An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-580
                          NORTH CAROLINA COURT OF APPEALS

                               Filed: 18 February 2014


STATE OF NORTH CAROLINA

       v.                                         Mecklenburg    County
                                                  Nos. 12 CRS    17112
TERRANCE L. ALEXANDER,                                 12 CRS    203042
          Defendant.                                   12 CRS    203044


       Appeal by defendant from judgment entered 29 November 2012

by    Judge    Anna    Mills    Wagoner     in    Mecklenburg      County      Superior

Court.      Heard in the Court of Appeals 24 October 2013.


       Attorney General Roy Cooper, by Assistant Attorney General
       Richard A. Graham, for the State.

       Richard J. Costanza for defendant-appellant.


       GEER, Judge.


       Defendant       Terrance        L.   Alexander          appeals    from     his

convictions       of   felony     breaking       and   entering,     larceny     after

breaking and entering, and being a habitual felon.                        On appeal,

defendant primarily argues that the trial court erred in denying

his    motion    to    dismiss    because        the   State    failed    to   present

substantial evidence that defendant was the perpetrator of the

charged       offenses.        Based   on   (1)    the   State's     evidence      that
                                            -2-
defendant's      palm    print       was   found    at    the    entry    point    of   the

breaking and entering, which was a dislodged sliding screen door

leading to the victim's second floor apartment balcony and (2)

the victim's testimony that defendant had never been permitted

access inside his apartment beyond the very front entrance and

that defendant had never been on the victim's balcony, we hold

that    the    State    presented      substantial        evidence       that    defendant

committed the charged offenses, and the trial court, therefore,

properly denied defendant's motion to dismiss.

                                           Facts

       The State's evidence tended to show the following facts.

Hassan Nelson lived in a second floor apartment in Charlotte,

North    Carolina.        On     14    January      2012,       Mr.   Nelson     left   his

apartment for a trip out of town, returning two days later on 16

January       2012.     Upon     driving       into      the    parking    lot    of     his

apartment       building,      Mr.    Nelson       saw   and     briefly    spoke       with

defendant who was a neighbor living in an apartment on the first

floor of the building.

       When Mr. Nelson reached his own apartment, he found that

his front door was open, and his apartment "had been broken

into."        Mr. Nelson had left the sliding glass door leading to

his second floor balcony locked, but the door had been pried

open, damaging the bar used to secure the door.                             The outdoor
                                           -3-
sliding screen had been taken off its track and set to the side

of the door.          Mr. Nelson's closet was "trashed," his nightstand

drawers had been opened, and Mr. Nelson's safe and watch were

missing.        The stolen safe contained tax papers, the title to Mr.

Nelson's truck, a ring, and $1,800.00 in cash.

      Mr. Nelson called the police, and Officer Stephen Blackwell

of   the    Charlotte-Mecklenburg          Police      Department      responded       and

determined the sliding glass door to be the point of entry.

Another officer collected finger and palm prints from the metal

frame      of   the    sliding    screen    door    that    had      been   dislodged.

Subsequent latent fingerprint examination revealed that the palm

print taken from the metal frame of the screen door matched

defendant's palm print.

      Officer Blackwell canvassed the apartment building, telling

residents there had been a burglary and asking whether residents

had seen anything unusual in the past few days.                       While doing so,

he spoke to defendant, and defendant stated he had not seen

anything unusual.

      Prior      to    the   break-in,     Mr.     Nelson      and    defendant       were

acquainted.           Defendant   had    sold    Mr.    Nelson       DVDs   on   several

occasions, and Mr. Nelson had once showed defendant a pair of

binoculars.           Although    defendant      had    been    "probably        a   foot"

inside the front door of Mr. Nelson's apartment prior to the
                                    -4-
break-in, defendant had never been further into the apartment

and had never been on the balcony.              Mr. Nelson did not give

defendant permission to enter his apartment during the period

between 14 to 16 January 2012.

    On   9    April   2012,   defendant   was    indicted    for    felonious

breaking and entering, larceny after breaking and entering, and

being a habitual felon.        Defendant did not present evidence at

trial.   The jury found defendant guilty of felonious breaking

and entering and larceny after breaking and entering.               Defendant

then pled guilty to being a habitual felon.              The trial court

consolidated defendant's convictions into a single judgment and

sentenced defendant to a presumptive-range term of 78 to 106

months imprisonment.      Defendant appeared in open court the day

after his trial ended and gave oral notice of appeal.

