An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1599

NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2003

STATE OF NORTH CAROLINA

    v .                             Wake County
                                Nos. 01 CRS 55190 & 73594
MILLARD HUGO TAYBRON, JR.

    Appeal by defendant from judgment dated 12 June 2002 by Judge John R. Jolly, Jr. in Wake County Superior Court. Heard in the Court of Appeals 17 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.

    Daniel Shatz for defendant-appellant.

    BRYANT, Judge.

    Millard Hugo Taybron, Jr. (defendant) appeals a judgment dated 12 June 2002 entered consistent with a jury verdict finding him guilty of felonious breaking or entering and having attained the status of a habitual felon.
    On 18 September 2001, defendant was charged with felonious breaking or entering under N.C. Gen. Stat. § 14-54(a), felonious larceny under N.C. Gen. Stat. § 14-72(b)(2), and having attained the status of a habitual felon under N.C. Gen. Stat. § 14-7.1. At trial, the evidence presented was as follows: On the morning of 10 May 2001, before leaving his Raleigh home for work, Bruce Carrington locked the back door to his bedroom with a dead bolt lock. At that time, the screen to the bathroom window next to thedoor was in place. When Carrington returned from work in the evening, he noticed the back door was open and the bathroom screen was off. Upon entering the home, Carrington further noticed the latch to the window was broken off, a vase in which he had kept his coins was empty, and his pillow case, videocassette recorder, and shotgun were missing.
    In response to Carrington's telephone call, Wake County Sheriff's Deputy William Burgess arrived, began the investigation, and then called the City County Bureau of Identification (Bureau) to process the crime scene. A field agent of the Bureau, Shawn Pruett, lifted one set of fingerprints from the wood on the inside frame of the window and another set from the screen.
    Clara Ireland, an automated fingerprint identification system examiner of the Bureau, testified she had worked in the field of fingerprint analysis for over twenty years. Her training included
520 hours in fingerprint science and additional courses in palm and latent print identification. She spent twelve-and-a-half years as a fingerprint examiner with the State Bureau of Investigation. In 1989, she began working for the Bureau, and after seven years, she became a fingerprint auditor. In this capacity, she supervised the work of other fingerprint identification technicians. The trial court allowed Ireland to be tendered as an expert in latent fingerprint identification, despite defendant's objection.
    Ireland also testified she compared the fingerprints from the window with defendant's and found them to match defendant's middle and ring fingers on both hands. Although Ireland stated she didnot write down the number of points of similarity she used for matching the fingerprints from the window with those of defendant, she assumed she had found at least thirteen points of similarity. She routinely used thirteen or more points of similarity for matching, even though the automated database system used for matching prints required only seven points at a minimum. She did not conduct a comparison of the fingerprints taken from the screen.
    Carrington testified he occasionally had repairmen to the house, but that he did not know defendant and had not permitted defendant to come into his home. Before this incident, Carrington's home had been broken into and his television had been stolen.
    Defendant presented no evidence at trial. At the close of the evidence, defendant moved to dismiss the charges. The motion was denied. The trial court also declined defendant's request to instruct the jury on the offense of misdemeanor breaking or entering. The jury found defendant guilty of felonious breaking or entering and having attained the status of a habitual felon but not guilty of felonious larceny. Defendant was sentenced to a minimum of 150 and a maximum of 189 months imprisonment.

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    The issues are whether: (I) defendant was improperly indicted and sentenced as a habitual felon; (II) no proper foundation was laid to support the opinion of the State's fingerprint identification expert; (III) the trial court erred in denying defendant's motion to dismiss the charge of felonious breaking orentering; (IV) the trial court erred in declining to instruct the jury on the lesser-included offense of misdemeanor breaking or entering; and (V) defendant's sentence constituted cruel and unusual punishment under Article I, Section 27 of the North Carolina Constitution and the Eighth and Fourteenth Amendments to the United States Constitution.
I

    Defendant argues the indictment failed to charge him as a habitual felon, and that he should not have been sentenced as a habitual felon. The habitual felon indictment read:
        On August 19, 1986, in Durham County, North Carolina, the defendant committed the felony of Sell and Deliver Heroin, a Schedule I Controlled Substance and was thereafter charged and pled guilty and judgment was entered in Durham County Superior Court on November 18, 1986; On April 2, 1991, in Wake County the defendant committed the felony of Breaking and Entering and was thereafter charged and pled guilty and judgment was entered in Wake County Superior Court on October 11, 1993; and on August 16, 1996, in Person County the defendant committed the felony of Breaking and Entering and was thereafter charged and pled guilty and judgment was entered in Person County Superior Court on January 22, 1997.

