IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-1025

Filed: 1 December 2020

New Hanover County, Nos. 17 CRS 58737, 18 CRS 52053–54

STATE OF NORTH CAROLINA

v.

ADELL GRADY

Appeal by defendant from judgments entered 7 March 2019 by Judge John E. 

Nobles Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 8 

September 2020.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Colleen 

M. Crowley, for the State.

Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, for 

defendant.

DIETZ, Judge.

Defendant Adell Grady appeals his convictions for felony breaking and 

entering, felony larceny, and possession of a firearm by a felon. He argues that the 

trial court erred by admitting the State’s evidence that he committed another similar 

breaking and entering. Grady also argues that an officer’s testimony about that other 

break-in involved inadmissible hearsay. Finally, Grady argues that there was 

insufficient evidence that he stole any guns during the break-in and thus the charge 

of possession of a firearm by a felon should have been dismissed.
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We reject these arguments. The evidence of the other break-in, which took 

place on a neighboring street, at around the same time, on the same day, by someone 

with the same general features and dressed in the same clothes as the perpetrator of 

the charged offenses, was properly admitted under Rule 404(b) for various reasons 

other than solely to show Grady’s propensity to commit those offenses.

Likewise, the officer’s description of what the victim of that other break-in told 

him, just minutes after that break-in occurred, was admissible as a present sense 

impression. Finally, the State’s evidence was sufficient to overcome a motion to 

dismiss the charge of possession of a firearm by a felon, even without any direct 

evidence that Grady stole the guns, based on the evidence that those guns were 

present in a locked house before the break-in, that they were missing afterward, and 

that Grady was the perpetrator of the break-in. We therefore find no error in the trial 

court’s judgments.

Facts and Procedural History

In 2018, Officer Jesse Moore with the Wilmington Police Department 

responded to a report of a breaking and entering at a home on Fowler Street. When 

Moore arrived, he observed that the front door was kicked in. The resident of the 

home, Jason Gray, was not there.

Gray’s next-door neighbors, the Overbys, had called 911. They were waiting 

outside for police to arrive. Ms. Overby reported that her husband had been across 
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the street feeding a neighbor’s dog that morning when she heard a loud noise, looked 

outside, and saw a man walk across the corner of their driveway from the direction 

of Gray’s house, and then walk east on Fowler Street toward a nearby apartment 

complex. Ms. Overby described the man as African-American, wearing a red and 

black hoodie, and carrying a Game Stop bag. Shortly after, Ms. Overby saw a gold car 

drive by several times making a loud noise. 

As Mr. Overby was walking back from the neighbor’s house, the gold car, a 

Dodge Neon, stopped in front of the Overbys’ house. The driver asked Mr. Overby for 

directions. Mr. Overby described the driver as a black man with grayish hair and 

beard, probably in his 40s or 50s, and wearing a red and black hoodie. After the man 

drove off, Mr. Overby went to check on Gray’s house, saw that the front door was 

kicked open, and told Ms. Overby to call the police.

Ms. Overby later checked their security system video footage, where she again 

saw the man with the red and black hoodie. The video captured the man walking next 

door toward Gray’s home with nothing in his hands and then coming out across the 

front of the Overbys’ house with a Game Stop bag in his hands. The Overbys testified 

that they couldn’t see what was in the bag, but “you could tell by looking at it, it was 

kind of – stuck out on different sides or whatever and you could tell there was weight 

in the bag.” The Overbys provided their surveillance footage to Officer Moore. Ms. 

Overby also viewed footage showing the man walking to the gold car parked at the
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nearby apartment complex, getting in the car, and driving towards the Overbys’

home. The Overbys were unable to provide that portion of the footage to police due to 

a system malfunction. 

After Officer Moore notified Jason Gray, the home’s resident, of the break-in, 

Gray returned home to find that his front door was broken open, the house had been 

ransacked, and many of his belongings were missing. The missing items included 

multiple electronic devices, video games and gaming consoles, and three firearms

(two handguns and a shotgun). Gray testified that he had Game Stop bags in his 

residence at the time of the break-in.

