An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1700


Filed: 15 February 2005


v .                         Wake County
                            No. 02 CRS 69621

    Appeal by defendant from judgment entered 27 March 2003 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 13 October 2004.

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

    Daniel Shatz for defendant-appellant.

    ELMORE, Judge.

    Patrick Ricardo Smith (defendant) was indicted on one count of robbery with a dangerous weapon. The jury found defendant guilty on this charge, and the court sentenced defendant to 117-150 months of imprisonment. Defendant appeals.
    The State's evidence tended to show that on 12 July 2002 Nathan Phillips, a lineman employed by BellSouth, was working at the intersection of Lee and Blount Streets in Raleigh. As Phillips walked around his BellSouth van to reach a cable box, he noticed two males walking in his direction. Phillips knelt down to inspect the box, and defendant confronted him as he was standing up. Phillips observed defendant holding a gun and the other male positioned at the back of the van. Defendant asked Phillips wherehis tools were, and the other male jumped inside the van and grabbed a hard hat and tools. Defendant, still holding the gun, told Phillips to take off his shirt. Defendant and the other male took Phillips' shirt, hard hat, butt set, tool belt, and various tools and ordered him to get inside the van. After waiting approximately 20 seconds, Phillips called the police.
    The State's evidence also showed that several weeks later on 2 August 2002 defendant committed an armed robbery at the Cash in Advance on Raeford Road in Fayetteville. Defendant approached the teller counter and informed an employee that he needed to check the phone lines. The employee observed that defendant was wearing a tool belt and BellSouth shirt and hard hat and carrying a butt set (red phone that repairmen plug in to check telephone lines). The employee asked defendant for identification, and defendant retrieved a BellSouth ID badge from his car and displayed it quickly. After the employee unbolted the door, defendant pulled out a gun and pointed it at her. Defendant asked where the money was and then retrieved about a thousand dollars from the teller drawers. As defendant was leaving, a customer present during the incident took down the license plate number of defendant's car. Detective Christopher Corcione of the Fayetteville Police Department traced the plate number to Michael Anthony Cox of Raleigh. Detective Mark Utley of the Raleigh Police Department and Detective Corcione interviewed Cox, who told them that he had obtained the license plate for defendant because defendant had no driver's license. Based upon this information, Detective Utleyassembled a photographic lineup and showed it to Phillips. Phillips identified defendant as the person who robbed him on 12 July 2002.
    By his first assignment of error, defendant argues that the trial court erred in allowing the State to introduce evidence of the Cash in Advance robbery in Fayetteville. Essentially, defendant contends that the evidence of the Fayetteville robbery was offered for an improper purpose.
    Evidence of a person's prior crimes or bad acts is not admissible to show propensity to commit a particular crime, but this evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). Rule 404(b) is a rule of inclusion of the defendant's other crimes or bad acts, “subject to the single exception that such evidence must be excluded if its only probative value is to show that defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Berry, 356 N.C. 490, 505, 573 S.E.2d 132, 143 (2002).
    In the present case, the State offered the evidence of the Cash in Advance robbery to show defendant's intent and motive to rob Phillips. The State argued that defendant robbed Phillips in order to procure equipment as part of a plan or scheme to impersonate a BellSouth repairman in a future robbery. The State also offered the evidence as proof of identity. On the other hand,defense counsel argued at voir dire that the BellSouth uniform and tools were not so unique as to be probative of identity under Rule 404(b), and that the evidence proffered by the State was unfairly prejudicial. However, the trial judge concluded that the danger of unfair prejudice did not outweigh probative value and admitted the evidence pursuant to Rule 404(b) “to show identity, to show motive, to show intent, to show a plan or scheme.” The judge gave a limiting instruction to the jury prior to the admission of the evidence.
    On appeal, defendant challenges the connection between the two crimes. Specifically, defendant argues that the evidence shows that the same person could not have committed both crimes. However, our Supreme Court has explained that in order to admit evidence of defendant's prior acts or crimes under Rule 404(b) to show defendant's identity as the perpetrator, the similarities between the incidents need not be striking; rather, there must be “'some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes.'” State v. Green, 321 N.C. 594, 603-04, 365 S.E.2d 587, 593 (quoting State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983)), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988). Thus, the question for the trial court is whether the similarities tend to support a reasonable inference that the same person committed both crimes. State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Here, the evidence showed that a person carrying a butt set and wearing a BellSouth uniform shirt and hardhat, but not driving a BellSouth van, robbed the Cash in Advance under the guise of checking phone lines. Phillips testified that defendant took only his BellSouth equipment and uniform, not the BellSouth van. We conclude that the trial court did not abuse its discretion in determining that the evidence supported a reasonable inference that the same person committed both robberies.     
    Next, defendant assigns error to the trial court's jury instruction on the doctrine of recent possession. This doctrine permits the jury to accept the presumption that the defendant is guilty of larceny where the stolen goods were found in his possession. State v. Carter, 122 N.C. App. 332, 337, 470 S.E.2d 74, 78 (1996). For the doctrine to apply, the State must prove the following beyond a reasonable doubt: “(1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant's custody and subject to his control and disposition to the exclusion of others . . . and (3) the possession was discovered recently after the larceny . . . .” Id. (quoting State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981)). Although the State has the burden of establishing the identity of the property, “[i]t is not necessary that stolen property be unique to be identifiable. Often stolen property consists of items which are almost devoid of identifying features, such as coins and goods which are mass produced . . . .” State v. Crawford, 27 N.C. App. 414, 415, 219 S.E.2d 248, 249, disc. review denied, 288 N.C. 732, 220 S.E.2d 621 (1975). The owner of the property need not specifically identifyeach item; other evidence at trial may be used to establish the identity of the items as stolen property. Id.
    Defendant contends that the State failed to sufficiently identify the property as stolen because the items were “standard issue BellSouth equipment and/or uniform items.” As support for this contention, defendant relies upon State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966). There, the owner of the property was unable to identify the six tires found in the defendant's possession as the ones stolen from his business. The Court held the evidence insufficient to uphold a larceny conviction. The facts here differ significantly, as several Cash in Advance employees testified to defendant's possession of the shirt, hard hat, tool belt, and butt set. The items identified by the Cash in Advance employees were of a unique assemblage _ the same assemblage of items stolen from Phillips. Thus, the evidence presented by the State raised at least a reasonable inference that defendant was in possession of the stolen property. See State v. McCoy, 79 N.C. App. 273, 278, 339 S.E.2d 419, 423 (1986) (concluding that the State presented substantial evidence from which the jury could infer that defendant was guilty of felonious larceny where defendant was seen leaving victim's apartment with goods resembling those later reported stolen); State v. Hales, 32 N.C. App. 729, 732, 233 S.E.2d 601, 603 (reasonable inference of defendant's guilt where combination of goods discovered in defendant's possession was exactly the same combination as the goods stolen), disc. review denied, 292 N.C. 732, 235 S.E.2d 782 (1977).     Next, defendant challenges the court's assignment of two record points for a conviction in New York on the offense of criminal possession of a weapon in the 3rd degree. “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” N.C. Gen. Stat. § 15A-1340.14(f) (2003). There is no distinction between in-state and out-of-state convictions. See id. This Court has recognized that a computerized printout of the defendant's Division of Criminal Information (DCI) record is a proper method to prove prior convictions under N.C. Gen. Stat. § 15A-1340.14(f). See State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51 (copy of computerized record maintained by DCI constituted reliable method of proving prior conviction), disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998).
    Here, the State introduced a computer printout of defendant's DCI record. Defendant argues that the State has failed to prove that the New York conviction belonged to him. As factual support for this argument, defendant points out that the record associates him with five different names and four different dates of birth. At the sentencing hearing, defendant denied being convicted of the New York criminal possession charge. After reviewing the evidence of defendant's conviction on this charge, the judge entered findings into the record:
        The Court further determines that on November 21, 1989, in the Kings County Superior Court of New York, the defendant pled guilty to the New York Class D felony of criminal possessionof a weapon in the third degree . . . the Court determines it should be treated for sentencing purposes here as a Class I felony with 2 points.

