STATE OF NORTH CAROLINA
v
.
From Forsyth County
No. 03 CRS 37610
DAVID GRANT TRUESDALE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Steven A. Armstrong, for the State.
James M. Bell, for defendant-appellant.
HUDSON, Judge.
At the 24 June 2004 criminal session of the superior court in
Forsyth County, a jury found defendant David Grant Truesdale guilty
of felony breaking or entering and attempted larceny after breaking
or entering. Defendant pled guilty to habitual felon status by
transcript of plea, but preserved his right to appeal his
conviction and sentence. The court sentenced defendant to prison
for 107 to 138 months. Defendant appeals. We conclude there was
no error.
The evidence tended to show that, on 11 October 2002, when
Lena Garner, the manager of a Chick-Fil-A restaurant, arrived to
open the store, she saw that someone had broken into the store by
breaking out a window. Garner found the cash drawer on the floorand noticed that someone had tried to break into the safe. A store
surveillance camera showed a small man crawling on the floor with
a prying device, and a surveillance tape from nearby parking lot
showed a small black-over-gray pickup truck. Police also
discovered drops of blood on the floor near the broken window. A
State Bureau of Investigations analyst testified that the DNA of
the blood recovered at the crime scene matched defendant's blood
sample.
The State also introduced evidence about a break-in at a
Rentway store nine days after the incident at Chick-Fil-A. Police
recovered defendant's fingerprint on a window frame through which
the Rentway was broken into. Based on the fingerprint information,
the similar modus operandi between the Chick-Fil-A break-in, and
other evidence, police obtained a warrant for defendant's arrest in
the Chick-Fil-A case.
Defendant first argues that the court erred in overruling his
objections and allowing the State to introduce evidence about the
Rentway break-in. We disagree.
Defendant contends that the court should have excluded the
Rentway evidence because the danger of unfair prejudice
substantially outweighed any probative value under Rule 403,
because the evidence was improper character evidence under Rule
404(b), and because under Rule 402 it was irrelevant to the charges
for which he was being tried. Evidence of one crime may be
properly admitted in the trial of another crime when there exist
some unusual facts present in both crimes that suggest the sameperson committed both. State v. Sokolowski, 351 N.C. 137, 150, 522
S.E.2d 65, 73 (1999). Such evidence may be admissible so long as
it is relevant to any fact or issue other than the character of the
accused. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793
(1986); N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Here, the
State contended that the evidence was relevant to show identity.
Whether evidence should be excluded is a matter within the trial
court's decision and we will not disturb the court's decision
unless it is manifestly unsupported by reason or is so arbitrary it
could not be the result of a reasoned decision. State v. Burgess,
134 N.C. App. 632, 635, 518 S.E.2d 209, 211 (1999).
Here, the two break-ins had several similarities: they
occurred only nine days apart, at locations within two miles of
each other, and involved entrance through a window and the use of
a prying tool. The fingerprint lifted at the Rentway led the
investigators to the defendant, which enabled them to match
defendant with the DNA found at Chick-Fil-A, establishing identity.
This evidence supports a reasoned decision to allow the evidence
pursuant to Rule 404(b), and we conclude the court did not abuse
its discretion in doing so.
Defendant next argues that the court erred in denying his
motion to strike a witness' reference to “other information.” We
disagree.
Detective D.C. Taylor testified about the grounds for the
warrant taken out for defendant's arrest. On direct, Det. Taylor
was asked what he did after reviewing the surveillance videotapes. He answered: “We obtained the information as far as the
information we had on tape, both tapes. And along with other
information we had, developed Mr. Truesdale as a suspect.” Defense
counsel moved to strike, which motion the court overruled.
Defendant contends the court erred in denying the motion.
However, the transcript reveals that prior to Det. Taylor
giving the response quoted above, the State and Det. Taylor had the
following exchange:
Q: A warrant for who and for what?
A. A warrant for David Grant Truesdale for
felonious breaking and entering and larceny.
Q. Was it just based on fingerprint and other
information that you had?
A. It was based on some_
Q. Other information?
A. Correct.
Because defendant failed to object to Det. Taylor's first reference
to “other information,” he has waived his right to appeal this
issue. State v. Alston, 91 N.C. App. 707, 714, 373 S.E.2d 306, 311
(1988). We overrule this assignment of error.
Defendant also assigns error to the court's failure to dismiss
the charges against him based on the State's failure to present
evidence of lack of consent. We disagree.