On the same morning as the Fowler Street break-in, Officer William Rose 

investigated a breaking and entering at a house on Dexter Street, one street over 

from Fowler Street. Officer Rose arrived shortly before 10:20 a.m. As Officer Rose was 

approaching the Dexter Street house, the home’s resident, James Smith, arrived and 

ran towards the backyard. Officer Rose followed him. Smith identified himself as the 

resident of the home and as “the person who had called 911 because of the house 

being broken into.” Smith was “agitated,” “excited,” and “angry” and told Officer Rose 

that his house had just been broken into. 

Smith showed Officer Rose a portion of a video that was automatically sent to 

his cell phone from his home’s security camera, showing that there was someone 

inside the residence. The time stamp on the video was 10:17 a.m. After waiting for 
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other officers to arrive, Officer Rose entered the residence. There was property 

damage to the rear door frame of the residence where the surveillance video showed 

the suspect had entered. Officer Rose then asked Smith if anything was missing from 

the residence, and Smith told the officer that a television was missing. 

Sergeant Brian Needham later reviewed security video footage from both 

Fowler Street and Dexter Street. Both videos showed a black man wearing a red and 

black hooded sweatshirt. The man could be seen entering the home on Dexter Street 

and carrying away a television. Upon comparing the videos, Sergeant Needham 

concluded that the same individual committed both the Dexter Street and Fowler 

Street break-ins. After locating the gold Dodge Neon from the Fowler Street 

surveillance footage and identifying its owner, Needham went on Facebook where he 

found a photo of the car’s owner with a man who closely resembled the description 

given by the Overbys and the man in the security videos. Needham identified the 

man as Defendant Adell Grady and found a Facebook photo from the previous month 

showing Grady wearing a red and black hooded sweatshirt that was the same style 

of sweatshirt worn by the suspect in the surveillance videos. 

Police then located Grady and arrested him. At the time of his arrest, Grady 

was wearing what officers believed to be the same red and black Nike hooded 

sweatshirt shown in the surveillance videos. Grady was charged with breaking and 

entering, larceny, and possession of a firearm by a felon in connection with the Fowler 
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Street break-in. 

Corporal Carlos Lamberty and Detective Robert Ferencak interviewed Grady 

after his arrest and showed him still shots from the surveillance videos of the breakins. Grady then admitted to his direct involvement in the Dexter Street break-in and 

admitted to his presence on Fowler Street around the time of that break-in. He 

implicated a man named Cedric Age as the perpetrator of the break-ins. Grady 

admitted to driving the gold Dodge Neon in the Fowler Street video and to being in 

the house on Dexter Street. He also admitted to knowing about the television taken 

from the Dexter Street house, which he believed was later sold for drugs. But Grady 

denied breaking into the Fowler Street house and said he had nothing to do with the 

missing guns. 

On 11 June 2018, Grady was indicted for felony breaking and entering, felony 

larceny, injury to real property, possession of a firearm by a felon, and attaining 

habitual felon status, all in connection with the Fowler Street break-in. The State did 

not move forward with any charges related to the Dexter Street break-in because 

James Smith, the home’s resident, later refused to cooperate with the prosecution. 

On 4 March 2019, the case went to trial. Following a voir dire with the law 

enforcement officers involved, the trial court admitted the State’s evidence regarding 

the uncharged Dexter Street break-in under Rule 404(b) over Grady’s repeated 

objections. Officers Rose, Needham, Lamberty, and Ferencak testified to the details 
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of their investigation as described above. The trial court admitted Officer Rose’s 

testimony about Smith’s statements to him at the scene of the Dexter Street breakin, overruling Grady’s hearsay objection. At the close of evidence, Grady moved to 

dismiss the charges and the trial court denied the motion. 

On 7 March 2019, the jury convicted Grady of felony breaking and entering, 

felony larceny, and possession of a firearm by a felon. Grady then admitted his status 

as a habitual felon and also pleaded guilty to unrelated breaking and entering and 

larceny charges. The trial court sentenced Grady as a habitual felon to 111 to 146 

months in prison plus restitution of $4,854.96 for breaking and entering, and 

concurrent sentences of 111 to 146 months for larceny and 120 to 156 months for 

possession of firearm by a felon. Grady also received a concurrent sentence of 12 to 

24 months on the charges to which he pleaded guilty. Grady appealed. 

