#### STATE OF NORTH CAROLINA v. JOHNNY A. BORG

No. 8112SC791

(Filed 6 April 1982)

APPEAL by defendant from Brannon, Judge. Judgment entered 25 February 1981 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 11 January 1982.

Defendant was charged with first degree burglary and second degree rape. He pled not guilty to both counts. The evidence adduced at trial tended to show that defendant on 18 October 1980 broke into Angela Schermerhorn’s apartment in Fayetteville and had sexual relations with her against her will. The jury found defendant guilty as charged. Defendant appeals from a judgment of imprisonment.

Attorney General Edmisten, by Assistant Attorney General Roy A. Giles, Jr., for the state.

Assistant Public Defender Gregory A. Weeks for defendant appellant.

MORRIS, Chief Judge.

Counsel for defendant concedes that he finds no prejudicial error in defendant’s trial but requests this Court to examine the record for error. Because of the position of the majority of the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), reh. den. 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed. 2d 1377 (1967), we have carefully reviewed the entire record of the defendant’s trial to determine whether the record contains anything which “might arguably support the appeal” and whether the “case is wholly frivolous”. In a dissent, in which Mr. Justice Black and Mr. Justice Harlan joined, Mr. Justice Stewart most aptly pointed out that if the record did in fact present any such arguable issues, the appeal would not be frivolous and counsel certainly would not have filed a brief in which he took the position that the appeal is without merit.

A careful review of all proceedings below convinces us that defendant received a fair trial free from prejudicial error. The appeal is wholly frivolous and totally without merit.

*748No error.

Judges Vaughn and Martin (Harry C.) concur.