State v. Ogles

• Decision Date: 18 September 2018
• Docket Number: No. COA18-210,COA18-210
• Parties: STATE of North Carolina v. Brandon Dale OGLES
• Court: North Carolina Court of Appeals

817 S.E.2d 923 (Table)

STATE of North Carolina
v.
Brandon Dale OGLES

No. COA18-210

Court of Appeals of North Carolina.

Filed: September 18, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Dylan Sugar, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Hitchcock, for defendant-appellant.

DAVIS, Judge.

Brandon Dale Ogles ("Defendant") appeals from his convictions for felonious breaking or entering and attaining the status of a habitual felon. On appeal, he argues that the trial court (1) committed plain error by permitting an officer to testify regarding Defendant's "mug shots"; and (2) erred by failing to intervene ex mero motu during the prosecutor's closing arguments. After a thorough review of the record and applicable law, we conclude that Defendant received a fair trial free from prejudicial error.

Factual and Procedural Background

The State presented evidence at trial tending to establish the following facts: In the early morning hours of 13 April 2016, Russell Bailey arrived at his place of work, the Ilderton Dodge Chrysler Jeep dealership. He observed that the window of the back door had been broken and that a cinder block had been thrown inside of the building. Bailey also noticed yellow paint that was spilled inside of the building and that someone had damaged a vending machine near the employees' lounge. Bailey called Steve Ilderton—the owner of the dealership—and the High Point Police Department to report the break-in.

Officer D.G. Kirstine and Officer Laughlin of the High Point Police Department were on patrol when they received a call regarding a break-in at the dealership at 5:27 a.m. When the officers arrived at the dealership, they saw that the back door had been "smashed in." The officers also observed a trail of yellow shoeprints leading into the building.

Steve Ilderton arrived shortly thereafter. He provided the officers with a tape of the video surveillance of the dealership. After watching the surveillance video, Officer Kirstine determined that the break-in had occurred at approximately 12:30 a.m.

Nicole Meldrum, a crime scene technician with the High Point Police Department, arrived at the dealership shortly after 6:00 a.m. She found three fingerprints on the outside of the back door and one fingerprint on the inside of the door.

Officer Lance Moss, a detective with the Property Crimes Division of the High Point Police Department, was subsequently assigned to the case. Upon viewing the video surveillance provided by Ilderton, he determined that the suspect who had broken into the dealership was a slender, white man who had been wearing "a button-up, long-sleeve shirt with ... royal blue with white striping on it, horizontal and vertical," faded blue jeans, white tennis shoes, and a red hat. Officer Moss also ran a search of the fingerprints discovered at the crime scene and determined that one of these fingerprints matched a fingerprint of Defendant that the police department had on record.

Based on the fingerprint match, Officer Moss began looking through Defendant's prior mug shots contained in the department’s records and Facebook pictures. Upon reviewing Defendant's Facebook profile, Officer Moss discovered a picture in which Defendant was wearing the same style and color of shirt that the suspect had been wearing during the Ilderton Dodge break-in as depicted on the surveillance camera.

Defendant was subsequently arrested and charged with felonious breaking or entering, misdemeanor breaking into a coin operated machine, and attaining the status of a habitual felon. A jury trial was held beginning on 23 August 2017 before the Honorable Lindsay R. Davis, Jr. in Guilford County Superior Court. The State presented testimony from Bailey, Ilderton, Officer Kirstine, Meldrum, Officer Moss, and Ben Goodson (a vending company employee). Defendant did not present any evidence at trial.

On 24 August 2017, the jury found Defendant guilty of felonious breaking or entering and not guilty of breaking into a coin operated machine. Defendant pled guilty to attaining the status of a habitual felon. The trial court consolidated the convictions and sentenced Defendant to a term of 84 to 113 months imprisonment. Defendant filed a timely notice of appeal.

Analysis

I. Appellate Jurisdiction

As an initial matter, we must determine whether we possess jurisdiction over this appeal. Defendant's notice of appeal did not explicitly state that he was appealing from the superior court's judgment to this Court as required by Rule 4(b) of the North Carolina Rules of Appellate Procedure. Out of an abundance of caution, Defendant has filed a petition for a writ of certiorari in the event we find his notice of appeal was insufficient to confer jurisdiction upon this Court.

Because this Court is the only court possessing jurisdiction to hear his appeal, it can be fairly inferred that Defendant intended to appeal to this...