Analysis

I. Admission of Rule 404(b) evidence of Dexter Street break-in 

Grady first argues that the trial court erred by admitting the State’s Rule 

404(b) evidence of the uncharged breaking and entering and larceny that occurred on 

Dexter Street on the same morning as the Fowler Street break-in at issue in this case.

Grady contends that the evidence was inadmissible under Rule 404(b) because it 

merely “showed a propensity for him to commit the crime” and, even if it was 

admissible under Rule 404(b), it should have been excluded under Rule 403 because 
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its probative value was outweighed by the risk of unfair prejudice. We reject this 

argument.

This Court reviews the legal conclusion that evidence is, or is not, within the 

coverage of Rule 404(b) de novo. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 

156, 159 (2012). We review the trial court’s corresponding Rule 403 determination for 

abuse of discretion. Id. “A trial court may be reversed for an abuse of discretion only 

upon a showing that its ruling was so arbitrary that it could not have been the result 

of a reasoned decision.” State v. Cagle, 346 N.C. 497, 506–07, 488 S.E.2d 535, 542 

(1997). 

Under Rule 404(b), “[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. R. Evid. 404(b). Our Supreme 

Court has made clear that Rule 404(b) is a “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. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). Thus, evidence of 

another offense “is admissible so long as it is relevant to any fact or issue other than 
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the character of the accused.” Id. at 278, 389 S.E.2d at 54 (emphasis omitted). 

Still, there are limits to the use of Rule 404(b) evidence. The “rule of inclusion 

described in Coffey is constrained by the requirements of similarity and temporal 

proximity.” State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). 

These requirements can be satisfied where a defendant’s prior wrongful acts were 

“part of the chain of events explaining the motive, preparation, planning, and 

commission of the crime.” State v. Parker, 140 N.C. App. 169, 173, 539 S.E.2d 656, 

660 (2000). “When the incidents are offered for a proper purpose, the ultimate test of 

admissibility is whether the incidents are sufficiently similar and not so remote in 

time as to be more probative than prejudicial under the balancing test” in Rule 403.

State v. Pruitt, 94 N.C. App. 261, 266, 380 S.E.2d 383, 385 (1989).

We begin by examining whether the challenged evidence was admitted solely 

to show Grady had a propensity to commit the charged offenses. It was not. The 

evidence of the Dexter Street break-in was offered for proper Rule 404(b) purposes.

Coffey, 326 N.C. at 278–79, 389 S.E.2d at 54; N.C. R. Evid. 404(b). Specifically, there 

was evidence of a break-in on Fowler Street. There also was evidence that a person 

in a red and black hoodie walked toward the Fowler Street residence around the time 

of the break-in and later walked away from it carrying a bag. But there was no direct 

evidence that this person in a red and black hoodie committed the Fowler Street 

break-in. 
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Thus, an important part of the State’s case was presenting circumstantial 

evidence that this person in the red and black hoodie committed the crime. One 

permissible way to establish this fact was through evidence that a person matching 

that same description broke into a residence just one street over that same morning 

and stole a television. 

This evidence was not used to show that the person in that red and black hoodie 

was Grady or that Grady was the type of person who breaks into people’s homes. 

Rather, it showed that the same person likely committed both crimes because there 

were two similar break-ins that took place on neighboring streets, at around the same 

time, on the same day, by someone with the same general features, dressed in the 

same clothes. This evidence was a natural account of a chain of similar break-ins that 

occurred that day and was used to establish that the person observed by witnesses 

and security cameras on Fowler Street committed the break-in. It was therefore 

admissible under Rule 404(b). Parker, 140 N.C. App. at 173–74, 539 S.E.2d at 660.

