Opinion
No. COA09-1286
Filed 15 February 2011 This case not for publication
Appeal by defendant from judgments entered 27 March 2009 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 9 March 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State. Geoffrey W. Hosford for defendant-appellant.
Brunswick County Nos. 08 CRS 52176, 08 CRS 52270.
Defendant John Bortone appeals from his conviction of two counts of injury to real property. We hold that defendant failed to properly preserve for appeal his arguments regarding the admission of evidence of his felony conviction for forgery; the admission of testimony by one of the State's witnesses regarding defendant's knowledge of property lines and prior trespass on her land; and the sufficiency of the evidence. As for defendant's argument that the trial court improperly restricted his cross-examination of the alleged victim, defendant has failed to demonstrate sufficient prejudice. We, therefore, find no error.
Facts
The State's evidence tended to show the following facts. Leonard Packer owned a 60-foot access and utility easement on Webster Court in the Caralyn subdivision in Leland, North Carolina. Mr. Packer previously owned property adjacent to the easement, a portion of which he sold to Marilyn Turner and another portion of which he sold to Tracy Miller, who in turn sold that portion to defendant. According to defendant's deed, defendant had a right to use the easement for access to his property and to have public utilities placed in the easement. Otherwise, Mr. Packer testified, defendant had "absolutely no right, whatsoever, to do anything on" the easement without Mr. Packer's permission.
On 12 April 2008, a neighbor, James Jacobs, saw defendant digging a ditch through the easement and onto Ms. Turner's land; the ditch caused rainwater to flow across Mr. Packer's property and onto Ms. Turner's property. Mr. Jacobs called Mr. Packer to tell him about the ditch. Mr. Packer called Ms. Turner and met her at the property. As Mr. Packer and Ms. Turner were discussing the damage, defendant approached them and acknowledged that he had dug the ditch, but insisted that the ditch was on his property. Mr. Packer and Ms. Turner told defendant that the ditch was on their property.
Mr. Packer later called Benjamin Brown, a licensed land surveyor, to come out to the property, identify the property corners, and determine if the ditch was on Mr. Packer's property. Mr. Brown had previously prepared a map in 2006 based on his survey of the property. Mr. Brown went to the property, set up his instruments, found the corners, and determined that the corners were the same as he had previously found in 2006. Mr. Brown concluded that defendant's ditch had been dug across a 10-foot stretch of Mr. Packer's easement and onto Ms. Turner's property. Upon Mr. Packer's request, Mr. Brown wrote a letter to Mr. Packer to record the findings.
On 14 April 2008, two days after defendant dug the ditch, Mr. Packer filled in the ditch and installed witness pipes to mark the approximate property lines. After Mr. Packer repaired the property, he left. Defendant subsequently returned and, without permission, dug another ditch in Mr. Packer's easement. The ditch once again allowed water to flow onto Mr. Packer's and Ms. Turner's property.
Defendant was charged with second degree trespass and injury to real property owned by Mr. Packer on 12 April 2008, injury to real property owned by Mr. Packer on 15 April 2008, and second degree trespass and injury to real property owned by Ms. Turner on 12 April 2008. Because, however, of a defect in the warrant for the charges relating to Ms. Turner's property, the State did not bring those charges to trial.
At trial, defendant proceeded pro se and testified on his own behalf. Defendant explained that he had installed a road on his property but had problems with the road when it rained. In digging the ditch, he intended to divert the water into a swamp downhill. He felt that he had a right to maintain the easement in a passable condition and to make improvements on the easement to make it passable. He further explained:
I have the right, as a landowner with an easement, to maintain it so it's in a passable condition. And — and — and it's always been a problem finding exactly where that line is. What — what are you allowed to do to make your — or keep your — your easement passable? And what is overburdening the easement by changing it too much? I had no — that wasn't on my mind, that day. What was on my mind was we could just go right down the property line and it wouldn't effect [sic] anybody, because it's only ten feet of this property that is made for an easement and storm water is part of — of — of having a road. . . .
