Appeal by defendant from a judgment entered 11 January 2005 by
Judge Preston Cornelius in Henderson County Superior Court. Heard
in the Court of Appeals 8 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Scott A. Conklin, for the State.
Leslie C. Rawls for defendant.
Defendant Stephen Wayne Moore was indicted on one count of
felonious breaking and entering and one count of felonious larceny
on 27 May 2003. Defendant was also indicted for attaining the
status of an Habitual Felon. Trial was held before Judge Preston
Cornelius at the 10 January 2005 Criminal Session of Henderson
County Superior Court.
The State's evidence showed Daniel Brown owned a business
known as Oil Well Lube Center in Hendersonville, North Carolina.
When Mr. Brown arrived at the Oil Well on Memorial Day, 2002, he
found that a window on the back garage door had been broken out and
the cash register broken apart. Mr. Brown testified the cash
register looked like someone had taken a pry bar and pried and
busted the front plank and door opening. Mr. Brown furthertestified two hundred and fifty dollars had been taken from the
damaged cash register. According to the testimony of Mr. Brown,
defendant worked at the Oil Well as a lube technician during the
time of the break-in. As a lube technician, it was defendant's job
to change oil and oil filters. Defendant's job did not include
operating the cash register. According to Mr. Brown, defendant had
not worked at the shop long enough to be entrusted with the duty of
collecting money. In fact, defendant had not been given the
specific code needed to open the register.
Detective Todd Letterman from the Hendersonville Police
Department testified he responded to the Oil Well break-in call.
Detective Letterman noticed the cash register drawer had been
pulled out and the front plank on the outside of the register
drawer had been broken, exposing the metal underneath. The
Detective dusted for finger prints on the metal surface that had
been exposed as well as the inside of the drawer. Two latent
fingerprints were found. One of the fingerprints was a thumb print
taken on the exposed metal. The parties stipulated that this print
was identified as defendant's. The other fingerprint found was
taken from inside the drawer, just on the opposite side of where
the thumb print was located. This fingerprint was not
identifiable. However, the Detective testified the unidentifiable
fingerprint on the inside, taken with the thumb print, is in a
position consistent with prints that would be left by an individual
who reached into the drawer to pull it open. Defendant testified his fingerprint was found on the cash
register because it had been broken prior to the break-in and he
had attempted to fix it. Defendant did not mention this
explanation to Detective Letterman when the Detective interviewed
him on 18 June 2002. Defendant did not call any other witnesses.
At the close of evidence, counsel for defendant moved the
trial court to dismiss the charges on the ground that the State had
failed to present substantial evidence of defendant's guilt. The
trial court denied the motion. The jury found defendant guilty on
both counts on 11 January 2005. Defendant pled guilty to attaining
habitual felon status on 12 January 2005. Counsel for defendant
gave notice of appeal following sentencing.
Defendant raises two issues on appeal regarding whether the
trial court erred in: (I) denying defendant's motion to dismiss
for insufficiency of the evidence; and (II) sentencing defendant as
an habitual felon because defendant's motion to dismiss should have
Defendant argues the trial court erred in denying his motion
to dismiss for insufficiency of the evidence. We disagree.
To withstand a motion to dismiss for lack of evidence, the
State must offer substantial evidence of each essential element of
the offense and substantial evidence that defendant is the
perpetrator. State v. Lee
, 348 N.C. 474, 488, 501 S.E.2d 334, 343
(1998) (citations omitted). Substantial evidence is simplydefined by the North Carolina Supreme Court as 'evidence which a
reasonable mind could accept as adequate to support a conclusion.'
(citing State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655,
663 (1995)). In determining whether substantial evidence exists,
the trial court must view all the evidence, whether competent or
incompetent, in a light most favorable to the State, giving the
State the benefit of every reasonable inference. Id.
there is substantial evidence the fingerprints could only have
been impressed at the time the crime was committed is a question
of law. State v. Scott
, 296 N.C. 519, 523, 251 S.E.2d 414, 417
In the case sub judice
, defendant argues his motion to dismiss
should have been granted because the fingerprint evidence presented
by the State was insufficient to show that the fingerprints could
only have been made at the time of the crime. Defendant relies on
the case of State v. Gilmore
, 142 N.C. App. 465, 542 S.E.2d 694
(2001), and the general proposition that fingerprint evidence alone
may not be sufficient to withstand a motion to dismiss. The Court
held that fingerprint evidence standing alone is
sufficient to withstand a motion to dismiss if there is
substantial evidence of circumstances from which the jury can find
that the fingerprints could only have been impressed at the time
the crime was committed. Id.
at 469, 542 S.E.2d at 697 (quoting
State v. Irick
, 291 N.C. 480, 491-92, 231 S.E.2d 833, 841 (1977)).
