STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 01 CRS 4427, 9289
MELVIN DOUGLAS BERROW
Attorney General Roy Cooper, by Assistant Attorney General
David R. Minges, for the State.
Leslie C. Rawls for defendant-appellant.
WALKER, Judge.
Defendant was found guilty of breaking and entering, larceny,
possession of stolen goods and of being an habitual felon. By
judgments entered 17 July 2001, Judge Judson D. DeRamus, Jr.
sentenced defendant to consecutive prison terms of 156 to 197
months for breaking and entering and larceny as an habitual felon.
The court arrested judgment on the charge of possession of stolen
goods in accordance with State v. Perry, 305 N.C. 225, 236-37, 287
S.E.2d 810, 817 (1982).
State witness Hillardo Gonzalez testified that he attended a
class at a community college on the night of 29 January 2001. When
he returned home, he observed that the lights in his residence hadbeen turned on. Walking inside, Gonzalez saw that his couch was
overturned and his television, videocassette recorder (VCR),
satellite receiver, and stereo were missing. Pieces of broken
glass were scattered on the floor, the living room window at the
back of his residence had been broken, and the window screen had
been removed. Gonzalez telephoned the police and was able to give
them the brand and serial number of his VCR. Gonzalez further
testified that he did not know defendant and had not given anyone
permission to take the items from his home.
Winston-Salem Police Officer Scott D. Lichtenhan arrived at
Gonzalez's home at 11:12 p.m. He described the inside of the
residence as “a shambles,” noting that “[a] lot of the drawers and
a lot of the dressers and the other items had been opened and gone
through.” Lichtenhan determined that the point of entry for the
break-in was the broken window. Identification Officer Rene E.
Shoaf was called to the scene and lifted a latent fingerprint from
a shard of window pane that remained in the frame.
Officer C.M. Crater, Latent Fingerprint Examiner for the
Winston-Salem Police Department, offered expert testimony that the
print lifted from the broken window pane matched defendant's left
thumbprint. Crater testified that he had obtained defendant's
fingerprints from the pool of samples available through the
Automated Fingerprint Identification System and that defendant's
prints had been on file at a “detention center.”
Officer T.J. Taylor began looking for defendant based on the
fingerprint match made by Crater. He found defendant at theresidence of Willie L. Henry, which is next door to the residence
of Gonzalez. Defendant denied any knowledge of the break-in. When
informed by Taylor that his fingerprint had been found on
Gonzalez's window, defendant replied, “Okay, do your job then.”
Defendant told Taylor he did not have the authority to allow a
search of Henry's residence. After obtaining Henry's consent for
a search, Taylor returned to the residence and found a VCR with the
serial number given by Gonzalez. Defendant was no longer at the
residence, having been arrested on outstanding warrants.
Willie L. Henry testified that he was living next door to
Gonzalez on 29 January 2001. Henry, who is a diagnosed paranoid-
schizophrenic, was staying in a shelter at the time and allowed
defendant to use his residence while he was not there. Some time
during January, Henry stopped by his residence, which he did from
time to time, and saw defendant with a television, VCR, and “some
kind of gray box[.]” Defendant told Henry that he had taken them
from “the guy['s] house next door.” When Henry expressed concern
about having these items in his home, defendant threatened that if
he were caught, he would “make sure” Henry went “down with him.”
Henry confirmed that police later visited him at the shelter and
obtained his permission to search the residence.
Defendant claims the trial court erred in allowing witness
testimony that revealed to the jury his prior criminal activity.
See N.C. Gen. Stat. § 8C-1, Rule 404(b)(2001). Defendant argues
this evidence was both irrelevant and “highly prejudicial[,]”
implying that he had a propensity to engage in criminal conduct. Because defendant did not object to this testimony at trial, he
argues that its admission constitutes plain error by the trial
court. See N.C.R. App. P. 10(c)(4).
A party seeking to establish plain error “must convince this
Court not only that there was error, but that absent the error, the
jury probably would have reached a different result.” State v.
Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12, cert. denied, 531
U.S. 1019, 148 L. Ed. 2d 498 (2000)(quoting State v. Jordan, 333
N.C. 431, 440, 426 S.E.2d 692, 697 (1993)).
Defendant has not shown plain error here. The evidence of
defendant's prior “bad acts” consisted entirely of Crater's
testimony that defendant's fingerprints were on file at a
“detention center” and Taylor's allusion to defendant's arrest on
“outstanding warrants.” Neither of these general statements
suggests any proclivity on the part of defendant to engage in the
specific criminal acts with which he was charged. In light of the
compelling and unrebutted evidence of defendant's guilt--which
included his fingerprint on Gonzalez's broken window, Henry's
eyewitness account of defendant's possession of the stolen
property, defendant's incriminating statement to Henry, and the
recovery of Gonzalez's VCR by police--we find no reasonable
probability that the jury's verdict was affected by the challenged
testimony. See State v. Lee, 348 N.C. 474, 483-84, 501 S.E.2d 334,
339-40 (1998); State v. Doisey, 138 N.C. App. 620, 626-27, 532
S.E.2d 240, 245, disc. review denied, 352 N.C. 678, 545 S.E.2d 434
(2000), cert. denied, 531 U.S. 1177, 148 L. Ed. 2d 1015 (2001). No error.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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