We next consider whether the trial court abused its discretion by determining 

that the probative value of this evidence was not substantially outweighed by any 

prejudicial effect under Rule 403. Pruitt, 94 N.C. App. at 266, 380 S.E.2d at 385. In 

his appellate brief, Grady argues that this evidence was “overwhelmingly prejudicial 

to his defense” without explaining why. 

To be fair, this evidence certainly was prejudicial to Grady’s defense in the 
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sense that it was quite incriminating, but all evidence “which is probative in the 

State’s case will have a prejudicial effect on the defendant.” Cagle, 346 N.C. at 506, 

488 S.E.2d at 542. Rule 403 addresses unfair prejudice. Id. We see nothing in this 

evidence that makes it so unfairly prejudicial that the trial court’s decision to admit 

it was manifestly arbitrary and lacking in reason. Id. at 506–07, 488 S.E.2d at 542.

Accordingly, the trial court did not abuse its discretion by determining that this 

evidence was admissible under Rule 403.

II. Admission of hearsay statements from the Dexter Street break-in

Grady next argues that the trial court erred by admitting hearsay testimony 

from James Smith, the resident of the Dexter Street home. We also reject this 

argument.

“When preserved by an objection, a trial court’s decision with regard to the 

admission of evidence alleged to be hearsay is reviewed de novo.” State v. Johnson, 

209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011). “Hearsay” is defined as “a 

statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted.” N.C. R. Evid. 

801(c). Under the hearsay rule, “[h]earsay is not admissible except as provided by 

statute or by these rules.” N.C. R. Evid. 802. 

Grady challenges the portion of Officer Rose’s testimony in which the officer 

described what James Smith told him when he arrived in response to Smith’s 911 
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call. In his appellate brief, Grady focuses entirely on the trial court’s failure to 

determine that Smith was unavailable and the court’s corresponding failure to 

conduct the “six-part inquiry to ascertain whether the hearsay evidence should be 

admitted” based on that unavailability.

We need not address this argument because this was not the hearsay exception 

asserted by the State or embraced by the trial court below. Instead, this case concerns 

the hearsay exception for present sense impressions in Rule 803. A “present sense 

impression” is defined as a “statement describing or explaining an event or condition 

made while the declarant was perceiving the event or condition, or immediately 

thereafter.” N.C. R. Evid. 803(1).

“The basis of the present sense impression exception is that closeness in time 

between the event and the declarant’s statement reduces the likelihood of deliberate 

or conscious misrepresentation.” State v. Blankenship, 259 N.C. App. 102, 114, 814 

S.E.2d 901, 912 (2018). “There is no rigid rule about how long is too long to be 

immediately thereafter.” Id. Importantly, our Supreme Court has held statements to 

a law enforcement officer by someone who witnessed a crime are admissible as 

present sense impressions when the lapse in time between the witness’s perception 

and their statement was solely the short amount of time it took for the witness to 

arrive in the presence of the officer. See State v. Morgan, 359 N.C. 131, 155, 604 

S.E.2d 886, 900–01 (2004) (collecting cases).
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Here, law enforcement received a call reporting a break-in on Dexter Street. 

Officer Rose arrived in response to that call at the same time that Smith, the resident 

of the home and the person who reported the break-in, also arrived. Smith was 

“agitated,” “excited,” and “angry.” He explained to Officer Rose that his home had just 

been broken into and showed the officer video footage of the break-in that was 

automatically sent to Smith’s cell phone through his home’s security system after the 

system detected motion inside the home. Smith then examined his home and 

informed Officer Rose that a television was missing. 

The time stamp on the security footage from Smith’s phone was 10:17 a.m. 

Both Officer Rose and Smith arrived at the Dexter Street home within minutes after 

Smith viewed that footage and reported the crime.

In light of these facts, the trial court properly admitted Officer Rose’s 

testimony under the present sense impression exception to the hearsay rule. Smith’s 

statements were made within minutes after he first perceived the break-in through 

the security footage and then contemporaneously as he perceived the situation at his 

home when he arrived. These statements were “describing or explaining an event or 

condition made while the declarant was perceiving the event or condition, or 

immediately thereafter” and thus properly fall within the exception for present sense 

impressions. Morgan, 359 N.C. at 154, 604 S.E.2d at 900. 

