An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-818


Filed: 5 August 2003


v .                         Mecklenburg County
                            No. 00 CRS 1098-1100, 19416, 19417

    Appeal by defendant from judgment entered 23 July 2001 by Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jill B. Hickey, for the State.

    Miles & Montgomery, by Lisa Miles, for the defendant.

    LEVINSON, Judge.

    On 20 July 2001, defendant was convicted of first degree burglary, assault inflicting serious injury, and robbery with a dangerous weapon for events that occurred 11 December 1999; and first degree burglary and robbery with a dangerous weapon for events that occurred 22 April 2000. Defendant was given consecutive sentences of 82-108 months for first degree burglary occurring 11 December 1999, 82-108 months for the consolidated offenses of assault inflicting serious injury and robbery with a dangerous weapon occurring 11 December 1999, 82-108 months for first degree burglary occurring 22 April 2000, and 82-108 months for robbery with a dangerous weapon occurring 22 April 2000.    The testimony of the State's primary witness, James Epps, tended to show the following: Epps first encountered defendant one evening when defendant arrived at Epps' residence and introduced himself as a new neighbor. Epps and defendant talked for approximately 45 minutes. Epps next encountered defendant a few weeks later when defendant returned to Epps' residence. Epps and defendant again talked for approximately 45 minutes.
    Epps next encountered defendant in the early morning hours of 8 August 1999. Defendant broke into Epps' residence while he was sleeping, obtained Epps' shotgun, and told Epps, “I want the money, man. I want the money.” Defendant stole Epps' money and then ripped his phone out of the wall. Although defendant was wearing a tee shirt up to his nose, a toboggan, and a sock cap pulled down over his head, Epps nonetheless recognized him. Epps could see defendant's eyes and recognized his voice from their previous conversations. Epps did not report this break-in to the police.
    Epps encountered defendant again in the early morning of 14 August 1999. At about the same time of morning as the 8 August break-in, defendant attempted to enter Epps' house by the front door but was unable to gain entry. Defendant then attempted to pull plywood nailed across Epps' windows. Epps yelled, “keep it right up, the police are on the way; they'll be here in a minute.” Defendant responded, “yeah, right” and then left the scene. Epps did not see defendant that night but again recognized his voice.
    After responding to Epps' 14 August 911 call, the police found defendant walking on the same street as Epps' residence. Theofficer saw that defendant's hand was bleeding. The officers found blood and defendant's fingerprints on the piece of plywood covering Epps' window. Epps declined to press charges for the 14 August attempted break-in.
    Epps testified he again encountered defendant on 11 December 1999. At about the same time of morning as the two previous break- ins, the lights went out in Epps' residence and he heard someone pull the phone box off the outside wall. Defendant then broke through Epps' backdoor and hit Epps in the head with a hammer, cutting his head open. Defendant then yelled, “I want the money, man. I want the money, man.” Epps then gave defendant his money. Defendant was again dressed with a shirt pulled up to his nose and a toboggan pulled down on his head. Even though Epps could not see the intruder clearly, he once again recognized the intruder's voice as defendant's. After defendant left, Epps walked across the street to an Exxon station and called the police. Epps told police the intruder was “some guy named Steve that lives down the street.” Epps' injury required him to go to the emergency room where he received seven stitches.
    Epps testified that his final encounter with defendant was the night of 22 April 2000. Epps was awoken by defendant ripping down a piece of plywood blocking a doorway. Epps then heard defendant moving through his home saying “dinero, dinero” in what he believed was a fake Spanish accent. Defendant then stole Epps' money, grabbed him from behind, held a knife to his neck, and stated “Dago kill, Dago kill.” Defendant then exited the residence through thebackdoor and Epps called the police. Defendant again had a shirt pulled up to his nose and a toboggan pulled down on his head, only this time he was also wearing a peacoat. Epps saw defendant's eyes and again recognized his voice.
    The defendant presented the testimony of Robert Brown, Jr., who lives next door to Epps. He testified that Epps told him the intruders in the 11 December break-in were two black men.
    The defendant also presented the testimony of Amy Whittington, defendant's wife. Mrs. Whittington testified that the police came to her home at 4:30 a.m. following the 14 August attempted break- in. The officers appeared surprised to find defendant at home. The police again came to her home at 3:00 a.m. following the 11 December break-in. She told the police defendant had not been home since 8:30 or 9:00 p.m.

