Summary
In Aultman, the "FILM" field in the ACIS printout indicated that the District Court's judgment record was never microfilmed.
Summary of this case from State v. WaycasterOpinion
No. COA15–242.
01-05-2016
STATE of North Carolina, Plaintiff, v. Wiley Junior AULTMAN, Jr., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State. Russell J. Hollers III, for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly Grande, for the State.
Russell J. Hollers III, for Defendant–Appellant.
Opinion
Appeal by Defendant from judgment entered 10 September 2014 by Judge Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals 10 September 2015.
HUNTER, JR., ROBERT N., Judge.
Wiley Junior Aultman, Jr., (“Defendant”) appeals following a jury verdict convicting him of (1) possessing with intent to manufacture, sell or deliver cocaine, (2) manufacturing cocaine, and (3) possession of drug paraphernalia, as a habitual felon. Following the verdict, the trial court imposed a sentence of 84 to 113 months imprisonment. On appeal, Defendant argues the trial court erred in denying his motion to dismiss the habitual felon charge because the State failed to prove two of the three predicate felonies at issue. Defendant contends the State did not meet its burden in proving the two felonies because it used Automated Criminal/Infraction System (“ACIS”) computer screen printouts (“printouts”) as proof of the felonies, which falls short of the “court records” required by the Habitual Felon Act. N .C. Gen.Stat. §§ 14–7.1, 14–7.4. We hold the trial court committed no error and Defendant received a fair hearing.
In the trial transcript these documents are incorrectly referred to as “ASIS” printouts.
I. Factual and Procedural Background
On 28 January 2013, a Duplin County grand jury indicted Defendant for the following: possession with intent to manufacture, sell, and deliver cocaine; manufacturing cocaine; felony possession of cocaine; possession of marijuana up to half an ounce; possession of drug paraphernalia; and simple possession of a Schedule II controlled substance. The grand jury returned an ancillary indictment on the same day, indicting Defendant as a habitual felon.
The three prior felony convictions used to indict Defendant as a habitual felon were: (1) possession of firearm by felon in Wayne County, North Carolina, committed on 8 September 2002 and convicted on 16 July 2003; (2) possession with intent to sell and deliver cocaine in Wake County, North Carolina, committed on 27 October 1997 and convicted on 3 March 1998; and (3) possession with intent to manufacture, sell, and deliver cocaine in Wake County, North Carolina, committed on 3 May 1997 and convicted on 16 July 1997.
The case was called for trial on 8 September 2014. Defendant proceeded to a two-part jury trial, first for the drug offenses, and second for habitual felon status. At trial, the State's evidence tended to show the following.
On 13 November 2012, Sargent Frank Moss, Jr., of the Warsaw Police Department, responded to a 911 call from Lillian Carlton (“Carlton”), Defendant's girlfriend. Carlton called from Defendant's home in Warsaw, North Carolina. Sargent Moss arrived and spoke to Carlton who was “irate.” Carlton claimed Defendant tried to hit her with his truck, and sold drugs inside the house. Sargent Moss then called additional officers to provide back up.
The officers spoke to Carlton and then to Defendant, who was standing in the front yard with another woman. Defendant denied trying to strike Carlton with his truck, and explained that they were having an argument because of the other woman. The officers asked Defendant whether there were drugs in the home, and asked for consent to search. Defendant gave verbal consent and started walking with the officers towards the house. As they were walking, Defendant told the officers that he had crack cocaine in his kitchen. Defendant walked into the house with the officers and signed a consent form. The officers saw crack cocaine, marijuana, a razor blade, a small plastic baggie, spoons, and scales on the kitchen table. The officers performed a “seize and freeze,” not allowing anyone to leave the home, or touch anything inside the home, until they obtained a search warrant. A magistrate judge issued a search warrant and officers searched Defendant's home and truck. The officers' search uncovered crack cocaine, digital scales, plastic baggies, marijuana, spoons, a razor blade with white residue on it, a marijuana grinder, and a marijuana pipe.
