An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-36
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


STATE OF NORTH CAROLINA

      v.                                      Forsyth County
                                              No. 09CRS061925
TONY MAURICE JAMES,
     Defendant.


      Appeal by defendant from Judgments entered on or about 30

April 2013 by Judge William Z. Wood in Superior Court, Forsyth

County.      Heard in the Court of Appeals 21 May 2014.


      Attorney General Roy A. Cooper III, by Assistant Attorney
      General Kenneth A. Sack, for the State.

      Kevin P. Bradley, for defendant-appellant.


      STROUD, Judge.


      Tony    James    (“defendant”)      appeals    from    judgments     entered

after a Forsyth County jury found him guilty of second degree

burglary and larceny after breaking or entering. We dismiss the

appeal without prejudice to defendant’s ability to bring his

claim through a motion for appropriate relief.

                                I.     Background
                                          -2-
      On   21   February      2011,   defendant      was     indicted     for    second

degree     burglary    and    larceny     after   breaking      or    entering.      The

indictment alleged that on 1 November 2009, defendant broke and

entered the dwelling of Chelsea Davis with intent to commit a

larceny     therein.     It     further      alleged    that     defendant       stole

approximately     $2,000      worth     of   items   belonging       to   Ms.    Davis.

Defendant pled not guilty and proceeded to jury trial.

      At trial, the State’s evidence tended to show that on the

evening of 1 November 2009, Ms. Davis and Michael DiConzo, Ms.

Davis’ boyfriend, returned to the parking lot in front of their

apartment to find four men carrying a variety of items across

the   bridge     from        their    apartment.       The    items       included    a

television,     Xbox,    various      electronic       cords,   DVDs,      and   video

games.     Ms. Davis said to Mr. Diconzo, “That’s all your stuff.”

Ms. Davis asked the four men, “Can I help you?” When Mr. DiConzo

got out of the car, the four men started running. Mr. DiConzo

began chasing the men along the sidewalk and down a slight hill.

During the chase, one of the perpetrators dropped the Xbox, had

a brief altercation with Mr. DiConzo and dropped the remaining

items he was carrying.               Mr. DiConzo briefly returned to the

apartment to change shoes, then went back out to look for the
                              -3-
four men. He found his DVDs and video game cases strewn along

the sidewalk and in some nearby bushes.

    Around that same time, Sergeant Peterson, of the Winston-

Salem Police Department, was patrolling the area. He noticed

four men run out of the woods from the direction of Ms. Davis

and Mr. DiConzo’s apartment complex.      One of them slowed to a

walk and began traveling along the sidewalk; the other three

began walking once they reached a parking lot.      Sgt. Peterson

thought the three men might have been chasing the first man, so

he approached and asked the man who was walking alone if he

needed assistance. The man declined Sgt. Peterson’s assistance

and said that he did not know the other three. At that point,

the other three men took off running toward a nearby soccer

field. Sgt. Peterson initially drove off to follow them, but he

then received a call notifying him that there had been a break-

in at one of the nearby apartment complexes with four suspects

involved.

    After receiving the call, Sgt. Peterson pulled back around

to where the first man—later identified as defendant—was walking

down the sidewalk and detained him with handcuffs. Once Sgt.

Peterson secured the man, he noticed Mr. DiConzo pacing back and

forth, breathing heavily. Mr. DiConzo told Sgt. Peterson that
                                      -4-
his girlfriend’s house had been broken into and that he was

chasing   the   suspects.    Mr.   DiConzo,     referring    to    the     man   in

handcuffs, said, “That’s one of them. That’s one of the guys I

chased down here.”1         Another officer detained two individuals

walking back from the adjacent apartment complex.                 One of their

phones had been located behind the apartment.

    When police examined Ms. Davis’ apartment, they found that

the screen of the apartment’s screened-in porch had been cut and

that one pane of a double-pane glass door had been broken. They

also noted that the top pane of a nearby window had been broken

and the window had been opened. One of the forensic technicians

collected   fingerprints      from    the     scene,   two   of    which     were

sufficient for later testing. One fingerprint was found on the

outside of the porch railing and another was found on one of the

recovered   video   game     cases.         Masayo   Ballard,     latent    print

examiner for the Winston-Salem Police Department, compared the

collected prints to defendant’s. The first print was matched to

defendant, but defendant was excluded as the                 source for the

second print.