The court added the 2 points attributable to this felony and sentenced defendant at a prior record level of IV. We believe the trial court correctly determined that the conviction was supported by a preponderance of the evidence. The State introduced a DCI record to prove the existence of the New York criminal possession conviction. Cf. State v. Riley, 159 N.C. App. 546, 555-57, 583 S.E.2d 379, 286-87 (2003) (State failed to present copy of the defendant's record maintained by the DCI to support prosecutor's worksheet calculating prior record level). Nothing in the record indicates that the DCI record is unreliable or that the New York conviction does not belong to defendant. The mere fact that the record listed several different names and dates of birth does not render it unreliable here. The State's cross-examination of defendant at trial revealed that defendant had in his possession a birth certificate, tax form, and North Carolina driver's license in the name of Nathaniel Edwards, an alias. Yet, defendant denied using any names other than Patrick Ricardo Smith. Given the evidence that defendant in fact used different names, his assertion that he did not commit the offense in question is simply not enough to establish the unreliability of his DCI record. We overrule this assignment of error.
    Finally, defendant contends that the court erred in denying his motion to dismiss for insufficiency of the evidence. Defendant asserts that the evidence was insufficient to support an inferencethat he was the perpetrator of the offense charged. We cannot agree. In ruling on a motion to dismiss for insufficiency of the evidence, the court must consider the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994). “The evidence need only permit a reasonable inference of the defendant's guilt of the crime charged in order for that charge to be properly submitted to the jury.” Id. Here, the evidence showed that defendant, using a gun, robbed Nathan Phillips of a BellSouth shirt, hard hat, butt set, tool belt, and tools. Defendant does not contest the accuracy of Phillips' identification of him from the photographic lineup; instead, he argues that the other evidence identifying him as the perpetrator of the offense is incredible. Phillips testified that defendant appeared to be approximately 6 feet 3 inches in height and 215 pounds. In contrast, defendant testified that he is 5 feet 9 inches in height and weighs 190 pounds. However, the State correctly points out that Phillips qualified his testimony by explaining that at the time he observed defendant's height he was standing on the ground and defendant was standing at the top of the curb. Moreover, contradictions and discrepancies in the evidence are for the jury to resolve. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Thus, the evidence presented was sufficient to submit the case to the jury, and the trial court did not err in denying defendant's motion to dismiss.
    No error.
    Judges MCGEE and MCCULLOUGH concur.
    Report per Rule 30(e).

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