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.
_________________________
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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