1
  At trial, the State never asked Mr. DiConzo to identify
defendant as one of the men he chased from his apartment that
night. Defendant’s trial counsel did not move to exclude Mr.
DiConzo’s evidence as hearsay.
                                            -5-
       After   the    State    rested,        defendant         moved   to   dismiss      the

charges     against     him.        The    trial        court     denied     the     motion.

Defendant then elected to present evidence and testify on his

own behalf. Defendant first called Officer Bryan Byerly of the

Winston-Salem Police Department. Officer Byerly testified that

he had assisted another officer in detaining two men2 and doing a

show-up with Ms. Davis.             Ms. Davis identified them as two of the

perpetrators.        Neither was formally charged.

       Defendant then testified on his own behalf. He explained

that   he   was   living      in     a    nearby     apartment      complex        with   his

parents. He testified that he went to a nearby gas station to

buy a cigar and then began walking home. He was on his way home

when Sgt. Peterson stopped him. Defendant could not explain how

his fingerprint got on the porch railing, though he offered that

perhaps the police had planted it.                        At the close of all the

evidence,      defendant      again       moved    to    dismiss     the     charges.     The

trial court again denied the motion.

       The jury found defendant guilty of second degree burglary

and    larceny    after       breaking        or     entering.       The     trial       court

sentenced      defendant       to     10-12        months       imprisonment       for    the



2
  These two men were not the same as the two Sgt. Peterson had
mentioned.
                                        -6-
burglary    charge,        suspended     for    36     months    of     supervised

probation, and a consecutive term of 5-6 months imprisonment,

also suspended for 36 months of supervised probation. Defendant

filed timely written notice of appeal to this Court.

              II.     Ineffective Assistance of Counsel

    In his only argument on appeal, defendant contends that he

received   ineffective        assistance       of    counsel    when    his   trial

counsel    failed     to     object     to     Mr.    DiConzo’s        out-of-court

identification as hearsay.             We conclude that there is an issue

of fact that we cannot resolve on direct appeal and must dismiss

defendant’s claim without prejudice.

           In general, claims of ineffective assistance
           of counsel should be considered through
           motions for appropriate relief and not on
           direct   appeal.   .   .   .  [Nevertheless,]
           ineffective assistance of counsel claims
           brought on direct review will be decided on
           the merits when the cold record reveals that
           no further investigation is required, i.e.,
           claims that may be developed and argued
           without such ancillary procedures as the
           appointment    of    investigators   or    an
           evidentiary hearing.

State v. Allen, ___ N.C. App. ___, ___, 756 S.E.2d 852, 856

(2014) (citations and quotation marks omitted).

           Criminal defendants are entitled to the
           effective assistance of counsel. When a
           defendant attacks his conviction on the
           basis that counsel was ineffective, he must
           show that his counsel’s conduct fell below
                                        -7-
             an objective standard of reasonableness. In
             order to meet this burden defendant must
             satisfy   a    two   part   test.   First,    the
             defendant     must     show    that     counsel’s
             performance was deficient. This requires
             showing that counsel made errors so serious
             that counsel was not functioning as the
             “counsel” guaranteed the defendant by the
             Sixth Amendment. Second, the defendant must
             show    that     the    deficient    performance
             prejudiced    the    defense.    This    requires
             showing   that    counsel’s   errors    were   so
             serious as to deprive the defendant of a
             fair   trial,    a   trial   whose    result   is
             reliable.

State v. Boozer, 210 N.C. App. 371, 382, 707 S.E.2d 756, 765

(2011) (citation, quotation marks, and emphasis omitted), disc.

rev. denied, ___ N.C. ___, 720 S.E.2d 667 (2012).

