An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1012 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Forsyth County Nos. 12 CRS 17180 LEMUEL WAYNE HORTON 12 CRS 56767
Appeal by defendant from judgment entered 25 April 2013 by
Judge R. Stuart Albright in Forsyth County Superior Court.
Heard in the Court of Appeals 18 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.
Unti & Lumsden LLP, by Margaret C. Lumsden, for defendant- appellant.
HUNTER, Robert C., Judge.
Defendant Lemuel Wayne Horton appeals the judgment entered
after a jury convicted him of breaking and/or entering, injury
to personal property, and attaining habitual felon status. On
appeal, defendant argues: (1) the trial court erred in admitting
evidence of a prior conviction under Rule 404(b); (2) the trial
court erred in denying defendant’s motion to dismiss for -2- insufficiency of the evidence; and (3) the sentence imposed by
the trial court violated the prohibition on cruel and unusual
punishment under the Eighth Amendment to the United States
Constitution and the prohibition on excessive punishment under
Article I, section 27 of the North Carolina Constitution.
After careful review, we find no error.
Background
On 7 January 2013, defendant was indicted on one count of
breaking and/or entering, larceny, and injury to personal
property. In a separate indictment, defendant was also charged
with attaining habitual felon status. The State’s evidence at
trial tended to establish the following: On 9 July 2012, Timothy
Bucholis found that his Bistro B restaurant (“Bistro B”) in
Kernersville, North Carolina had been broken into at some point
the night before. A brick had been thrown through the side door
window, his point-of-sale computer was damaged, and three
bottles of alcohol had been taken. Bucholis had a surveillance
system at the restaurant; the video from the night of 8 July
showed a white man, wearing a dark baseball hat, enter the
restaurant about 11:00 p.m. using a flashlight. The man, whose
face is not clearly visible, tried to open the point-of-sale
computer. Unable to open it, the man knocked it on the floor -3- before taking two bottles of liquor and a bottle of wine. The
man in the video appeared 6’1” to 6’2” tall, about 190-200
pounds, with a medium build, full beard, and shoulder-length
hair. After being called by Buchlois, a police officer with the
Kernersville Police Department checked Bistro B for
fingerprints, but the officer was unable to obtain any usable
prints.
Because the intruder’s face was not clearly shown in the
Bistro B surveillance video, the State sought to introduce
evidence at trial of a surveillance video from a prior breaking
and entering in which defendant had entered an Alford plea. The
prior break-in occurred at Economic Shoe Shop (“the shoe shop”),
located within one mile of Bistro B’s location, on 18 March
2010. The shoe shop surveillance video showed a white male,
approximately 6’1” tall and 190 pounds, and wearing a baseball
cap, push open the shoe shop’s door with his shoulder. After
entering, the intruder turned on the lights, went to the cash
register behind the counter, took cash from the register, and
left. Over defendant’s objection, the trial judge admitted the
shoe shop surveillance video evidence for the limited purpose of
showing the identity of the person who committed the Bistro B
break-in. -4- At the time of his arrest, defendant, a white male, had a
full beard and collar length hair. Defendant was 6’1” in height
and weighed approximately 190 to 200 pounds. When he was
arrested, defendant had a flashlight and baseball hat on him.
On 25 April 2013, defendant was convicted of breaking
and/or entering and injury to personal property; he was
acquitted of larceny. On 26 April 2013, the jury also convicted
defendant of attaining habitual felon status. The trial court
sentenced defendant to a minimum of 103 months to a maximum of
136 months imprisonment. Defendant timely appealed.
Arguments
Defendant first argues that the trial court committed
prejudicial error in admitting, over defendant's objection,
video evidence from the prior breaking and entering at the shoe
shop for the purpose of establishing identity under Rule 404(b)
of the North Carolina Rules of Evidence. Specifically,
defendant contends that the similarities between the break-ins
were generic and inadequate to support its admission. We
disagree.
We review a trial court’s admission of evidence under Rule
404 of the North Carolina Rules of Evidence for an abuse of
discretion. State v. Summers, 177 N.C. App. 691, 697, 629 -5- S.E.2d 902, 907, appeal dismissed and disc. review denied, 360
N.C. 653, 637 S.E.2d 192 (2006). “A trial court may be reversed
for abuse of discretion only upon a showing that its ruling was
manifestly unsupported by reason and could not have been the
result of a reasoned decision.” State v. Riddick, 315 N.C. 749,
756, 340 S.E.2d 55, 59 (1986).
