Opinion
No. COA09-468.
Filed January 19, 2010.
Mecklenburg County Nos. 07 CRS 211945-46; 07 CRS 211948-49.
Appeal by Defendant from judgments entered 10 October 2008 by Judge Albert Diaz in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Jacqueline M. Perez, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for Defendant-Appellant.
Jamonte Dion Baker (Defendant) was convicted of felonious breaking or entering, felonious larceny after breaking or entering, felonious conspiracy, and resisting a public officer on 10 October 2008. The evidence at trial tended to show that Calvin Montfort (Montfort) lived at 329 Peach Tree Road in Charlotte. Montfort left for work before 6:00 a.m. on 14 March 2007 and locked the door to his residence. Sheila Caldwell (Caldwell), who lived at 404 Peach Tree Road, was at her home from approximately 9:00 a.m. until 5:00 or 6:00 p.m. that day. Caldwell testified that at around noon, she observed a Honda Accord parked at the side of her house. She saw two men, one of whom was later identified as Defendant, moving items from the backseat of the vehicle into the trunk. Caldwell then observed these same men park the Honda in the driveway of a nearby house.
Caldwell watched the two men as they exited the Honda. One of the men stood by the car while Defendant walked to a mailbox near where they had parked and "waited a little bit." After another car left the driveway of a house across the street from where Defendant stood, Caldwell saw Defendant run to the front door of the house and kick it open. When Caldwell saw both men enter the house, she called the police. Caldwell testified that she had a clear line of sight to the house that was broken into. Although Caldwell did not know who owned the house, it was later determined to be Montfort's residence.
Charlotte-Mecklenburg Police Officers C. M. DiDonato and Kevin Cox responded to a call at 329 Peachtree Road at approximately 12:30 p.m. on 14 March 2007. When Officer DiDonato arrived, he observed a Honda Accord parked in the driveway with the engine running. He removed the key from the ignition and went to the back of the house. Officer DiDonato observed Defendant running from the back porch of the house. Seeing Defendant fleeing the house, Officer DiDonato yelled "Police," and ordered Defendant to stop. Defendant continued to run and Officer DiDonato chased Defendant "for about five or six houses." When Defendant stopped running, Officer DiDonato placed him in handcuffs.
Officer Cox testified to the following. He arrived at Montfort's house to assist the other officers and was present when a canine officer apprehended the other man who had entered the house. The second suspect was later identified as Anthony Roland (Roland) and had in his possession jewelry and "a pair of gold fronts, which are teeth[,] [f]ake covers for [teeth.]"
Montfort received a telephone call from the Charlotte-Mecklenburg Police Department at approximately 1:00 p.m. on 14 March 2007, informing him of the break-in. When Montfort arrived at his house, he found that the front door had been knocked in, and "[t]he whole house was trashed." Montfort reported the following items as missing: clothes, televisions, jewelry, a video game system and games, and his "gold teeth. Gold Grille . . . Pullouts." All of this property was returned to Montfort by the officers that afternoon. Montfort testified that he had locked his door when he left for work that morning and that he did not know Defendant, nor had he invited Defendant into his house.
Defendant was interviewed by Charlotte-Mecklenburg Police Detective Michael Davis on 14 March 2007. Detective Davis informed Defendant of his constitutional rights. Detective Davis also provided Defendant a written form titled "Adult Waiver of Rights," containing four paragraphs listing Defendant's Miranda rights. Defendant initialed each of these paragraphs and signed the form, indicating that Defendant waived his Miranda rights and agreed to speak with Detective Davis without an attorney present.
Detective Davis testified that, after Defendant initialed and signed the form, Defendant told him that "a good friend of his by the name of Anthony picked him up. They went to a house off of Peach Tree Road and broke into the house." Detective Davis wrote down this information on a form titled "Adult Voluntary Statement," but Defendant refused to sign the form. Defendant "just stopped talking . . . [and] said 'I am done.'"
