An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1103
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Orange County
                                              Nos. 11 CRS 53479
JOSHUA CHAD HONEYCUTT                              13 CRS 00020



      Appeal by defendant from judgments entered 23 May 2013 by

Judge W. Osmond Smith in Orange County Superior Court.                    Heard in

the Court of Appeals 26 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Tenisha S. Jacobs, for the State.

      James W. Carter for defendant-appellant.


      HUNTER, Robert C., Judge.


      Defendant Joshua Chad Honeycutt was tried on charges of

felonious     breaking     or    entering,     larceny     after    breaking      or

entering, felonious possession of stolen property pursuant to a

breaking or entering, and obtaining property by false pretenses.

A jury found him not guilty of the breaking or entering and

larceny charges, but guilty of possession of stolen property

pursuant to a breaking or entering and of obtaining property by
                                        -2-
false pretenses.        The trial court sentenced                  defendant      to an

active prison term of six to eight months for each of the two

offenses, to be served consecutively.                Defendant gave notice of

appeal in open court.

                          I.   The State’s Evidence

      Frances Seawell testified that she and her family lived at

106   Weathervane    Drive     in    Carrboro,      North    Carolina.         On    the

afternoon of 16 September 2011, she arrived home from work to

discover that the “back door had been broken in and the deadbolt

lock was on the floor.”         Seawell immediately called 911.

      When the police arrived, Seawell went to her bedroom and

saw   that    her   “standing       armoire   type    jewelry       box”   had      been

opened, her clothing drawers “had been rifled through[,] and a

travel jewelry box had been thrown across the room.”                           Missing

from the jewelry box were three gold rings and two necklaces,

which she described as follows:               (1) a men’s 18 carat molded

gold wedding band “that looked like woven branches or bones”;

(2) a ladies’ 14 carat gold ring with three stones, “one a lapis

in the center, blue lapis stone[,] and then on . . . either side

two   small   diamonds,    round      cut”;   (3)    “a     very   thin    gold     band

probably like [10] carat” with a missing stone; (4) a “short,

. . . herringbone kind of gold chain”; and (5) a “very fine link
                                            -3-
chain.”      Seawell owned the jewelry and had not given anyone

permission       to   take   it.          None    of     the    missing    jewelry      was

recovered.

    In addition to reporting the theft to police, Seawell made

a flyer containing a photograph of the wedding band and showed

it to local merchants who purchased gold jewelry.                         A copy of the

flyer was admitted into evidence and published to the jury.

    John        Bolton   testified        that     he    lived    with     defendant    in

defendant’s mother’s house at 2907 Green Hill Drive “for about a

month” from the first week in September through the first week

in October 2011.         On 16 September 2011, after eating breakfast,

Bolton    and    defendant        “borrowed       his   mother’s    car     to    go   ride

around    and      break     in     some     houses.”            They     drove    around

Hillsborough or Chapel Hill without success before proceeding to

Carrboro.       Bolton described their subsequent actions as follows:

            [W]e got down North Greensboro Street to
            Weathervane. We stopped on Weathervane. [I
            g]ot out of the car. Found one of the first
            houses on the right right as you went into
            the subdivision.   Kicked the back door in.
            Grabbed jewelry. [Defendant] picked me back
            up.    We went to Scavenger Antiques in
            Carrboro and then [defendant] sold the
            jewelry and that was it.

Bolton    affirmed       that     defendant       sold    the     stolen    jewelry     at

Scavenger       Antiques     on     the    same     day    that    the     break-in      on
                                          -4-
Weathervane Drive occurred.               Bolton also confirmed that “the

jewelry that [he] stole from kicking in the back door of 106

Weathervane       .    .   .   [was]     the    jewelry       that    [he]   gave    to

[defendant] when [he] went to Scavenger Antiques[,]” and that

defendant “took into Scavenger Antiques with him and came out

with $500[.00.]”           Bolton described one of the pieces of jewelry

stolen    from    106      Weathervane    Drive     as    a   “[v]ery    large      male

wedding band about 14 carats” that “looked like it was cracked

around the design in it.”                When shown the photograph on the

flyer Seawell posted following the break-in, Bolton testified,

“That’s the ring from 106 Weathervane.”