                                Discussion

    As   an    initial    matter,   we    must     address   this     Court's

jurisdiction over defendant's appeal.            Defendant failed to give

oral notice of appeal at trial and failed to file a written

notice of appeal, the only two modes of appeal available under

Rule 4 of the Rules of Appellate Procedure.           See State v. Oates,

366 N.C. 264, 268, 732 S.E.2d 571, 574 (2012) (explaining Rule 4

requires either "oral notice of appeal, but only if given at the
                                                -5-
time of trial or . . . of the pretrial hearing," or filed,

written notice of appeal).

       Although defendant attempted to give oral notice of appeal

in open court the day after his trial ended, that notice was not

effective       and     defendant         has     failed      to   timely     appeal      the

judgment.       Id.     We nonetheless elect to deem defendant's brief a

petition for writ of certiorari, and we exercise our discretion

to     grant    the     petition          in    order    to    reach    the      merits   of

defendant's         appeal.         See    N.C.R.      App.   P.   21(a)(1)      (providing

"writ of certiorari may be issued in appropriate circumstances"

when "right to prosecute an appeal has been lost by failure to

take timely action"); State v. May, 207 N.C. App. 260, 262, 700

S.E.2d 42, 44 (2010) (electing to "treat defendant's brief as a

petition for writ of certiorari and allow it for the purpose of

considering his contentions upon their merits").

                                                 I

       Defendant       first        argues      that    the   trial    court      erred    in

denying his motion to continue because his trial counsel had

inadequate time to prepare for trial under the circumstances

and,    with    more        time,    defense     counsel      could    have      more   fully

investigated the case and presented a better defense.                             Defendant

contends that the trial court's denial of his motion to continue

resulted       in     the     denial      of    defendant's        right    to    effective
                                         -6-
assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments      to   the   United     States      Constitution        and   Article    I,

Sections 19 and 23 of the North Carolina Constitution.

    At     roughly     2:00   p.m.     on    Monday,     26    November       2012,   the

prosecutor indicated that he intended to call defendant's case

for trial.      One of defendant's trial counsel1 stated that he was

"not making a motion to continue" because defendant had asked

him not to do so, but counsel wanted to note for the record that

he discussed the case with defendant for the first time that

morning.     Counsel explained that he had attempted to meet with

defendant    the     previous    week       but   the   meeting       did   not   occur.

Counsel then stated: "I just would say for the Court that I have

a lot of experience trying property cases in particular.                              This

is a property felony case.               And I feel confident that I can

represent and defend [defendant] expertly . . . ."

    The trial court then asked defendant whether it was "all

right"   with    defendant      for   the     trial     to    begin    that    day,   and

defendant stated that beginning trial that day "sounded like the
    1
      Defendant was represented by two attorneys at trial: Jason
St. Aubin of the Mecklenburg County Public Defender's Office and
Leslie Cockrell, apparently also with the Public Defender's
Office. Mr. St. Aubin appears to have been defendant's primary
attorney, and he made all of the relevant statements to the
trial court regarding defendant's motion to continue.    Mr. St.
Aubin presented defendant's closing argument and cross-examined
five of the State's six witnesses.           Ms. Cockrell gave
defendant's opening statement and cross-examined one of the
State's six witnesses.
                                        -7-
best" of the "possible choices" he had.               Defendant elaborated

that he believed that because he had already failed to meet with

his attorney, moving to continue could result in defendant being

placed   in    jail.     Defense      counsel   clarified    he    had    informed

defendant that "it's always a possibility" that when "a case is

continued because       somebody hasn't had a chance to meet with

their attorney, . . . if the judge feels strongly that they need

added incentive to meet with their attorney that they could be

placed in custody for a period of time in order for that to

happen."

    The       trial    court   then     asked   defendant,        "Do    you   feel

competent [sic] that your lawyer can represent your interests

well?"     Defendant responded, "As confident as I can be, ma'am."

The trial court then held an unrecorded bench conference, after

which the court stated, "If we do begin with this, the State

wants to call it tomorrow . . . ."

    After speaking further with defendant, defense counsel then

moved for a continuance.           As the basis for his motion, counsel

stated that he was assigned defendant's case on 11 October 2012

and received the file on 12 or 13 October 2012.               Counsel further

stated that at the same time he was assigned defendant's case,

he was assigned 40 habitual felon cases, and counsel spent the

month of October addressing matters in the other cases.                    Counsel
                                         -8-
explained that he had finished the work on the other habitual

felon     cases    during        the    first      week        of     November          2012,

"approximately      two    weeks"       prior     to   26      November         2012,    and

attempted to contact defendant at that time but "did not have

any success."