Defendant was charged with felony possession of stolen goods, felony breaking and entering, felony larceny, felony conspiracy, and resisting a public officer. Defendant was tried on 9 and 10 October 2008. At trial, the prosecutor questioned Detective Davis about the statement Defendant made to Detective Davis. The prosecutor then asked Detective Davis, "did he tell you anything else?" Detective Davis responded, "I asked him about another incident that had occurred just earlier." Defendant objected and the trial court sustained the objection, instructing the State to "[m]ove on to something else."
Defendant requested a bench conference, the jury was excused, and Defendant moved for a mistrial. The trial court denied Defendant's motion for a mistrial but granted a motion by Defendant to strike the testimony and to provide a curative instruction to the jury not to consider the testimony.
The Defendant did not present evidence at trial. At the close of the State's evidence and at the close of all the evidence, Defendant moved to dismiss all charges, which was denied. The State later took a dismissal of the charge of felony possession of stolen goods. The jury found Defendant guilty of the remaining charges.
A sentencing hearing was conducted immediately after trial. The State first presented an unsigned sentencing worksheet. Defendant disagreed with a portion of the information in the worksheet, and the State presented a second worksheet showing, inter alia, Defendant had five Class H felony convictions and a misdemeanor conviction for breaking and entering. Defendant disagreed with one of the five prior felony convictions listed and with the misdemeanor conviction of breaking and entering. As proof of the felony conviction, the State presented a certified copy of the judgment in that case. As to the misdemeanor conviction, the State presented a certified report from the Division of Criminal Information (DCI), which detailed the conviction. The trial court reviewed the State's evidence and found Defendant had a prior record level of IV for the felony charges and a prior record level of III for the misdemeanor charge of resisting a public officer. Defendant was sentenced to two consecutive sentences of eleven to fourteen months, a consecutive sentence of eight to ten months, and a consecutive sixty-day sentence. Defendant was given credit for time spent in confinement prior to the date of the judgment. Defendant appeals.
Defendant's Motion for Mistrial
Defendant first argues that the trial court erred in denying Defendant's motion for mistrial on the grounds that the testimony of Detective Davis concerning another incident was prejudicial to Defendant. Defendant contends that Detective Davis's statement that he "asked [Defendant] about another incident that had occurred just earlier[,]" was "highly prejudicial" and "removed any reasonable doubt as to whether the officers were justified in restraining [Defendant.]" We disagree.
Our Court reviews a trial court's ruling on a motion for mistrial for an abuse of discretion. State v. Simmons, 191 N.C. App. 224, 227, 662 S.E.2d 559, 561 (2008). A trial court has abused its discretion where its ruling is "'so arbitrary that it could not have been the result of a reasoned decision.'" State v. Hagans, 177 N.C. App. 17, 23, 628 S.E.2d 776, 781 (2006) (quoting State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985)). A mistrial is warranted when "there occurs during the trial . . . conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2007).
Defendant argues that, because "the trial court did not make any inquiry to determine the effect of the Detective's comments on the jury but merely instructed them not to consider his comments[,]" the trial court abused its discretion. Defendant further argues that "it was unclear as to which comments the jury was supposed to disregard."
Defendant cites no authority to support his argument that Detective Davis's testimony warranted a mistrial. The State responds, arguing that our Supreme Court affirmed a trial court's denial of a motion for mistrial in State v. King, 343 N.C. 29, 468 S.E.2d 232 (1996), cert. granted on other grounds, 348 N.C. 507, 506 S.E.2d 252 (1998), where the defendant was tried for murder, and a witness for the State testified that the defendant told the witness that "'he had already beat[en] one murder case in New York' and that defendant had done 'a year on it.'" Id. at 44, 468 S.E.2d at 242. The defendant objected, moved to strike the testimony and requested a curative instruction. Id. The trial court sustained the objection, allowed the motion to strike the testimony and instructed the jury not to "'consider that at this time.'" Id.
