An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1167
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                      Buncombe County
                                              Nos. 12CRS000495,
JASON LEE MUTTER,                                  12CRS053764-65,
     Defendant.                                    12CRS054197


      Appeal by defendant from judgments entered on or about 10

April 2013 by Judge Robert C. Ervin in Superior Court, Buncombe

County.     Heard in the Court of Appeals 10 April 2014.


      Attorney General Roy A. Cooper, III, by Special                       Deputy
      Attorney General Terence D. Friedman, for the State.

      James W. Carter, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals judgments for felony possession of stolen

goods/property,      possession of burglary tools, felony breaking

and/or     entering,    larceny      after   breaking   and/or    entering,     and

obtaining     the   status     of    habitual    felon.    For    the   following

reasons, we find no error.

                                I.     Background
                                         -2-
    In the early afternoon of 3 April 2012, Mr. Shawn Hefner

saw a woman knocking on his neighbor’s door.                  When Mr. Hefner

began walking toward the woman, he saw defendant run from behind

his neighbor’s house carrying a black box.                Both defendant and

the woman left in a “[g]reenish gray” Neon.

    When     Ms.    Cheri   Osteen,      Mr.   Hefner’s   neighbor,    returned

home, she found that her back door had been pried open and her

jewelry box containing most of her jewelry was missing from her

home.     Two days later,         law enforcement     officers pulled over

defendant and his wife in a gray Neon; inside the car they found

defendant’s wife’s purse which contained Ms. Osteen’s jewelry.

In the trunk of the car, the officers found two two-way radios

and gloves.

    Defendant was indicted for possession of burglary tools,

felony     possession        of     stolen       goods/property        (“felony

possession”), felony breaking and/or entering                 (“felony B&E”),

larceny    after     breaking      and/or      entering    (“larceny”),     and

obtaining the status of habitual felon.              A jury found defendant

guilty of all of the charges.            The trial court arrested judgment

on defendant’s conviction for felony possession, dismissed the

conviction    for    possession     of    burglary   tools,    and    sentenced
                                              -3-
defendant to a minimum of 120 months and a maximum of 156 months

imprisonment on the other convictions.                         Defendant appeals.

                                II.    In-Court Identification

      Both on direct and cross-examination Mr. Hefner identified

defendant as the individual he saw leaving his neighbor’s home

with the black box; defendant did not object to these in-court

identifications.           Defendant contends Mr. Hefner’s description of

him     improved        from    the    time    of        the    incident     up    until        he

identified defendant during trial and that “[t]here is no good

explanation        of     how    Mr.    Hefner’s          memory    improved       from        the

incident on 3 April 2012, to the interview with the police on 4

April    2013,     and     his    testimony         at    trial     on   9   April       2013.”

Defendant argues that “the Trial Court should have applied the

Manson factors to Mr. Hefner’s statement” and due to its failure

to do so the trial court “committed plain error in allowing the

impermissibly           suggestive      in-court         identification       of     .     .     .

[defendant] by Mr. Hefner.” (Original in all caps.); see State

v. Harding, 110 N.C. App. 155, 161, 429 S.E.2d 416, 420 (1993)

(“Due to defendant’s failure to object at trial, we must review

this objection under the plain error rule.”)

            For error to constitute plain error, a
            defendant    must    demonstrate   that    a
            fundamental error occurred at trial. To show
            that an error was fundamental, a defendant
                                         -4-
            must    establish    prejudice—that,   after
            examination of the entire record, the error
            had a probable impact on the jury’s finding
            that the defendant was guilty. Moreover,
            because plain error is to be applied
            cautiously and only in the exceptional case,
            the error will often be one that seriously
            affects the fairness, integrity or public
            reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations, quotation marks, and brackets omitted). Furthermore,

our Supreme Court has established that “[a] prerequisite to our

engaging in a plain error analysis is the determination that the

instruction complained of constitutes error at all.” State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, (quotation marks

omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).

