Opinion
No. 07-534.
Filed April 15, 2008.
Buncombe County Nos. 06CRS11083, 06CRS55233.
Appeal by Defendant from judgment dated 18 January 2007 by Judge Mark E. Powell in Superior Court, Buncombe County. Heard in the Court of Appeals 26 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Kathleen Arundell Widelski for Defendant.
A jury found Christopher Chiaromonte (Defendant) guilty on 18 January 2007 of one count of second-degree trespass and one count of possession of less than one-half ounce of marijuana. The trial court consolidated the two offenses for judgment and sentenced Defendant to a term of twenty days' imprisonment. Defendant appeals.
The evidence presented at trial tended to show that in 2004, the City of Asheville began receiving increased complaints of crime, drug use, and alcohol use in Asheville city parks. Officer Steve Riddle (Officer Riddle) of the Asheville Police Department testified that Asheville police worked with the director of the Asheville Parks and Recreation Department (APRD) to remedy the situation. The two departments implemented a plan in November 2004 to ban from Asheville city parks any person who had previously been convicted of committing a crime in a city park. Once a person had been convicted of such a crime, Officer Riddle would coordinate with APRD to send the convicted person a "trespass" letter explaining that the convicted person was now banned from Asheville city parks.
Defendant was convicted on 12 August 2005 of possession of marijuana in Pritchard Park, an Asheville city park. Officer Riddle and APRD caused a trespass letter to be mailed to Defendant on 1 September 2005. Officer Riddle read the letter during his trial testimony:
Dear Mr. Chiaromonte, the purpose of this letter is to notify you that you have been suspended indefinitely from all parks and recreation facilities as a result of being convicted on August 12, 2005 for possessing marijuana on city property, utilizing in parks and recreation facility, Pritchard Park. Parks and Recreation Department is responsible for providing a safe and secure atmosphere for our participants while they are at our facilities, and therefore is working cooperatively with Asheville Police Department to reduce alcohol, the alcohol related problems in our department [sic]. It is the policy of this department to issue warrants for trespassing through the Asheville Police Department for a person who violates this suspension.
The letter was addressed to Defendant at a center for homeless individuals, which Defendant was known to frequent. Over the following months, Officer Riddle had numerous conversations with Defendant regarding Defendant's ban from Pritchard Park. Defendant repeatedly asked to be removed from the "banned list," and Officer Riddle informed Defendant that he would need to speak with APRD, because APRD made the ultimate decision on whether to ban an individual from Asheville city parks.
A few days prior to 27 April 2006, Officer Riddle observed Defendant in Pritchard Park, in violation of Defendant's ban. At that time, Officer Riddle was participating in an undercover operation and could not arrest Defendant. However, Officer Riddle later swore out a warrant against Defendant for second-degree trespass. Officer H.P. Oxner (Officer Oxner) of the Asheville Police Department testified that on 27 April 2006, he observed Defendant at a facility for homeless persons. Officer Oxner knew of the outstanding arrest warrant for Defendant. Officer Oxner took Defendant into custody and brought him to police headquarters. Officer Oxner testified that prior to taking a person into the jail, he is required to search the person for weapons, drugs, or other illegal items. Before conducting his search, Officer Oxner asked Defendant "if he had anything on him that would get him in trouble in jail." Officer Oxner admitted that he had not informed Defendant of his Miranda rights prior to asking Defendant this question. Defendant responded that he had some marijuana and produced a small amount of marijuana from one of his pockets. Defendant was issued a citation for possession of less than one-half ounce of marijuana in connection with this event.
Officer Oxner again encountered Defendant on 17 July 2006. On that day, Officer Oxner observed Defendant in Pritchard Park, in violation of Defendant's ban. Officer Oxner wrote Defendant a citation for second-degree trespass on this occasion.
Defendant was tried on 17 January 2007 for possession of less than one-half ounce of marijuana in connection with the 27 April 2006 citation, and for second-degree trespass in connection with the 17 July 2006 citation. Defendant appeared pro se at trial. Defendant admitted to the jury that he possessed marijuana and that he trespassed in Pritchard Park. However, Defendant argued to the jury that the statute under which he was charged was unjust, that his ban from city parks was unconstitutional, and that his marijuana use was a constitutionally and statutorily protected religious activity. The jury found Defendant guilty of both charges on 18 January 2007. Defendant appeals both convictions.
