An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-51


Filed: 18 October 2005

v .                                  Guilford County
                                     No. 03 CRS 103919

    Appeal by defendant from judgment entered 3 September 2004 by Judge Edwin G. Wilson, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 21 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

    Moser Schmidly & Roose, by Richard G. Roose, for defendant appellant.

    MCCULLOUGH, Judge.

     Defendant appeals from judgment entered after a jury verdict of guilty on attempted first-degree rape, common law robbery and felonious breaking and entering charges. We find no error.

    On 12 January 2004, the Guilford County Grand Jury indicted defendant for the offenses of attempted first-degree rape, attempted robbery with a dangerous weapon and felonious breaking or entering. On 30 August 2004, defendant's case was called for a jury trial in Guilford County Superior Court before Judge Edwin G. Wilson.     The State presented evidence at trial tending to show the following: Colleen Geldmacher (Colleen), Laura Plantec (Laura), and Kana Mukunoki (Kana) lived at 1614 North Centennial Street in High Point. On the morning of 14 October 2003, Colleen and Laura left the house for class around 9:30 a.m. Kana had left for class before the other two. When Colleen returned home around 10:50 a.m., she noticed that the television was on, even though it had not been on when she left. At that point, defendant grabbed her from behind, put a knife to her throat and instructed her not to scream. Colleen crouched to the floor in an attempt to throw defendant off of her but failed. Defendant attempted to pull Colleen's pants down, but she was able to hold them up on one side. The two continued to struggle and defendant commanded Colleen to roll over. As the struggle ensued, Colleen was able to break free and run for the door. However, she was unable to make it to the door before defendant jumped in front of her, so Colleen kicked defendant in the groin area. The kick did not deter defendant and the struggle continued. At some point, Colleen was able to gain control of the knife and she tried to use it to force defendant out of her house. Colleen then tried to get out the back door but it was locked which gave defendant time to grab her. At some point during the encounter, defendant demanded that Colleen give him money and he would leave. Colleen was able to fight her way out of the back door and run to a neighbor's house in order to call the police.      After the police responded to the call, Colleen returned to the house with the police to walk through what had happened. It was later discovered that a condom wrapper was lying on a chair in the living room and that a pay-per-view adult movie had been ordered by someone other than the three girls who lived there on 14 October 2003. Neither of the other two roommates returned to the house until after the incident occurred between Colleen and defendant. Colleen had not on 14 October 2003, nor ever, given defendant permission to enter the residence.
    Fingerprint evidence was taken from the scene of the crime by William Lemons, crime lab supervisor, who then turned the prints of value over to Officer Westmoreland. Officer Westmoreland compared the print lifted from the back door of the scene with defendant's fingerprints and found them to be a match. Upon arrest, defendant made a statement to Officer McNeil claiming that he had previously visited the residence of Colleen to smoke marijuana with Colleen and one of their neighbors, Ernest Watson. Defendant also stated that he had never exited the house through the back door. However, Laura, Colleen and Kana testified that they had never seen defendant and Colleen also testified that she had never smoked marijuana with him. Further, Ernest Watson testified that he knew defendant from Andrews High School where they both attended school, but that defendant and he had never been over to the girls' house together, nor had they smoked marijuana with the girls.
    Evidence was also introduced at trial, over the objections of defendant, tending to show several other assaults on females inwhich defendant was the perpetrator of the crime. The trial judge admitted this evidence for the purpose of showing intent, common plan or scheme to attack and identity. Tracey Roach (Tracey) testified that on 10 December 2002 defendant came to her home at 1009 Terrell Drive in High Point, North Carolina, knocked on her door and asked to use the phone. At this time, Tracey had never seen defendant before. She handed the phone outside to defendant where he had a phone conversation and then handed the phone back to her just before kicking the door open. Once defendant kicked the door open, a struggle ensued. The struggle ended with Tracey's dog biting defendant and defendant running out the door. A couple of months later, defendant returned to the house again, was confronted by her husband and brandished a knife before running down the street. Tracey's husband ran after defendant and eventually caught him and held him until he could be taken into police custody. The house Tracey and her husband were living in at the time was about one-quarter of a mile from Andrews High School. At trial, Tracey identified defendant as the person who had come to her door on both occasions and who had later been taken into police custody.
    Tina Mancini (Tina) then testified to an incident involving defendant on 9 May 2003 in High Point, North Carolina, at the mall. Tina was in town on business when she entered the restroom and placed her bag outside of the stall as she went inside. When Tina came out of the bathroom stall she bent over to pick up her bag and was attacked from behind by defendant covering her eyes, choking her and then throwing her head against the wall. Tina beganscreaming for help which startled defendant and he ran away. As defendant was running away Tina was able to get a description of the clothes he was wearing of which she later informed the police. The police detained defendant outside of the mall based on Tina's description. Tina was taken to see defendant and identified him as her assailant. The mall where the incident occurred is about a five-minute walk from the house where the crime in question at trial occurred. At trial, Tina identified defendant as the person who attacked her in the bathroom.