    Bolton was arrested at Scavenger Antiques on 20 October

2011.     At the time of defendant’s trial, Bolton was serving a

prison sentence of 64 to 80 months after pleading guilty to “14

breaking    and       enterings   and    13     larcenies     after    breaking     and

entering[,]” including the break-in at 106 Weathervane on 16

September 2011. After entering this plea, Bolton was charged

with one additional count each of felonious breaking or entering

and larceny.          The trial court advised the jury that Bolton’s

pending    plea       agreement    on     these     charges      provided     for     a

consolidated sentence of 10 to 21 months, concurrent with the

sentence he was then serving, “[i]n return for Mr. Bolton’s
                                       -5-
agreement to testify truthfully” at defendant’s trial.

    Lieutenant      Randy    Hawkins      of   the   Orange   County    Sheriff’s

Office, who interviewed Bolton on 28 October 2011, corroborated

Bolton’s testimony about the 16 September 2011 break-in at 106

Weathervane     Drive.       Bolton       told     Hawkins    “that    [he]    and

[defendant] did this break-in and that they stole a male wedding

band . . . [a]nd some other jewelry.”                 Before Bolton directed

Hawkins to this address, the sheriff’s office was unaware that

the break-in had occurred.

    In the course of his investigation, Carrboro Police Officer

Tony Frye interviewed the co-owner of Scavenger Antiques, Becky

Wiggs, who provided him with two hand-written ledgers in which

the store recorded its gold and silver purchases.                      The ledger

page from 16 September 2011 contained an entry for defendant,

Joshua Honeycutt, which listed his address as 2907 Green Hill

Drive and also included his driver’s license number.                    The entry

reflects that Scavenger Antiques paid defendant $500.00 on 16

September 2011 for the following items:                “Two 14K gold chains,

one 10K small gold ring without stone, one larger 14K gold woven

ring,   one   14K   gold    ring   with    small     stone    and   larger    stone

removed.”     A copy of this ledger page was received into evidence

and published to the jury.         Wiggs stated that these entries were
                                     -6-
“entirely my handwriting except for the individual who signed

it.”

       Wiggs identified defendant in court as the person who sold

her    the   items   listed   in   the   ledger   on   16   September   2011.

Defendant told Wiggs that he had “acquired” the jewelry                   “by

going to different sales, yard sales; or people had things for

sale, looking and finding in – drawers.”           Wiggs “never suspected

anything that was not right” and sold the jewelry in the regular

course of business.

       The State introduced eight additional pages from the ledger

reflecting defendant’s sale of items to Scavenger Antiques on

18, 25, and 29 July 2011, 26 August 2011, 9 and 21 September

2011, and 4 and 12 October 2011.             When Frye asked defendant

about these transactions, he claimed to have purchased the gold

at various “yard sales all over” but “wouldn’t be specific as to

what cities or what dates.”

                          II. Motion to Dismiss

       Defendant first challenges the trial court’s denial of his

motion to dismiss the charges at the conclusion of the evidence.

A motion to dismiss based on insufficient evidence is reviewed

under the following standard:

             The trial court must determine only whether
             there  is   substantial evidence   of  each
                                      -7-
            essential element of the offense charged and
            of the defendant being the perpetrator of
            the offense.     Evidence is substantial if it
            is relevant and adequate to convince a
            reasonable mind to accept a conclusion. In
            considering a motion to dismiss, the trial
            court must analyze the evidence in the light
            most favorable to the State and give the
            State   the    benefit   of  every   reasonable
            inference from the evidence. The trial court
            must also resolve any contradictions in the
            evidence in the State’s favor.       The trial
            court does not weigh the evidence, consider
            evidence    unfavorable   to  the   State,   or
            determine any witness’ credibility.

State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)

(citations and quotation marks omitted).                 “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).

    As proscribed by N.C. Gen. Stat. § 14-72(b)-(c) (2013), the

crime of possession of stolen property pursuant to a breaking or

entering   consists      of   the   following:     (1)    possession   (2)    of

personal property stolen pursuant to a breaking or entering; (3)

knowing    or   having    “reasonable    grounds   to     believe”   that    the

property was stolen pursuant to a breaking or entering; and (4)

acting with a dishonest purpose.            State v. Tanner, 364 N.C. 229,

232-33, 695 S.E.2d 97, 100 (2010) (quoting N.C. Gen. Stat. § 14-

72(c)).    “Dishonest purpose is equivalent to felonious intent.”

