An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

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 
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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 
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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. 
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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 
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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.
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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 
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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 
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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 
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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.”).
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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.
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Report per Rule 30(e).