An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-848

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

STATE OF NORTH CAROLINA

    v .                     Henderson County
                            Nos. 03 CRS 2282, 03 CRS 51662
STEPHEN WAYNE MOORE

    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.

    BRYANT, Judge.

    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.

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    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 been granted.
I

    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.'” Id. (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. Whether 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 (1979).
    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 in Gilmore 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. Id. 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 was committed. 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 crime.
    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. The onlyevidence that connected the defendant to the crime was a thumb print found on a metal box in the house were the crime occurred. Id. 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, the 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.
II
    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 disagree.
    “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.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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