State v. Withers, 111 N.C. App. 340, 348, 432 S.E.2d 692, 698
                                            -8-
(1993) (citation omitted).                The essential elements of obtaining

property by false pretenses under N.C. Gen. Stat. § 14-100(a)

(2013) are “‘(1) a false representation of a subsisting fact or

a   future    fulfillment        or   event,      (2)   which    is    calculated     and

intended to deceive, (3) which does in fact deceive, and (4) by

which   one    person      obtains     or    attempts     to    obtain      value    from

another.’”      Parker, 354 N.C. at 284, 553 S.E.2d at 897 (quoting

State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)).

      Viewed    in   the     light     most       favorable     to    the   State,    the

evidence shows that defendant assisted Bolton in breaking into

the   residence      at    106    Weathervane        Drive     for    the   purpose    of

stealing jewelry.           Defendant then sold the jewelry taken by

Bolton to Scavenger Antiques for $500.00, telling Wiggs that he

had   purchased      the    items     at    various     yards    sales      or   similar

events.      We hold that this constitutes substantial evidence of

each essential element of the two crimes found by the jury.

      Defendant argues that the State failed to show that the

three gold rings and two gold necklaces he sold to Scavenger

Antiques were the same three gold rings and two gold necklaces

stolen by Bolton from 106 Weathervane Drive the same day.                              We

disagree.      The descriptions of the jewelry entered by Wiggs into

Scavenger      Antiques’         ledger     on     16   September       2011     closely
                                                -9-
correspond to the missing items described by Seawell.                           Moreover,

Bolton identified the wedding band he stole from 106 Weathervane

Drive    as   the    ring     shown        in    Seawell’s       flyer.        He    further

testified that the items defendant sold to Scavenger Antiques

for $500.00 on 16 September 2011 were the items taken from 106

Weathervane Drive.           Insofar as defendant separately challenges

the evidence that he misrepresented himself as the owner of the

jewelry, we conclude that Wiggs’s testimony and the entries in

her     store’s     ledger    on      16        September    2011     were     more     than

sufficient     to    show     the     “false          representation”     by    defendant

required      to    establish       his     obtaining       the      $500.00    by     false

pretenses.

                            III. Rule 404(b) Evidence

       Defendant next claims the trial court erred by allowing

Bolton to testify about other residential break-ins he committed

with    defendant     in     Orange       County       within    a   month     of    the   16

September     2011    incident.           See     N.C.    Gen.    Stat.   §    8C-1,    Rule

404(b) (2013).        Defendant argues the State failed to prove that

he engaged in these other acts, inasmuch as he had not been

charged with additional crimes.                       He further contends that “the

State did not specifically put forth any purpose” for admitting

the evidence as contemplated by Rule 404(b).                           Finally, to the
                                     -10-
extent   Bolton’s   testimony    was   admissible   under    Rule   404(b),

defendant argues that its probative value was outweighed by the

risk of unfair prejudice, thus requiring its exclusion under

N.C. Gen. Stat. § 8C-1, Rule 403 (2013).

                                A.    Waiver

    We first address the State’s assertion that defendant has

failed to preserve his objection to this evidence by means of a

timely objection at trial.      See N.C. R. App. P. 10(a)(1) (2013).

Generally, neither a motion in limine nor an objection during

voir dire at trial will suffice to preserve the issue of the

admissibility of evidence.           State v. Flaugher, 214 N.C. App.

370, 375, 713 S.E.2d 576, 582 (2011) (quoting State v. Ray, 364

N.C. 272, 277, 697 S.E.2d 319, 322 (2010)) (“‘[T]o preserve for

appellate review a trial court’s decision to admit testimony,

“objections to [that] testimony must be contemporaneous with the

time such testimony is offered into evidence” and not made only

during a hearing out of the jury’s presence prior to the actual

introduction   of    the   testimony.’”)       (second      alteration   in

original).

    Here, the trial court declined to grant defendant’s pre-

trial motion in limine and ruled on voir dire at trial that

Bolton’s testimony about other break-ins was admissible under
                                         -11-
Rule 404(b).          Defendant raised only a single general objection

before    the    jury     when    the    prosecutor        asked   Bolton       whether

defendant was “with you on every one of those occasions” that

had resulted in Bolton’s incarceration.                   The court overruled the

objection,      and    Bolton    replied,    “He    was     with   me   for     some   of

them.”    Defendant did not purport to raise a continuing or line

objection to this line of inquiry.                   See State v. Lawson, 173

N.C. App. 270, 274, 619 S.E.2d 410, 412-13 (2005).                           Nor did he

object    to    Bolton’s        subsequent      testimony      about         defendant’s

participation in three additional break-ins or the “[a]t least

three    or    four    more     times”   when      Bolton    “went      to    Scavenger

Antiques with [defendant] to get rid of the jewelry.”                           It thus

appears defendant may have failed to preserve his objection to

Bolton’s testimony.           See Ray, 364 N.C. at 277, 697 S.E.2d at

322.