The defendant moved for a mistrial and the trial court denied the motion. Id. During its jury instructions, the trial court instructed the jury that "evidence of defendant's previous criminal conduct was 'not evidence of the defendant's guilt in this case. You may not convict him on the present charge because of something he may have done in the past.'" Id. at 44-45, 468 S.E.2d at 242. Our Supreme Court ruled that the trial court properly denied the defendant's motion for a mistrial. The Court held that the trial court's instruction during the witness's testimony that the jury "won't consider that at this time[,]" was sufficient to outweigh any prejudicial effect when considered in conjunction with the later instruction to the jury not to consider "evidence of defendant's previous criminal conduct[.]" Id. at 45, 468 S.E.2d at 242. We find both the testimony and the trial court's response in King to be substantially similar to the testimony and response in the case before us.
Detective Davis testified that he had asked Defendant "about another incident that had occurred just earlier." Defendant objected and the trial court heard arguments from the State and Defendant concerning Defendant's motion for a mistrial. In a bench conference, the trial court informed Defendant "[a]fter considering your motion, your argument, and the State's argument, I am going to deny the motion for a mistrial. But I will grant a motion to strike and instruct the jury accordingly." When the jury returned to the courtroom, the trial court instructed it as follows:
I have sustained the objection to the last bit of testimony by the detective. I am also granting a motion to strike that portion of the testimony; that is, you are not to consider the detective's testimony about asking about any other incident unrelated to this case. That is not at all relevant to the issues before you.
You are not to consider that in any way. You must disregard and not consider that evidence. Can every member of the jury assure me that he can follow that instructions? [sic] If so, raise your hand.
(Unanimous indication given.)
All 14 have indicated they can follow the instruction.
The trial court thus considered arguments from both Defendant and the State, and it determined that a motion to strike the testimony should be granted and that a curative instruction was warranted. In its curative instruction, the trial court clearly referred to the "last bit of testimony by the detective" and "the detective's testimony about asking about any other incident unrelated to this case." The trial court then instructed the jury not to consider that testimony in any way and received unanimous confirmation that the jury would follow that instruction.
Considering the nature of the testimony at issue before us and the trial court's response to that testimony in light of King, we hold the trial court's instruction to the jury sufficient to cure any potential prejudicial effect. In light of these curative actions, we cannot say that the trial court's ruling on Defendant's motion for mistrial was "'so arbitrary that it could not have been the result of a reasoned decision.'" Hagans, 177 N.C. App. at 23, 628 S.E.2d at 781 (quoting Hayes, 314 N.C. at 471, 334 S.E.2d at 747). We therefore hold that the trial court did not abuse its discretion by denying Defendant's motion for mistrial.
Roland's Actions
Defendant next argues that the trial court erred by allowing testimony concerning the actions of Roland. Defendant contends that the trial court committed plain error by allowing testimony by the police and Caldwell about Roland's actions in violation of Defendant's "right to due process, right to confront witnesses against him, and [that] their admission was grossly prejudicial." We disagree.
In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4). Before we address the issue of plain error, we first determine whether there was error at all. State v. Torrain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
Defendant argues that the "[a]dmission of a statement by a perpetrator without cross-examination has consistently been held to violate a defendant's Sixth Amendment right to confrontation." Defendant fails to specifically indicate which testimony he contends violated his confrontation clause rights, but asserts that "the State was allowed to present evidence regarding the actions, statements and incriminating evidence captured by officers from . . . Roland, without risking the potential damage to the case against [Defendant] that may have occurred had the defense had the opportunity to cross-examine . . . Roland."
Defendant's argument relies on Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968) and Lilly v. Virginia, 527 U.S. 116, 144 L. Ed. 2d 117 (1999). However, Bruton dealt with a circumstance where a co-defendant's confession, which incriminated the defendant, was offered against that defendant in a joint trial. Bruton, 391 U.S. at 135-37, 20 L. Ed. 2d at 485-86. Lilly concerned a case "in which the government seeks to introduce 'a confession by an accomplice which incriminates a criminal defendant.'" Lilly, 527 U.S. at 130, 144 L. Ed. 2d at 130 (internal citation omitted). These cases are inapposite to this case because the testimony concerning Roland involved his actions and not a confession by Roland being offered against Defendant.