    Turning to Manson v. Braithwaite, we note that the factors

defendant contends the trial court should have used are for the

trial    court    to    use   in    considering    the   possibly   “corrupting

effect of the suggestive identification” that happened out of

court.     432 U.S. 98, 114, 53 L.Ed. 2d 140, 154 (1977).                     For

instance,    in        Manson,     the   witness   had    previously   seen    a

photograph of the defendant prior to trial.                   Id. at 101, 53

L.Ed. 2d at 146.          In Neil v. Biggers, the case Manson cites for

the factors, 432 U.S. at 114, 53 L.Ed. 2d at 154, the factors

were also used regarding a question about a suggestive showup
                                          -5-
that happened prior to the in-court identification.                             409 U.S.

188, 34 L.Ed. 2d 401 (1972).

     Here,     there     was     no   suggestive     or      corrupt      out-of-court

identification of defendant and there was actually no evidence

of suggestion or corruption prior to or regarding the in-court

identification.         In fact, there was no indication of any prior

out-of-court identification at all.               As defendant himself states

in   his    brief,      “Mr.     Hefner   could    not       remember      giving       any

statement on the day of the incident and did not talk to the

police     again   for    over    a   year   after     the      incident       and    never

participated       in   any    identification     procedure        to    identity       the

people he saw at the Osteen’s home.”                 Since there was no prior

out-of-court       identification,        the   factors       in      Manson    are     not

applicable.        Compare     Manson,    432   U.S.      98,    53     L.Ed.    2d    140;

Biggers, 409 U.S. 188, 34 L.Ed. 2d 401.                    Defendant is actually

attempting to challenge the credibility of the witness, but the

“[d]etermination of [a] witness’s credibility is for the jury.”

State v. Espinoza–Valenzuela, 203 N.C. App. 485, 494, 692 S.E.2d

145, 153, disc. review denied, 364 N.C. 328, 701 S.E.2d 238

(2010).     We find no error in admission of the evidence of the

in-court identification of defendant.

                          III. List of Property Recovered
                                         -6-
       Defendant    next      contends        that       during     his    trial     a    law

enforcement officer “read into evidence an inventory list of a

search warrant he executed on 5 April 2013 at Room 306 of Motel

6.”     The list “included jewelry, a tool box and a large screened

TV.”      Defendant   did       not    object       to    the     list    being    read    or

admitted into evidence.              Defendant argues that “the trial court

. . . committed plain error in admitting an irrelevant list of

property    recovered      at    a    motel    when       there    was    no   connection

between . . . [defendant] and the room.”                             (Original in all

caps.)     As defendant failed to object to the list, we review for

plain error.       Harding, 110 N.C. App. at 161, 429 S.E.2d at 420.

Considering Mr. Hefner’s identification of defendant as the man

who came from behind his neighbor’s house carrying a black box,

Mr. Hefner’s description of a gray Neon at the crime scene, Ms.

Osteen’s    testimony      regarding          her    missing        jewelry       box,     and

defendant later being pulled over in a gray Neon with a purse

which     contained     Ms.      Osteen’s       jewelry,          any     alleged        error

regarding the list of property did not have “a probable impact

on the jury’s finding that the defendant was guilty.”                             Lawrence,

365 N.C. at 518, 723 S.E.2d at 334.

                                IV.     Jury Instructions
                                      -7-
    Defendant      next   challenges       part    of    the    jury    instruction

regarding    his   conviction       for    felony       possession.        However,

because judgment was arrested on this conviction, we will not

address any issues regarding it on appeal.                 See State v. Moore,

339 N.C. 456, 468, 451 S.E.2d 232, 238 (1994) (“This argument is

moot since we have arrested judgment[.]”)

                               V.   Motion to Dismiss

    Defendant      next   contends        that   the    trial    court    erred   in

denying   his   motion    to    dismiss      the    charges     of     felony   B&E,

larceny, and felony possession based upon the insufficiency of

the evidence.