       Despite defendant’s noncompliance with                  Rule 10(a)(1), we

believe it would be unjust to enforce any resulting waiver in

this case.       The transcript reflects that the trial court made

the following announcement to the parties at the conclusion of

the voir dire hearing:

              [T]he Court rules that the evidence is
              admissible under Rule 404(b) for purposes of
              which I've just stated and should not be
              excluded under Rule 403.
                                          -12-


            The defendant has objected to it in advance.
            Still objects to it and exceptions are noted
            and preserved.

(Emphasis added).            Having been advised by the court that his

exceptions      were    preserved,       it   is   understandable     that    defense

counsel would not feel obliged to renew his objections in front

of   the   jury.        Therefore,       we   will    invoke   our    discretionary

authority under N.C. R. App. P. 2 to review defendant’s claim to

the extent that we need to do so.                  See State v. Brown, 178 N.C.

App. 189, 192, 631 S.E.2d 49, 52 (2006).

                                    B.   Voir Dire

      On voir dire, Bolton averred that, within “weeks” of 16

September 2011 and continuing up to the date of his arrest on 20

October 2011, he and defendant committed five or six additional

break-ins in Orange County using the same “gold colored Honda

Civic” belonging to defendant’s mother.                  On each occasion Bolton

would   kick    in     the   door   to    the      residence   and   steal    “[g]old

jewelry    or   electronics”        while     defendant    drove     around   in   the

Honda waiting for Bolton to call him on his cell phone.                        After

picking Bolton up, defendant would take the items stolen by

Bolton and sell them.           Bolton testified that he had a standing

arrangement with defendant wherein “I would physically break in

the house, he would sell the jewelry.”
                                             -13-
       Following his arrest on 20 October 2011, Bolton told police

that     he    and     defendant       committed      similar     break-ins      at    610

Creekstone, 333 Bayberry, 5623 Brisbane, and two residences on

Black Tie Lane in Orange County.                    Bolton estimated that he and

defendant      went     to   Scavenger       Antiques     for    defendant      to    sell

stolen       jewelry    “[a]t     least      eight     other     times”     besides    16

September 2011.

       The     court     ruled     Bolton’s         testimony     about     defendant’s

participation in similar acts during August through October 2011

was    admissible        under        Rule    404(b)     “as     proof    of     motive,

opportunity, intent, preparation, plan, knowledge, identity and

absence of mistake with regard to the crimes charged in this

case[.]”         The     court     found      “substantial       evidence      that   the

defendant committed the extrinsic acts.”                       Moreover, in view of

their similarity and temporal proximity to the charged crimes,

the court ruled “that the probative value of such evidence of

extrinsic acts is not substantially outweighed by the danger of

unfair prejudice” under Rule 403.

                                 C.    Trial Testimony

       When     the      trial        resumed,      Bolton      testified      that     he

“recall[ed] three other occasions” when defendant participated
                                  -14-
in break-ins with him.       Bolton described breaking into “[t]wo

houses side by side” on Black Tie Lane:

            One house, I went in and got some assorted
            jewelry and an HP laptop.    I went right in
            the back door of the other house.       I got
            some   more   jewelry  out   of   there   and
            [defendant] picked me back up. Gold colored
            Honda.   Went to Scavenger Antiques and sold
            that jewelry.

Bolton then recounted two additional incidents, the first of

which involved a residence on “Brisbane” in Hillsborough, North

Carolina:

            [Defendant] dropped me off.    Gold colored
            Honda. [I] knocked on the door. No one was
            there.   Kicked the side door in.    All I
            found was a laptop.     Took that.    Left.
            [Defendant] got rid of the laptop for me a
            couple days later.

            And then Bayberry, 333. In the gold colored
            Honda.   [Defendant] and myself rode around.
            Found the house. Knocked on the front door.
            No one answered it so I kicked it in.      I
            stole assorted jewelry and three MacBooks
            from the residence.

In each instance, defendant drove Bolton to the residence in the

gold    Honda,   Bolton   broke   into   and   stole   items   from   the

residence, and Bolton communicated with defendant by cell phone

to get defendant to pick him up.         Their purpose in committing

the break-ins was “[t]o steal jewelry or electronics to sell.”

