Appeal by defendant from a judgment entered 23 February 2005
by Judge Donald M. Jacobs in Wayne County Superior Court. Heard in
the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Susan K. Nichols, for the State.
D. Tucker Charns for defendant-appellant.
On 3 January 2005, defendant William Billy Bowden, Jr., was
indicted on charges of felonious breaking or entering and having
attained the status of an habitual felon. The case was tried at
the 21 February 2005 Criminal Session of Wayne County Superior
The State presented evidence at trial which tended to show the
following: On 24 May 2004, at approximately 4:30 a.m., Vernon Lee
was leaving his home to go to work when he noticed a light on in a
small barn that was on his property. Lee testified that the barn
was used for recreation, and contained a pool table, television,
table and chairs, and a bathroom. When he approached the barn, he
saw a person inside. Lee went back in his house, told his fiancéeto call the police, grabbed a shotgun and went back to the barn
where he found that a window had been broken. Lee peeked in the
window and saw defendant coming out of the bathroom. Lee
recognized defendant because he used to live nearby, and had been
over to the Lee house previously for parties. Lee asked defendant
what he was doing in the barn. Defendant told Lee Nothing, I'm
getting a drink. Lee told defendant he ought to shoot him.
Defendant threw up his hands and asked Lee not to shoot him. Lee
went to the front of the barn to approach defendant, and defendant
jumped out the back window. Lee threatened to shoot defendant if
he moved, and defendant ran.
Afterwards, Lee returned to the barn and found a trash bag
filled with some cans of soda and beer. The bag was located on a
table near the window that defendant jumped out of when he ran.
Lee testified he did not put the sodas or beer in the bag, had not
noticed them there the previous evening, and had not given
defendant permission to put sodas and beer in the bag and take
them. Later the same morning, defendant was arrested by Mount
Olive Police officers. Defendant was returned to Lee's property
where Lee positively identified him.
Defendant was convicted of felony breaking or entering and
having attained the status of an habitual felon and was sentenced
to a term of 121 to 155 months imprisonment. Defendant appeals.
Defendant raises four issues on appeal: (I) whether his trial
attorney's failure to request recordation of the jury voir dire
andclosing arguments rose to the level of ineffective assistance of
counsel; (II) whether the trial court erred in failing to order
recordation of jury voir dire
and closing arguments sua sponte
(III) whether the trial court committed error by denying his motion
to dismiss for insufficiency of the evidence; and (IV)
trial court erred in determining his habitual felon status for
Defendant first argues he received ineffective assistance of
counsel because his attorney failed to request recordation of the
jury voir dire
and closing arguments. Defendant contends that the
failure of his trial counsel to request recordation deprived him of
full appellate review and effective assistance of appellate
counsel. We are not persuaded.
To successfully assert an ineffective assistance of counsel
claim, defendant must satisfy a two-prong test.
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
counsel guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.
State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(quoting Strickland v. Washington
, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693 (1984)). Here, defendant cites no error that occurred in
the unrecorded portions of the trial. Thus, even assuming arguendo
that counsel's performance was deficient for failure to request
that the proceedings be recorded, defendant shows no prejudice.
; see also State v. Crawford
, 163 N.C. App. 122, 128, 592 S.E.2d
719, 724 (2004) (trial attorney's failure to request a recording of
jury voir dire
did not constitute ineffective assistance of
counsel). Furthermore, defendant's argument that the failure of
trial counsel to request recordation deprived him of effective
appellate review and effective assistance of appellate counsel was
expressly rejected by this Court in State v. Verrier
, 173 N.C. App.
123, 617 S.E.2d 675 (2005). Accordingly, the assignment of error
Defendant next argues the trial court abused its discretion by
failing to sua sponte order recordation of jury voir dire and
closing arguments, depriving him of meaningful appellate review and
the effective assistance of appellate counsel. However, this Court
rejected the same argument in State v. Price, 170 N.C. App. 57, 67,
611 S.E.2d 891, 898 (2005). Accordingly, this assignment of error
is likewise overruled.
Defendant next argues the trial court erred by denying his
motion to dismiss the felony breaking or entering charge for
insufficiency of the evidence. Specifically, defendant contends
that there was insufficient evidence that he had the requisite
intent to commit a felony or larceny inside the barn.
After careful review of the record, briefs and contentions ofthe parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). 'Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.' Id. at 717, 483 S.E.2d at 434 (quoting State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When
reviewing the sufficiency of the evidence, [t]he trial court must
consider such evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn therefrom. State v. Patterson, 335 N.C. 437, 450, 439
S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237,
400 S.E.2d 57, 61 (1991)). Furthermore, defendant's evidence
should be disregarded unless it is favorable to the State or does
not conflict with the State's evidence. State v. Scott, 356 N.C.
591, 596-97, 573 S.E.2d 866, 869 (2002).
In the instant case, defendant was charged with felony
breaking or entering. 'The essential elements of felonious
breaking or entering are (1) the breaking or entering (2) of any
building (3) with the intent to commit any felony or larceny
therein.' State v. Friend, 164 N.C. App. 430, 438, 596 S.E.2d
275, 281 (2004) (quoting State v. Litchford, 78 N.C. App. 722, 725,
338 S.E.2d 575, 577 (1986)). In State v. Speller, 44 N.C. App.
59, 259 S.E.2d 784 (1979), this Court found that a larceny was
complete when handguns were removed from a locked case and placed
in a cardboard box which was found hidden behind the gun case. Id. at 60, 259 S.E.2d at 785. The Court determined that during the
interval when the guns were removed from the case and before their
discovery by police, they were under the control of the thieves
and severed from the possession of the owner. Id. at 61, 259
S.E.2d at 785. Similarly, here, when defendant placed the beer and
sodas in a trash bag on a table near the window he jumped out, he
severed possession from the owner, and clearly intended to take the
items. Moreover, defendant admitted to the owner when questioned
as to why he was inside the barn that he was getting a drink.
Accordingly, in the light most favorable to the State, a reasonable
jury could conclude that defendant broke and entered the barn with
the intention of committing a larceny.
We finally consider whether the trial court erred in
sentencing defendant as a Prior Record Level V. Defendant contends
there was no constitutionally proper stipulation. Specifically,
defendant argues that his counsel's stipulation was insufficient to
prove his prior record level because there was no inquiry from the
trial court regarding whether defendant understood what it meant to
stipulate. We find no error.
North Carolina General Statutes, Section 15A-1340.14 provides
that the State bears the burden of proving by the 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). A
defendant's prior convictions may be proven by any of the followingmethods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information [DCI], the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
Id. See also State v. Riley, 159 N.C. App. 546, 556, 583 S.E.2d
379, 386 (2003).
In the instant case, counsel stipulated that defendant was a
Level V felon. Thus, defendant's prior record level was proven by
stipulation pursuant to N.C.G.S. § 15A-1340(f)(1). Defendant cites
no authority for the proposition that he must be examined before
the trial court can accept the stipulation, and we find none.
Accordingly, we find no error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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