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Criminal Practice – Expert Testimony – Fingerprint & DNA Evidence – Offense Class

In this breaking and entering case, both blood and fingerprints were found at the scene. Where the state’s fingerprint expert failed to establish that he reliably applied his procedure to the facts in this case, the witness’s testimony was insufficient to meet the reliability requirements of N.C. R. Evid. 702, and the trial court erred in admitting it.

However, the error was not prejudicial because the state’s DNA expert thoroughly explained her credentials, education and expertise, as well as the methods and procedures she uses to analyze DNA profiles; she confirmed the process is widely accepted in the scientific community; she testified that she applied those methods and procedures in her analysis and comparison of defendant’s DNA profile with the blood sample taken from the scene of the break-in; and she explained that she arrived at her conclusion that the sample matched defendant’s DNA profile after reviewing all 24 areas of his full DNA profile. Although the DNA expert did not provide a rate of error, this omission was not fatal to her testimony.

We find no prejudicial error in defendant’s convictions of felonious breaking or entering, larceny after entering, and attaining the status of habitual breaking and entering offender.

After the jury found defendant guilty of breaking and entering, the trial court informed the jury, “Now at this time, the State has brought against defendant the charge of habitual breaking and/or entering. The State will present evidence relating to previous convictions of breaking and/or entering at this time.” Contrary to defendant’s argument, the trial court did not offer to the jury the court’s opinion as to whether defendant did in fact have previous convictions. Rather, the trial judge notified the jury and the parties of his plan for the outset of the second phase of trial.

Presuming, arguendo, the trial court’s comment was improper, the state offered ample evidence of defendant’s prior felony offense of breaking and entering, from which the jury could reasonably find defendant guilty of the status offense charge of habitual breaking and entering.

Finally, defendant asserts the trial court made a clerical error in its written judgment by erroneously indicating that he was convicted of a Class E felony for the habitual breaking and entering status offense. The state contends the written judgment correctly reflects the trial court’s judgment because it properly indicates that the habitual breaking and entering status offense enhanced the substantive offense of felony breaking and/or entering from a Class H felony to a Class E felony. After careful review, we agree with the State.

Our Legislature did not specify the felony classes for which status offenses should be classified. The North Carolina Judicial Branch publishes on its website a guideline document entitled “N.C. Courts Offense Codes and Classes.” This document classifies the status offense of habitual breaking and entering as a Class E felony, and habitual felon status as a Class C felony. Defendant provides no other authority to support his contention that the written judgment contains a clerical error, and we conclude trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.

No error.

State v. Graham (Lawyers Weekly No. 011-006-23, 38 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Robert Bell, J.) Tamara Van Pala Skrobacki for the state; Daniel Dolan and Glenn Gerding for defendant. 2023-NCCOA-6

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