In ruling on a motion to dismiss for insufficiency of the
evidence
'[t]he trial court must determine only whether
there is substantial evidence of each
essential element of the offense charged and
of the defendant being the perpetrator of theoffense.' State v. Crawford, 344 N.C. 65, 73,
472 S.E.2d 920, 925 (1996). Evidence is
substantial if it is relevant and adequate to
convince a reasonable mind to accept a
conclusion. State v. Vick, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). In
considering a motion to dismiss, the trial
court must analyze the evidence in the light
most favorable to the State and give the State
the benefit of every reasonable inference from
the evidence. State v. Gibson, 342 N.C. 142,
150, 463 S.E.2d 193, 199 (1995).
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001).
Here, the State presented evidence from both the store owner and
store manager of the Chick-Fil-A that neither knew defendant. This
testimony permits a reasonable inference that neither the manager
nor the owner gave defendant permission to break into the store,
damage the interior and break the handle off the safe.
Defendant next argues that the court erred in denying his
motion for a jury instruction on non-felonious attempted larceny.
We see no error here.
In his brief, defendant refers to his arguments regarding the
State's alleged failure to prove lack of consent as discussed above
and then asserts that “lacking evidence of a breaking or entering
without consent, the jury should have been instructed on non-
felonious attempted larceny.” Having concluded that the State did
present evidence of lack of consent, we also conclude that the
court properly refused to instruct on non-felonious larceny. When
“[a]ll the evidence presented showed that the [property] was taken
pursuant to a breaking or entering, . . . it was not error to
refuse to instruct on misdemeanor larceny.” State v. Weaver, 79N.C. App. 244, 248, 339 S.E.2d 40, 43, reversed on other grounds,
318 N.C. 400, 348 S.E.2d 791 (1986).
Defendant also argues that the court erred in not dismissing
the charges against him on grounds that he did not receive a speedy
trial as guaranteed by the United States and North Carolina
constitutions. We disagree.
Our Supreme Court has summarized an appellate court's role in
addressing claims of denial of a speedy trial as follows:
In Barker v. Wingo, the United States Supreme
Court identified four factors that 'courts
should assess in determining whether a
particular defendant has been deprived of his
right' to a speedy trial under the federal
Constitution. 407 U.S. 514, 530, 33 L. Ed. 2d
101, 117, 92 S. Ct. 2182 (1972). These
factors are: (i) the length of delay, (ii) the
reason for delay, (iii) the defendant's
assertion of his right to a speedy trial, and
(iv) whether the defendant suffered prejudice
as a result of the delay. Id. . . . 'We
follow the same analysis when reviewing such
claims under Article I, Section 18 of the
North Carolina Constitution.' State v.
Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721
(2000), cert. denied, 534 U.S. 838, 151 L. Ed.
2d 54, 122 S. Ct. 93 (2001).
State v. Spivey, 357 N.C. 114, 118, 579 S.E.2d 251, 254 (2003).
Courts must balance the factors set out by the U.S. Supreme Court
in Barker in assessing whether a defendant has been denied his
right to a speedy trial. Id.
“Length of the delay is not per se determinative of whether a
speedy trial violation has occurred.” State v. Doisey, 162 N.C.
App. 447, 454, 590 S.E.2d 886, 892 (2004) (internal citation and
quotation marks omitted). Regarding the second factor set forth in
Barker, “defendant has the burden of showing that the delay wascaused by the neglect or willfulness of the prosecution.” Spivey,
357 N.C. at 119, 579 S.E.2d at 255. “Only after the defendant has
carried his burden of proof by offering prima facie evidence
showing that the delay was caused by the neglect or willfulness of
the prosecution must the State offer evidence fully explaining the
reasons for the delay and sufficient to rebut the prima facie
evidence.” Id. Likewise, the fourth factor requires a showing of
actual and substantial prejudice. Doisey, 162 N.C. App. at 455,
590 S.E.2d at 892.
In Doisey, “almost two years passed between the date of the
offenses and trial, during which time defendant several times
asserted his constitutional right to a speedy trial.” Id. The
Court in Doisey noted that those facts were not dispositive, and
required balancing “against defendant's failure to show actual or
substantial prejudice resulting from the delay[.]” Id. (quoting
State v. Goldman, 311 N.C. 338, 345, 317 S.E.2d 361, 365 (1984)).
Because Doisey failed to allege that the delay hampered his ability
to present a defense, this Court concluded that there was no
violation of his right to a speedy trial.
Similarly, defendant here has failed to show how he was
prejudiced in his defense by the time lapse between arrest and
trial. Defendant has also failed to allege or show any neglect or
willfulness by the prosecution in the delay between his arrest and
trial. Upon balancing the relevant factors, we conclude that
defendant's constitutional right to a speedy trial was not violated
and we overrule this assignment of error. No error.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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