The defendant in the Gilmore
case was accused of breaking and
entering and larceny where the thief broke into a store through thewindow. Id.
at 468-69, 542 S.E.2d at 696-97. Mr. Gilmore's
fingerprint was found on a piece of glass from the window; however,
a store employee testified that he had seen Mr. Gilmore at the
store near the day of the break-in, and that Mr. Gilmore stated he
had been shopping in the store. Id.
at 467, 542 S.E.2d at 696.
This Court held the fingerprint evidence was not substantial to
show the defendant was the perpetrator where the defendant was
lawfully present in the store prior to the break-in and may have
impressed his fingerprints prior to when the crime was committed.
at 470, 542 S.E.2d at 698 (footnote omitted).
The instant case is distinguished from Gilmore
. In Gilmore
the State provided no evidence
of circumstances from which the jury
could find that the fingerprints could only have been impressed at
the time the crime was committed. Id.
Here, however, the State
provided substantial evidence that the fingerprints found on the
cash register could only have been impressed at the time the crime
. Mr. Brown testified he had found the front plank
broken off after the break in and Detective Letterman testified the
thumb print identified as defendant's was on the metal exposed
after the front plank had been broken off. This is evidence a jury
could accept as adequate to support the conclusion that defendant's
fingerprint could only have been impressed at the time of the
Defendant also relies on State v. Scott
, 296 N.C. 519, 251
S.E.2d 414 (1979). The defendant in Scott
was charged with
attempted armed robbery and first-degree murder. Id.
that connected the defendant to the crime was a thumb
print found on a metal box in the house were the crime occurred.
at 522, 251 S.E.2d at 416-17. The only evidence used to prove
when the fingerprint could have been impressed was the testimony of
the niece of the murder victim who testified she had never seen
anyone but family members handle the metal box on which the
defendant's fingerprint was discovered. Id.
at 524, 251 S.E.2d at
417-18. However, the court ruled that the niece's testimony alone
was insufficient to withstand a motion to dismiss because the niece
also testified that she had no opportunity to observe who came to
the house on business or to visit with the victim during the week,
when she was at work all day. Id.
at 526, 251 S.E.2d at 419.
Defendant points out that, like the witness in Scott
State's witness in this case, Mr. Brown, was not always present at
the scene of the crime. However, Scott
is clearly distinguishable
from the instant case. In the instant case, as previously stated,
the State does not rely solely on Mr. Brown's testimony that he
never saw defendant use the cash register in order to prove
defendant's fingerprint was impressed during the time of the crime,
but also presents testimony of Mr. Brown and Detective Letterman.
Finally, defendant also cites to State v. Bass
, 303 N.C. 267
278 S.E.2d 209 (1981), and State v. White
, 67 N.C. App. 348, 312
S.E.2d 712 (1984). However, both cases are distinguishable from
the instant case. In each case
no evidence was presented which
contradicted the defendants' explanations that the fingerprints
were impressed at a time other than during the commission of thecrime. See Bass
, 303 N.C. at 273, 278 S.E.2d at 213 (The
defendant's explanation destroys the State's case absent some
evidence tending to show that the prints could only have been
impressed at the time the crimes charged were committed, thus
raising a question for the jury.); White
, 67 N.C. App. at 349,
312 S.E.2d at 714 ([t]he State produced no evidence to negate
defendant's explanation). In the instant case, the State did
present evidence which was in direct contradiction to defendant's
explanation that the fingerprint had been impressed before the
commission of the crime, evidence which supported the position that
defendant's fingerprint could have only been impressed during the
commission of the crime.
When ruling on a motion to dismiss, the trial court must
resolve any contradictions in the State's favor. State v. Cross
345 N.C. 713, 717, 483 S.E.2d 432, 434 (1997). Any contradictions
or discrepancies in the evidence are for resolution by the jury.
State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The
following evidence presented in the instant case is sufficient to
overcome a motion to dismiss: a window had been broken out of the
back garage door of Mr. Brown's Oil Well shop; the front plank had
been broken off the cash register during the commission of the
crime; defendant's thumb print was found on the metal surface
exposed after the front plate had been broken off; the fingerprints
were thus placed on the broken cash register during the commission
of the crime. Defendant's first assignment of error is overruled.
Defendant next argues the trial court erred in sentencing him
as an habitual felon because his motion to dismiss for
insufficiency of the evidence should have been granted. We
Any person who has been convicted of or pled guilty to three
felony offenses in any federal court or state court in the United
States or combination thereof is declared to be an habitual felon.
N.C. Gen. Stat. § 14-7.1 (2005). A person who is declared to be an
habitual felon must be sentenced as such upon conviction of a
felony. N.C. Gen. Stat. § 14-7.2 (2005).
In the case sub judice
, defendant pled guilty to having
attained habitual felon status due to having been convicted of more
then three prior felony offenses. Defendant's plea to attaining
habitual felon status rests on the underlying convictions of felony
breaking and entering and felony larceny. As discussed supra
defendant's motion to dismiss was properly denied. This assignment
of error is overruled.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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