An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-252

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007


STATE OF NORTH CAROLINA

    v.                            Pitt County
                                Nos.    03 CRS 58462
MITCHELL GORDON RANDOLPH                    04 CRS 18416
                                            

    Appeal by Defendant from judgment entered 1 July 2005 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 31 October 2006.
    Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.

    Jeffrey Evan Noecker for Defendant-Appellant.

    STEPHENS, Judge.
    Defendant, Mitchell Gordon Randolph, appeals from convictions of felony breaking or entering, felony larceny and misdemeanor injury to real property. Defendant also appeals his sentencing based on habitual felon status. For the reasons stated herein, we find no error.
    At trial, the State's evidence tended to show that Paradigm Facility for Adults, Inc. (“PFA”) is a therapeutic group home for mentally retarded and mentally ill adults in Greenville, North Carolina, located at 4001 Old Pactolus Road. On 20 June 2003, PFA was preparing to open as a group home and was fully furnished with televisions, DVD players, an office with a computer, fax machine,printer, filing cabinets and beds in the bedrooms. All of the furnishings belonged to PFA.
    Between 10:00 and 11:00 that evening, Jason Barnett, a PFA director, was alerted by the Pitt County Sheriff's Department of a break-in at the home. Mr. Barnett went to PFA and noticed that the kitchen window had been broken, and the computer, printer, scanner and fax machine had been removed from the office desk and placed on the floor outside the office. Mr. Barnett took the computer and other items to his home for protection. He valued the items at approximately $2,200 to $2,500 “all together.”
    Jennette Murphy testified that she is a co-owner and director of PFA and also serves as the program director. She testified further that, on 20 June 2003, the only people with access to the PFA facility were Jason Barnett, Wallace Council, Tony Randolph and herself. Everyone except Tony Randolph had a key to the PFA home. At the time of the break-in, Ms. Murphy was married to Wallace Council, but was not married to him at the time of the trial. Defendant is Mr. Council's cousin and Mr. Randolph's brother. Ms. Murphy stated that she did not give Defendant permission to break the window or move the items at issue.
    Deputy Tim Jones of the Pitt County Sheriff's Department testified that on 20 June 2003 after 10:00 p.m., he responded to a call made by a neighbor of the group home that a break-in was inprogress there. While investigating the alleged crime, Deputy Jones observed a thin, black male lying underneath the back deck when he shined his flashlight on the area. Deputy Jones ordered the man out from underneath the deck. The man came out and “took off running.” Deputy Jones gave chase, but was unable to apprehend the man.
    Deputy Stephen Sutton also responded to the call. As he approached the house, Deputy Sutton heard what sounded like a door slamming. Deputy Sutton went to the rear of the house and walked onto the deck. He also saw the man come out from underneath the deck and begin running. The man ran across the backyard of PFA, scaled a fence and ran into the woods. Deputy Sutton only saw the man from the back and was unable to catch him. Deputy Sutton observed the items that had been moved from the office to the floor near the doorway.
    Sergeant Bennie Dobbs, a crime scene investigator for the Pitt County Sheriff's Department, testified that he collected a “tag” that he believed came off a pair of cotton gloves from the backyard at approximately 12:30 a.m. He noticed that there was heavy dew on the ground the night of the break-in, but the tag was dry. Sergeant Dobbs later processed the tag for latent fingerprints and concluded that the print found on the glove tag was left by the right middle finger of Defendant, who is a black male approximatelysix feet, three inches tall and weighing 165 pounds.
    Defendant's evidence tended to show that two to three days before 20 June 2003, Defendant worked on renovating the PFA building and yard with Tony Randolph and Wallace Council. Tony Randolph testified that Defendant worked mostly outside removing trash and normally wore cotton gloves while working.
    The trial court denied Defendant's motions to dismiss the charges at the close of the State's evidence and at the close of all the evidence. After deliberating, the jury returned four guilty verdicts of felonious breaking or entering, felonious larceny, possession of stolen goods, and willful and wanton damage to real property. The trial judge arrested judgment on the conviction of possession of stolen goods. Documentation from the Pitt, Johnston and Greene County Superior Courts revealed that Defendant had previously been convicted of (1) felonious breaking or entering on 26 October 1992, (2) felonious breaking and/or entering on 14 July 1994, and (3) felonious possession of a controlled substance on 16 December 1998. On this evidence, the jury also found Defendant guilty of being an habitual felon. Defendant was sentenced to two consecutive terms of 121 to 155 months in prison. From judgment entered on these convictions, he appeals.