The officers arrested Defendant and drove him to the magistrate's office in Kenansville, North Carolina. While on the way to the magistrate's office, Defendant told the officers that “he just sells enough” drugs to “get by.” That day, Defendant was charged with: possession with the intent to manufacture, sell, or deliver cocaine; manufacturing cocaine; felony possession of cocaine; possession of marijuana; possession of drug paraphernalia; and possession of a controlled substance. On 28 January 2013, Defendant was indicted for these offenses, and indicted through an ancillary indictment for committing a drug felony while attaining habitual felon status under N.C. Gen.Stat. § 14–7.1. Defendant pled not guilty and proceeded to the first phase of the jury trial for the drug offenses. The State voluntarily dismissed the charges for felony possession of cocaine and possession of a controlled substance. The jury returned a verdict acquitting Defendant of possession of marijuana, and convicted Defendant for the remaining charges.
Afterwards, the second phase of trial began, to determine Defendant's status as a habitual felon. First, the State called the chief investigating officer, Billy Draughon, to establish Defendant's full name and birthday. The officer stepped down from the witness stand and the State called its next witness, Cassandra Lanier, assistant clerk of court for the criminal division of Duplin County. Ms. Lanier described the clerk's office's record keeping process for criminal cases, and their methods for securely storing judgments, transcripts, and other papers in the office. The clerk's office keeps these papers for “[a]t least ten years” in drug cases, before microfilming the papers and eventually getting permission from the Administrative Office of the Courts (“AOC”) to destroy the case file.
The State approached Ms. Lanier to have her identify State's Exhibits 1, 2, and 3, and defense counsel objected to the admissibility of the documents. State's Exhibit 1 and 2 were ACIS printouts reflecting Defendant's prior Wake County felony convictions for possession with intent to sell and deliver cocaine on 3 March 1998, and possession with intent to manufacture, sell, and deliver cocaine on 16 July 1997. Both exhibits were certified by the Clerk of Superior Court in Wake County. State's Exhibit 3 included certified true copies of Defendant's indictment and judgment for his 16 July 2003 conviction for possession of firearm by felon in Wayne County.
Defense counsel argued State's Exhibits 1 and 2 were inadmissible for habitual felon purposes because they did not qualify as original or certified copies of “court records” under N.C. Gen.Stat. § 14–7.4. After hearing both attorneys on the objection, the court allowed the exhibits into evidence and defense counsel noted his objection for the record.
The State proceeded to examine Ms. Lanier about the exhibits, asking her about the prior felony convictions in the ACIS printouts and the certified judgment. Ms. Lanier read the printouts and said the Clerk of Superior Court in Wake County certified both printouts as “certified true cop[ies] from an original.” The Wake County Clerk certified the printouts “in the same manner” that Ms. Lanier would certify similar papers in Duplin County. As district court cases, neither Wake County file was microfilmed. Ms. Lanier explained “[the] two computer printouts would be the only records that would be left of the district court files.” Lastly, Ms. Lanier identified State's Exhibit 3, establishing Defendant's prior conviction for possession of firearm by felon. All three exhibits matched with the habitual felon indictment, listing identical information for offense date, conviction date, county, Defendant's name, and Defendant's birthday.
The State called its next witness, Amy Hedgpeth, office manager and superior court victim witness legal assistant for the Duplin County District Attorney's Office. Ms. Hedgpeth testified about a common computer system for background checks, “Division of Criminal Information” (“DCI”). DCI allows certified users to search for defendants by name, birthday, and FBI number. DCI generates a report that illustrates any time a defendant has been charged and fingerprinted for any misdemeanor or felony. Ms. Hedgpeth ran a DCI search on Defendant the morning of trial and confirmed Defendant's three prior felony convictions. Ms. Hedgpeth concluded her testimony by identifying the DCI printout, State's Exhibit 4, and the trial court admitted it into evidence over defense counsel's objection. The DCI printout listed identical information as the felonies in State's Exhibits 1, 2, and 3, including Defendant's name and birthday.
