An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1465


Filed: 19 July 2005


v .                         From Forsyth County
                            No. 03 CRS 37610

    Appeal by defendant from judgment entered 24 June 2004 by Judge William Z. Wood, Jr., in the Superior Court in Forsyth County. Heard in the Court of Appeals 9 June 2005.

    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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