An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-144

NORTH CAROLINA COURT OF APPEALS

Filed: 7 February 2006

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos. 03 CRS 56808
NARADA WATSON,                        03 CRS 61917
        Defendant.

    Appeal by defendant from judgments entered 29 June 2004 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 18 October 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State.

    James N. Freeman, Jr. for defendant-appellant.

    GEER, Judge.

    Defendant Narada Watson appeals his convictions for robbery with a dangerous weapon, first degree burglary, and possession of a firearm by a felon. On appeal, defendant argues that the trial court erred by not granting his motion to dismiss the burglary charge for insufficient evidence, by permitting the State to reopen its case after the close of all the evidence, and by failing to deduct one point from defendant's prior record level on the grounds that defendant did not have counsel for the prior conviction. We hold that the record contains sufficient evidence to allow a reasonable juror to find that defendant committed first degree burglary. Further, defendant's arguments regarding the trialcourt's decisions to allow the State to reopen its case and not to count all of defendant's prior convictions are without merit.

Facts

    At trial, the State's evidence tended to show the following facts. Shortly after 10:00 p.m. on the evening of 10 April 2003, Michael Cameron, his fiancée Melissa Carpenter, and Carpenter's sleeping child were in their home in Winston-Salem, North Carolina. Cameron and Carpenter heard a knock at the door. When Cameron opened the door, a man he did not recognize asked a question that Cameron did not understand. Another man, subsequently identified as defendant, then "walked around inside . . . the door" and pointed a pistol at Cameron's chest or neck. Keeping the gun on Cameron, defendant and the second man entered the house, and defendant ordered Cameron and Carpenter to lie face-down on the floor. Defendant then handed the gun to the second man and instructed him to shoot Cameron and Carpenter if they moved.
    While Cameron and Carpenter were on the floor, defendant began ransacking their bedroom. An unidentified third individual entered the house and took Cameron's Sony PlayStation2 video game system, along with several video games, and left. Defendant and the other man took Carpenter's camcorder, a cell phone, and $180.00 to $200.00 in cash. After briefly exiting, the two original men returned, tied Cameron and Carpenter up, and told them that if they called the police the men would return to kill them.
    Detective Nieves of the Winston-Salem Police Department was assigned to investigate the case. He interviewed both Cameron andCarpenter within a few days of the incident. Carpenter, who had a good view of the gunman when he looked directly at her as he entered the apartment, identified defendant's photograph in a photo display.
    Because Carpenter had retained the receipt for the purchase of Cameron's PlayStation2, police were able to identify it by serial number at a local pawn shop. The pawn ticket showed that the PlayStation2 was pawned by defendant's brother, Timothy Watson, and listed defendant's home address. Detective Nieves later located and interviewed defendant. When asked about the PlayStation2, defendant claimed he had purchased it from an unidentified "crack head." Defendant denied being involved with the robbery.
    On 15 December 2003, defendant was indicted for robbery with a dangerous weapon, first degree burglary, and possession of a firearm by a felon. The jury returned verdicts of guilty on all charges. The trial court sentenced defendant to a presumptive range sentence of 105 to 135 months for the robbery and a consecutive presumptive range sentence of 105 to 135 months for the burglary and possession of a firearm by a felon convictions.
I

    Defendant first argues that the trial court should have dismissed the burglary charge for insufficient evidence. In addressing a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant's being the perpetrator of such offense. State v. Scott, 356 N.C.591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869. The court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Id. at 596, 573 S.E.2d at 869.
    "The elements of first-degree burglary are: (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein." State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996); see also N.C. Gen. Stat. § 14-51 (2005). On appeal, defendant contests only the sufficiency of the evidence of the first element, arguing that because defendant entered through an open door, there was no "breaking."
    A breaking may be actual or constructive. As defendant notes, an actual breaking occurs when an offender uses any act of force to effectuate an entrance. State v. Wilson, 289 N.C. 531, 538-39, 223 S.E.2d 311, 316 (1976). On the other hand, a constructive breaking may be found "when entrance is obtained as the result of violence commenced or threatened by a defendant." State v. Parker, 350 N.C. 411, 425, 516 S.E.2d 106, 117 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681, 120 S. Ct. 808 (2000).
    In this case, Cameron testified that the perpetrators obtained entry when one of them produced a gun and ordered him to back into his home. According to Cameron, he complied because he was afraidof being shot. This evidence is sufficient for a reasonable juror to conclude that entry was obtained as the result of violence threatened by defendant. See id. (concluding there was sufficient evidence of a constructive breaking where victim was forced through violence and the threat of violence back into his apartment); see also State v. Rodgers, 216 N.C. 572, 574, 5 S.E.2d 831, 832 (1939) (concluding there was sufficient evidence of a constructive breaking where victims were marched back into their residence at gunpoint).
    In support of his argument, defendant points to State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419 (1986), in which this Court concluded that "[e]ntry through an open window or door does not constitute a breaking." Id. at 275, 339 S.E.2d at 421. McCoy did not, however, address a constructive breaking. Instead, the issue in McCoy was who performed the breaking _ not whether a breaking occurred. Although the State offered evidence that the defendant and another man entered the house by removing a window screen and prying open a window, "[t]here was no evidence from which the jury reasonably could conclude that defendant, rather than [his accomplice], removed the screen and pried open the window" and the State had not proceeded on a theory of acting in concert. Id.
    In this case, the State offered evidence that defendant and his accomplices gained entrance by defendant's threatening violence with a gun. In sum, the State's evidence permitted a reasonable juror to find both that there was a breaking and that defendantcommitted it. Accordingly, the trial court properly denied defendant's motion to dismiss.
II

