Opinion
No. COA12–1256.
2013-06-18
STATE of North Carolina v. Tremayne MNM CAMERON.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Marilyn G. Ozer, for defendant.
Appeal by defendant from judgment entered 15 May 2012 by Judge Shannon R. Joseph in Johnston County Superior Court. Heard in the Court of Appeals 14 March 2013. Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Marilyn G. Ozer, for defendant.
ELMORE, Judge.
Tremayne MNM Cameron (defendant) appeals his conviction of felony possession of cocaine. After review, we conclude that the defendant received a trial free from error, but we vacate defendant's sentence and remand to the trial court for resentencing in accordance with this opinion.
I. Background
On 14 May 2012, a jury trial was commenced against defendant for one count of possession with intent to sell and deliver cocaine in violation of N.C. Gen. Stat § 90–95(a) and for attaining habitual felon status. The State's evidence tended to show the following: On 6 August 2011, Detective Donna Currin (Currin), Sergeant Sam Jones, and several officers from the Smithfield Police Department executed a search warrant at defendant's residence. Defendant and his then live-in girlfriend, Teresa Sinclair (Sinclair), were present along with another individual.
Detective Currin testified to finding four rocks of crack cocaine worth approximately $80.00 and $1,234.00 in cash in Sinclair's purse. Sergeant Jones testified that defendant admitted the cocaine was his; defendant “told me that Ms. Sinclair didn't have anything to do with it, that he was selling crack cocaine to help pay for bills.” He further testified that Sinclair admitted that the $1,234.00 was hers; Sinclair's mother later presented a copy of a check she had “made to cash” and allegedly given to Sinclair.
Defendant testified at trial; he stated that the crack cocaine was not his but admitted that he “took the dope charge” for Sinclair because he “loved [her] just that much” and he knew she “had a dope charge pending.” He admitted to telling Sergeant Jones that he “paid bills with money [he made] from [selling] crack cocaine.” He then recanted, stating “[t]hat's what I said but I had a job to pay my bills with.” Additionally, defense counsel solicited testimony from defendant as to the fact that defendant pled guilty to and was convicted of felony possession of cocaine in 2010.
The jury convicted defendant of felony possession of cocaine, a lesser included offense. Defendant was separately found guilty of attaining habitual felon status and subsequently sentenced to 88 to 115 months imprisonment. Defendant brings forth numerous issues on appeal.
II. Rule 404(b)
Defendant first argues that the trial court erred in instructing the jury that they may consider the 2010 conviction for felony possession of cocaine as evidence of defendant's “knowledge” per Rule 404(b). We disagree.
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). This Court has “consistently applied an abuse of discretion standard in evaluating the admission of evidence under Rules 404(b) and 403.” State v. Beckelheimer, –––, N.C.App. ––––, ––––, 726 S.E.2d 156, 158 (2012). We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.” Id.
Under Rule 404(b), evidence of a defendant's other crimes, wrongs or acts is not admissible to show action in conformity therewith but may 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). While Rule 404(b) is a general rule of inclusion, it “is constrained by the requirements of similarity and temporal proximity.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
Here, defendant argues that his 2010 conviction for felony possession of cocaine was inadmissible per Rule 404(b) because the testimony offered at trial went only to the bare fact of his conviction—there was no additional testimony evidencing the similarities between the 2010 conviction and the charged offense. Defendant's argument is premised on State v. Wilkerson, where our Supreme Court determined that the trial court erred in admitting a witness' testimony regarding the defendant's prior convictions for substantive purposes per Rule 404(b) without offering additional evidence of the underlying facts evidencing the similarities between the prior convictions and the charged offense. State v. Wilkerson, 148 N.C.App. 310, 559 S.E.2d 5 (2002) (Wynn, J., dissenting), rev'd for reasons in dissenting opinion,356 N.C. 418, 571 S.E.2d 583 (2002).
Wilkerson addresses the State's introduction of evidence of a defendant's prior crime:
Defendant argues that the introduction of the bare fact of a defendant's prior conviction is proper only for the purpose of impeaching a testifying defendant under N.C. Gen.Stat. § 8C–1, Rule 609(a)(1999). As I agree with this contention, I would find that the trial court committed prejudicial error in permitting the State, via Newcomb's testimony, to introduce the bare fact of defendant's prior convictions, where defendant did not testify and such evidence was not being offered under Rule 609(a) for impeachment purposes.
State v. Wilkerson, 148 N.C.App. 310, 320, 559 S.E.2d 5, 11–12 (2002) (Wynn, J., dissenting), rev'd for reasons in dissenting opinion,356 N.C. 418, 571 S.E.2d 583 (2002) (emphasis added).
In the instant case, Wilkerson is inapplicable for several reasons, namely 1) because defendant testified at trial, unlike the defendant in Wilkerson, 2) defendant, not the State, first presented the evidence of the prior cocaine conviction, and 3) defendant was clearly not impeaching himself.