Defendant urges this Court to apply the same analysis to testimony concerning the actions of a "perpetrator" as well. Defendant quotes Lilly and argues that "'[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Lilly, 527 U.S. at 123-24, 144 L. Ed. 2d at 126 (quoting Maryland v. Craig, 497 U.S. 836, 845, 111 L. Ed. 2d 666, 678 (1990)). Defendant's argument fails in light of the specific forms of evidence offered at trial.
The State offered testimony from Officer Cox that Roland was apprehended by a canine officer; testimony that Roland was interviewed by detectives; and testimony that Roland was found in possession of property, including jewelry and "a pair of gold fronts, which are teeth." Officer DiDonato testified that he saw another person fleeing Montfort's house and that he was aware that the other person had been apprehended. Detective Davis testified that Defendant also made a statement "[t]hat a good friend of his by the name of Anthony picked him up. They went to a house off of Peach Tree Road and broke into the house." Each of these witnesses was cross-examined by Defendant, thereby "'subjecting [their testimony] to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Lilly, 527 U.S. at 123-24, 144 L. Ed. 2d at 126 (quoting Craig, 497 U.S. at 845, 111 L. Ed. 2d at 678).
In this case there is not a confession by either a co-defendant or an accomplice which might implicate Defendant's Sixth Amendment protections clarified under Bruton and Lilly. Therefore, we find no error, much less plain error, in the trial court's admission of the testimony concerning Roland's actions. This argument is overruled.
Motions to Dismiss
Defendant next argues that the trial court erred by denying Defendant's motions to dismiss all the charges against him. We disagree. We review a trial court's decision on a motion to dismiss de novo. In ruling on a motion to dismiss, a trial court must determine "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." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Our Supreme Court has held:
In ruling on a motion to dismiss the trial court is to consider the evidence in the light most favorable to the State. In so doing, the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal of the case — they are for the jury to resolve. The court is to consider all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-653 (1982) (internal citations omitted).
In the case before us, Defendant was convicted of felonious breaking or entering, felonious larceny after breaking or entering, felonious conspiracy and delaying or obstructing a public officer. We review each of the charges in turn.
To sustain a conviction of felony breaking or entering, the State must show that a defendant broke or entered into "any building with intent to commit any felony or larceny therein[.]"
N.C. Gen. Stat. § 14-54(a) (2007). In the case before us, the following evidence was presented by the State: (1) the testimony of Caldwell that she observed Defendant kick open the front door to Montfort's home and go inside; (2) Montfort's testimony that he had locked his door and had not given Defendant permission to enter the home; and (3) evidence of items stolen from the house which were recovered from Roland after the two were apprehended. "The jury may infer the requisite specific intent to commit larceny at the time of the breaking or entering from the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged." State v. Garcia, 174 N.C. App. 498, 503, 621 S.E.2d 292, 296 (2005) (internal citations omitted). We hold that there was sufficient evidence to support the charge of felony breaking or entering.
To sustain a conviction of larceny after breaking or entering, the State must prove that a defendant committed a larceny after breaking or entering. See N.C. Gen. Stat. 14-72(b)(2) (2007). "The essential elements of larceny are: (1) the taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property." State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002). "[U]nder the acting in concert theory, if a defendant joins another person 'in a purpose to commit a crime, each of them, if actually or constructively present, is . . . guilty as a principal if the other commits that particular crime[.]'" Garcia, 174 N.C. App. at 503, 621 S.E.2d at 296 (quoting State v. Barnes, 345 N.C. 184, 231, 481 S.E.2d 44, 70 (1997)).
In the present case, the State presented the following evidence: (1) Defendant and Roland drove to Peach Tree Road and broke into a house; (2) Defendant kicked open the front door of the house and went inside; and (3) Roland was found in possession of items taken from the house. We hold this evidence was sufficient to sustain the charge of larceny after breaking or entering.