      If the exclusion of the contested evidence would probably

not   have   changed   the     outcome,       then    it   would   be    immaterial

whether the evidence was admissible.                 See id.   So, we will first

address whether “there is a reasonable probability that, but for

[introduction of the contested evidence], there would have been

a different result in the proceedings.” State v. Braswell, 312

N.C. 553, 563, 324 S.E.2d 241, 248 (1985). We conclude that it

is    reasonably    probable     that     but    for       introduction     of   Mr.

DiConzo’s     out-of-court      identification          the    jury     would    have

reached a different result.
                                   -8-
      Here, the evidence without the         challenged identification

was extremely weak. The evidence showed that when Ms. Davis and

Mr. DiConzo returned        to their apartment they saw four males

walking across the bridge from the apartment building. The four

men were carrying various items belonging to Ms. Davis and Mr.

DiConzo. When Mr. DiConzo began chasing them, all four took off

running. He then lost sight of them.

      Sgt. Peterson testified that he was driving by when he saw

four males running out of the tree line by Mr. DiConzo and Ms.

Davis’   apartment   complex.      He    pulled   up   to    one   of    them—

defendant—and asked if he needed help. The man declined any

assistance and said he did not know the other three.               That same

night, the police had detained four other individuals suspected

of being the perpetrators. The first two included one man whose

phone was discovered behind the apartment.             The other two were

identified by Ms. Davis as two of the perpetrators, but never

charged.

      The police examined the apartment and found that the screen

to the back deck of the apartment had been cut. One pane of a

double-pane glass door had been broken. Additionally, they found

one broken window, the apparent point of entry. The front door

was   open.   Defendant’s    fingerprint   was    found     on   the   outside
                                       -9-
railing of the porch, near where the perpetrators entered the

apartment.       But    the   State   points   to   no   evidence   that   this

fingerprint could only have been impressed at the time of the

burglary. Cf. State v. Irick, 291 N.C. 480, 491-92, 231 S.E.2d

833,    841    (1977)    (“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.” (citation, quotation marks, and

emphasis omitted)). The fingerprint was on a railing outside of

the apartment and defendant lived in a nearby apartment complex.3

The police recovered another fingerprint from one of the stolen

video   game    cases,    but   defendant    was    excluded   as   a   possible

source for that print.           Thus, without the challenged evidence

identifying defendant as one of the four men who broke into the




3
   Defendant testified that he thought the police may have
“planted” his fingerprint at the scene. While we recognize that
his explanation is highly unlikely, it is still true that the
State had the burden of proof and failed to present any
evidence, much less “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.” Irick,
291 N.C. at 491-92, 231 S.E.2d at 841. The print was on the
exterior of the apartment and the evidence does not indicate
that it was in a location which would probably not be touched by
anyone except a person breaking into the apartment.
                                        -10-
apartment,     the    trial   court     should    have     granted   defendant’s

motion to dismiss at the close of the State’s evidence.

      Since we have determined that the evidence now challenged

by defendant was of such importance that its exclusion would

have likely changed the outcome of the case, we must address

whether the     evidence was actually inadmissible.                  If so, the

failure   of    defendant’s          trial     counsel    to   object     to    the

identification may have rendered his assistance constitutionally

ineffective. We conclude that we lack sufficient evidence to

make a determination as to this prong.

      A witness’ prior out-of-court statements may be used to

either corroborate or impeach the witness’ trial testimony, but

may not be used as substantive evidence. State v. Gell, 351 N.C.

192, 204, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148

L.Ed. 2d 110 (2000); State v. Batchelor, 190 N.C. App. 369, 373,

660   S.E.2d   158,    161    (2008).    Defendant       correctly   notes     that,

unlike the federal rule, North Carolina’s Rule 801 does not

exempt out-of-court identifications from this rule. N.C. Gen.

Stat. § 8C-1, Rule 801, commentary (2011). So, while an out-of-

court identification may be admissible as a prior consistent

statement to corroborate a witness’ testimony, or as a prior

inconsistent     statement      to    impeach     the     witness,   it   is    not
                                               -11-
admissible as substantive evidence. State v. Murphy, 100 N.C.

