State v. Winston , 45 N.C. App. 99 ( 1980 )

262 S.E.2d 331 (1980)

STATE of North Carolina
v.
Anthony Lee WINSTON.

No. 7912SC712.

Court of Appeals of North Carolina.

February 5, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. James C. Gulick, Raleigh, for the State.

John G. Britt Jr., Fayetteville, for defendant-appellant.

HARRY C. MARTIN, Judge.

We hold the trial judge erred by denying defendant's motion to dismiss the action at the close of the state's evidence. N.C.Gen.Stat. 15A-1227(a)(1). For the state to survive the motion to dismiss, it must present evidence that defendant entered a building within the meaning of N.C. G.S. 14-54(b) and that he did so wrongfully, that is, that he entered without any consent or permission of the owner or occupant. State v. Boone, 39 N.C.App. 218, 249 S.E.2d 817 (1978), modified and aff'd, 297 N.C. 652, 256 S.E.2d 683 (1979). See N.C.P.I.—Crim. 214.34 (1978).

Defendant contends that the office of the clerk is not protected by N.C.G.S. 14-54(b) as it is not a "building." We hold the office of the clerk in the Cumberland County Courthouse is a "structure designed to house or secure within it any activity or property" within the meaning of N.C.G.S. 14-54(c) and therefore is by statutory definition a "building" under N.C.G.S. 14-54(b). The office is designed to house the activities of an assistant clerk of court and to secure the property of the clerk. Even though an office may be open to the public, it is still protected by the statute during the time that it is not open for public business.

We turn to the question of whether defendant's entry was wrongful.

The office in question is located in the public courthouse of Cumberland County. It is used to handle adoptions, foreclosures and other business of the clerk of court, a public official. These functions necessarily require the general public to have access to the office and the evidence indicates that members of the general public do use the office. It was open for public business when entered by defendant between 1:00 and 2:00 p. m. The general public, including the defendant, had implied consent and invitation to enter the office at that time. State v. Boone, supra.

Boone, although dealing with a felonious entry under N.C.G.S. 14-54(a), is applicable to this case insofar as it discusses the meaning of "entry." There, the Court held that to be wrongful, an entry must be without the consent of the owner or anyone empowered to give effective consent to entry.

The state's evidence here established that defendant entered the office during the time it was open to the public. We hold the entry was with the implied consent of the occupier of the premises. The evidence fails to disclose that the defendant after entry committed acts sufficient to render the implied consent void ab initio. Further, defendant was not tried upon that theory in superior court but upon the basis that his initial entry into the office was wrongful.

The judgment of the superior court is

Reversed.

VAUGHN and WEBB, JJ., concur.