To sustain a conviction of conspiracy to commit breaking or entering, the State must show that there was "an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means." State v. Lamb, 342 N.C. 151, 155, 463 S.E.2d 189, 191 (1995). A jury may find evidence of a conspiracy by inferences from "a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy." State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933).
In the present case, the State presented the following evidence: (1) Defendant's "good friend, . . . by the name of Anthony," picked him up and the two drove to Peach Tree Road; (2) Defendant and Roland were seen transferring items from the backseat area of their car to the trunk of the car; (3) Defendant and Roland stood outside of Montfort's home and broke into the home after a car drove away from a house across the street. We hold that this was sufficient evidence to support the charge against Defendant of conspiracy to commit breaking or entering and larceny after breaking or entering.
To sustain a conviction of resisting a public officer, the State must show:
[(1)] that the victim was a public officer;
[(2)] that the defendant knew or had reasonable grounds to believe that the victim was a public officer;
[(3)] that the victim was discharging or attempting to discharge a duty of his office;
[(4)] that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
[(5)] that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.
State v. Washington, ___ N.C. App. ___, ___, 668 S.E.2d 622, 628, (2008) (internal citations omitted); see also N.C. Gen. Stat. § 14-223 (2007). In the case before us, the State presented the following evidence: (1) Officer DiDonato, a police officer with the Charlotte-Mecklenburg Police Department, responded to a breaking or entering call; (2) he observed Defendant fleeing from the house to which he had been called; (3) Officer DiDonato identified himself as a police officer when he instructed Defendant to stop running; and (4) Defendant continued to run for "five or six houses" after being instructed by Officer DiDonato to stop. We hold there was sufficient evidence to support the charge against Defendant of resisting a public officer.
Because we find that there was substantial evidence to support each element of each of the crimes of which Defendant was convicted, we hold that the trial court did not err by denying Defendant's motions to dismiss all the charges against him.
Consecutive Sentences
Defendant next argues that the trial court committed plain error by sentencing him to consecutive sentences in violation of the Eighth Amendment's proscription against cruel and unusual punishment. Defendant asserts that "[t]ypically, [Defendant] would have been sentenced to one term of imprisonment of 11 to 14 months if found guilty," and that it was a violation of Defendant's Eighth Amendment rights for the trial court to have sentenced him otherwise. As above, we begin by determining whether there was any error at all. See Torrain, 316 N.C. at 116, 340 S.E.2d at 468.
N.C. Gen. Stat. § 15A-1354 provides in pertinent part:
When multiple sentences of imprisonment are imposed on a person at the same time or when a term of imprisonment is imposed on a person who is already subject to an undischarged term of imprisonment, including a term of imprisonment in another jurisdiction, the sentences may run either concurrently or consecutively, as determined by the court.
N.C. Gen. Stat. § 15A-1354(a) (2007). A trial court has both the authority and the discretion to impose consecutive sentences. See State v. Mead, 362 N.C. 218, 222, 657 S.E.2d 367, 370 (2008).
In this case, the trial court considered Defendant's prior record worksheets and arguments by both the State and Defendant during sentencing. As our Supreme Court has previously stated, "[o]nly 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). In the case before us, Defendant has failed to show "exceedingly unusual" circumstances or to demonstrate that the trial court abused its discretion. See State v. Arnold, 189 N.C. App. 788, 661 S.E.2d 56 (2008) (unpublished opinion). Because we find no error, much less plain error, we overrule this argument.
Determination of Prior Record Level
Defendant next assigns error to the trial court's consideration of forms of proof during sentencing which were not certified as true copies of records by the clerk of court. Though Defendant did not object during sentencing to the documents presented as proof of his prior record level, he argues that we should review this assignment of error de novo pursuant to N.C.R. App. P. 10(b)(1). N.C.R. App. P. 10(b)(1) provides in pertinent part:
Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.
N.C.R. App. P. 10(b)(1). N.C. Gen. Stat. § 15A-1446(d) provides, in pertinent part:
Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.
. . . .
(18) The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.
N.C. Gen. Stat. § 15A-1446(d) (2007).