    Counsel       further       explained       that      he        then       successfully

contacted defendant "this past Monday," 19 November 2012, and

scheduled    an   afternoon       meeting     with     defendant          at    the   Public

Defender's    Office      on    Tuesday,     20   November          2012.         Defendant

failed to attend that meeting.                  Counsel called defendant the

following morning and told defendant to either meet him at the

Public Defender's Office that Wednesday, 21 November 2012, or

else defendant would need to be present in court for calendar

call the following Monday morning, 26 November 2012.                            Because it

was Thanksgiving week, the Public Defender's Office was closed

on Thursday and Friday.           Defendant appeared for court on Monday

morning, 26 November 2012, and counsel discussed the case with

defendant that morning for the first time.

    Counsel       then    advised      the   trial     court:        "I    have   reviewed

[defendant's] file.            I have reviewed all the discovery in this

matter.     I feel personally that I'm ready to handle the case.

In all candor to the Court, this is a case that I can go to

trial and proceed to trial on, but I understand my client's
                                          -9-
hesitancy, especially because he's facing in the neighborhood of

close to -- I believe it could be up to 160 months if both cases

are habitual and both are back to back.                So understanding that

that's a great magnitude and a great deal of time, juxtaposing

that with the fact that we just met, that would be the concern

that I have.             But I just would say for the Court and for the

district attorney that I told them that I feel I could -- if my

motion is denied, I am ready to try this case."2

       The       court   then   denied   defendant's   motion,   reasoning    (1)

that       "it    appears   that   [defendant's]   having   no   contact     with

[counsel] is perhaps of his own doing, he could have come in

last week to see you at your request[,]" and (2) "[t]he State

has advised the Court that it will not begin evidence until

tomorrow, so that would give you some time to meet with him

later this afternoon and over tonight, and I think that should

get everybody up to speed."               The parties then engaged in jury

selection for the remainder of the day and for several hours the

next morning, until the jury was impanelled at roughly 11:00

a.m. and the trial began.

       As an initial matter, defendant contends his constitutional

argument is preserved for appeal since defense counsel "told the

       2
      The record does not appear to contain any information
regarding the preparation of defendant's other attorney, Ms.
Cockrell, for trial.
                                         -10-
trial court he just met his client," "addressed his workload,"

and "voiced his confidence level about proceeding."                               However,

defense counsel's motion to continue was based on the fact that

counsel     had     just    met     defendant       earlier       that   day    and    that

defendant faced a lengthy sentence.                        Despite having just met

defendant that morning, counsel repeatedly asserted that he was

fully prepared to effectively represent defendant.                            Under these

circumstances,        we    cannot    conclude        that    the    trial     court    was

fairly presented with the question whether denial of defendant's

motion to continue would violate defendant's right to effective

assistance of counsel.               Defendant's constitutional argument is

not, therefore, properly preserved for appeal.                           See State v.

Braxton,      352    N.C.    158,    173,     531    S.E.2d       428,   436-37      (2000)

("Constitutional questions 'not raised and passed upon in the

trial   court       will    not    ordinarily        be    considered     on    appeal.'"

(quoting State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539

(1982))).

       Even    assuming           defendant     had        sufficiently        raised      a

constitutional       argument       below,     defendant       argued    to    the    trial

court   a     different      theory     in    support        of    his   motion      for   a

continuance than that argued on appeal.                           At trial, defendant

asked for a continuance because counsel and defendant had only

just    met    and     defendant       faced     a        considerable    sentence         if
                                        -11-
convicted.     On appeal, however, defendant argues that the trial

court   should    have    granted      his    motion       to   continue      to   allow

defendant more time to investigate the case, including time to

interview Mr. Nelson and to develop a strategy to "properly

attack" the State's expert fingerprint evidence "in light of

scientific     advances,"    such      as     those    outlined      in   a    National

Academy of Science report cited in defendant's brief.

      "Our   Supreme     Court   'has       long    held    that   where      a    theory

argued on appeal was not raised before the trial court, the law

does not permit parties to swap horses between courts in order

to get a better mount' in the appellate courts."                              State v.

Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002)

(quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5–6

(1996)).       Here,    defendant      did    not     ask   the    trial      court   to

continue his case to allow him more time to investigate and to

develop his defense to the State's expert fingerprint evidence.

Because the arguments made on appeal were not preserved at the

trial level, we do not address them.