    Defendant first assigns as error the trial court's admission of Epps' in court voice identification of him.
    N.C.G.S. § 8C-1, Rule 901(b)(5) (2001) allows the admission of voice identifications. “It is well established that 'error may not be predicated upon a ruling which admits . . . evidence unless . . . a timely objection or motion to strike appears of record.'” State v. McCray, 342 N.C. 123, 127, 463 S.E.2d 176, 179 (1995) (motion to strike in court identification of defendant denied because not raised until after further questions had been asked by trial counsel) (quoting N.C.G.S. § 8C-1, Rule 103(a)(1) (1992)). When an identification has already been admitted into evidencewithout objection, any future objection to the admission of that evidence is waived. See N.C.R. App. P. 10(b)(1); Main Street Shops, Inc. v. Esquire Collections, Ltd., 115 N.C. App. 510, 445 S.E.2d 420 (1994) (holding defendant's objection to admission of the contents of an envelope had been waived when evidence of such contents was already admitted without objection).
    At trial, the defense objected to Epps' testimony that the voice he recognized at all four break-ins was defendant's. However, Epps had already separately identified the voice he recognized at each individual break-in as defendant's. Defendant failed to object to any of these prior identifications. Thus, the identification defendant objected to at trial had already been admitted without objection. Accordingly, defendant had waived any objection to Epps' subsequent voice identification. This assignment of error is overruled.
    Defendant next assigns as error the trial court's refusal to allow defendant to alter State's Exhibit No. 1, a photo line-up including defendant, in order to test Epps' ability to recognize defendant's eyes. Defense counsel taped nine pieces of paper across the photograph, blocking exposure of all but each person's eyes, and attempted to use it to cross-examine Epps. The trial court refused to allow defendant to use the altered exhibit. Defendant asserts this deprived him of his constitutional right to confront the witness. This argument is without merit.
    Defendant was never denied the ability to effectively confront or cross-examine Epps. Furthermore, the trial court did not denydefendant the ability to confront the witness with an altered copy of the photo line-up. He was simply not allowed to alter State's Exhibit No. 1 in doing so. Specifically, the trial court stated, “In the future, I'll let you mark your own exhibits, not the State's exhibits.” “The trial court has wide discretion in controlling the scope of cross examination and its rulings should not be disturbed unless prejudicial error is clearly demonstrated.” State v. Wright, 52 N.C. App. 166, 178, 278 S.E.2d 579, 588 (1981). We discern no abuse of discretion. Accordingly, this assignment of error is overruled.
    Defendant next contends the trial court erred in allowing the State to present evidence of the two prior break-ins at Epps' home. We disagree.
     N.C.G.S. § 8C-1, Rule 404(b) (2001) provides that evidence of other crimes, wrongs, or acts may be admissible for “purposes[] such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” (emphasis added). Rule 404(b) presents
        a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
    Thus, so long as the evidence is relevant for some purpose other than “to prove the character of a person in order to show that he acted in conformity therewith[,]” it is admissible. Rule404(b). In the present case, the State presented evidence of the 8 and 14 August 1999 break-ins in an attempt to prove defendant's identity as the perpetrator of the 11 December 1999 and 22 April 2000 break-ins. Proving identity is specifically enumerated as a purpose for which evidence of prior crimes may be admitted under Rule 404(b). The fact that such evidence may also tend to show that defendant has a propensity to commit such crimes is not fatal to its admission. See Coffey, 326 N.C. at 279, 389 S.E.2d at 54 (evidence that is relevant for proving something other than defendant's character is nonetheless admissible even if it shows defendant's propensity to commit such acts).
    Additionally, Rule 404(b) “includes no requisite that the evidence tending to prove defendant's identity as the perpetrator of another crime be direct evidence, exclusively.” State v. Jeter, 326 N.C. 457, 459, 389 S.E.2d 805, 806 (1990). Circumstantial evidence tending to prove defendant's identity is admissible. Id.
    The general rule of inclusion of prior acts set forth in Rule 404(b) is limited by two factors, similarity and temporal proximity. State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). First, relevant evidence of prior acts is admissible to prove identity if there is “substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act [or crime].” State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991). In order for a prior act to be considered similar to the act on trial, there must be “'some unusual facts present in both crimes or particularlysimilar acts which would indicate that the same person committed both crimes.'” State v. Green, 321 N.C. 594, 603, 365 S.E.2d 587, 593 (1988) (quoting State v. Riddick, 316 N.C. 127, 133, 340 S.E.2d 422, 426 (1986)). However, such “similarities need not rise to the level of the unique and bizarre, but must tend to support a reasonable inference that the same person committed both the earlier and the later acts.” State v. Gary, 348 N.C. 510, 521, 501 S.E.2d 57, 65 (1998).