    Last, Chrissy Bailey (Chrissy) testified that on 14 October 2003, defendant attacked her at her home on 113 Mayview Avenue in High Point, North Carolina. Chrissy testified that she knew defendant through a friend of hers before the night of the attack. On 14 October 2003, defendant came to Chrissy's home, knocked on the front door and was told by her mother that she could not come outside because she was doing her homework. Defendant then went around to Chrissy's window and asked her to come outside to the porch. He then asked her for rubbing alcohol and a wash cloth to clean his shoes which Chrissy retrieved and brought to defendant. Defendant then told Chrissy to go to the back porch to check under it because he believed someone to be sleeping under there. When Chrissy went to the back porch, defendant came up behind her, placed the wash cloth over her mouth and pushed her to the ground. Defendant then attempted to put his hands up Chrissy's shirt at which time she was able to kick him in the groin area and he ranoff. At trial, Chrissy identified defendant as the person who attacked her on 14 October 2003.
    After each of these three witnesses testified regarding events involving defendant, the judge gave a limiting instruction to the jury stating that the evidence was received solely for the purpose of showing the identity of the person who committed the crime charged in this case, that he had the intent to commit the crime, and that defendant had a plan, scheme, system or design involving the crime charged.
    At the close of the State's evidence, defendant made a motion to dismiss which was denied by the court. Defendant presented no evidence at trial. After defendant rested, he again made a motion to dismiss which was denied by the court. The jury found defendant guilty of attempted first-degree rape, attempted common law robbery and felonious breaking and/or entering. Defendant was sentenced to a term of imprisonment for 189 to 236 months for attempted first- degree rape, 8 to 10 months for attempted common law robbery and 8 to 10 months for breaking and/or entering.
    Defendant now appeals.
    In the first argument on appeal, defendant contends that the court erred under Rule 404(b) of the Rules of Evidence when it admitted evidence regarding other assaults. We disagree.
    Rule 404(b) of the North Carolina Rules of Evidence provides:        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, 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 “'clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.'” State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (emphasis added). Accordingly, evidence of prior bad acts is “'admissible so long as it is relevant to any fact or issue other than the character of the accused'” to commit a similar crime. Id. This rule of inclusion is restrained only “by the requirements of similarity and temporal proximity.” State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). “Even if evidence of another offense is admissible under Rule 404(b), the trial court must nevertheless exclude it if it determines that its probative value is substantially outweighed by the danger of undue prejudice.” State v. Hall, 85 N.C. App. 447, 451, 355 S.E.2d 250, 253, disc. review denied, 320 N.C. 515, 358 S.E.2d 525 (1987). However, “a specific finding is not required.” State v. Harris, 149 N.C. App. 398, 405, 562 S.E.2d 547, 551 (2002). In examining the admission of evidence under Rule 404(b), this Court reviews for an abuse of discretion. State v. Hyatt, 355N.C. 642, 662, 566 S.E.2d 61, 74 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
    In the instant case, the trial judge admitted the testimony for the purpose of showing identity of the perpetrator of the crime in question, intent to commit the crime in question and a common plan or scheme to attack. Each of the acts admitted under Rule 404(b) is relevant to one of the purposes stated in the limiting instruction and is sufficiently similar to the crime at hand. (Rule 404(b) has been noted to be a rule of inclusion, and not exclusion. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990), cert. denied, 421 S.E.2d 360 (1992)).
    The evidence tended to show that in the case before the court, the assailant attacked the female from behind, a struggle ensued, he attempted to sexually assault her by pulling down her pants, and a knife was used in pursuit of her attack. Three prior acts were admitted into evidence for Rule 404(b) purposes. The similarities between the three acts and the crime in the case at hand are as follows: (1) in two of the three instances defendant attacked the female from behind; (2) in one instance defendant brandished a knife; (3) a struggle ensued between defendant and all three female victims which ended in defendant's running away from the scene; (4) defendant attempted to make sexual contact with one of the victims; (5) nothing was stolen from any of the victims; they were all merely attacked by defendant; (6) all of the instances occurred in High Point, North Carolina; (7) all of the instances occurred in close proximity to each other; and (8) one of the attacks occurred on 14October 2003, the same day as the crime at hand occurred. Taking all of these similarities together, it is evident that the crimes were admissible under Rule 404(b). (Evidence of a prior bad act generally is admissible under Rule 404(b) if it constitutes “substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act.” Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at 123).
    The trial judge carefully listened to the arguments of both sides regarding each of these acts and made a finding that they were each similar enough to be admitted for a proper purpose under Rule 404(b). Each prior incident has similarities which go to show identity, intent to commit the crime, or a common scheme to attack. (Evidence of prior bad acts is “admissible so long as it is relevant to any fact or issue other than the character of the accused” to commit a similar crime. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)). Further, the judge gave a limiting instruction as to the purpose for which the evidence was admitted at the conclusion of each witness's testimony regarding Rule 404(b) acts. After a review of the entire record and transcript it cannot be said that the judge abused his discretion in admitting this evidence for Rule 404(b) purposes. (The court's decision may be reversed for abuse of discretion only upon a showing that the court's ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. See State v. Maney, 151N.C. App. 486, 565 S.E.2d 743 (2002), appeal dismissed, 356 N.C. 688, 578 S.E.2d 324 (2003)). This assignment of error is overruled.

