State v. Speller

259 S.E.2d 784 (1979) 44 N.C. App. 59

STATE of North Carolina
v.
Robert Lee SPELLER.

No. 792SC528.

Court of Appeals of North Carolina.

November 20, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Benjamin G. Alford, Raleigh, for the State.

Griffin & Martin by Clarence W. Griffin, Williamston, for defendant-appellant.

VAUGHN, Judge.

Defendant contends that his entry was lawful and that, therefore, he cannot be convicted of felonious breaking or entering. Felonious entry is a statutory crime. G.S. 14-54(a). "[A] person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermitted entry." State v. Boone, 39 N.C.App. 218, 219, 249 S.E.2d 817, 819 (1978), modified and affirmed, 297 N.C. 652, 256 S.E.2d 683 (1979). Defendant entered the building during normal business hours. Thereafter, however, without the consent of the owner, he went into an area not open to the public and there secreted himself. He remained concealed until well beyond the closing of business hours for the store for the purpose of participating in a theft. These acts voided any consent to the entry. Going into an area not open to the public and remaining hidden there past closing hours made the entry through the front door open for business unlawful. See State v. Boone, 297 N.C. 652, 659, n. 3, 256 S.E.2d 683, 687 n. 3 (1979).

Defendant also contends the larceny charge should not have reached the jury because, he argues, the State failed to show a taking of the goods. The handguns were removed from a locked case and placed in a cardboard box which was found hidden behind the gun case. In State v. Carswell, 296 N.C. 101, 249 S.E.2d 427 (1978), a defendant and a companion took an air conditioning unit from a motel window and moved it to the floor four to six inches towards the door. The court held this sufficient evidence of a taking and asportation to support a conviction of larceny, Quoting from 4 W. Blackstone, Commentaries *231, the Court said "``[a] bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.'" Id. at 103, 249 S.E.2d at 428. In this case, the thieves took the guns from the gun case and placed them in a box behind the case. During that interval, the guns were under the control of the thieves and severed from the possession of the owner. The crime of larceny was thereby completed. We find no error in defendant's trial.

No error.

ERWIN and HILL, JJ., concur.