    Defendant contends “the only 'similarities' among any of the offenses were those typical of any burglary and generic in nature.” Defendant relies heavily on the Court's opinion in Al-Bayyinah. The Al-Bayyinah Court determined that evidence of prior store robberies was inadmissible. However, the facts of Al-Bayyinah are distinguishable from the instant case. In Al-Bayyinah, the prior robberies were committed at different stores, at a different time of day, using different levels of violence, and against different victims. Al-Bayyinah, 356 N.C. at 151-53, 567 S.E.2d at 121-22. In the instant case, each break-in or attempted break-in occurred at the Epps' residence. Each occurred early in the morning while defendant was asleep or about to go to sleep. In each instance when Epps saw defendant, defendant wore a shirt pulled up over his nose and a toboggan down on his head. Some amount of money was sought or stolen from Epps at each break-in and each time Epps recognized defendant's voice. In contrast to the facts of Al- Bayyinah, the similarities present in this case rise above thelevel of those common to break-ins and support an inference the same person committed all four break-ins.
    In addition, the level of similarity in the present case rises above those of several other cases where evidence of prior acts have been admitted. See, e.g., State v. Hoffman, 349 N.C. 167, 505 S.E.2d 80 (1998) (admitting evidence of two prior bank robberies in same region as jewelry store robbery where same type of car was seen outside store and defendant used same type of gun and wore a ski mask); State v. Moore, 94 N.C. App. 55, 379 S.E.2d. 858 (1989) (admitting evidence of prior rape where similarities were that act was at night and women were alone in a motel room); State v. Harlee, 85 N.C. App. 159, 354 S.E.2d 348 (evidence of prior phone conversation admitted to show identity when victim recognized defendant's voice), cert. denied, 320 N.C. 173, 358 S.E.2d 60 (1987). We conclude there is sufficient similarity in this case to overcome the similarity constraint on Rule 404(b).
    The second constraint on the general rule of inclusion in Rule 404(b) is temporal proximity. Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 123. Defendant asserts that too much time elapsed since the two August break-ins to be admitted under Rule 404(b). However, “remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” Stager, 329 N.C. at 307, 406 S.E.2d at 893. Furthermore, a long line of precedent exists where prior acts over the course of several years have been admitted, in contrast to the nine months in this case. See, e.g., id. (evidence of husband's death ten years earlier); State v.Sneeden, 108 N.C. App. 506, 424 S.E.2d 449 (1993) (admitting evidence of 1967 and 1990 rapes), aff'd, 336 N.C. 482, 444 S.E.2d 418 (1994). Because evidence of the prior break-ins are relevant to establishing defendant's identity, and are sufficiently similar and not too remote in time to the acts charged, the trial court properly admitted them under Rule 404(b). This assignment of error is overruled.
    Defendant next assigns as error the trial court's denial of defendant's motion to dismiss at the close of the State's evidence and at the close of all the evidence. Defendant contends there was insufficient evidence for a jury to conclude defendant committed the offenses charged.
    Because defendant elected to present evidence after moving to dismiss at the close of the State's evidence, defendant waived review of his first dismissal motion. State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985). Thus, review is limited to the denial of defendant's motion to dismiss at the close of all the evidence. In ruling on a motion to dismiss, the trial court must view all the evidence in the light most favorable to the State and resolve every reasonable inference in its favor. State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995). The trial court need not take into account only direct evidence. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). Circumstantial evidence is provided the same weight. Id.
    A motion to dismiss must be denied when “there is substantial evidence (1) of each essential element of the offense charged, orof a lesser offense included therein, and (2) of defendant[] being the perpetrator of such offense.” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” Id. at 597, 573 S.E.2d at 869. “If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.” Id. at 595, 573 S.E.2d at 868. However, such evidence need not exclude every possible theory of innocence. State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). In the instant case, there is ample evidence from which a rational finder of fact could conclude defendant committed the crimes charged. This assignment of error is overruled.
    After careful review, we find defendant's remaining arguments without merit.
    No error.
Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).    

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