The State rested its case and defense counsel moved to dismiss the habitual felon charge because the two ACIS printouts should not have been allowed into evidence. The court denied the motion to dismiss, but redacted the DCI printout to conceal other charges that were not relevant to the three felonies at issue. Raising no other objections, Defendant did not put on evidence. The court held a charge conference and the attorneys made their closing arguments. The jury began deliberation and requested State's Exhibits 1, 2, 3, and 4. Without objection, the trial court sent the exhibits into the jury room. One hour later, the jury returned a verdict finding Defendant to be a habitual felon. The State prayed judgment and the court held the sentencing hearing.
The parties signed Defendant's prior record level worksheet, stipulating that Defendant was a prior record level III for sentencing purposes. Sentencing Defendant as a habitual felon, the court imposed a sentence in the presumptive Class D range, for 84 to 113 months imprisonment.
Defendant gave oral notice of appeal in open court and requested appointed appellate counsel. The trial court appointed the Appellate Defender as counsel.
II. Standard of Review
“ ‘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 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890 (2000). “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), cert. denied, 515 U.S. 1135 (1995) (citation omitted). On appeal, 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) (citation omitted).
III. Analysis
Defendant contends the trial court erred in denying his motion to dismiss because the State failed to prove the two prior Wake County felonies—the 16 July 1997 conviction for possession with the intent to manufacture, sell, and deliver cocaine, and the 3 March 1998 conviction for possession with intent to sell and deliver cocaine. Defendant argues the corresponding ACIS printouts were inadequate as “court records” under N.C. Gen.Stat. § 14–7.4. Since Defendant objected to the admission of the ACIS printouts at trial, and was overruled, the argument is properly preserved for our review. State v. Ross, 207 N.C.App. 379, 398, 700 S.E.2d 412, 425 (2010) (citing N.C. R.App. P. 10(b)(1)). However, we disagree with Defendant's argument.
The North Carolina General Statutes define a habitual felon as “[a]ny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court....” N.C. Gen.Stat. § 14–7.1. If a defendant has three qualifying convictions and commits a new felony under North Carolina law, a district attorney may charge the defendant as a habitual felon under separate indictment. N.C. Gen.Stat. § 14–7.3 An indictment charging a defendant as a habitual felon must set out the date the prior felony was committed, the state or sovereign the felony was committed against, the date of the guilty plea or conviction, and the court where the plea or conviction took place. Id.
Although there is a separate indictment charging a defendant as a habitual felon, being a habitual felon is not a substantive crime. See State v. Thomas, 82 N.C.App. 682, 683, 347 S.E.2d 494, 495 (1986), cert. denied, 320 N.C. 637, 360 S.E.2d 102 (1987). Rather, being a habitual felon is a status, used in connection with a separate substantive crime. See State v. Penland, 89 N.C.App. 350, 351, 365 S.E.2d 721, 722 (1988).
Section 14–7.4 of the Habitual Felon Act sets out evidentiary requirements for proving prior felonies, as follows:
In all cases where a person is charged ... with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
N.C. Gen.Stat. § 14–7.4.
Our Court has previously held that section 14–7.4 indicates “permissive, not mandatory” methods of proof, “in that it provides a prior conviction ‘may’ be proven by stipulation or a certified copy of a record.” State v. Wall, 141 N.C.App. 529, 533, 539 S.E.2d 692, 695 (2000), cert. denied, 566 S.E.2d 480 (2002) (citation omitted). While the enumerated methods under section 14–7.4 are the “most appropriate,” they do not exclude other methods of proof. Id. (citation omitted).
Since section 14–7.4 provides no statutory definition for “certified copy,” this Court is required to consider the term's ordinary meaning. State v. Gant, 153 N.C.App. 136, 143, 568 S.E .2d 909, 913 (2002) (citation omitted). “A ‘certified copy’ is ordinarily defined as ‘a copy of a document or record, signed and certified as a true copy by the officer whose custody the original is [entrusted].’ “ Id. (citing Black's Law Dictionary 228 (6th ed.1990)). Further, there is no “recognizable distinction” between true copies and certified copies. See Gant, 153 N.C.App. at 143, 568 S.E.2d at 913.
