception area. The firm's
lawyers generally meet with clients in conference rooms, and access
to the attorneys' offices is by permission only.
Attorney Michael Grace noticed Perkins, who had been a client
in a previous criminal case. As Perkins had been told that she
should not return to the firm after that case, Grace told her that
she should not be there. A legal assistant witnessed defendant
walking in the hallway from the back of the firm, and she asked
defendant if she could help him. Defendant answered that he was
looking for a lawyer and asked if attorney Mireille Clough was
available. Upon receiving a negative response, defendant sat in a
chair outside of Clough's office. Defendant then moved towards the
firm's bathroom, and approximately one minute thereafter, exited
the law firm.
Attorney Mireille Clough returned to the firm between 11:45
a.m. and noon, after being in court that morning. She placed a bag
in one of the chairs in her office, retrieved some files, and left
for court again. When she returned later in the day, Clough
observed that her day planner and a wallet containing her credit
cards were missing from her bag. She contacted her credit card
company and was informed that her credit card had recently been
used at a nearby Food Lion grocery store.
Attorney Donald Tisdale testified that he observed defendant
exiting Clough's office at 1:30 p.m. on 18 August 2004. Uponnoticing Tisdale, defendant asked whether Clough had returned from
lunch. Tisdale replied that he would see if Clough had returned and
then walked to his office to put something down. By the time
Tisdale returned, defendant was gone.
The police procured a video of defendant and Perkins using
Clough's credit card at the nearby Food Lion. Officers also seized
four credit card receipts which indicated that Clough's credit card
had been used at the Food Lion. While driving to interview a
witness, Detective Gregory Dorn noticed Perkins on the porch of a
home on Waughtown Street. Detective Dorn detained Perkins, entered
the home, and found defendant sitting in the living room. Perkins
accompanied Dorn, and other officers, to a location approximately
one-quarter to one-half mile from the home, where the officers
performed a search and located Clough's day planner. The police
also found Clough's credit cards in a planter at the home on
Defendant was arrested. He confessed to entering the law
office though, according to defendant, he diverted the attention of
the secretary while Perkins stole Clough's personal items.
Defendant further admitted to purchasing sixteen cases of beer and
nine cartons of cigarettes with Clough's credit cards.
A Forsyth County jury convicted defendant of felonious
breaking or entering and felonious larceny. The trial court
sentenced defendant as an habitual felon to between 100 and 129
months of imprisonment. Defendant now appeals.
In his first argument on appeal defendant contends that the
trial court erred by denying his motions to dismiss the charges of
felonious breaking and entering and felonious larceny. This
contention lacks merit.
A trial court should deny a motion to dismiss if, considering
the evidence in the light most favorable to the State and giving
the State the benefit of every reasonable inference, there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. Id. [T]he
rule for determining the sufficiency of evidence is the same
whether the evidence is completely circumstantial, completely
direct, or both. State v. Wright, 302 N.C. 122, 126, 273 S.E.2d
699, 703 (1981).
A. Felonious Breaking or Entering
 Pursuant to section 14-54(a) of the General Statutes,
[a]ny person who breaks or enters any building with intent to
commit any felony or larceny therein shall be punished as a Class
H felon. N.C. Gen. Stat. § 14-54(a) (2005). Thus, [t]he
essential elements of felonious breaking or entering are (1) the
breaking or entering (2) of any building (3) with the intent tocommit any felony or larceny therein. State v. White, 84 N.C.
App. 299, 301, 352 S.E.2d 261, 262, cert. denied, 321 N.C. 123, 361
S.E.2d 603 (1987). The present defendant challenges only whether
there was sufficient evidence of an illegal entry on his part.
[A]n entry, even if with felonious intent, cannot be punished
when it is with the owner's consent. State v. Boone, 297 N.C.
652, 657, 256 S.E.2d 683, 686 (1979). Our Supreme Court has held
that, where a defendant entered [a] store at a time when it was
open to the public[, h]is entry was . . . with the consent, implied
if not express, of the owner[, and could not] serve as the basis
for a conviction for felonious entry. Id. at 659, 256 S.E.2d at
However, the subsequent conduct of the entrant may render the
consent to enter void ab initio. State v. Speller, 44 N.C. App.