Defendant argues that the trial court's consideration of (1) a printout from DCI without further authentication or verification and (2) a certified copy of a judgment, were in violation of the statutory procedure established for sentencing. We disagree.
N.C. Gen. Stat. § 15A-1340.21 governs determination of prior convictions for misdemeanor sentencing and provides in pertinent part:
Proof of Prior Convictions. — A prior conviction shall be proved by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction. The original or a copy of the court records or a copy of the records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts, bearing the same name as that by which the offender is charged, is prima facie evidence that the offender named is the same person as the offender before the court, and that the facts set out in the record are true. For purposes of this subsection, "copy" includes a paper writing containing a reproduction of a record maintained electronically on a computer or other data processing equipment, and a document produced by a facsimile machine.
N.C. Gen. Stat. § 15A-1340.21(c) (2007). N.C. Gen. Stat. § 15A-1340.14 governs determination of a prior record level for felony sentencing and provides substantially similar language. N.C. Gen. Stat. § 15A-1340.14(f) (2007).
In the case before us, after Defendant challenged the State's first unsigned sentencing worksheet, the State presented a new worksheet to the trial court. Defendant objected to the listing of two prior convictions on the worksheet: (1) a prior felony conviction for possession of a firearm by a felon; and (2) a prior misdemeanor conviction for breaking or entering. Defendant stipulated to the remaining convictions listed on his worksheet.
The trial court, the State, and Defendant acknowledged that, regardless of the admission of these two prior convictions, Defendant's prior record level would be a Level IV. However, the trial court allowed the State to proceed and offer evidence of the prior convictions. For the prior conviction of possession of a firearm by a felon, the State offered a certified copy of the judgment entered against Defendant. Defendant contended that this evidence was "not sufficient to carry [the State's] burden" of proof on the grounds that the certified copy of the judgment did not bear Defendant's signature. As proof of Defendant's prior conviction for misdemeanor breaking or entering, the State offered a computerized printout from DCI, listing Defendant's conviction. Defendant made no comment as to this form of proof. The trial court then found that the State had met its burden of proof as to each of these convictions, and it considered each conviction in determining Defendant's prior record level.
Though Defendant contends the forms of proof offered at the sentencing hearing were insufficient, we find that both of the documents presented by the State were specifically provided for by statute as forms of evidence which may be used to prove prior convictions for sentencing purposes. See N.C.G.S. § 15A-1340.21(c)(2)-(3); N.C.G.S. § 15A-1340.14(f)(2)-(3). Because the trial court determined that the State met its burden of proof as to Defendant's prior convictions using evidence which is specifically authorized by statute, Defendant's argument is without merit.
Testimony of Detective Davis
Defendant argues that the trial court committed plain error by admitting the testimony of Detective Davis as to the contents of Defendant's unsigned statement. Defendant did not move to suppress the contents of this statement, nor did he object at trial to Detective Davis's testimony. As stated above, before we determine whether a trial court committed plain error, we must first determine whether the trial court committed error at all. Torrain, 316 N.C. at 116, 340 S.E.2d at 468.
Defendant quotes State v. Walker, and argues that our Supreme Court held that "a statement that is purported to be a confession by a defendant that is reduced to writing by another person is admissible only if the defendant had in some way 'indicated his acquiescence in the correctness' of the writing." 269 N.C. 135, 139, 152 S.E.2d 133, 137 (1967).
However, during Detective Davis's direct examination, the State made no reference to Defendant's written statement taken by Detective Davis. Rather, Detective Davis testified only as to the oral statements provided by Defendant. On Defendant's cross-examination of Detective Davis, Defendant questioned Detective Davis about the writing, focusing on the fact that Defendant did not sign the statement.
Walker involved the State's attempt to introduce into evidence the challenged statement itself, by way of a verbatim reading of the statement. Walker, 269 N.C. at 139, 152 S.E.2d at 137. In the case before us, the transcript reveals the following direct examination by the State of Detective Davis:
Q After the defendant — after you went over his rights with him and he signed and waived his rights, what did he tell you on that day?