The present case does not concern Defendant's 27 April 2006 arrest for second-degree trespass. It is not clear from the record whether Defendant has been tried for that offense.
I.
Defendant first argues that the trial court erred by joining the marijuana charge and the trespass charge for trial. The trial transcript includes the following exchange between the trial court, the prosecuting attorney, and Defendant at the beginning of Defendant's court appearance:
PROSECUTOR: [Defendant] is charged in 06 CRS 11083 [second-degree trespass], and 06 CRS 55233 [possession of less than one-half ounce of marijuana]. These happened approximately three months apart, the same charging officer in each matter. I spoke with [Defendant] who is representing himself in these matters. And I believe he does not object to, I guess it would be the State's motion to join for the purposes of trial. I think he indicates he is going to make the same argument in each case. Do you agree that these two charges can be tried at the same time?
DEFENDANT: Yes sir.
THE COURT: Do you have any questions?
DEFENDANT: No sir, the cases are going to be basically the same argument.
Defendant notes that under N.C. Gen. Stat. § 15A-926(a) (2007), "[t]wo or more offenses may be joined . . . for trial when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." Defendant argues that the trespass and marijuana charges were not based on the same act or transaction and were therefore improperly joined under N.C.G.S. § 15A-926(a).
Assuming arguendo that joinder was inappropriate under the statute, Defendant is not entitled to relief because "a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002) (where a trial exhibit contained a statement that should have been redacted, but the defendant nonetheless requested that the exhibit be published to the jury, the Court held that the defendant invited the error and therefore waived her right to appellate review of the matter). See also N.C. Gen. Stat. § 15A-1443(c) (2007) ("A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct."). Defendant's assignment of error is overruled.
II.
Defendant next argues that the trial court erred by allowing Defendant to represent himself and proceed pro se at trial. The record reflects that attorney Suzanne A. Alford (Ms. Alford) was originally appointed to represent Defendant in these charges. However, Ms. Alford filed a motion on 15 September 2006 to withdraw from her representation for the following reasons:
1. Counsel has met with [D]efendant on three different occasions.
2. Each meeting consists of [D]efendant telling counsel about legal arguments that he wishes her to make on his behalf.
3. Counsel considered these legal arguments and after such consideration told [Defendant] that his legal arguments do not support the existing case law.
4. Defendant disagrees with counsel and insists on her making these arguments.
. . . .
6. . . . [C]ounsel has determined that the legal arguments [D]efendant is requesting counsel to make are irrelevant to his case and are not supported by existing case law.
7. Counsel sat down with [D]efendant and explained her position to him and [D]efendant insists on her making these arguments.
8. In good faith, counsel can not stand before a court and make these arguments knowing them to be in contradiction with the existing law.
Defendant later testified at trial that he was "shocked" at Ms. Alford's motion to withdraw. The trial court granted Ms. Alford's motion on 15 September 2006. On that date, Defendant executed a written waiver of counsel, through which Defendant purported to waive his right to his assigned counsel.
Defendant filed a motion to continue on 6 October 2006 in order to seek other representation. Defendant testified at trial that he was later appointed a second attorney, but that the second attorney also refused to represent Defendant "above North Carolina Constitutional Law." On 4 December 2006, Defendant executed a second waiver of counsel. That waiver included the following acknowledgment by Defendant:
The record, however, contains no documentation suggesting that Defendant was appointed a second attorney.
I freely and voluntarily declare that I have been fully informed of the charges against me, the nature of and the statutory punishment for each such charge, and the nature of the proceedings against me; that I have been advised of my right to have counsel assigned to assist me and my right to have the assistance of counsel in defending against these charges or in handling these proceedings, and that I fully understand and appreciate the consequences of my decision to waive the right to assigned counsel and the right to assistance of counsel.
Defendant also checked a box on the wavier form stating:
I freely, voluntarily and knowingly declare that . . . I waive my right to all assistance of counsel which includes my right to assigned counsel and my right to the assistance of counsel. In all respects, I desire to appear in my own behalf, which I understand I have the right to do.