    Defendant argues that while the indictment alleged the offenses committed were felonious, the indictment failed to allege that the offenses charged and for which guilty pleas were entered were felonies.
    N.C. Gen. Stat. § 14-7.3 states:
         An indictment which charges a person who is a[] habitual felon . . . must, in order to sustain a conviction of habitual felon, also charge that said person is a[] habitualfelon. . . .  An indictment which charges a person with being a[] habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.

N.C.G.S. § 14-7.3 (2001).
    Nothing in the plain wording of this statute requires the indictment to further categorize the prior convictions as felonies more than was done here. “Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning.” State v. Cheek, 339 N.C. 725, 728, 453 S.E.2d 862, 864 (1995) (citation omitted). Moreover, “[o]ne basic purpose behind [N.C. Gen. Stat. § 14-7.3] is to provide notice to defendant that he is being prosecuted for [a] substantive felony as a recidivist.” Id. Here, defendant received proper notice from the indictment, which stated the habitual felon charge against him, the prior crimes, the dates and places of the commission of those crimes, the judgment dates of those crimes, and the names of the courts entering the judgments. See id. Accordingly, the trial court properly sentenced defendant as a habitual felon.
II

    Defendant next claims a proper foundation was not laid to support the opinion of the State's fingerprint identification expert Clara Ireland that the fingerprints from the window of Carrington's home matched those of defendant. Specifically,defendant notes Ireland did not specify the number of points of similarity between the two fingerprint samples and that Ireland did not demonstrate any similarity between the samples to the jury.
    “The only limitation . . . on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification.” State v. Futrell, 112 N.C. App. 651, 658, 436 S.E.2d 884, 887 (1993) (citations omitted). The trial court has wide discretion in admitting the testimony of an expert witness. State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). On appeal, the admission of such testimony is to be reviewed under an abuse of discretion standard. See State v. Parks, 147 N.C. App. 485, 490, 556 S.E.2d 20, 24 (2001).
    Here, we discern no abuse of discretion by the trial court. At trial, the evidence indicated Ireland had over twenty years of experience and substantial training as a fingerprint examiner. She testified she routinely used thirteen or more points for matching fingerprints, exceeding the number of points of similarity required by the automated database system she used. Consequently, the trial court properly admitted Ireland's fingerprint testimony.
III

    Defendant further argues the trial court erred in denying his motion to dismiss. Specifically, defendant argues the fingerprint evidence, the only evidence linking defendant to the commission of the crime, was insufficient to prove the charge of felonious breaking or entering.    A defendant's motion to dismiss is properly denied if the evidence and reasonable inferences therefrom, considered in the light most favorable to the State, are “'such that a rational trier of fact could find beyond a reasonable doubt the existence of each element of the crime charged.'” State v. Collins, 335 N.C. 729, 738, 440 S.E.2d 559, 564 (1994) (citation omitted). The elements of the offense of felonious breaking or entering are: (1) breaking or entering; (2) a building; (3) with the intent to commit a felony or larceny therein. N.C.G.S. § 14-54(a) (2001); State v. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575, 577 (1986).
    Evidence of identification of fingerprints, “found in the place where the crime was committed under such circumstances that [the fingerprints] could only have been impressed at the time the crime was committed,” is sufficient to submit to the jury. State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (evidence sufficient for charge of felonious breaking or entering when the defendant's thumb print was found on lock inside laundry where break-in occurred and where the defendant had not been lawfully present); State v. Tew, 234 N.C. 612, 617-18, 68 S.E.2d 291, 295 (1951) (evidence sufficient for charges of felonious breaking or entering and felonious larceny where the defendant's fingerprints matched those on piece of broken door glass at filling station and where owner had not known nor seen the defendant before date of break-in); State v. Bradley, 65 N.C. App. 359, 362, 309 S.E.2d 510, 512 (1983) (evidence sufficient on charge of felonious breaking or entering where the defendant's palm print found on window of roomin accounting firm that had not been open to public and to which the defendant had no lawful access); cf. State v. Gilmore, 142 N.C. App. 465, 470, 542 S.E.2d 694, 698 (2001) (reversing the defendant's convictions for felonious breaking or entering and felonious larceny because, although the defendant's fingerprint was found on piece of glass from broken window of store where break-in occurred, the defendant had been lawful customer in store near or on day of break-in and there was no evidence that the defendant's fingerprint had been impressed at time of break-in).
    Circumstances indicating that fingerprints could have been impressed only at the time the crime was committed exist where “the occupant of the premises . . . testif[ies] that []he had never given [the] defendant permission to come on the premises and had never seen him there before the commission of the crime[, and] when the crime scene is a private residence not accessible to the general public.” State v. Lee, 128 N.C. App. 506, 511, 495 S.E.2d 373, 376 (1998) (evidence sufficient to show the defendant had broken into home when the defendant's fingerprint was found on greeting card sent by homeowner's parent living in remote location and homeowner had not known the defendant nor seen him before); see also State v. Foster, 282 N.C. 189, 198, 192 S.E.2d 320, 326 (1972) (evidence of burglary sufficient where the defendant's fingerprint was found on flower pot inside burglarized home, and owners did not know the defendant and had never given him permission to enter their home).
    Consistent with the above-cited precedent, the evidence in theinstant case was sufficient to be submitted to the jury. The evidence shows defendant's fingerprints correspond to the latent fingerprints found on the inside portion of the bathroom window of the victim's private home. The victim testified he did not know defendant and had never permitted defendant to enter his home. Further, defendant does not point to evidence that he had in fact been present on the premises on a prior occasion. The evidence was therefore sufficient to link defendant to the offense of felonious breaking or entering of a building with the intent to commit larceny or a felony, and the trial court properly denied defendant's motion to dismiss.
IV