Our Court has previously reviewed the admissibility of a faxed, certified copy of a court record, for habitual felon purposes in State v. Wall. Wall, 141 N.C.App. at 531, 539 S.E.2d at 694. In Wall, the State presented a fax cover sheet, judgment and commitment, two indictments, and a plea transcript to evidence the defendant's prior felony. Id. at 531, 539 S.E.2d at 693. The trial court in Wall “carefully examined the facsimile” copy of the prior judgment and noted that “it was stamped with a seal ‘showing it [was] a true copy of the original which was signed by a clerk of Superior Court....” Id. at 533, 539 S.E.2d at 695. Based on that observation and this Court's own review of the exhibit, we held that the “faxed, certified copy ‘appear[ed] to be a reliable source of defendant's prior conviction....’ “ Id.
The record in the instant case does not fully explain the reliability of ACIS records or their maintenance. Therefore, we look to our Supreme Court's thorough explanation of ACIS in recent jurisprudence:
[ACIS] is an electronic compilation of all criminal records in North Carolina. While the North Carolina Administrative Office of the Courts (AOC) administers and maintains ACIS, the information contained in ACIS is entered on a continuing, real-time basis by the individual Clerks of Superior Court, or by an employee in that Clerk's office, from the physical records maintained by that Clerk. Any subsequent modifications to that information are under the exclusive control of the office of the Clerk that initially entered the information, so that personnel in one Clerk's office cannot change records entered into ACIS by personnel in a different Clerk's office. In other words, the information in ACIS both duplicates the physical records maintained by each Clerk and constitutes the collective compilation of all records individually entered by the one hundred Clerks of Court.
LexisNexis Risk Data Management, Inc. v. North Carolina Administrative Office of Courts, 368 N.C. 180, ––––, 775 S.E.2d 651, 652 (2015).
Apart from the Habitual Felon Act, our Court has reviewed evidence of prior felonies using screenshots of an AOC record. See State v. Best, 202 N.C.App. 753, 690 S.E.2d 58 (2010). In Best, our Court reviewed the sufficiency of such evidence to determine if the defendant's prior level record was properly calculated for felony sentencing purposes under N.C. Gen.Stat. § 15A–1340.14. At sentencing, the State presented a DCI report that did not include the defendant's prior conviction for assault by pointing a gun. Id. at 756, 690 S.E.2d at 60. The State also presented a printed email sent from the prosecutor to defendant's prior counsel, which included “a screen-shot from the Administrative Office of the Courts ... computerized criminal record system showing defendant's prior conviction....” Id. Reviewing the email and screenshot, we held the following:
[T]he printed-out email, which contains a screenshot of the AOC record of the conviction, is ‘a copy’ of a ‘record maintained electronically’ by the [AOC], which is sufficient to prove defendant's conviction under N.C. Gen.Stat. § 15A–1340.14(f)(3). In addition, the information contained in the printed-out email provides sufficient identifying information with respect to defendant to give it the indicia of reliability to prove defendant's prior convictions under N.C. Gen.Stat. § 15A–1340.14(f)(4)....
Id. at 757, 690 S.E.2d at 61.
In the instant case, the ACIS printouts were bolstered by Ms. Lanier's testimony, the DCI printout, and Ms. Hedgpeth's testimony. The name, birthday, prior felonies, offense dates, conviction dates, and counties were identical throughout the State's exhibits, the habitual felon indictment, and testimony at trial. Most importantly, the Clerk of Superior Court in Wake County certified the ACIS printouts as true copies from an original. The gravity of such certification is noteworthy in light of the Clerk's responsibility and control over the physical court records, copies, and ACIS entries. With such uncontroverted evidence in the record, we cannot hold that the trial court erred in denying Defendant's motion to dismiss.
IV. Conclusion
For the foregoing reasons we hold the trial court did not commit error.
NO ERROR.
Judges DILLON and DIETZ concur.
Report per Rule 30(e).