               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-661

                                 Filed: 6 March 2018

Catawba County, No. 16 CRS 50414

STATE OF NORTH CAROLINA

              v.

BILLY RAY ALLEN


        Appeal by defendant from judgment entered 1 February 2017 by Judge Lisa C.

Bell in Catawba County Superior Court. Heard in the Court of Appeals 6 February

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
        Postell, for the State.

        Michael E. Casterline for defendant-appellant.


        BRYANT, Judge.


        Where the notice prohibiting defendant’s entry in all Belk Stores was made in

the ordinary course of business at or near the time of the transaction involved and

was authenticated at trial by a witness familiar with such notices and the system

under which they are made, the document was properly authenticated and the trial

court did not err in admitting it. Where the general license or privilege to enter a

store open to the public was specifically revoked as to defendant, and his ban from

the store was implemented and “personally communicated” to him and no evidence

suggests it had been rescinded, defendant’s entry to the Belk store in Hickory was
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unlawful, and therefore, the State’s evidence was sufficient to support defendant’s

conviction for felonious breaking and entering.

      On 21 January 2016, Renae Harris was on duty at her place of employment,

Belk Store #26 in Hickory, North Carolina, where she was a loss prevention associate

(“LPA”). In that position, she monitored cameras located throughout the store to

ensure that “anybody behaving suspiciously” did not “try to exit without paying.”

Around 5:00 p.m., Harris was surveying the camera system when she observed

defendant Billy Ray Allen in the men’s shoe department. Defendant was wearing a

blue and white hat. She continued monitoring other cameras when she noticed

defendant again, this time in the menswear department wearing a black hat. She

then watched as defendant walked to a rack of men’s coats, removed his own coat,

and put on a Michael Kors coat worth $240.00. Harris observed defendant “mak[ing]

a motion that looked like he was pulling off the tag or the SKU number that the

associate would ring at purchase . . . then [defendant] picked up his coat and went

into the fitting room.”

      Harris and another LPA, Winston Faxon, proceeded to the fitting room area

while defendant was inside. Defendant exited the fitting room a few minutes later

with “[h]is jacket . . . on over the top of [the Michael Kors] jacket.” Harris identified

herself as a Belk LPA and escorted defendant back to her office. As they were about

to enter the office area, however, defendant pushed against Harris and “ran towards



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the door to try to get out of the department.         He tried to approach the doors.”

Defendant made it past the point where items could be purchased, but he tripped

before he could go any further, and Faxon was able to place him in handcuffs and

take him to the office.

      Harris entered defendant’s name in a Belk store database. She found an entry

for his name at Belk Store #329 in Charlotte, along with a photograph that resembled

defendant and an address and date of birth that matched those listed on his driver’s

license. The database indicated that, as of 14 November 2015, defendant had been

banned from Belk stores for a period of fifty years pursuant to a Notice of Prohibited

Entry following an encounter at the Charlotte store (the “2015 Notice”). The notice

contained a signature under the portion acknowledging receipt by “Billy Ray Allen.”

      Harris proceeded to complete another Notice of Prohibited Entry for the 21

January 2016 incident (the “2016 Notice”), banning defendant from Belk for a period

of ninety-nine years. Defendant, Harris, and Faxon all signed the 2016 Notice.

Thereafter, defendant was arrested and charged with “unlawfully, willfully[,] and

feloniously” breaking and entering the Belk store and stealing property. Defendant

was then indicted for (1) felonious breaking and entering in violation of N.C. Gen.

Stat. § 14-54(a) and (2) felonious larceny in violation of N.C. Gen. Stat. § 14-72(b)(2)

and 14-72(c).




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      At the 1 February 2017 Criminal Session for Catawba County, defendant’s case

was tried before a jury, the Honorable Lisa Bell, Superior Court Judge presiding. The

jury found defendant guilty of both charges—breaking and entering, and larceny.

The trial court consolidated the charges and sentenced defendant to six to seventeen

months imprisonment. Defendant’s sentence was suspended, and he was placed on

supervised probation for eighteen months. Defendant was ordered to pay court costs

and serve forty-eight hours of community service. Defendant appeals.

           _________________________________________________________

      On appeal, defendant argues (I) the trial court erred by admitting the 2015

Notice banning defendant from all Belk stores without requiring proper

authentication; (II) evidence of felony breaking and entering is insufficient where

defendant entered a public area of a store during regular business hours; and (III) his

conviction should be vacated where there is insufficient evidence that he entered the

store unlawfully.

                                           I

      Defendant first argues the trial court erred by admitting the 2015 Notice

banning defendant from all Belk stores as a business record without requiring proper

authentication pursuant to Rule 901. We disagree.