The waiver also included the following certification by the trial court:
I certify that [Defendant] has been fully informed in open court of the charges against[him], the nature of and the statutory punishment for each charge, and the nature of the proceeding against [Defendant] and [his] right to have counsel assigned by the court and [his] right to have the assistance of counsel to represent [him] in this action; that [Defendant] comprehends the nature of the charges and proceedings and the range of punishments; that [he] understands and appreciates the consequences of [his] decision and that [Defendant] has voluntarily, knowingly and intelligently elected in open court to be tried in this action . . . without the assistance of counsel, which includes the right to assigned counsel and the right to assistance of counsel.
At trial, the trial court explained to Defendant that the court would be impartial and would not assist Defendant merely because Defendant was appearing pro se. Defendant proceeded to represent himself throughout the trial and presented his own defenses to the jury.
Under N.C. Gen. Stat. § 15A-1242 (2007):
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Understands and appreciates the consequences of this decision; and (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
Our Court has previously stated that "[a] written waiver of counsel is no substitute for actual compliance by the trial court with [N.C.G.S. § 15A-1242]." State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573, 575 (1986). However, we have also held that when a defendant executes a written waiver of counsel, a presumption arises that the waiver was knowing, intelligent, and voluntary, and that the waiver complied with the requirements of N.C.G.S. § 15A-1242. In State v. Warren, 82 N.C. App. 84, 345 S.E.2d 437 (1986), for example, we noted that "when there is no evidence in the record that the trial court made a thorough inquiry sufficient to comport with the dictates of [N.C.G.S. § 15A-1242], due process requirements have not been met." Id. at 87, 345 S.E.2d at 439-40. However, we also established that "[w]hen a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise." Id. at 89, 345 S.E.2d at 441.
In the present case, Defendant argues that there is evidence in the record to rebut the presumption established by his written waiver. Defendant testified at trial that he was "shocked" when his first attorney withdrew, and also testified that the trial court informed him that "no attorney will accept my defense." Defendant claims that his testimony, when considered with his motion to continue in order to find legal representation, demonstrates that Defendant wished to proceed with counsel.
We disagree with Defendant's contention that evidence in the record rebuts the presumption that his written waiver of counsel was knowing, intelligent, and voluntary. The record demonstrates that Defendant was provided with counsel, perhaps multiple times. In each instance, counsel withdrew from the representation because Defendant insisted that counsel make legally unsupportable arguments. Such withdrawal was proper under our State's rules of professional conduct. See N.C. Rules of Professional Conduct, Rule 1.2(a)(3) (2008) ("a lawyer may exercise his or her professional judgment to . . . fail to assert a . . . position of the client"); Rule 1.16(b)(8) (2008) ("a lawyer may withdraw from representing a client if . . . the client insists upon presenting a . . . defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law"); Rule 3.1 (2008) ("A lawyer shall not . . . defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."). The record demonstrates the trial court informed Defendant that no attorney would represent Defendant under Defendant's conditions. Rather than accept an appointed attorney who would pursue valid defenses, Defendant instead chose to represent himself and assert his preferred defenses because he believed his arguments had merit.
Defendant offered three main defenses at trial. The first was that his marijuana use was a religious activity protected by the United States Constitution. This argument is in direct contradiction with the United States Supreme Court's holding in Employment Division v. Smith, 494 U.S. 872, 879, 108 L. Ed. 2d 876, 886, reh'g denied, 496 U.S. 913, 110 L. Ed. 2d 285 (1990) (stating that "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)'" (quoting United States v. Lee, 455 U.S. 252, 263, 71 L. Ed. 2d 127, 136 n. 3 (1982) (Stevens, J., concurring))).
Defendant also claimed that his marijuana use was protected by the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. (1993). This argument also lacks a sound legal basis. Congress enacted RFRA specifically to overrule the Supreme Court's decision in Employment Division. See § 2000bb(a)(4), (b)(1). However, the Supreme Court invalidated the portions of RFRA on which Defendant relies in City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624 (1997) (holding that Congress exceeded its powers under section five of the Fourteenth Amendment in enacting portions of RFRA).
Finally, Defendant argued that the law proscribing marijuana possession was oppressive and unjust, and that the jury should nullify his violation of the statute. This type of affirmative argument in favor of jury nullification was clearly improper. See, e.g., State v. Lang, 46 N.C. App. 138, 148, 264 S.E.2d 821, 828, remanded on other grounds, 301 N.C. 508, 272 S.E.2d 123 (1980) (noting that "affirmative instructions on jury nullification are improper").