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    By his first assignment of error, Defendant argues that the trial court erred by failing to dismiss the charges against him because the evidence was insufficient that the fingerprint found on the glove tag left at the scene could only have been impressed at the time of the crime. We disagree.
    It is well settled that upon a motion to dismiss, the trial court must determine whether there is substantial evidence, taken in the light most favorable to the State, of each essential element of the offense charged or of a lesser offense included therein, and of the defendant's being the perpetrator of the offense. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence is considered in the light most favorable to the State, and the State is entitled to every reasonable inference arising from it. Powell, 299 N.C. at 99, 261 S.E.2d at 117. The trial court is concerned only with the sufficiency of the evidence to go to the jury, and not the weight to be accorded the evidence. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774 (2005).
    Our Supreme Court has held that “when the State relies on fingerprints found at the scene of the crime, in order to withstand motion for nonsuit, there must be substantial evidence ofcircumstances from which the jury can find that the fingerprints could have been impressed only at the time the crime was committed.” State v. Bass, 303 N.C. 267, 272, 278 S.E.2d 209, 212 (1981). See also State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975); State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973); State v. Barnette, 96 N.C. App. 199, 385 S.E.2d 163 (1989).
    Defendant contends that the only evidence linking him to the scene of the crime at the PFA home was his fingerprint on the tag from a cotton glove. He thus argues that this case is governed by our Supreme Court's holding in Bass, because since he had worked outside at the home in the two to three days before the break-in and normally wore cotton gloves, his fingerprint could have been impressed on the tag before 20 June 2003. However, we find Bass clearly distinguishable. In Bass, “[t]he only evidence tending to show defendant was ever at the scene of the crime is four fingerprints found on the frame of a window screen on the [victim's] home and identified as belonging to defendant.” Id. at 271, 278 S.E.2d at 212. The defendant offered an explanation for the presence of his fingerprints on the frame, and the State offered no additional evidence to connect the defendant to the crime. On this evidence, our Supreme Court held that the State hadfailed to prove that the defendant's prints could have been impressed only at the time the crime was committed.
    In contrast, in the present case, there was substantial additional evidence of circumstances tending to establish that Defendant's prints on the glove tag could have been impressed only at the time of the crime: (1) the top side of the tag was dry, although it was found on grass wet from a heavy dew; (2) the tag was directly below the broken kitchen window next to the broken glass; (3) the top side of the broken glass from the window was also dry; (4) Defendant was familiar with the layout of the building since he had been working there prior to the break-in and had been inside the home; and (5) a man matching Defendant's physical description was seen hiding under the deck of the building and running away from the building. We conclude this was substantial evidence of other circumstances from which the jury could find that Defendant's fingerprint was impressed at the time the crime was committed. Accordingly, the trial court did not err in denying Defendant's motions to dismiss.
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    Defendant next argues that the trial court erred by sentencing him to two consecutive habitual felon sentences. Specifically, Defendant asserts that the court's sentencing decision was based on his decision to exercise his right to a jury trial. However,b ecause Defendant was sentenced within the presumptive range, he has no appeal as of right on this issue. N.C. Gen. Stat. § 15A-1444(a1) (2005). Further, Defendant has not petitioned this Court for review of this issue by writ of certiorari. Therefore, this assignment of error is dismissed. See State v. Jamerson, 161 N.C. App. 527, 588 S.E.2d 545 (2003); State v. Pimental, 153 N.C. App. 69, 568 S.E.2d 867, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002).
     We hold that Defendant received a fair trial, free of any error.
    No error.    
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).
     The judges concurred and submitted this opinion for filing prior to 31 December 2006.

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