There was never any intent to destroy their property, to — to affect their property at all. It — it improved Ms. Turner's property by giving it a conduit to run down instead of running down the front of her property. Now, it can run down into a trench, where the water is going. I mean, I — I'm no "Mr. Nice Guy" but I thought I was helping them out a little bit as well as making a better situation for myself, too. There was — there was never any trespassing. I didn't trespass on his land, but on — by deed, I had the right to be there. And by deed, I also have the right to make the improvements necessary to keep the property usable — the easement usable.
On 27 March 2009, the court dismissed the second degree trespass charge and instructed the jury to disregard any evidence related to that charge. The trial court instructed the jury solely on the two counts of injury to Mr. Packer's real property. The jury found defendant guilty of both charges on 27 March 2009, and the trial court sentenced defendant to two consecutive terms of 120 days imprisonment. The judgments were signed 27 March 2009.
Defendant filed a written notice of appeal on 6 April 2009, mistakenly stating that he was appealing "the judgment entered on July 30, 2008 in Brunswick County Superior Court." Defendant also filed his appellate brief one day late. The State filed a motion to dismiss the appeal for lack of subject matter jurisdiction, and defendant petitioned for writ of certiorari.
I
We first address the State's motion to dismiss defendant's appeal. Rule 4(b) of the Rules of Appellate Procedure requires that a notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record." (Emphasis added.) In its motion to dismiss, the State argues that the Court should dismiss the appeal because, in his written notice of appeal, defendant erroneously wrote that he was appealing from a 30 July 2008 judgment.
Our Supreme Court has explained that failure to comply with the appellate rules regarding the filing of a notice of appeal is a "jurisdictional default" that "precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). While this Court has held that "`a mistake in designating the judgment . . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake[,]'" Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (quoting Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990)), disc. review denied and review dismissed, 360 N.C. 544, 635 S.E.2d 58, 59 (2006), we do not think that an intent to appeal the two 27 March 2009 judgments can be fairly inferred from defendant's reference to a single 30 July 2008 judgment. We nonetheless exercise our discretion pursuant to Rule 21 of the Rules of Appellate Procedure and grant defendant's petition for writ of certiorari.
From our review of the record, the only reference to 30 July 2008 is in an order signed by a district court judge consolidating charges for judgment.
The State also points to the fact that defendant filed his appellate brief one day late, arguing that this tardiness also constitutes a jurisdictional default requiring us to dismiss the appeal. The State cites no cases suggesting that the deadline for filing a brief is jurisdictional, and we know of none. As this Court has previously observed, a deadline cannot be jurisdictional when the deadline may be extended under the Rules of Appellate Procedure. See Copper v. Denlinger, 193 N.C. App. 249, 260, 667 S.E.2d 470, 479-80 (2008) (holding that plaintiffs' failure to timely file record on appeal was not jurisdictional default because Rules of Appellate Procedure allow for extensions of time in filing records on appeal), rev'd in part on other grounds and disc. review improvidently allowed in part, 363 N.C. 784, 688 S.E.2d 426 (2010).
While deadlines are deadlines, we also recognize that mistakes can be made, and defendant's counsel has admitted and explained the error. Under the circumstances, the one-day delay is not a basis for dismissing the appeal and also does not amount to a substantial violation warranting sanctions.
II
First, defendant argues that the trial court erred in prohibiting defendant from cross-examining Mr. Packer "about [defendant's] right to maintain the road or easement to which he had access." Defendant claims that his "questioning of Packer about the improvement to the road related to that April 12th date, and as such, the questions directly established [defendant's] defense to the charges." Defendant does not quote the pertinent portion of the transcript or attach it in the appendix as required by N.C.R. App. P. 28(d). The sole identification of the portion of the transcript that is the basis for this argument is a transcript reference connected to the assignment of error related to this argument.
At those transcript pages (and one prior page, included for context), the following occurs during defendant's cross-examination of Mr. Packer:
Q. You said there's a road there, now. Who put the road there?
A. Let's see. My neighbor is the one that stumped it. I have a letter from him. Tracy Miller's the one that provided all the fill and Mr. Stanley Robbins is the fellow that I hired three times, to come down and lay the road out and spread it. So, it was a combination of those three people that built the road.