    Defendant next contends that the trial court erred in permitting the State to reopen its case and recall Detective Nieves, arguing that it was inherently prejudicial and denied him due process. After the close of evidence, judges may "permit any party to introduce additional evidence at any time prior to verdict." N.C. Gen. Stat. § 15A-1226(b) (2005). A decision to do so is reviewed for an abuse of discretion. State v. Jackson, 306 N.C. 642, 652-53, 295 S.E.2d 383, 389 (1982). Such a ruling does not violate due process so long as the opposing party has an opportunity to rebut or challenge the new evidence. State v. Lowery, 318 N.C. 54, 70, 347 S.E.2d 729, 740 (1986).
    When Detective Nieves was first called during the State's case-in-chief, defense counsel on cross-examination brought out that defendant was in jail at the time he was questioned by Detective Nieves. After completion of Detective Nieves' testimony, the State rested its case, and defendant chose not to put on any evidence. After denying defendant's motion to dismiss, the court recessed for the day.
    The following morning, before the jury returned to the courtroom, the State moved to reopen its case so as to recall Detective Nieves to clarify that, although defendant was in jail at the time of his interview, defendant was not incarcerated on the date of the burglary. This motion was granted over defendant'sobjection, and both the State and defense counsel further questioned the detective.
    Under these circumstances _ in which defendant elicited testimony suggesting he could not have committed the robbery and the State promptly moved to reopen its case to clarify that testimony and negate that inference _ the trial court did not abuse its discretion. Moreover, because defendant was not denied the opportunity to rebut or challenge the detective's additional testimony, he was not denied due process.
    Defendant nonetheless argues that he was particularly prejudiced by Detective Nieves' additional testimony because the last testimony the jury heard was that defendant had been incarcerated on an unrelated matter. The testimony that defendant was in jail was, however, initially elicited by defense counsel. The detective, who was the State's final witness, was excused only three questions later. Then, defendant offered no evidence. As a result, even had the State not been allowed to reopen its case, the subject of incarceration would have been one of the last things the jury heard. We cannot say that any prejudice from the testimony was attributable to the decision to allow the State to reopen its case rather than to defendant's decision to introduce the subject of incarceration at the end of the case. See N.C. Gen. Stat. § 15A-1443(c) (2005) (an appellant cannot be prejudiced "by error resulting from his own conduct"). Accordingly, this assignment of error is overruled.
III

    Finally, defendant contends that the trial court, when calculating defendant's prior record level, improperly counted an uncounseled conviction without requiring the State to show that defendant validly waived his right to counsel at the time of the prior conviction. Defendant has, however, improperly shifted the burden of proof.
    With respect to the prior record level, "[t]he State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f) (2005). The State may meet this burden by (1) a stipulation of the parties; (2) a court record of the prior conviction; (3) records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or the Administrative Office of the Courts; or (4) any other method found by the court to be reliable. N.C. Gen. Stat. § 15A-1340.14(f). Defendant does not argue that the State failed to satisfy this burden.
    The State bore no burden of showing that defendant was represented by counsel in connection with these convictions. Instead, our legislature has provided that the defendant bears "the burden of proving by the preponderance of the evidence that the conviction was obtained in violation of his right to counsel." N.C. Gen. Stat. § 15A-980(c) (2005). Further, "[a] defendant who has grounds to suppress the use of a conviction in evidence at atrial . . . must do so by motion made in accordance with the procedure in this Article. A defendant waives his right to suppress use of a prior conviction if he does not move to suppress it." N.C. Gen. Stat. § 15A-980(b). Defendant concedes in his brief that he did not move to suppress the disputed conviction at trial.
    Even if we could overlook the absence of a motion to suppress under N.C. Gen. Stat. § 15A-980(b), defendant failed to offer any evidence that, at the time of his prior conviction, he (1) was indigent, (2) had no counsel, and (3) had not waived his right to counsel. State v. Rogers, 153 N.C. App. 203, 216, 569 S.E.2d 657, 666 (2002), disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003). Defendant relies on the arguments of his trial counsel that he had requested counsel and was denied. The statements of counsel are not, however, evidence. See, e.g., State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986) (holding that "statements made by defense counsel during argument at the sentencing hearing do not constitute evidence in support of statutory mitigating factors"); State v. Radford, 156 N.C. App. 161, 164, 576 S.E.2d 134, 137 (2003) (holding that "trial courts cannot find an aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists").
    Finally, defendant contends that the trial court should have continued the sentencing proceeding until more evidence could be heard to establish his prior conviction's constitutional validity. Since defendant did not move for a continuance at trial, that issuewas not properly preserved for our review. State v. Call, 353 N.C. 400, 416, 545 S.E.2d 190, 201 (holding that because a continuance was not requested, "the trial court was never called upon by defendant to exercise its discretion, and defendant . . . [therefore] failed to preserve this issue for appellate review"), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548, 122 S. Ct. 628 (2001); see also N.C.R. App. P. 10(b)(1) (providing that in order to preserve a question for review, a party must have presented a timely request to the trial court). This assignment of error is, therefore, overruled.

    No error.
    Judges WYNN and McGEE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***