    In the second argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss at the close of all the evidence. We disagree.
    “In ruling on a motion to dismiss for insufficient evidence the trial court must consider the evidence in the light most favorable to the state, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988). “There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id. at 557, 369 S.E.2d at 574. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). Where the fingerprints of the defendant are the only evidence tending to show that the defendant was the perpetrator, it must be shown that they could only have been placed at the scene at the time the crime was committed. See State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979).
    Circumstantial evidence that the fingerprints could only have been impressed at the time the crime was committed comes in several different forms. See Annot., 28 A.L.R.2d 1115, 1154-57 (1953). The form of the evidence is immaterial so long as it substantially demonstrates that the fingerprints could have been placed at thescene only at the time the crime was committed. See Scott, 296 N.C. 519, 251 S.E.2d 414. In a number of cases the evidence has consisted in part of denials by the defendant that he was ever on the premises where the crime occurred. See State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), and State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972). In other cases the occupant of the premises, who might reasonably be expected to have seen the defendant had he ever been there lawfully, has testified that defendant had neither been given permission to come on the premises nor had he been seen there before the commission of the crime. See State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951). This kind of evidence is particularly convincing when the scene of the crime is a private residence not accessible to the general public. See State v. Montgomery, 341 N.C. 553, 461 S.E.2d 732 (1995).
    In the instant case, the crime occurred in a private residence which was occupied by three female college students. Defendant's fingerprints were found on the back door of the private residence. Defendant opted not to testify at trial, however a statement made by defendant to police was entered into evidence by the State. In that statement, defendant contended that he had visited the residence before with Ernest Watson to smoke marijuana but that he had neither entered nor exited the back door. All three of the residents testified that they did not know defendant nor had they ever seen him. Colleen, the victim of the crime, also testified that she did not on 14 October 2003, nor any other time, give defendant permission to enter the residence. Further, Ernest Watson testifiedthat he and defendant had never smoked marijuana at the girls' residence.    
    All of these facts, taken together with the fact that defendant did not testify at trial, constitute substantial evidence that the fingerprints could only have been placed at the scene at the time the crime occurred. See Tew, 234 N.C. 612, 68 S.E.2d 291 (holding that where the defendant, who did not testify, was convicted of breaking and entering and larceny after his fingerprints were found on a piece of broken glass from the front door of the service station during a robbery and the only other evidence for the State was the proprietor's testimony that she personally attended the station and had never before seen the defendant, that this evidence was sufficient to go to the jury). Therefore, this assignment of error is overruled.
Accordingly, we find no error in either the admission of evidence of prior acts under Rule 404(b) or the denial of the motion to dismiss at the close of the evidence where there was sufficient evidence that defendant was the perpetrator of the crime.
    No error.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

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