State v Elliott, 162 NC App 181 (03-342) 01/06/2004

Appeal by defendant from judgment entered 15 March 2002 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 22 December 2003.

Attorney General Roy Cooper, by Assistant Attorney General Daniel S. Johnson, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Terri W. Sharp, for defendant-appellant.

LEVINSON, Judge.

    Defendant was charged by indictments with felonious breaking and entering, felonious larceny, and habitual felon status. After he was found guilty of the substantive felonies, defendant pled guilty to habitual felon status. The court consolidated the convictions and sentenced defendant to an active term of 168 months to 211 months.
    The State presented evidence tending to show the following: At approximately 10:00 p.m. on 6 May 2001, Janet's Hair Millennium located at 122 West Parrish Street in downtown Durham was broken into. Ronnie Sturdivant testified that he heard the sounds of breaking glass and a burglar alarm outside his residence on 208Corcoran Street near Janet's Hair Millennium. He looked outside and saw a man dressed in blue jeans and a black jacket carrying a television set. Sturdivant jumped in his automobile and followed the man as he walked down the street. Sturdivant called the police on his cellular telephone. Sturdivant saw the man place the television on the ground. After police arrived at the scene, Sturdivant directed the police to the man, identified as defendant. Janet Cooper, the owner of Janet's Hair Millennium, identified the television as one which was missing from her business. Defendant testified and denied breaking into the beauty salon.
    Defendant first contends that the trial court erred by denying his motion to suppress the use of a prior conviction of breaking and entering on 2 June 1986 as one of the underlying convictions for habitual felon status. He argues the conviction is invalid because he was denied effective assistance of counsel. We dismiss this contention.
     By pleading guilty to the charge of habitual felon status and not reserving his right to appeal the denial of his motion to suppress, defendant has waived his right to appellate review of this issue. State v. Pimental, 153 N.C. App. 69, 76, 568 S.E.2d 867, 871-72, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002). Moreover, even if defendant had preserved his right to appeal, collateral attack upon the prior convictions listed in the habitual felon indictment is not permitted. State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d 771, 773 (1996).
    Defendant's remaining contention is that the trial court erredby denying his motion to dismiss the charges. In deciding a motion to dismiss, the court must determine whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). All of the evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by the jury. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
    Defendant argues the evidence is insufficient to identify him as the perpetrator because of the absence of any fingerprints connecting him to the television or placing him inside Janet's Hair Millennium. We disagree. When a defendant is found in possession of property identified as having been stolen pursuant to a breaking and entering, and his possession of the property is recently after its taking, it may be presumed that the defendant broke and entered the premises and stole the property. State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981). The evidence in the case at bar shows that within five seconds after hearing the glass break and the burglar alarm sound, Mr. Sturdivant saw defendant carrying a television set identified by Ms. Cooper as missing from her salon. We hold this evidence was sufficient to identify defendant as the perpetrator of the breaking and entering of Janet's HairMillennium and of the larceny of the television set. This assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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