      “A trial court’s determination as to whether a document has been sufficiently

authenticated is reviewed de novo on appeal as a question of law.” State v. Hicks, 243



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N.C. App. 628, 638, 777 S.E.2d 341, 348 (2015) (quoting State v. Crawley, 217 N.C.

App. 509, 515, 719 S.E.2d 632, 637 (2011)).

      “Pursuant to Rule 901 of the North Carolina Rules of Evidence, every writing

sought to be admitted must first be properly authenticated.” State v. Ferguson, 145

N.C. App. 302, 312, 549 S.E.2d 889, 896 (2001) (citing N.C. Gen. Stat. § 8C-1, Rule

901(a)). However, records of regularly conducted activity “are not excluded by the

hearsay rule, even though the declarant is unavailable as a witness” if such records

are “(i) kept in the course of a regularly conducted business activity and (ii) it was the

regular practice of that business activity to make the memorandum, report, record,

or data compilation, all as shown by the testimony of the custodian or other qualified

witness . . . .” N.C.G.S. § 8C-1, Rule 803(6) (2015). Thus, the business records

exception recognizes “[t]he impossibility of producing in court all the persons who

observed, reported and recorded each individual transaction . . . .” State v. Springer,

283 N.C. 627, 634, 197 S.E.2d 530, 535 (1973) (citation omitted).

      The test for receiving business records into evidence is that they are “made in

the ordinary course of business at or near the time of the transaction involved” and

“authenticated by a witness who is familiar with them and the system under which

they are made.” State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985)

(citations omitted). “The authenticity of such records may . . . be established by

circumstantial evidence.” Id. (citation omitted). However, “[t]here is no requirement



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that the records be authenticated by the person who made them.” Id. (citations

omitted).

      In the instant case, the State presented evidence that the 2015 Notice was

completed and maintained by Belk in the regular course of business and issued two

months before the incident in question. Harris, a Belk employee and LPA, testified

that she was familiar with Belk’s procedures for issuing bans from its properties and

with the computer system in which Belk maintained its information about the

incidents reported on such forms. She also established her familiarity with the forms,

including the 2015 Notice, and that such forms were executed in the regular course

of business, as well as her knowledge that not all forms were handled exactly the

same way by each store. Pursuant to Wilson, and contrary to defendant’s argument,

it is of no legal moment that Harris did not herself make or execute the 2015 Notice

about which she testified as it is clear she was “familiar . . . with the system under

which they [were] made.” Id. (citations omitted). Accordingly, the trial court did not

err in admitting the 2015 Notice into evidence, as Harris’s testimony satisfied this

Court’s test for receiving business records. Defendant’s argument is overruled.

                                       II & III

      Defendant argues (II) the trial court erred in denying his motion to dismiss

because there is insufficient evidence of felony breaking and entering where

defendant entered the public area of the Belk store during regular business hours.



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Specifically, defendant contends a person cannot be convicted of felonious entry into

a place of business during normal hours because North Carolina case law states that

this does not constitute an unlawful entry. As a result, defendant argues, (III) his

conviction for felony breaking and entering should be vacated. We disagree.

      This court reviews “the trial court’s denial of a motion to dismiss de novo.” State

v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010) (citation omitted).

“Upon defendant’s motion for dismissal, the question for the Court is whether there

is substantial evidence (1) of each essential element of the offense charged, or of a

lesser offense included therein, and (2) of defendant’s being the perpetrator of such

offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993)).

      Here, defendant was charged with felonious breaking or entering.              The

essential elements of this crime are “(1) the breaking or entering (2) of any building

(3) with the intent to commit any felony or larceny therein.” State v. Brooks, 178 N.C.

App. 211, 214, 631 S.E.2d 54, 57 (2006) (quoting State v. White, 84 N.C. App. 299,

301, 352 S.E.2d 261, 262 (1987)). At issue in this case is the meaning of the first

element, “breaking or entering.”

       “In order for an entry to be unlawful under N.C. Gen. Stat. § 14-54(a), the

entry must be without the owner’s consent.” State v. Rawlinson, 198 N.C. App. 600,



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607, 679 S.E.2d 878, 882 (2009) (citation omitted). “[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 [N.C. Gen. Stat. §] 14-54(a).”

State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 693, 687 (1979) (emphasis added).

      In Boone, the defendant argued that the trial court erred in denying his motion

to dismiss the felonious entry charge where the evidence showed he entered a store

that was open to the public at the time. Id. at 655, 256 S.E.2d at 684. This Court

concluded that “[h]is entry was thus with the consent, implied if not express, of the

owner [of the store].” Id. at 659, 256 S.E.2d at 687 (emphasis added). Therefore, “[i]t

[could not] serve as the basis for a conviction for felonious entry.” Id.