A That a good friend of his by the name of Anthony picked him up. They went to a house off of Peach Tree Road and broke into the house.
This testimony was not a verbatim reading of a written statement which purported to be a confession by Defendant, nor did the State seek to introduce the written statement as evidence. We therefore find that Walker is inapposite. We can find no error in the trial court's actions in admitting Detective Davis's testimony; therefore, plain error review is inappropriate. We overrule this assignment of error.
Testimony "Outside The Charging Indictment"
Defendant next argues that the trial court committed plain error by allowing testimony of the complaining witness, Montfort, regarding items not included in the charging indictment. Defendant contends that it was error to allow Montfort to testify that a number of items were stolen from his home, when only one of those items was listed in the indictment. As above, we begin by determining whether there was any error at all. See Torrain, 316 N.C. at 116, 340 S.E.2d at 468.
"'[A] defendant must be convicted, if at all, of the particular offense alleged in the bill of indictment.'" State v. Walston, 140 N.C. App. 327, 334, 536 S.E.2d 630, 635, (2000) (citation omitted). The United States Supreme Court has held that:
The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.
Berger v. United States, 295 U.S. 78, 82, 79 L. Ed. 1314, 1318 (1935).
Defendant relies on State v. Simmons, 57 N.C. App. 548, 291 S.E.2d 815 (1982), where the defendant "was charged with . . . the felonious larceny of 'eight (8) Imperial, heavy duty freezers, Serial Numbers: 02105, 02119, 01075, 01951, 02024, 02113, 02138, 02079[.]'" Id. at 549, 291 S.E.2d at 816. At trial, there was no evidence introduced that the defendant had taken any of the freezers identified by the serial numbers listed in the indictment.
Id. at 552, 291 S.E.2d at 818. Our Court held that there was "a fatal variance in the indictment and proof at trial on the larceny count," and that the motion to dismiss the charge should have been granted. Id.
In the case before us, the indictment alleged that Defendant "did steal, take and carry away three (3) pairs of sunglasses and gold teeth[.]" At trial, Montfort testified that the items taken from his home included televisions, video game systems, clothes, gold teeth, and jewelry. In the present case, we find Simmons
distinguishable in that there is overlap between the indictment and the evidence at trial when the gold teeth were included in both. Unlike in Simmons, we can find no "fatal variance in the indictment and proof at trial[.]" Id.
Trial Court's Comment During Jury Instructions
Defendant further argues that the trial court committed plain error by stating during the jury instructions that the State had taken a dismissal on one count against Defendant. Again, we begin by determining whether there was error at all. Torrain, 316 N.C. at 116, 340 S.E.2d at 468.
In the case before us, the trial court made the following statement to the jury during the jury instructions: "By the way, I didn't mention this, but the State has dismissed the one additional charge pending, felony possession of stolen goods. You won't need to consider that charge. This is the final offense you need to consider, felonious conspiracy." Defendant argues that this statement prejudiced the jury against him.
N.C. Gen. Stat. § 15A-1232 states: "In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence." N.C. Gen. Stat. § 15A-1232 (2007).
As we have stated: "'The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury.'"
State v. Allen, 353 N.C. 504, 510, 546 S.E.2d 372, 375 (2001) (quoting State v. Belk, 268 N.C. 320, 324, 150 S.E.2d 481, 484 (1966)). However, our Court has noted that "not every improper remark by a trial judge requires a new trial." State v. Guffey, 39 N.C. App. 359, 361, 250 S.E.2d 96, 97 (1979).
Defendant asserts that the trial court's comment "had the prejudicial effect of implying to the jury that [Defendant] had gotten away with a crime." However, careful review of the record reveals that the trial court's comment was made as a point of clarification. We can find no interpretation of this comment that renders it "an opinion as to whether or not a fact has been proved[,]" in violation of N.C.G.S. § 15A-1232. The trial court's comment cannot reasonably be seen as an opinion at all, but was merely a recitation of facts. We therefore do not find the trial court's comment to have been prejudicial to Defendant. This
argument is overruled.
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).