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State v. Allen

Court of Appeals of North Carolina

March 6, 2018

STATE OF NORTH CAROLINA
v.
BILLY RAY ALLEN

          Heard in the Court of Appeals 6 February 2018.

         Appeal by defendant from judgment entered 1 February 2017 by Judge Lisa C. Bell in Catawba County No. 16 CRS 50414 Superior Court.

          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and his ban from the store was implemented and "personally communicated" to him and no evidence suggests it had been rescinded, defendant's entry to the Belk store in Hickory was unlawful, and therefore, the State's evidence was sufficient to support defendant's conviction for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 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).

         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 ...


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