                                         II

      Defendant next argues that the trial court erred in denying

his   motion     to    dismiss   the    charges       of    felony    breaking        and

entering and larceny after breaking and entering.                             Defendant

contends that the only evidence tending to show he committed the
                                          -12-
crimes was evidence of his palm print on the frame of the second

floor balcony screen door, which, defendant argues, the State

did not sufficiently show could only have been impressed at the

time the crimes were committed.

       "This Court reviews the trial court's denial of a motion to

dismiss de novo."          State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).            "'Upon defendant's motion for dismissal,

the    question    for   the     Court    is     whether    there     is   substantial

evidence (1) of each essential element of the offense charged,

or of a lesser offense included therein, and (2) of defendant's

being the perpetrator of such offense.                      If so, the motion is

properly denied.'"         State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67,

75, 430 S.E.2d 914, 918 (1993)).                 "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).

       In   this   case,        the    State's     evidence      tending       to    show

defendant was the perpetrator consisted primarily of the fact

that    defendant's      palm    print    was     found    on   the    frame    of    the

sliding screen door that had been removed from its track and

placed on the second floor balcony of Mr. Nelson's apartment.

"Fingerprint       evidence,          standing     alone,       is    sufficient       to
                                 -13-
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.'"       State v. Irick, 291 N.C. 480, 491-92,

231 S.E.2d 833, 841 (1977) (quoting State v. Miller, 289 N.C. 1,

4, 220 S.E.2d 572, 574 (1975)).      "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 prosecuting witnesses that they had never seen the

defendant before or given him permission to enter the premises .

. . ."   Id. at 492, 231 S.E.2d at 841.

    In this case, Mr. Nelson testified that although he was

acquainted with defendant, defendant had never been more than a

foot inside the doorway of Mr. Nelson's apartment, and had never

been on the balcony.        The State's evidence further tended to

show that the metal screen door was removed by the perpetrator

in order to gain entry to the house and was located on a second

floor balcony that was not generally accessible to the public.

This evidence constituted substantial evidence of circumstances

from which the jury could find that defendant's palm print could

only have been impressed at the time the crimes were committed.

See State v. Foster, 282 N.C. 189, 198, 192 S.E.2d 320, 326

(1972)   (holding   State    presented   substantial   evidence   that
                                     -14-
defendant's fingerprint found on flowerpot inside victims' house

could only have been impressed at time of crime when victims

"testified they did not know defendant and had never given him

permission   to    enter   their    home,"   defendant    testified    he   had

never been inside victims' house, and flowerpot had been inside

house for three years and was frequently washed).

    Defendant nonetheless cites State v. Bass, 303 N.C. 267,

278 S.E.2d 209 (1981), and State v. Gilmore, 142 N.C. App. 465,

542 S.E.2d 694 (2001), in support of his argument.               However, in

those cases there was evidence that the defendants could have

left the fingerprints at the respective crime scenes at times

other than during commission of the charged offenses.              See Bass,

303 N.C. at 272-73, 278 S.E.2d at 213 (holding State did not

present substantial evidence defendant's prints on window screen

of house could only have been impressed when charged offense

committed because defendant testified he broke into same house,

through relevant window, three or four weeks prior to charged

offense   and     committed   a    larceny   at   that   time,   and   State's

rebuttal evidence supported defendant's testimony); Gilmore, 142

N.C. App. at 470, 542 S.E.2d at 698 (holding State did not

present substantial evidence that defendant's print on piece of

glass from      broken   store window, which was located on ground

outside store, was impressed at time of commission of crime
                                       -15-
since     outside    portion     of   window    was       accessible    to   public,

officer who lifted print did not determine whether print was

made on inside or outside portion of window glass, and State

presented evidence that defendant was a customer in store near

or   on   day   of    break-in).      Bass     and    Gilmore    are,    therefore,

distinguishable.

      We hold that the State's palm print evidence, along with

the substantial evidence that the palm print could only have

been impressed at the time of the commission of the charged

offenses, constituted substantial evidence that defendant was

the perpetrator of the breaking and entering and larceny after

breaking and entering offenses.               Consequently, the trial court

did not err in denying defendant's motion to dismiss.

                                        III

      Finally,       defendant    argues     that    he    received     ineffective

assistance of counsel ("IAC") when his trial counsel (1) argued

a certain theory of the case during the opening statement but

then failed to present evidence supporting that theory of the

case and appeared to adopt a different theory mid-trial and (2)

failed to move for a mistrial when the victim, Mr. Nelson, gave

previously      undisclosed      testimony      at    trial     that    materially

conflicted with the theory of the case presented by defense

counsel during defendant's opening statement.
                              -16-
    In order to prevail on an IAC claim,

              "[f]irst, 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. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)

(emphasis omitted) (quoting Strickland v. Washington, 466 U.S.