App. 33, 39, 394 S.E.2d 300, 303-04 (1990) (holding that the

victim’s out-of-court statements that the defendant committed

fellatio were hearsay where the victim did not testify at trial

that he committed fellatio).

       Here, the out-of-court statement was not offered to either

corroborate            or   impeach      any   witness’      testimony.    Mr.   DiConzo

testified that he identified the man Sgt. Peterson had detained

as    one    of    the      men   whom    he   had    been   chasing.     Sgt.   Peterson

testified to the same. At trial, the State did not ask Mr.

DiConzo to identify defendant as the person he saw running from

the apartment. Mr. DiConzo’s testimony is hearsay because it is

an out-of-court statement admitted for the truth of the matter

asserted. N.C. Gen. Stat. § 8C-1, Rule 801 (2011). Because there

was no in-court statement to corroborate or contradict, its only

relevance here is a hearsay purpose—to show that defendant was,

in fact, the person Mr. DiConzo saw in front of his apartment.

There       is    no    applicable       exception     to    the   general   rule    that

hearsay is inadmissible. See N.C. Gen. Stat. § 8C-1, Rule 802

(2011); N.C. Gen. Stat. § 8C-1, Rule 803 (2011). Indeed, the

State does not even argue that the out-of-court identification

was     admissible          as    substantive         evidence.         Therefore,   had
                                           -12-
defendant’s trial counsel objected to this evidence, the trial

court would have been required to sustain the objection                                 and

exclude the evidence.

      Nevertheless,         “[w]here     the    strategy      of    trial    counsel     is

well within the range of professionally reasonable judgments,

the   action    of    counsel       is   not    constitutionally         ineffective.”

State v. Canty, ___ N.C. App. ___, ___, 736 S.E.2d 532, 535

(2012)    (citation        and    quotation         marks    omitted),       disc.      rev.

denied, ___ N.C. ___, 739 S.E.2d 850 (2013). Here, there is an

issue of fact about whether defendant’s trial counsel made a

strategic decision not to object to this evidence.

      The evidence was introduced twice at trial—once through Mr.

DiConzo himself and once through Sgt. Peterson.                          Mr. DiConzo’s

testimony      was    somewhat      vague      on   this     point.    The    prosecutor

asked, “Did you identify the individual that the officer had

detained at that point in time? On that day, did you identify

that individual as being one of the individuals that broke into

your apartment?”           Mr. DiConzo responded, “I certainly did.” The

State    did    not    then      clarify    whether         Mr.    DiConzo    recognized

defendant      as    the   person    whom      he    had    identified       or   ask   Mr.

DiConzo to identify defendant as the person he had seen in front

of the apartment. It is possible that trial counsel decided not
                                      -13-
to object to this hearsay evidence for fear of bringing that

omission to the attention of the State. But it is also possible

that   trial      counsel   simply   failed    to   object    without    such    a

strategic reason, and it is possible that Mr. DiConzo would have

been unable to identify defendant as the man he had identified

on the night of the break-in. We cannot resolve this issue based

on the “cold record” before us. So, we must dismiss defendant’s

ineffective assistance claim without prejudice to his ability to

raise this issue through a motion for appropriate relief. See

Allen, ___ N.C. App. at ___, 756 S.E.2d at 856.

       If   the    trial    court    determines     that   defendant’s        trial

counsel made a strategic decision not to object to the out-of-

court identification by Mr. Diconzo, then defendant received no

ineffective       assistance    of    counsel.      Once     the   out-of-court

identification was in evidence through Mr. DiConzo’s testimony,

any error in failing to object to the same evidence being later

introduced through Sgt. Peterson would not be prejudicial.

                               III. Conclusion

       For the foregoing reasons, we dismiss defendant’s claim of

ineffective       assistance   of    counsel   without     prejudice     to    his

ability to bring the claim through a motion for appropriate

relief.
                         -14-
DISMISSED.

Judge STEPHENS and MCCULLOUGH concur.

Report per Rule 30(e).
