An unpublished opinion of the North Carolina Court of Appeals does not constitute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

disagree.

       “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).