668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)).

    The North Carolina Supreme Court has held that

         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.    Thus, when this Court
         reviews ineffective assistance of counsel
         claims on direct appeal and determines that
         they have been brought prematurely, we
         dismiss those claims without prejudice,
         allowing defendant to bring them pursuant to
         a subsequent motion for appropriate relief
         in the trial court.

State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881

(2004) (internal citation and quotation marks omitted).
                                 -17-
    The    United    States   Supreme    Court   has    explained   more

specifically why IAC claims should rarely be raised on direct

appeal:

           When an ineffective-assistance claim is
           brought on direct appeal, appellate counsel
           and the court must proceed on a trial record
           not developed precisely for the object of
           litigating or preserving the claim and thus
           often incomplete or inadequate for this
           purpose. . . .    The evidence introduced at
           trial . . . will be devoted to issues of
           guilt or innocence, and the resulting record
           in many cases will not disclose the facts
           necessary to decide either prong of the
           Strickland analysis.    If the alleged error
           is one of commission, the record may reflect
           the action taken by counsel but not the
           reasons for it.     The appellate court may
           have no way of knowing whether a seemingly
           unusual or misguided action by counsel had a
           sound strategic motive or was taken because
           the counsel's alternatives were even worse.
           . . .     The trial record may contain no
           evidence of alleged errors of omission, much
           less the reasons underlying them. . . .
           Without   additional   factual  development,
           moreover, an appellate court may not be able
           to ascertain whether the alleged error was
           prejudicial.

Massaro v. United States, 538 U.S. 500, 504–05, 155 L. Ed. 2d

714, 720–21, 123 S. Ct. 1690, 1694 (2003).             In this case, we

cannot determine from the record either that defense counsel

acted unreasonably or that counsel's actions or omissions had a

probable impact on the verdict.

    With   respect    to   defendant's   argument   that   his   counsel

failed to present evidence in support of the theory presented in
                                             -18-
defendant's         opening     statement,        the     record       reveals    that      the

defense's opening statement was consistent with an incriminating

recorded statement made by defendant.                      The State in its opening

statement     had     specifically        promised        to    present    that    recorded

statement to the jury.

    Subsequently,          however,       Mr.     Nelson       testified    in    a    manner

that negated the defense theory.                         It is undisputed that the

State was unaware that Mr. Nelson would testify in that manner.

Then,   the    State      elected      not   to     present      any    evidence       at   all

regarding defendant's recorded statement.

    Given      Mr.     Nelson's        testimony     and       the   State's     unexpected

election      not    to   offer     evidence        of    defendant's      incriminating

statements, we cannot conclude that defense counsel must have

acted without any strategic basis when counsel decided not to

present evidence of defendant's explanation for his presence in

the apartment.         Since the State had not relied upon the recorded

statement,      defense       counsel     would      have      been     forced    to    offer

defendant's own testimony, which would have opened the door to

the jury's hearing about defendant's four prior breaking and

entering convictions, a possession of stolen goods conviction,

and a common law robbery conviction.

    Defense counsel may well have decided that, in light of the

State's    decision       not     to    present      the       incriminating       recorded
                                          -19-
statement by defendant, it was better to lose some credibility

with the jury by not following up on the promises made in the

defense's      opening       statement      than    to        potentially      disclose

defendant's prior convictions to the jury.                      Defense counsel was

also   able,    in    the     closing     argument,      to    attack    the    State's

failure to present that recorded statement and another pretrial

statement by defendant, an argument that likely would have been

unavailable had defendant elected to present evidence consistent

with the opening statement.

       Similarly, we cannot conclude on the basis of this record

that defendant received IAC because his counsel failed to move

for a mistrial.            We do not agree with appellate counsel that

trial counsel could have had no strategic reason for not moving

for a mistrial.           Nor can we determine, on this record, given the

unexpected decision of the State to not use defendant's pre-

trial statements, that the failure to move for a mistrial was

sufficiently        prejudicial      to     warrant       a      finding       of   IAC.

Consequently,        we    dismiss   defendant's         IAC     arguments      without

prejudice      to    defendant's        asserting     them      in   a     motion   for

appropriate relief.


       No error.

       Judges STEPHENS and ERVIN concur.

       Report per Rule 30(e).
