Before Judge James C. Davis, presiding at the 19 September 1979 Criminal Session of Dare Superior Court, defendant was found guilty of felonious breaking. He was sentenced to six to ten years imprisonment. Defendant gave notice of appeal on 21 September 1979 but withdrew that appeal in open court accompanied by counsel. On 2 February 1980 he filed a pro se motion for appropriate relief, alleging that he had never been told he had the right to appointed counsel for his appeal. On 14 April 1980 Judge Wood appointed counsel to prepare a petition for writ of certiorari to the Court of Appeals. That writ was denied on 24 July 1980, and defendant petitioned this Court for a writ of certiorari. We granted the writ on 2 December 1980, and the case was argued on 15 October 1981.
Exum, Justice. Justice Mitchell took no part in the consideration or decision of this case.
Defendant challenges the sufficiency of the state's evidence to support his conviction of felonious breaking and the adequacy of the trial court's instructions to the jury. We conclude that the trial court properly denied defendant's motion to dismiss for evidentiary insufficiency and that the jury was adequately instructed.
The state's evidence at trial tended to show the following:
Arthur Glidden managed the Ocean Islands Gas and Grill, Inc. in Kill Devil Hills, North Carolina. On 6 March 1979 defendant
was helping Glidden lock up the store at 10 p.m. Although defendant was not at that time working for Glidden, he had done so in the past. Defendant had opened the grill for Glidden that morning because Glidden had taken his mother to the hospital. Glidden put the receipts for the day in a moneybag and placed it under the counter. Glidden locked the back door by pushing the button on the doorknob and by placing a two-by-four brace under the doorknob. He and defendant were the only people in the area. Within the next few minutes Glidden found the door unlocked three times; he re-locked the door each time it was unlocked. When he and defendant left the grill shortly after 10 p.m., the back door was locked and the brace was in place. Glidden locked the front door as they left.
Defendant was staying in a room in Glidden's home at the time, but he did not ride home with Glidden that evening. Glidden went to sleep shortly after reaching home. Defendant awakened him during the early morning hours of 7 March with a request to borrow his car. Defendant said he wanted to get something to eat and that his own car was not functioning correctly. Glidden told him his car keys were in his pants pocket. Also in his pants pocket were a second set of keys to the grill. Sometime later that morning Glidden awoke and found defendant had returned; defendant told Glidden he had gotten something to eat.
Glidden opened the grill about 5:30 a.m. on 7 March. He noticed the back door was ajar approximately one to two inches. A metal rod protruded underneath the door. The two-by-four brace was still in place. Glidden notified the police; he then checked the previous day's receipts and found them to be $80 short. Glidden also stated that after a hearing in district court defendant came by his grill and told him "he was sorry and that he wanted me to know that he had broke into the place and he said he didn't do it to me or against me."
Officer James Gradeless of the Kill Devil Hills Police Department responded to Glidden's call on 7 March. At the grill he noted that the rod inserted under the door was a concrete reinforcement rod about 36 or 40 inches long. It protruded inside the grill approximately 12 to 18 inches. The door had been beaten, which caused indentations in the wood of the door and the doorjamb. The door "was ajar enough so that the bolt [the part of the
lock that extends into the doorjamb] was out of the assembly to the jamb, not much more than that." He found a piece of channel lock pliers about 15 to 18 feet from the door. There were a set of footprints leading from the back door to a set of tire tracks, along which he found another piece of the pliers. An impression made from the footprints was examined by an expert from the State Bureau of Investigation and found to match a pair of defendant's tennis shoes. Expert testimony also indicated that the indentations on the door and doorjamb had been made by a rounded tool such as the pliers. A metallic flake from the pliers was found imbedded in the wood around the door.
Defendant told the investigating officers that he had gone out in Glidden's car to get something to eat and had gotten stuck in sand. He said he used a jack and some pliers to free the car. He had borrowed the poliers from a Pizza Hut and had attempted to had borrowed the pliers from a Pizza Hut and had attempted to borrow other tools from a 7-Eleven. Employees from both businesses testified that defendant had asked to borrow tools between midnight and 2 a.m. on 7 March. Defendant told the police that while attempting to extricate the car he had ...