Q. No input from the guy who owns Lot D [defendant] then, Huh?
A. Pardon?
Q. No input from the guy that owns Lot D?
A. Well, you continued the road. You —
At that point, the trial court intervened ex mero motu, stating, "With all due respect, it's sustained."
The trial court then excused the jurors and indicated that it would hear defendant's argument. Defendant explained that the testimony he sought to elicit from Mr. Packer was intended "to show that the construction and the maintenance of the road were done by more than just his help and they were done by me, also. Also I would like to show that this is a continual — a continuation of the maintenance and construction of the road. Now, I had permission by Mr. Packer, to construct the road and this is just a continuation of that, to maintain it in a passable condition."
The trial court then instructed defendant: "Mr. Bortone, we're talking about matters that happened on or about April 12th of 2008, as it relates to the ditch and the property in question, as to that time. Okay? So now, if it relates to that date and this offense, okay, anything that's been done subsequent to the date of this offense, I'm not interested in, sir. It's not proper for the jury's consideration."
At the point when the trial court sustained its own objection, it appears that the court was cutting off a line of questioning that was establishing that Mr. Packer built the road without seeking input from defendant — a grievance unrelated to the issues before the court. Defendant's argument does not directly relate to the questions he was asking at the time of the trial court's ruling. With respect to the trial court's actual ruling — prohibiting defendant from questioning Mr. Packer about "anything that's been done subsequent to the date of this offense" — defendant does not explain in what way that ruling, on its face, is improper or how the actual ruling precluded defendant from presenting any evidence that was part of his actual defense. See State v. Turner, 66 N.C. App. 203, 208, 311 S.E.2d 331, 335, disc. review denied, 311 N.C. 768, 321 S.E.2d 156 (1984) (holding that when defendant admitted he sold marijuana to agent and did not dispute fact that plastic bag contained marijuana, trial court did not err in prohibiting defendant from cross-examining agent on whether agent commingled evidence after sale).
The transcript shows that, following this exchange, the trial court allowed defendant to continue questioning Mr. Packer about whether Mr. Packer maintains the road, whether Mr. Packer "allow[s] anyone else to do maintenance on the road," and whether Mr. Packer "give[s] permission" to others to maintain the road. Thus, it does not appear that defendant was actually restricted from seeking the testimony he discussed in his offer of proof. Accordingly, defendant has not shown that any error occurred.
III
Defendant next contends that the trial court erred in admitting irrelevant testimony by Ms. Turner. Defendant first points to Ms. Turner's testimony that defendant offered to purchase an easement from her sometime during the year before defendant dug the ditch. After defendant cross-examined Ms. Turner about her knowledge of the property lines, the State, on redirect, asked the following:
Q. Ms. Turner, do you have any knowledge of whether or not Mr. Bortone knows where your property line is?
A. Well, he — last year, he showed up at my door with a deed, where he wanted me to give him an easement across my property, you know, for him. You know? And also, there's an electrical line, going from his property on this side, across my property, to where he's got his construction —
[DEFENDANT]: YOUR HONOR, I'VE GOT TO OBJECT TO THAT.
A. — on the other side.
[THE COURT]: OKAY. NOTED FOR THE RECORD, SIR. OVERRULED.
Generally, "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1). "`A general objection, when overruled, is ordinarily not adequate unless the evidence, considered as a whole, makes it clear that there is no purpose to be served from admitting the evidence.'" State v. Perkins, 154 N.C. App. 148, 152, 571 S.E.2d 645, 648 (2002) (quoting State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20 (1996)).
Under the recently amended Rules of Appellate Procedure, the former Rule 10(b) is now Rule 10(a). Because defendant filed his notice of appeal prior to 1 October 2009, the effective date of the amended rules, we refer to Rule 10(b).
At trial, defendant gave no basis for his objection, and the transcript does not clearly demonstrate grounds for the objection. In fact, we cannot even tell from the transcript whether defendant was belatedly objecting to the question or whether he was objecting to some portion of Ms. Turner's answer. If he was objecting to the answer, then the context suggests that it is more likely that defendant was objecting to the reference to the electrical line connecting with "his construction" than to the reference to the easement.
Because defendant failed to make clear the nature and basis for his objection, "defendant failed to properly preserve this issue for appeal." Id. Defendant has further waived his opportunity for plain error review of this issue, as he failed to assert plain error in his brief. State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094, 125 S. Ct. 2299 (2005).