Rule 404(b) provides that:
[e]vidence 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) (2013). Our Supreme Court
has noted that:
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. Thus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. -6- State v. Stager, 329 N.C. 278, 302-03, 406 S.E.2d 876, 890
(1991) (internal citations and quotation marks omitted). To
admit Rule 404(b) evidence for the purpose of identity, i.e., to
show that the same person committed both crimes, there must be
“some unusual facts present in both crimes or particularly
similar acts which would indicate that the same person committed
both crimes.” State v. Green, 321 N.C. 594, 603, 365 S.E.2d
587, 593 (1988). “It is not necessary that the similarities
between the two situations rise to the level of the unique and
bizarre. Rather, the similarities simply must tend to support a
reasonable inference that the same person committed both the
earlier and later acts.” Stager, 329 N.C. at 304, 406 S.E.2d at
891 (internal quotation marks omitted). However, similarities
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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. COA13-1012 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Forsyth County Nos. 12 CRS 17180 LEMUEL WAYNE HORTON 12 CRS 56767
Appeal by defendant from judgment entered 25 April 2013 by
Judge R. Stuart Albright in Forsyth County Superior Court.
Heard in the Court of Appeals 18 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.
Unti & Lumsden LLP, by Margaret C. Lumsden, for defendant- appellant.
HUNTER, Robert C., Judge.
Defendant Lemuel Wayne Horton appeals the judgment entered
after a jury convicted him of breaking and/or entering, injury
to personal property, and attaining habitual felon status. On
appeal, defendant argues: (1) the trial court erred in admitting
evidence of a prior conviction under Rule 404(b); (2) the trial
court erred in denying defendant’s motion to dismiss for -2- insufficiency of the evidence; and (3) the sentence imposed by
the trial court violated the prohibition on cruel and unusual
punishment under the Eighth Amendment to the United States
Constitution and the prohibition on excessive punishment under
Article I, section 27 of the North Carolina Constitution.
After careful review, we find no error.
Background
On 7 January 2013, defendant was indicted on one count of
breaking and/or entering, larceny, and injury to personal
property. In a separate indictment, defendant was also charged
with attaining habitual felon status. The State’s evidence at
trial tended to establish the following: On 9 July 2012, Timothy
Bucholis found that his Bistro B restaurant (“Bistro B”) in
Kernersville, North Carolina had been broken into at some point
the night before. A brick had been thrown through the side door
window, his point-of-sale computer was damaged, and three
bottles of alcohol had been taken. Bucholis had a surveillance
system at the restaurant; the video from the night of 8 July
showed a white man, wearing a dark baseball hat, enter the
restaurant about 11:00 p.m. using a flashlight. The man, whose
face is not clearly visible, tried to open the point-of-sale
computer. Unable to open it, the man knocked it on the floor -3- before taking two bottles of liquor and a bottle of wine. The
man in the video appeared 6’1” to 6’2” tall, about 190-200
pounds, with a medium build, full beard, and shoulder-length
hair. After being called by Buchlois, a police officer with the
Kernersville Police Department checked Bistro B for
fingerprints, but the officer was unable to obtain any usable
prints.
Because the intruder’s face was not clearly shown in the
Bistro B surveillance video, the State sought to introduce
evidence at trial of a surveillance video from a prior breaking
and entering in which defendant had entered an Alford plea. The
prior break-in occurred at Economic Shoe Shop (“the shoe shop”),
located within one mile of Bistro B’s location, on 18 March
2010. The shoe shop surveillance video showed a white male,
approximately 6’1” tall and 190 pounds, and wearing a baseball
cap, push open the shoe shop’s door with his shoulder. After
entering, the intruder turned on the lights, went to the cash
register behind the counter, took cash from the register, and
left. Over defendant’s objection, the trial judge admitted the
shoe shop surveillance video evidence for the limited purpose of
showing the identity of the person who committed the Bistro B
break-in. -4- At the time of his arrest, defendant, a white male, had a
full beard and collar length hair. Defendant was 6’1” in height
and weighed approximately 190 to 200 pounds. When he was
arrested, defendant had a flashlight and baseball hat on him.
On 25 April 2013, defendant was convicted of breaking
and/or entering and injury to personal property; he was
acquitted of larceny. On 26 April 2013, the jury also convicted
defendant of attaining habitual felon status. The trial court
sentenced defendant to a minimum of 103 months to a maximum of
136 months imprisonment. Defendant timely appealed.
Arguments
Defendant first argues that the trial court committed
prejudicial error in admitting, over defendant's objection,
video evidence from the prior breaking and entering at the shoe
shop for the purpose of establishing identity under Rule 404(b)
of the North Carolina Rules of Evidence. Specifically,
defendant contends that the similarities between the break-ins
were generic and inadequate to support its admission. We
disagree.
We review a trial court’s admission of evidence under Rule
404 of the North Carolina Rules of Evidence for an abuse of
discretion. State v. Summers, 177 N.C. App. 691, 697, 629 -5- S.E.2d 902, 907, appeal dismissed and disc. review denied, 360
N.C. 653, 637 S.E.2d 192 (2006). “A trial court may be reversed
for abuse of discretion only upon a showing that its ruling was
manifestly unsupported by reason and could not have been the
result of a reasoned decision.” State v. Riddick, 315 N.C. 749,
756, 340 S.E.2d 55, 59 (1986).