During defendant's direct-examination, the following colloquy occurred:
Q. And then in 2010, did you plead guilty to felony possession of cocaine?
THE STATE: Objection.
THE COURT: Overruled at this time.
A. Yes, sir.
Q. In 2006 did you plead guilty to maintaining a vehicle, a dwelling place to keep a controlled substance?
A. Yes, sir.
Q. Finally, in 2009 did you plead guilty to simple possession of a schedule four controlled substance?
A. Yes, sir.
Q. And you pled guilty to all of those charges?
A. Yes, sir.
Q. What was the plea that you entered in this case today?
A. In this case?
Q. In this case that we are on trial for here today?
A. I don't understand the question.
Q. What was your plea in this case today, the case that we are hearing today, did you plead guilty or not guilty?
A. I pled not guilty.
Q. And why did you plead not guilty?
A. Because I am in fact not guilty.
Q. Have you been a part of a trial before?
A. No, sir.
Q. So all of your convictions that we discussed they were because you pled guilty?
A. Yes, sir.
Q. When you pled guilty did you accept responsibility for those cases?
A. Fully.
Here, the challenged testimony regarding defendant's 2010 conviction was elicited by the defense counsel, not the prosecutor. Defendant asserts that he pled guilty to each of his prior crimes because he was guilty; however, as to the crime charged, he did not plead guilty as he was not guilty. Essentially, defendant contends that his denial is credible because he always pleads guilty to crimes he actually commits.
First, we note that per Rule 609, this evidence is admissible so as to allow the jury to consider the prior conviction for the limited purpose of assessing defendant's credibility. N.C. Gen.Stat. § 8C–1, Rule 609 (2012). Additionally, because defendant himself introduced the evidence of his prior conviction, we cannot conclude that the trial court erred in admitting it under Rule 404(b). Limiting the use of this evidence to show “knowledge” per Rule 404(b) was within the trial court's discretion in this instance.
Furthermore, should the trial court have erred in admitting the evidence under Rule 404(b), we hold that defendant invited said error. Defense counsel elicited the contested evidence, which might have been excluded if it had been offered by the State. See State v. Jennings, 333 N.C. 579, 604, 430 S.E.2d 188, 200 (1993) (“The law is equally clear, however, that defendant is not prejudiced ... by error resulting from his own conduct.”) Thus, we conclude that the trial court did not err. However, if there was an error, it was invited error not entitling defendant to relief on appeal.
III. Sentencing Calculation
Defendant next contends that the trial court erred in calculating his sentence. Defendant first asserts that the trial court erred by adding one point to his prior record level worksheet per N.C. Gen.Stat. § 15A–1340.14(b), which allows the assignment of an additional point “[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted.” N.C. Gen.Stat. § 15A–1340.14(b)(6) (2012). Next, defendant argues that the trial court erred by adding one point to his prior record level worksheet pursuant to N.C. Gen.Stat. § 15A–1340.14(b)(7), which permits the trial court to assign one point “[i]f the offense was committed while the offender was on supervised or unsupervised probation[.]” N.C. Gen.Stat. § 15A–1340.14(b)(7) (2012).
Although defendant failed to object at trial, he has not waived this argument on appeal as it involves a question of whether “[t]he 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)(18) (2012). Alleged statutory errors are questions of law, and as such, are reviewed de novo. State v. Mackey, 209 N.C.App. 116, 120, 708 S.E.2d 719, 721 (2011).
N.C. Gen.Stat. § 15A–1340.14 (b)(6) provides: “[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level, 1 point.” Here, because the elements of defendant's prior conviction for felony possession of cocaine and his conviction in the case sub judice are the same, the trial court did not err by adding one point to defendant's prior record level per N.C. Gen.Stat. § 15A–1340.14(b)(6).
Defendant next argues that he was improperly sentenced in the aggravated range because the State failed to provide notice of its intent to present evidence of the aggravating factor of being on probation at the time of the offense. The State contends that it complied with the statutory notice requirement because it told defendant in the Motion for Clarification of its intent to “use any and all evidence in its possession.”
N.C. Gen.Stat. § 15A–1340.16(a6) (2012) states:
The state must to provide a defendant with written notice of its intent to prove the existence of one or more aggravating factors under subsection (d) of this section or a prior record level point under G.S. 15A–1340.14(b)(7) at least 30 days before trial or the entry of a guilty or no contest plea. A defendant may waive the right to receive such notice. The notice shall list all the aggravating factors the State seeks to establish.