    Defendant also contends the trial court erred by not instructing the jury on the lesser-included offense of misdemeanor breaking or entering. We disagree.
    Misdemeanor breaking or entering is the wrongful breaking or entering of a building. N.C.G.S. § 14-54(b) (2001). This offense does not include the element of intent to commit a felony or larceny and thus is the lesser-included offense of felonious breaking or entering. State v. Fowler, 1 N.C. App. 549, 550-51, 162 S.E.2d 39, 41 (1968). In his brief, defendant states:
        Although the evidence was sufficient to permit the inference that the breaking or entering was committed with the intent to commit larceny, the inference was certainly not compelled from this evidence. . . . [T]he critical evidence . . . is . . . that [defendant's] fingerprints were found only at the window but not anywhere in the interior of [the victim's] house. On this evidence, the jury rejected the inference that [defendant]was the person who stole [the victim's] property. The jury should also have been permitted to reject the inference that at the time of the breaking [defendant] had the intent to commit the very larceny for which he was acquitted.
    When the evidence is positive and unequivocal as to every element of the crime charged, the trial court does not err in omitting to instruct the jury on the lesser-included offense. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
        Instruction on a lesser[-]included offense is proper only where there is evidence that would permit a jury rationally to find a defendant guilty of the lesser offense and acquit him of the greater offense. The possibility that a jury might partially accept or reject the State's evidence against a defendant is not sufficient to require instruction on the lesser[-]included offense.

State v. Barnette, 96 N.C. App. 199, 202, 385 S.E.2d 163, 164 (1989) (citations omitted).
    The facts in Barnette are similar to those in the instant case. In Barnette, the defendant's fingerprints were found on the frame of the broken kitchen window of a house where a break-in had occurred and from which a television converter box had been stolen. Id. at 200, 385 S.E.2d at 163. The defendant was convicted of felonious breaking or entering. He appealed, arguing the trial court had erred by denying his request to instruct the jury on misdemeanor breaking or entering. This Court held no error.
    Here, the State presented sufficient evidence as to each element of felonious breaking or entering. Defendant did not present any conflicting evidence. Therefore, the trial court properly declined to instruct on misdemeanor breaking or entering. See id.; see also State v. King, --- N.C. App. ---, ---, 580 S.E.2d 89, 94 (2003) (“without other explanation for breaking into the building or a showing of the owner's consent, intent [to commit a felony or larceny] may be inferred from the circumstances”), review denied, --- N.C. ---, --- S.E.2d --- 2003, N.C. LEXIS 1139, at *1 (Oct. 1, 2003) (No. 328P03). Defendant's assignment of error is overruled.
V

    Lastly, defendant contends his sentence of 150 to 189 months imprisonment, to be served consecutively with his prior 80-to-105 months sentence, constitutes cruel and unusual punishment and violates Article I, Section 27 of the North Carolina Constitution and the Eighth and Fourteenth Amendments to the United States Constitution.
    Defendant had a prior record level of VI when he was charged with the present offense of felonious breaking or entering, a Class H felony. See N.C.G.S. § 14-54(a) (2001).
    In State v. Clifton, this Court held a 168 to 211 months imprisonment, as authorized under N.C. Gen. Stat. § 14-7.3 (Habitual Felon Act), for a Class H felon with a prior record level of VI did not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution. State v. Clifton, --- N.C. App. ---, ---, 580 S.E.2d 40, 45-46 (2003), cert. denied, --- N.C. ---, --- S.E.2d ---, 2003 N.C. LEXIS 896, at *1 (Aug. 21, 2003) (No. 328P03). Therefore, defendant's sentence in the instant case was properly imposed.    No error.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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