Converted WP file 050908-1

Appeal by defendant from judgment entered 2 March 2005 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 February 2006.

Attorney General Roy Cooper, Special Deputy Attorney General William P. Hart and Assistant Attorney General Steven A. Armstrong, for the State.

William B. Gibson, for defendant.

    LEVINSON, Judge.

    Defendant appeals his conviction and judgment for felonious breaking and entering. We find no error.
    The evidence presented at trial may be summarized as follows:
On the morning of 28 August 2003, Maxine Sturdivant testified, she received a call at work that there was a break-in at her home. She and an officer with the Charlotte-Mecklenburg Police Department toured her home and examined the damage from the break-in. A door was “kicked in” where it was, earlier that morning, left closed. The lid of a jewelry box was removed and a bureau drawer in her bedroom containing lingerie was disturbed and left open. A Playstation was sitting in its box on the dining room table; thisPlaystation was connected to the television in an upstairs bedroom earlier that morning. Sturdivant purchased the Playstation from a Wal-Mart store around the 2002 Christmas holidays. She had never seen defendant before seeing him in the courtroom. Defendant had never been a guest in her home, and she had never given him permission to enter her home.
    Todd Roberts, a crime scene investigator for the Charlotte- Mecklenburg Police Department, testified. He removed latent fingerprints from the Playstation box. Kathleen Ramseur, a fingerprint analyst with the Charlotte-Mecklenburg Police Department Crime Laboratory, confirmed a match between two of the fingerprints on the Playstation box and defendant's left thumb and index fingers. According to Ramseur, a fingerprint impression could last “for weeks . . . up to years[.]”
    Defendant was convicted of felonious breaking and entering and sentenced to 10 to 12 months imprisonment. From this conviction and judgment, defendant now appeals.
    Defendant first contends the trial court erred by denying his motion to dismiss the charge of breaking and entering due to insufficiency of the evidence establishing that he was the perpetrator. Specifically, defendant argues there was insufficient evidence to prove defendant's fingerprints were impressed on the Playstation box during the time of the break-in. Defendant posits that, although there was no evidence that he visited a Wal-Mart during the Christmas holidays in 2002, he could have put his fingerprints on the Playstation box before it was purchased.     In order to survive a defendant's motion to dismiss there must be “substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). “When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). In order to survive a motion to dismiss, “we do not require the evidence to rule out every possible hypothesis of innocence.” State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000).
        Fingerprint evidence, standing alone, is sufficient to withstand a motion for nonsuit only 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. . . . Circumstances tending to show that a fingerprint lifted at the crime scene could only have been impressed at the time the crime was committed include statements by the defendant that he had never been on the premises; statements by prosecuting witnesses that they had never seen the defendant before or given him permission to enter the premises; fingerprints impressed in blood[.]
State v. Irick, 291 N.C. 480, 491-92, 231 S.E.2d 833, 841 (1977) (internal quotation marks and citations omitted). “The soundness of the rule lies in the fact that such evidence logically tends toshow that the accused was present and participated in the commission of the crime. What constitutes substantial evidence is a question of law for the court.” State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (citation omitted). In State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951), our Supreme Court held that fingerprint evidence taken from a broken piece of glass found at a service station break-in, standing alone, was sufficient to take the case to the jury where the service station owner testified she “personally attended her service station, [and] she did not know, and had not seen defendant before the date of the crime[.]” Id. at 617-18, 68 S.E.2d at 295.
    There was circumstantial evidence supporting the inference that defendant's fingerprints were placed on the box during the break-in. Specifically, the State's evidence showed the Playstation box was moved to the dining room table. Defendant's fingerprints were on the outside of the Playstation box. Sturdivant had never seen defendant before and he had never been in her house.
    Considering the evidence in the light most favorable to the State, as we must, we conclude there were substantial circumstances surrounding the presence of defendant's fingerprints on the Playstation box sufficient to establish that defendant was the perpetrator. The evidence need not exclude every possible hypothesis of innocence, Golphin. This assignment of error is overruled.    Defendant next contends the trial court erred by allowing the State's fingerprint expert, Kathleen Ramseur, to testify that another fingerprint examiner in her unit, James Whitesides, confirmed her findings. Defendant contends this testimony violates the standard set forth by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004). We disagree.
    “Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 68, 158 L. Ed. 2d at 203. But “[i]f the statement is offered for reasons other than the truth of the matter asserted, the statement is not hearsay and is not covered under Crawford.” State v. Byers, __ N.C. App. __, __, 623 S.E.2d 357, 360 (2006) (citing Crawford, 541 U.S. at 59, 158 L. Ed. 2d at 197). In State v. Jones, 322 N.C. 406, 410, 368 S.E.2d 844, 846 (1988), an expert in fingerprint identification, Special Agent Ricky Navarro, testified that according to his section's standard procedures for quality control, “[his] identification [of the defendant's fingerprints] was verified by another latent examiner in [his] section.” The Jones Court held:
         The opinion of the other examiner . . . necessarily forms a part of the basis for the opinion to which the witness testified, and it clearly was reasonable for an expert in the field of fingerprint identification to rely upon such a procedure. . . . [B]ecause Navarro's challenged testimony was not offered for the truth of the matter asserted, but as a part of the basis for Navarro's opinion, it was not hearsay.
Id. at 414, 368 S.E.2d at 848 (citation omitted).
    In the instant case, Ramseur was qualified as an expert in fingerprint analysis. She testified that, in her opinion, the fingerprints lifted from the Playstation box matched defendant's fingerprints. When asked whether anyone else confirmed her findings, Ramseur testified, over defendant's objection, that James Whitesides, another examiner in the unit, had done so. On cross- examination by defense counsel, when asked when the confirmation was made, Ramseur responded:
        This is our standard operating procedure. When an identification is made, it is always verified by someone else in the unit. So the day that I make the identification is the day that it is verified.
    The Supreme Court's holding in Jones, supra, controls our resolution of this issue. Here, Ramseur's testimony regarding the confirmation of her identification by another fingerprint examiner in her unit, as part of her unit's standard operating procedure, clearly refers to a part of the basis upon which her own expert opinion was formed and was, therefore, not offered for the truth of the matter asserted. Stated differently, the expert witness' testimony in Jones that another examiner “verified” his results cannot be meaningfully distinguished from Ramseur's testimony in the instant case that Williams “confirmed” or “verified” her results. The trial court did not err in allowing the testimony, and this assignment of error is therefore overruled.
    No error.    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***