                 The standard of review for a motion to
            dismiss is whether there is substantial
            evidence of each essential element of the
            crime and whether the defendant was the
            perpetrator of the crime.          Substantial
            evidence is such relevant evidence as a
            reasonable mind might accept as adequate to
            support   a   conclusion.       In   reviewing
            challenges to the sufficiency of evidence,
            we must view the evidence in the light most
            favorable to the State, giving the State the
            benefit   of   all   reasonable    inferences.
            Contradictions   and discrepancies do not
            warrant dismissal of the case but are for
            the jury to resolve.

State v. Braswell, ___ N.C. App. ___, ___, 729 S.E.2d 697, 701-

02, review denied and appeal dismissed, 366 N.C. 412, 735 S.E.2d

338 (2012) (citations and quotation marks omitted).
                                                 -8-
       “The essential elements of felonious breaking or entering

are (1) the breaking or entering (2) of any building (3) with

the intent to commit any felony or larceny therein. The breaking

or   entering       must    be       without          the    consent     of       the    owner    or

occupant.”      State v. Johnson, 208 N.C. App. 443, 448, 702 S.E.2d

547, 550 (2010) (citation and quotation marks omitted); see N.C.

Gen.   Stat.    §    14-54(a)             (2011).       “To     convict       a    defendant      of

felonious      larceny,         it    must       be    shown    that    he:       (1)    took    the

property of another, (2) with a value of more than $1,000.00,

(3) carried it away, (4) without the owner’s consent, and (5)

with    the     intent      to        deprive          the     owner     of       the     property

permanently.”            State       v.    Owens,      160     N.C.    App.       494,   500,    586

S.E.2d 519, 523-24 (2003); see N.C. Gen. Stat. § 14-72(b)(2).

       Mr. Hefner observed defendant running from the back of Ms.

Osteen’s home carrying a black box.                              Thereafter, Ms. Osteen

returned home to find the door of her home pried open and her

jewelry   box    containing               most   of    her     jewelry,       valued      at    over

$1,000, missing.           This constitutes sufficient evidence of felony

B&E and larceny.           See Johnson, 208 N.C. App. at 448, 702 S.E.2d

at 550; Owens, 160 N.C. App. at 500, 586 S.E.2d at 523-24.

Furthermore,        as    the    judgment         for       felony    possession         has    been

arrested, any arguments regarding this conviction on appeal are
                                 -9-
moot.   See Moore, 339 N.C. at 468, 451 S.E.2d at 238.           As such,

these arguments are overruled.

              VI.   Ineffective Assistance of Counsel

    Lastly,    defendant     contends       that   his     attorney   was

ineffective   because   he   failed    to    object   to   the   in-court

identification, the admission of the list of recovered property,

and a jury instruction regarding felony possession.

               The United States Supreme Court
               has enunciated a two-part test for
               determining whether a defendant
               received ineffective assistance of
               counsel.    Under     the   Strickland
               test, for assistance of counsel to
               be ineffective:
               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.
               This test was adopted by the North
          Carolina Supreme Court in State v. Braswell,
          . . . . The first element requires a showing
          that counsel made serious errors; and the
          latter requires a showing that, even if
          counsel made an unreasonable error, there is
          a reasonable probability that, but for
          counsel’s errors, there would have been a
                                        -10-
            different result in the proceedings.

State v. Cameron, ___ N.C. App. ___, ___, 732 S.E.2d 386, 389

(2012).

    As we have already noted, the in-court identification of

defendant   was   not    error.         We   have    already   determined    that

exclusion of the list of property would not have changed the

outcome,    considering       the   eyewitness       identification;    evidence

that defendant was found in a vehicle matching the description

of the car in which the man who took the box left Ms. Osteen’s

residence; and that this car contained a purse in which Ms.

Osteen’s    jewelry     was    found.          See   id.   Lastly,     the   jury

instruction is not reviewable on appeal as the judgment was

arrested for felony possession.              See Moore, 339 N.C. at 468, 451

S.E.2d at 238.

                                    VII. Conclusion

    For the foregoing reasons, we find no error.

    NO ERROR.

    Judges HUNTER, JR., Robert N. and DILLON concur.

    Report per Rule 30(e).