Rule 404(b) provides that:
[e]vidence 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) (2013). Our Supreme Court
has noted that:
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. Thus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried. -6- State v. Stager, 329 N.C. 278, 302-03, 406 S.E.2d 876, 890
(1991) (internal citations and quotation marks omitted). To
admit Rule 404(b) evidence for the purpose of identity, i.e., to
show that the same person committed both crimes, there must be
“some unusual facts present in both crimes or particularly
similar acts which would indicate that the same person committed
both crimes.” State v. Green, 321 N.C. 594, 603, 365 S.E.2d
587, 593 (1988). “It is not necessary that the similarities
between the two situations rise to the level of the unique and
bizarre. Rather, the similarities simply must tend to support a
reasonable inference that the same person committed both the
earlier and later acts.” Stager, 329 N.C. at 304, 406 S.E.2d at
891 (internal quotation marks omitted). However, similarities
that are generic to the crime itself are insufficient to support
admission of 404(b) evidence. State v. Al-Bayyinah, 356 N.C.
150, 155, 567 S.E. 2d 120, 123 (2002).
Thus, on appeal, we must determine whether there was
substantial evidence tending to support a reasonable finding by
the jury that defendant committed both the shoe shop and Bistro
B break-ins. At trial, substantial evidence was introduced
tending to show that the same person committed both acts.
Specifically, the physical description of the intruders in the -7- break-ins, as well as the time, manner, and location of the
break-ins were sufficiently similar to support an inference that
the same person committed both acts. In both break-ins, the
intruder was a white male of medium build, around 6 feet in
height, and weighing approximately 190-200 pounds. Furthermore,
the intruder in each break-in had shoulder length hair, a thick
beard, and wore a baseball cap. Finally, both incidents
involved the breaking and entering of closed businesses at night
within a one mile radius of one another. These similarities
support a reasonable inference that the same person committed
both break-ins, see Stager, 329 N.C. at 304, 406 S.E.2d at 891,
and were not generic to the crime of breaking and/or entering.
Accordingly, defendant is unable to establish that the trial
court abused its discretion in admitting the video surveillance
footage of the shoe shop break-in under Rule 404(b).
Defendant next argues that the trial court erred in denying
defendant’s motion to dismiss because the State presented
insufficient evidence that defendant was the perpetrator of the
break-in at Bistro B. We disagree.
This court reviews de novo the trial court’s denial of a
motion to dismiss for insufficiency of the evidence. State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). A motion -8- to dismiss is properly denied if “there is 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 this case, the State introduced the video surveillance
footage of the Bistro B break-in that showed that the intruder
was an adult white male, approximately 6’1” to 6’2” with a
medium build. Although the video did not clearly show the
intruder’s face, it did provide a glimpse of the intruder’s side
profile and established that the intruder had a full beard,
shoulder length hair, and wore a baseball cap. At the time of
his arrest, defendant matched the description of the individual
in the video. Furthermore, under Rule 404(b), the jury was
allowed to consider evidence, for purposes of establishing -9- identity, of the shoe shop break-in. Finally, when he was
arrested, defendant had a flashlight and baseball hat on him.
Accordingly, the State presented substantial evidence that
defendant was the perpetrator of the Bistro B break-in.
Finally, defendant argues that the sentence imposed was so
grossly disproportionate to the charges of breaking and/or
entering and injury to personal property that it resulted in an
unconstitutional infliction of cruel and unusual punishment. We
“Only in exceedingly unusual non-capital cases will the
sentences imposed be so grossly disproportionate as to violate
the Eighth Amendment’s proscription of cruel and unusual
punishment.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d
436, 441 (1983). Furthermore, our Supreme Court has “reject[ed]
outright the suggestion that our legislature is constitutionally
prohibited from enhancing punishment for habitual offenders as
violations of constitutional strictures dealing with . . . cruel
and unusual punishment.” State v. Todd, 313 N.C. 110, 117, 326
S.E.2d 249, 253 (1985); see also State v. Dammons, 159 N.C. App.
284, 298, 583 S.E.2d 606, 615 (2003) (“Sentence enhancement
based on habitual felon status does not constitute cruel and
unusual punishment under the Eighth Amendment.”). -10- Here, defendant was sentenced to 103 months to 136 months
imprisonment based on his convictions of breaking and/or
entering, injury to personal property, and habitual felon
status. His conviction for habitual felon status was based on
evidence that defendant was convicted of: (1) felonious breaking
and entering on 12 February 1997; (2) felonious breaking and
entering on 13 February 2004; and (3) felonious breaking and
entering on 27 August 2010. Consequently, defendant was
sentenced to 103 months to 136 months not based solely on the
crimes he was convicted for in 2013; he was sentenced based on
those convictions as well as multiple other felonies committed
over the last twenty years. Thus, defendant’s sentence was not
so “grossly disproportionate” to his crimes to result in a
violation of the Eighth Amendment to the United States
Constitution or a violation of Article I, section 27 of our
State Constitution .
Conclusion
Based on the foregoing reasons, defendant’s trial was free
from error.
NO ERROR.
Judges BRYANT and STEELMAN concur. -11- Report per Rule 30(e).