While Defendant may have preferred to proceed with appointed counsel, there is no evidence to suggest that his decision to waive his right to do so was involuntary, unintelligent, or unknowing. Defendant, given his desire to assert certain defenses at trial, merely made a tactical decision. We therefore hold that the trial court did not err by allowing Defendant to proceed pro se. Defendant's assignment of error is overruled.
III.
Defendant next argues that the trial court erred by allowing the admission of certain evidence at trial. On direct examination by the State, Officer Oxner testified that upon arriving at the police station with Defendant, he asked Defendant "if he had anything on him that would get him in trouble in jail." Officer Oxner then testified that Defendant produced a small amount of marijuana. Defendant objected and argued that all evidence obtained as a result of Officer Oxner's question to Defendant should be suppressed because Officer Oxner never informed Defendant of his Miranda rights prior to asking him this question. On voir dire, Officer Oxner admitted that he did not inform Defendant of Defendant's Miranda rights, but also explained his reasons for questioning Defendant:
PROSECUTOR: As part of the booking procedure, are you going to ask . . . that question, "do you have anything that can get you in trouble?"
OFFICER OXNER: I ask everybody I arrest and take to jail that question.
PROSECUTOR: Why do you ask them that question?
OFFICER OXNER: Well, again for two reasons. I don't want any weapons taken into the jail. Second, if you take drugs in there . . . you are charged with a felony. . . . So it is really kind of two fold, it helps me as many pouches and pockets as he had to search, it cuts to the chase. And it keeps him from being charge[d] with a felony for a teaspoon full of marijuana[.]
The trial court ruled that Officer Oxner's question to Defendant was merely an administrative function that did not require a prior Miranda warning. When Defendant's trial resumed, Officer Oxner testified that in response to his question to Defendant, Defendant stated that he had marijuana and handed the marijuana to Officer Oxner. The State then introduced into evidence the actual marijuana taken from Defendant.
A.
Defendant first challenges the admission of his statement to Officer Onxer that he possessed marijuana. Defendant contends that this case is directly controlled by State v. Phelps, 358 N.C. 142, 592 S.E.2d 687 (2004) (per curiam), which reversed a decision of our Court based on the reasons stated in a dissenting opinion by Judge Hunter. See State v. Phelps, 156 N.C. App. 119, 575 S.E.2d 818 (2003). In Phelps, a police officer arrested the defendant on outstanding warrants and took him to the county jail. Id. at 121, 575 S.E.2d at 820. Once at the jail, and before reading the defendant his Miranda rights, the officer told the defendant that "he needed to let me know right now before we went past the jail doors if he had any kind of illegal substances or weapons on him, that it was an automatic felony no matter what it was, so he better let me know right now." Id. The defendant admitted that he had crack cocaine in his pocket, and the officer retrieved the drugs. Id. A jury found the defendant guilty of possession of cocaine after a trial in which the State introduced the defendant's statement, over the defendant's objection. Id. at 122, 575 S.E.2d at 820-21.
On appeal to the Court of Appeals, our Court found that the officer's question to the defendant constituted custodial interrogation. Therefore, we held that the defendant should have received his Miranda warnings prior to being questioned, and that as a result, the trial court erred in admitting the defendant's statement. Id. at 123, 575 S.E.2d at 821. The facts of the present case are directly analogous to those in Phelps. Therefore, in the present case, we find that Defendant was improperly subjected to custodial interrogation before receiving his Miranda warnings, and we hold that the trial court erred by admitting Defendant's statement to Officer Oxner.
Judge Hunter concurred in this portion of the majority opinion. See id. at 127, 575 S.E.2d at 823 (Hunter, J., concurring in part and dissenting in part). Therefore, the Court of Appeals' holding on this issue was unaffected by our Supreme Court's subsequent adoption of Judge Hunter's opinion.