We find the State's argument to be unpersuasive. “The plain language of the statute requires the State to provide written notice at least 30 days prior to trial of each aggravating factor it seeks to prove.” Id. A general statement of intent to “use any and all evidence in its possession” is insufficient to satisfy N.C. Gen.Stat. § 15A–1340.16(a6). In State v. Mackey, we held that the State may easily comply with the notice requirement by using Form No. AOC–CR–614 Rev. (12/12) promulgated by the Administrative Office of the Courts. Id. at 121, 708 S.E.2d 722. Because the State had access to this form, it had the ability to comply with the notice requirement. As it failed to do so, we conclude that the trial court erred by ruling that the State provided sufficient notice of its intent to seek an aggravated range sentence for defendant. Accordingly, we vacate the sentence of the trial court and remand for a new sentencing hearing.
IV. Lesser included offense
Defendant next alleges the trial court erred in submitting to the jury the lesser included offense of felony possession of cocaine. More specifically, defendant avers the jury should have been instructed only on the offense of possession with intent to sell or deliver because he originally admitted to selling the cocaine. We disagree.
“The trial court must instruct the jury regarding a lesser included offense when the evidence would permit a jury rationally to find [the accused] guilty of the lesser offense and acquit him of the greater.” State v. Wilder, 124 N.C.App. 136, 140–41, 476 S.E.2d 394, 397 (1996) (citations and internal quotation marks omitted). “In borderline cases, prudence dictates submission of the lesser offenses.” State v. Vestal, 283 N.C. 249, 253, 195 S.E.2d 297, 299 (1973). The crime of possession of cocaine is a lesser included offense of possession with intent to sell or deliver, differing only by the single element of the intent to sell or deliver the illicit substance. See State v. Aiken, 286 N.C. 202, 206, 209 S.E.2d 763, 766 (1974).
Here, the State sought to raise an inference of defendant's intent to sell based on (1) the fact that defendant admitted to selling the cocaine, and (2) because of the substantial sum of cash found in Sinclair's purse. However, this evidence does not compel a finding of intent to sell. The police confiscated only .4 grams of cocaine worth approximately $80.00. This is a relatively small amount of cocaine, thus, an alternative conclusion of possession for personal use is plausible. Because the State failed to unequivocally prove defendant's intent to sell or deliver the cocaine, we cannot conclude that the trial court committed reversible error in instructing the jury on the lesser included offense.
V. Prosecutor's comments
Defendant argues that the trial court committed prejudicial error in allowing a portion of the prosecutor's comments during closing arguments. We disagree.
“Trial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court. Further, for an inappropriate prosecutorial comment to justify a new trial, it must be sufficiently grave that it is prejudicial error.” State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487–88 (1992) (citations and quotations omitted). “In order to reach the level of prejudicial error in this regard, it now is well established that the prosecutor's comments must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.” State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40 (1994) (quotations omitted).
We review the trial court's decision to admit the prosecutorial remarks for abuse of discretion. State v. Peterson, 361 N.C. 587, 606, 652 S.E.2d 216, 229 (2007). To do so, we employ a two part test: we determine (1) whether the remarks were improper and (2) whether “the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.” Id. at 606–607, 652 S.E.2d at 229 (citations and quotations omitted).
During the State's closing argument the following colloquy occurred:
STATE: Where is she? Where is Teresa Sinclair? She was here yesterday, why is she not here today? Because when it came down to it and push came to shove, she wasn't willing to get up here and elaborate this lie.
DEFENDANT: Objection.
THE COURT: Overruled.
STATE: She wasn't willing to do it. That's very important because if it went down the way he said, you would have heard from her.
DEFENDANT: Objection.
THE COURT: Overruled.
Defendant now contends that the prosecutor's remarks were “grossly improper” as their only purpose was to suggest that Sinclair declined to testify because she was unwilling to perpetuate defendant's lie.
Upon review, it appears that the prosecutor's remarks were offered for a proper purpose because the remarks appear to support the State's theory that defendant was in fact being truthful when he originally confessed. However, assuming arguendo that the remarks were improper, they were not sufficiently grave and of such magnitude to constitute prejudicial error.
VI. Constitutional sentencing
Defendant finally argues that his sentence violates “his constitutional protection against cruel and unusual punishment.” More specifically, he contends that a change in North Carolina's sentencing law for crimes committed on or after 1 December 2011 should apply to him even though he committed the crime on 6 August 2011, approximately four months prior to the amendment taking effect. Defendant's argument is without merit. The trial court did not err in sentencing defendant in accordance with the sentencing laws in effect at the time the crime was committed.
VII. Conclusion
After review, we conclude that the trial court did not error in instructing the jury to consider defendant's 2010 conviction for felony possession of cocaine per Rule 404(b). Additionally, the trial court did not err in instructing the jury on the lesser included offense of felony possession of cocaine, and it did not err in allowing the prosecutor's closing remarks. However, the trial court erred by ruling that the State provided sufficient notice of its intent to seek an aggravated range sentence for defendant per N.C. Gen.Stat. § 15A–1340.16(a6). As such, we vacate defendant's sentence and remand to the trial court for resentencing in accordance with this opinion.
No error; remanded for new sentencing hearing. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).