      Defendant attempts to draw from Boone a bright-line rule that if a person

enters a store at a time when it is open to the public, that person’s entry is with the

consent, “implied if not express,” of the owner of that store. See id. Defendant’s

argument, however, ignores certain facts present in the instant case which change

the analysis completely and render Boone distinguishable.

      Unlike the store the defendant entered in Boone, here, the State presented

evidence from which the jury could—and did—infer that the Belk store did not

consent to defendant’s entering its property on 21 January 2016. Belk issued the

2015 Notice expressly prohibiting defendant “from re-entering the premise[s] of any

property or facility under the control and ownership of Belk wherever located” for a



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period of fifty years. The State’s witness, Harris, also testified that the 2015 Notice

of the ban had not been rescinded, no one expressly allowed defendant to come back

onto Belk store property, and no one gave defendant permission to enter the Belk

store on 21 January 2016. In Boone, there was no evidence that the defendant in that

case had ever been banned from the store in question. See id.

      While defendant is correct in his assertion that “no case in North Carolina has

held that this [precise] conduct constitutes felony breaking and entering,” cf. State v.

Lindley, 81 N.C. App. 490, 494, 344 S.E.2d 291, 293–94 (1986) (upholding conviction

for felonious breaking and entering where the defendant entered the premises of his

former residence without consent of the property owner pursuant to a marital

separation agreement signed by the defendant), a Missouri Court of Appeals case

with a nearly identical fact pattern is illustrative.

      In State v. Loggins, the defendant entered a Wal-Mart property after having

been previously banned indefinitely from all Wal-Mart properties two years before.

464 S.W.3d 281, 282 (Mo. App. 2015). Similar to defendant in the instant case, the

defendant in Loggins had “signed a Wal-Mart-issued document titled, ‘Notification of

Restriction from Property[,]’ ” on the date he was initially banned from all Wal-Mart

stores.   Id. at 282 n.1.     Upon entering a Wal-Mart store after his ban was

implemented, the defendant attempted to steal a bottle of bourbon and conceal it

under his shirt and leave the store. Id. at 282–83. The defendant was caught and



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charged with first-degree burglary,1 but at trial (and also later on appeal) the

defendant attempted to argue that he could not be guilty of burglary “because there

was no unlawful entry insofar as Wal-Mart consented to his entry.” Id. at 283. In

other words, the defendant argued, much as defendant does in the instant case, that

“because Wal-Mart was open to the public, [he] generally had a license or privilege to

enter, regardless of his purpose.” Id.

        The Missouri Court of Appeals disagreed, stating “that license or privilege was

revoked on [the date] when Wal-Mart ‘personally communicated’ to [the defendant]

(through the ‘Notification of Restriction from Property’) that he was no longer allowed

to enter onto Wal-Mart Stores, Inc. property, unless and until the notice of restriction

was rescinded.” Id. Accordingly, the Missouri court held that because “there was no

evidence that Wal-Mart either expressly or impliedly rescinded its notification

banning [the defendant] from the property” the notice of his ban from the property

“remained in effect, rendering [the defendant’s] entry unlawful.” Id. at 284.

        We hold that the general license or privilege to enter the Belk store held by

defendant was revoked on 14 November 2015, the date on which defendant was




        1 Missouri’s burglary statute is markedly similar to North Carolina’s felony breaking and
entering statute: “A person commits the crime of burglary in the first degree if he knowingly enters
unlawfully . . . a building . . . for the purpose of committing a crime therein, and . . . while in the
building[,] . . . [t]here is present . . . another person who is not a participant in the crime.” State v.
Loggins, 464 S.W.3d 281, 283 (alterations in original) (quoting Mo. Rev. Stat. § 569.160.1(3)). Compare
id., with N.C. Gen. Stat. § 14-54(a) (2015) (“Any person who breaks or enters any building with intent
to commit any felony or larceny therein shall be punished as a Class H felon.”).

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presented with and signed the 2015 Notice of Prohibited Entry banning defendant

from entering “any Belk property” for a period of fifty years. As the incident in

question occurred on 21 January 2016, two months after the ban was implemented

and “personally communicated” to defendant, see id., and no evidence suggests the

ban had been rescinded, we conclude it remained in effect, rendering defendant’s

entry to the Belk store in Hickory unlawful. Accordingly, the State’s evidence was

sufficient to support the felonious breaking and entering charge, and defendant’s

argument that his conviction for the same should be vacated is overruled.

      NO ERROR.

      Judge BERGER concurs.

      Judge MURPHY concurs in the result only.




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