The State does not dispute that a Miranda violation occurred. Rather, the State argues that despite any Miranda violation, the trial court's error was not prejudicial to Defendant. Under N.C. Gen. Stat. § 15A-1443(b) (2007), "[a] violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt." The State bears the burden of demonstrating that the error was harmless beyond a reasonable doubt. See id. In Phelps, for example, Judge Hunter found that the erroneous admission of the defendant's statement "was highly inflammatory on the issue of whether [the] defendant knowingly possessed the cocaine," because the defendant's statement was the State's only evidence as to the mens rea element of the crime. Phelps, 156 N.C. App. at 127-28, 575 S.E.2d at 824 (Hunter, J., concurring in part and dissenting in part). This holding was later adopted by the Supreme Court. See Phelps, 358 N.C. at 142, 592 S.E.2d at 688. In accordance with Judge Hunter's dissent, the Supreme Court vacated the defendant's conviction, and remanded the case for a new trial. Id. See Phelps, 156 N.C. App. at 128, 575 S.E.2d at 824 (Hunter, J., concurring in part and dissenting in part).
The State argues that the present case is distinguishable from Phelps because here, unlike in Phelps, there was other overwhelming evidence that Defendant knowingly possessed marijuana. We agree. Defendant himself testified on cross-examination to the following:
PROSECUTOR: Mr. Chiaromonte[,] it is my understanding that the marijuana that was previously introduced was yours, is that correct?
DEFENDANT: Yes it is. I am not trying to get out of anything. The reason I put my motion [sic] is because I am tired of the violation of my rights. If I commit a crime, then I go to jail. But . . . all I ask is . . . for the cops to [not] commit crimes when putting me in jail.
Further, the entire basis of Defendant's defense at trial was not that he was innocent of the crimes with which he was charged, but rather that the laws criminalizing marijuana use were unjust, and that marijuana use was a constitutionally and statutorily protected religious activity. We find there is no reasonable possibility that the jury would have found reasonable doubt and would have returned a different verdict had the trial court properly excluded Defendant's statement to Officer Oxner. Therefore, the trial court did not commit prejudicial error by failing to grant Defendant's motion to suppress his statement to Officer Oxner.
B.
Defendant next challenges the admission of the marijuana he handed to Officer Oxner. Defendant argues that this evidence also should have been suppressed as a result of the Miranda violation. We again turn to Phelps for guidance. In that case, the State introduced the actual crack cocaine taken from the defendant as a result of the Miranda violation, in addition to the defendant's statement to police that he possessed the crack cocaine. Phelps, 156 N.C. App. at 122, 575 S.E.2d at 820. On appeal, our Court first noted that "`[i]f the record shows there was no actual coercion but only a violation of the Miranda warning requirement, it is not necessary to give too broad an application to the exclusionary rule.'" Id. at 124, 575 S.E.2d at 822 (quoting State v. May, 334 N.C. 609, 612, 434 S.E.2d 180, 182 (1993), cert. denied, 510 U.S. 1198, 127 L. Ed. 2d 661 (1994)). The trial court had made findings of fact on the coercion issue and had concluded that there was no evidence of coercion. Our Court found that these findings were supported by competent evidence, and therefore, "the evidence found as a result of this [ Miranda] violation was properly admitted since [the] defendant's statement was not the product of coercion." Id. at 126, 575 S.E.2d at 823.
Judge Hunter concurred in this portion of the majority opinion. See id. at 127, 575 S.E.2d at 823-24 (Hunter, J., concurring in part and dissenting in part). Therefore, the Court of Appeal's holding on this issue was unaffected by our Supreme Court's subsequent adoption of Judge Hunter's opinion.
In the current case the trial court never made a determination as to whether Defendant's statement was the product of coercion. Nonetheless, we find that even assuming arguendo that Defendant's statement was coerced and that the marijuana should have been excluded, the trial court's failure to exclude the marijuana was not prejudicial error requiring reversal. As noted above, the trial record contains other overwhelming evidence of Defendant's guilt of possession of marijuana. Therefore, the trial court did not commit prejudicial error by failing to grant Defendant's motion to suppress the marijuana recovered from Defendant by Officer Oxner.
IV.
Defendant next contends that his indefinite ban from all Asheville city parks violates both his Fourteenth Amendment due process rights as well as his First Amendment right to free assembly. Defendant made similar constitutional arguments to the jury at trial, but he never asked the trial court to rule on these issues. Defendant has therefore waived appellate review of these constitutional questions. See, e.g., State v. Carpenter, 155 N.C. App. 35, 41, 573 S.E.2d 668, 673 (2002), disc. review denied, 356 N.C. 681, 577 S.E.2d 896 (2003) (stating that "[i]t is well settled that this Court will not review constitutional questions that `[were] not raised or passed upon in the trial court'" (quoting State v. Elam, 302 N.C. 157, 160-61, 273 S.E.2d 661, 664 (1981))); N.C.R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]"). Defendant asks this Court to review his constitutional arguments pursuant to our authority under N.C.R. App. P. 2. We have considered Defendant's request and decline to review these issues pursuant to Rule 2. Defendant's assignments of error are dismissed. We note, however, that our decision does not preclude Defendant from bringing an appropriate action to challenge the constitutional validity of his ongoing banishment from Asheville city parks.