Defendant also challenges the trial court's admission of Ms. Turner's testimony that defendant's children had previously cut a path on her property with chainsaws. Defendant claims that this testimony served no legitimate purpose and was only offered to show that "if he did it before, then he must have done it to another neighbor." Defendant, however, failed to make any objection to this testimony at trial and has not asserted plain error on appeal. Thus, he has waived appellate review of this issue as well. Id.
IV
Next, defendant contends that the trial court erred in permitting the State to impeach him with a conviction that was more than 10 years old in violation of Rule 609 of the Rules of Evidence. Rule 609 allows a defendant's prior convictions to be offered into evidence when the defendant takes the stand and puts his credibility in issue. State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337, 339 (1990). Rule 609(b) provides, in pertinent part, that "[e]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
Here, during cross-examination, the State asked defendant: "Do you recall pleading guilty on April 19th of 1999, to felony forgery of deeds or wills?" (Emphasis added.) Defendant confirmed that he had done so. However, the date of conviction for this offense was actually 19 October 1998. Because defendant did not object to the State's question at trial, he asserts plain error.
Defendant argues on appeal that he had no basis for an objection because the State used the wrong date. The simple answer to this argument is that defendant could have pointed out to the court that it was the wrong date or even that he did not remember the date of his conviction. Had he done so, then it would have been apparent that there was a Rule 609 issue.
As the Supreme Court has explained:
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)). "In other words, the appellate court must determine that the error in question `tilted the scales' and caused the jury to reach its verdict convicting the defendant." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (quoting State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983)).
Defendant has, however, failed to establish that any error occurred. Although defendant has shown that more than 10 years had elapsed since defendant's conviction of felony forgery of deeds or wills, the record does not indicate when defendant was released from any confinement imposed for that conviction. Under Rule 609, the 10 years begins running from "the later" of the conviction or the release from confinement imposed for that conviction. Significantly, defendant has not argued on appeal that more than 10 years had elapsed since his release.
Even if the use of defendant's conviction was error, this evidence did not make a difference in the outcome of the trial, as there was ample evidence of defendant's guilt. Defendant admitted at trial that he had dug the ditch. Mr. Jacobs saw defendant digging the ditch on 12 April 2008. Defendant admitted to Mr. Packer and Ms. Turner that he had dug the ditch on 12 April 2008. Mr. Brown, the surveyor, confirmed that defendant's ditch went several feet into Mr. Packer's property. Mr. Packer later repaired the ditch by filling it on 14 April 2008. He took photos of the area at various points and produced photos developed on 15 April 2008 that showed another ditch had been dug after the repair.
Defendant's only argument as to the prejudicial effect of the allegedly improper impeachment is that the outcome hinged on credibility and the jury's believing either him or Mr. Packer. We do not agree that, given the overwhelming evidence of guilt, the jury's decision would have hinged on defendant's credibility. See State v. Muhammad, 186 N.C. App. 355, 364, 651 S.E.2d 569, 576 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008) (holding that, even if trial court erred in admitting evidence of defendant's prior conviction that was more than 10 years old, it did not rise to level of plain error in light of other evidence of defendant's intent, limited evidence presented of conviction, and court's instruction that prior conviction evidence could be considered only for limited purpose of determining credibility). We, therefore, hold that defendant has failed to show the admission of defendant's forgery conviction amounted to plain error.
V
Finally, defendant argues that, even though he did not move to dismiss the charges against him either at the close of the State's evidence or at the close of his own evidence, the trial court erred when failing to dismiss the charges of injury to real property due to the insufficiency of the evidence. It is well established, however, that Rule 10(b)(3) of the Rules of Appellate Procedure precludes appellate review of this issue. See N.C.R. App. P. 10(b)(3) ("A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial"). See also State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (holding that to extent that N.C. Gen. Stat. § 15A-1446(d)(5), which provides that errors based upon insufficiency of evidence may be subject of appellate review even though no objection or motion was made at trial, is inconsistent with Rule 10(b)(3), § 15A-1446(d)(5) must fail).
No error.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).