       In addition to 16 September 2011, Bolton recalled “[a]t
                                           -15-
least   three   or    four    more       times”   when    he   “went     to    Scavenger

Antiques with [defendant] to get rid of the jewelry.”                          For each

piece of jewelry that defendant sold, Bolton “would give him a

third of all the cash that we got from it.”                      Bolton also “would

throw [defendant’s] mom a little bit of money for letting me

staying there.”

                               D.    Admissibility

    Under Rule 404(b):

           Evidence 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).                      “Rule 404(b) states 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.”                         State v.

Al-Bayyinah,    356    N.C.    150,       154,    567    S.E.2d   120,    122     (2002)

(quotation marks omitted).               Rule 404(b) also requires a showing

of both factual similarity and temporal proximity between the

charged and uncharged acts.              Id. at 154, 567 S.E.2d at 123.               “We
                                        -16-
review de novo the legal conclusion that the evidence is, or is

not,      within     the    coverage     of    Rule     404(b).”         State     v.

Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

         We begin with defendant’s argument that the State failed to

prove that he committed the other acts described by Bolton.

“[E]vidence may be admitted under Rule 404(b) . . . if there is

sufficient evidence to support a jury finding that the defendant

committed the similar act; no preliminary finding by the trial

court     that     the   defendant    actually   committed       such   an   act   is

required.”       State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876,

890 (1991) (adopting Fed. R. Evid. 404(b) standard in Huddleston

v. United States, 485 U.S. 681, 687-88, 99 L. Ed. 2d 771, 781

(1988)).      On voir dire, the trial court found “that the State

has offered substantial evidence of the defendant’s involvement

as   a    perpetrator      with   co-defendant   Bolton     in    multiple    other

breaking or entering residences, larceny therefrom, and sale of

stolen goods of items stolen from those breaking or enterings

that occurred during a time frame covering generally August,

September,       October,    2011.”      We    agree.      Although      defendant

insists that Bolton was not credible, the jury was entitled to

credit his first-hand account of these incidents.                   See State v.
                                             -17-
Covington,     315      N.C.    352,     360,   338      S.E.2d     310,    315   (1986).

Accordingly, we find no merit to this claim.

      We further        agree with the trial court                  that evidence of

defendant’s participation in other break-ins with Bolton and his

subsequent sale of the stolen jewelry at Scavenger Antiques was

admissible under Rule 404(b) “as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity and absence of

mistake with regard to the crimes charged in this case.”                               See

State v. Martin, 191 N.C. App. 462, 467, 665 S.E.2d 471, 474

(2008).            As   to     the    charges       of   breaking    or    entering    and

larceny, this evidence was probative of defendant’s identity as

Bolton’s accomplice and his motive and intent in breaking into

the residence.          Id.     For the charges of possession of stolen

goods and obtaining property by false pretenses, the evidence

was admissible to prove defendant’s knowledge of the source of

the   stolen      property      as     well   as     his    “dishonest      purpose”   or

felonious intent in possessing it.                   See Tanner, 364 N.C. at 232-

33, 695 S.E.2d at 100.               Moreover, the trial court properly found

these     other    acts       had     such    close        similarity      and    temporal

proximity to the 16 September 2011 incident to be admissible

under Rule 404(b).            See State v. Owens, 160 N.C. App. 494, 501,

586 S.E.2d 519, 524 (2003).
                                           -18-
       Finally, we find no abuse of discretion by the trial court

in    concluding     that    the     probative     value       of    this   Rule    404(b)

evidence       “is   not    substantially        outweighed         by   the     danger   of

unfair prejudice or other consideration under Rule 403 of the

Rules   of     Evidence.”         See     N.C.   Gen.    Stat.      §    8C-1,    Rule    403

(2013); State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554

(1992).        The   other    acts      described       by   Bolton      were    virtually

identical       to   the     charged       offenses      and     occurred        within    a

relatively brief span before and after 16 September 2011.                                 See

Owens, 160 N.C. App. at 501, 586 S.E.2d at 524.                             We note that

the    trial    court      also    gave    appropriate       limiting       instructions

immediately before Bolton’s testimony and in its final charge to

the jury.        See Martin, 191 N.C. App. at 469-70, 665 S.E.2d at

476.

                                   IV.     Conclusion

       The trial court committed no error in denying defendant’s

motion to dismiss and in admitting evidence of other acts by

defendant pursuant to N.C. R. Evid. 403 and 404(b).



       NO ERROR.

       Judges STEPHENS and ERVIN concur.

       Report per Rule 30(e).