59, 60, 259 S.E.2d 784, 785 (1979); see also State v. Winston, 45
N.C. App. 99, 102, 262 S.E.2d 331, 333 (1980) (reversing conviction
for breaking or entering where a defendant entered with consent,
and the record fail[ed] to disclose that the defendant after entry
committed acts sufficient to render the implied consent void ab
initio.). This Court has upheld a conviction for breaking or
entering where a defendant entered a store during normal business
hours, but subsequently secreted himself in a portion of the store
which was not open to the public and remained concealed there so
that he could perpetrate a theft after the store closed. Speller,
44 N.C. App. at 60, 259 S.E.2d at 785. Specifically, we held that
defendant's actions in [g]oing into an area not open to the publicand remaining hidden there past closing hours made the entry
through the front door open for business unlawful. Id.
In the instant case, the evidence tended to show that
defendant entered a law office which was open to members of the
public seeking legal assistance. The firm had a reception area
where members of the public were generally welcome and also areas
beyond this reception area which were not open to the public. When
defendant entered the reception area of the firm, he did so with
implied consent from the firm. However, defendant took action
which rendered this consent void ab initio when he went into areas
of the firm that were not open to the public so that he could
commit a theft, and when he misinformed a member of the firm as to
the reason for his presence in these areas. Therefore, defendant
illegally entered the firm.
Accordingly, the State introduced substantial evidence to
satisfy the breaking or entering element of felonious breaking or
entering. The trial court did not err by denying defendant's
motion to dismiss this charge.
B. Felonious larceny
Larceny is the taking and carrying away of the property of
another without the owner's consent with the intent to permanently
deprive the owner of the property. State v. Coats, 74 N.C. App.
110, 112, 327 S.E.2d 298, 300, cert. denied, 314 N.C. 118, 332
S.E.2d 492 (1985). The crime of larceny is a felony, without
regard to the value of the property in question, if the larceny is
committed pursuant to a breaking or entering in violation ofsection 14-54 of the General Statutes. N.C. Gen. Stat.
§ 14-72(b)(2) (2005).
Defendant argues that the trial court should have dismissed
the felonious larceny charge because there was no evidence of a
breaking or entering on his part. As we have already indicated,
the evidence permitted a jury finding that defendant illegally
entered the law firm. Accordingly, the trial court did not err by
denying defendant's motion to dismiss the felonious larceny charge.
 In his second argument on appeal, defendant contends that
the trial court erred by admitting the videos from the Food Lion
into evidence because the prosecution failed to properly
authenticate these items of evidence. Even assuming arguendo
the tapes were not properly admitted in evidence, we conclude that
defendant was not prejudiced by their admission.
At issue are State's Exhibits 18 and 20, both of which
contained video footage of defendant and Perkins using Clough's
credit card to purchase beer and cigarettes at a Food Lion. The
footage was taken from the Food Lion's surveillance cameras.
Exhibit 20 showed multiple scenes from different cameras within the
store. The footage contained in Exhibit 20 was edited by the
police to produce Exhibit 18. Both videos were shown to the jury;
Exhibit 18 was shown in its entirety; but Exhibit 20 was only
partially shown. Defendant contends that the exhibits were
improperly shown to the jury because the State did not establishthat the videotapes fairly and accurately illustrated the events filmed.
It is true that videotapes are admissible as evidence only
when a proper foundation has been established. N.C. Gen. Stat. §
8-97 (2005); State v. Cannon
, 92 N.C. App. 246, 254, 374 S.E.2d
604, 608 (1988), rev'd on other grounds
, 326 N.C. 37, 387 S.E.2d
450 (1990). However, not all trial errors require reversal and
[d]efendant has the burden of showing that he was prejudiced by
the admission of . . . evidence. State v. Wingard
, 317 N.C. 590,
599-600, 346 S.E.2d 638, 645 (1986). Indeed, an error is not
prejudicial unless there is a reasonable possibility that, had the
error in question not been committed, a different result would have
been reached at the trial . . . . N.C. Gen. Stat. § 15A-1443
In the instant case, we hold that the admission of the
videotapes showing defendant and his accomplice purchasing beer and
cigarettes on the victim's stolen credit card was not prejudicial
given the admittance of defendant's statement in which he confessed
to using the victim's credit card to purchase beer and cigarettes
at the Food Lion. Specifically, defendant stated, We went to Food
Lion[;] we got some beer on the credit cards . . . . Later when
asked by a detective what he and his accomplice bought at Food
Lion, defendant stated, [b]eer and cigarettes. In light of
defendant's confession, there is no reasonable possibility that,
had the challenged video exhibits not been admitted, a different
result would have been reached at the trial.
Defendant's assignments of error are overruled.
Judges TYSON and ELMORE concur.
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