State v. Nealy

ARNOLD, Judge.

The defendants contend that there was no evidence of an “entry” into the vehicle in question, thus making improper the trial court’s instruction to the jury that they could infer a larcenous intent from an unlawful breaking or entering. The mere fact that a chain lock prevented the hood from opening beyond 12-18 inches, however, does not preclude a finding that there was an entry. In fact, this Court has found an entry where the defendant was seen standing at the open door of a van with the upper part of his body leaning inside the vehicle. State v. Sneed, 38 N.C. App. 230, 247 S.E. 2d 658 (1978).

In Sneed, the Court quoted from Black’s Law Dictionary as follows: “In cases of burglary, the least entry with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, is sufficient to complete the offense.” 38 N.C. App. at 231, 274 S.E. 2d at 659.

Although there is no testimony that either defendant was actually seen with a portion of his body under the hood of Dodd’s car, Officer Franklin’s testimony that the defendant Smith was squatting down and looking up under the hood, which the defendant Nealy was trying to raise, leads to the obvious conclusion that there was an entry. Certainly, when one raises the hood of a car he must first extend some portion of his hand beneath the hood to release the hood latch. We, therefore, find no error in the court’s instruction.

Similarly, we reject the defendants’ contention that the trial court erred in instructing the jury on what constitutes an entry. As noted previously, there was sufficient evidence of an entry, and the judge’s instruction that “(t)he movement of a hand from the outside of an automobile opened hood to a position under the open hood would be an entering” was not error.

The defendants also contend that it was prejudicial error for the trial judge to comment before the jury that the defendants’ lawyers had objected to the State’s request to give additional instructions on intent. We disagree. While it may have been better practice to have simply noted the objections in the record, the defendants have failed to establish how they might have been prejudiced by the court’s remarks. In no way do the judge’s comments convey to the jury the “impression of judicial leaning.” See State v. Staley, 292 N.C. 160, 166, 232 S.E. 2d 680, 684-85 (1977).

It is further contended by the defendants that the trial judge violated Rule 21 of the General Rules of Practice for the Superior and District Courts by failing to hold a conference on jury instructions. There has been some question as to whether such a conference must be held at trial as a matter of right or whether it must only be held upon the request of one of the parties. The question was recently answered, however, by the Supreme Court of North Carolina in State v. Bennett, 308 N.C. 530, — S.E. 2d — (1983). In that case, the Court stated, “If either party to the trial desires a recorded instruction conference, G.S. 15A-1231(b) requires that party to make such a request to the trial judge. Absent such a request, G.S. 15A-1231(b) is silent and General Rule 21 supplements the statute by requiring the trial court to hold an unrecorded conference.” 308 N.C. at 534, — S.E. 2d at —.

Although the defendants now contend that the trial judge erred in failing to hold a conference on jury instructions, there is nothing in the record to indicate that any such conference, whether recorded or unrecorded, was held. Where the record is silent as to whether a conference was in fact held, the defendant must hold himself accountable.

The defendant, as appellant, has the duty under Rule 11 to preserve the record on appeal. If there was no instruction conference held, the defendant could have sought a stipulation from the State pursuant to Rule 11(a) acknowledging the trial court’s failure in this regard. Had the State refused to agree to the stipulation, and objected to such a notation in the record, then the defendant could have requested that the trial judge settle the record on appeal pursuant to Rule 11(c).

Id. Where the record is silent, it will be presumed that the trial court acted correctly. State v. Fennell, 307 N.C. 258, 297 S.E. 2d 393 (1982).

Finally, the defendants contend that the court erred in failing to rule on their motion in limine to exclude testimony concerning the previous theft of the battery from Dodd’s car. Although the trial judge reserved his final ruling on the motion, he did state that evidence of the theft would be admissible for the limited purpose of showing why the hood was chained down and could be only partially opened. The State made no effort to show that either of the defendants was in any way responsible for the prior theft, but introduced the evidence merely to explain why the hood was not fully raised, as was permitted by the judge.

We have examined the defendants’ remaining assignments of error and have found in them no merit.

No error.

Judge Wells concurs. Judge EAGLES dissents.