We also note that, even if the challenged testimony—Officer Rose’s testimony 
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about what Smith told him—was inadmissible hearsay, nearly all the key facts from 

that testimony also were admitted through other evidence, primarily from Officer 

Rose’s own observations of the scene when he arrived. That testimony, combined with 

Grady’s own admissions of his involvement in the Dexter Street break-in, left no 

reasonable possibility that, had this portion of Officer Rose’s testimony been excluded 

as hearsay, the jury likely would have reached a different result. State v. Ferguson, 

145 N.C. App. 302, 307, 549 S.E.2d 889, 893 (2001). Accordingly, even if we found 

error—and we do not—any error was harmless.

III. Denial of motion to dismiss the possession of firearm charge

Finally, Grady argues that the trial court erred by denying his motion to 

dismiss the possession of a firearm by a felon charge. Grady contends that “there was 

no evidence whatsoever of any firearms either on or in the vicinity of” him in any 

witness account or security footage.

“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). “Upon defendant’s 

motion for dismissal, the question for the Court is whether there is substantial 

evidence (1) of each essential element of the offense charged, or of a lesser offense 

included therein, and (2) of defendant’s being the perpetrator of such offense. If so, 

the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 

455 (2000). “Substantial evidence is such relevant evidence as a reasonable mind 
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might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78, 

265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must 

consider all evidence admitted, whether competent or incompetent, in the light most 

favorable to the State, giving the State the benefit of every reasonable inference and 

resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 

211, 223 (1994). 

“Circumstantial evidence may withstand a motion to dismiss and support a 

conviction even when the evidence does not rule out every hypothesis of innocence. If 

the evidence presented is circumstantial, the court must consider whether a 

reasonable inference of defendant’s guilt may be drawn from the circumstances.” 

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation omitted). 

“The offense of possession of a firearm by a convicted felon has two essential 

elements: (1) the defendant has been convicted of a felony, and (2) the defendant 

subsequently possessed a firearm.” State v. Floyd, 369 N.C. 329, 333, 794 S.E.2d 460, 

463 (2016). Grady challenges only the sufficiency of the evidence as to the possession

element. Possession can be shown by circumstantial evidence. State v. Marshall, 206 

N.C. App. 580, 583, 696 S.E.2d 894, 897 (2010).

Here, the State’s evidence showed that Jason Gray had three guns and Game 

Stop bags in his house prior to the break-in and that he locked his house when he left 

home that morning. While Gray was gone, his next-door neighbor heard a loud noise 
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coming from the direction of Gray’s house and then saw a man, later identified as 

Grady, walking away from Gray’s house carrying a bag. The neighbor checked her 

surveillance footage and saw Grady approach the home with nothing in his hands 

and then leave a short time later carrying a Game Stop bag. Although no witnesses 

saw what was in the Game Stop bag, Mr. Overby testified that there were “things in 

that bag . . . you could tell by looking at it” because it “stuck out on different sides or 

whatever and you could tell there was weight in the bag.” Shortly thereafter, the 

neighbors went to check on Gray’s house, found the door was kicked in, called police,

and waited outside for them to arrive. When Gray returned home after being notified 

of the break-in, he found that his three guns were missing. The neighbors did not see 

anyone else around Gray’s house that day. 

This evidence is readily sufficient to overcome a motion to dismiss. Viewed in 

the light most favorable to the State, the evidence established that there was a breakin at the Fowler Street house, that the only way the guns could have gone missing 

from the house were as a result of that break-in, and that Grady was the one who 

broke into the house. From this, the jury reasonably could infer that Grady stole the 

guns and carried them away. Rose, 339 N.C. at 192, 451 S.E.2d at 223; Fritsch, 351 

N.C. at 379, 526 S.E.2d at 455. Accordingly, the trial court did not err by denying 

Grady’s motion to dismiss.
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Conclusion

We find no error in the trial court’s judgments.

NO ERROR.

Chief Judge McGEE and Judge HAMPSON concur.