V.
Defendant next argues that the trial court erred by allowing the State to introduce, and Officer Riddle to read to the jury, the letter to Defendant from APRD that informed Defendant that he was banned from Asheville city parks. Defendant did not object to the introduction of this letter at trial, but he asks us to review this evidentiary issue for plain error. See N.C.R. App. P. 10(c)(4) ("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 or error where the judicial action questioned is specifically and distinctly contended to amount to plain error."). To establish plain error, a defendant must demonstrate "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
A person is guilty of second-degree trespass "if, without authorization, he enters or remains on the premises of another . . . [a]fter he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person[.]" N.C. Gen. Stat. § 14-159.13(a) (2007). The State introduced the letter in question to prove that Defendant had received notice of his ban from Asheville city parks.
Defendant notes that the letter appearing in the record is substantially different from the letter read to the jury by Officer Riddle. As noted above, Officer Riddle testified that the letter he read to the jury was dated 1 September 2005, and that the letter was addressed to Defendant at a facility for homeless persons located at 19 North Ann Street in Asheville. However, the letter appearing in the record is dated 29 August 2006, is addressed to "Fred Gregory Blevins" at "20 Davidson Drive" in Asheville, and explains that Fred Gregory Blevins has been banned from APRD facilities as a result of having been convicted of panhandling in Pritchard Park. Defendant argues that these discrepancies demonstrate that when reading the letter to the jury, Officer Riddle "editorialized the letter to fit the facts of the case, or some other error occurred that [cannot] be determined from the record." Defendant also argues that the letter constitutes inadmissible hearsay. Defendant further argues that because the State relied on the letter to prove the notice element of second-degree trespass, the erroneous introduction of the letter had a probable impact on the jury's determination of Defendant's guilt.
We disagree with Defendant's contentions. While the letter that appears in the record clearly differs from the letter read by Officer Riddle at trial, it is likely that inclusion of this letter in the record was simply a mistake. Further, even assuming arguendo that the letter addressed to Fred Gregory Blevins was the letter introduced at trial, and that Officer Riddle improperly editorialized when reading the letter to the jury, and that the letter was inadmissible hearsay, we find no plain error resulting from the improper admission of the letter. Both Officer Riddle and Officer Oxner testified that prior to 17 July 2006, they had spoken with Defendant numerous times regarding Defendant's ban from Pritchard Park. Further, Defendant's trial testimony included the following exchange:
PROSECUTOR: [M]y question . . . is, you understood that you were not suppose[d] to be in the park, and had received a letter to that affect [sic], is that true, yes or no?
DEFENDANT: I understand that the City of Asheville told me I could not go in the park.
PROSECUTOR: Whether you agree with it or not, that is your understanding.
DEFENDANT: Yes sir.
PROSECUTOR: And you were in the park, is that right?
DEFENDANT: Yes sir I was.
The record clearly indicates that the State offered other evidence of notice, and that Defendant himself testified that he had notice of his ban from Pritchard Park. Therefore, we cannot say that the introduction of the letter had a probable impact on the jury's determination of Defendant's guilt, or that the same was a fundamental error amounting to a miscarriage of justice. Defendant's assignment of error is overruled.
VI.
Finally, Defendant argues that the trial court erred by failing to dismiss the second-degree trespass charge due to insufficiency of the State's evidence. However, Defendant never made a motion to dismiss this charge during his trial. Defendant has therefore waived his right to 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."). Defendant asks this Court to review his insufficiency challenge pursuant to our authority under N.C.R. App. P. 2. Given that Defendant admitted at trial that he possessed marijuana and entered Pritchard Park after having been informed by the City of Asheville that he was banned from the park, we decline to review Defendant's insufficiency challenge pursuant to Rule 2.
No prejudicial error.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).