Opinion
No. 04-1629.
Filed 18 October 2005.
Richmond County No. 01 CRS 52721.
Appeal by defendant from judgment entered 8 March 2002 by Judge Michael E. Beale in Superior Court, Richmond County. Heard in the Court of Appeals 24 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State. Haral E. Carlin for defendant-appellant.
Tremayne Willie Cox (defendant) was indicted on 1 October 2001 for robbery with a dangerous weapon. Defendant was convicted of the charge and the trial court entered judgment on 8 March 2002. The trial court found that defendant had a prior record level II and sentenced defendant to a minimum term of 77 months and a maximum term of 102 months in prison. Our Court granted defendant's petition for writ of certiorari on 9 September 2003 to review the 8 March 2002 judgment.
Frederick Brock (Brock) testified at trial that he drove his friend, John Keith Bostick (Bostick), to Armstead Street in Rockingham, North Carolina, to meet some of Bostick's friends between 11:00 p.m. and 11:30 p.m. on 25 July 2001. Brock and Bostick got out of the vehicle and Bostick went into the woods for five to ten minutes. When Bostick returned, Brock was standing on the driver's side of the vehicle, near the trunk. Bostick stood near the trunk on the passenger side of the vehicle and had a conversation with Brock and a few other people. As the conversation continued, more people gathered around.
A man walked up to Brock and pulled out a pistol. The man threw his left arm across Brock's chest, laid Brock on the trunk of the vehicle and pointed the pistol at Brock's forehead. The man with the pistol told another person to empty Brock's pockets. The other person took Brock's wallet and some change out of Brock's pockets while the man with the pistol continued to hold the pistol about an inch away from Brock's forehead. After holding Brock down on the trunk for about ten minutes, the man with the pistol let Brock get up and told Brock to leave. Brock testified that he turned away from the man with the pistol and was hit "in the back of the head . . . with the butt end of the gun[.]" Brock and Bostick got into the car and drove away.
Brock testified that defendant was the person who robbed him on 25 July 2001:
Q Do you see the person in the courtroom today that was the one that held the gun to your head and told the other guy to go through your pockets and get what you had, and put his arm across you?
A Yes, sir.
Q Can you stand up, Mr. Brock, and point to who you see in the courtroom that was the person that put the gun to your head and took your money? (The witness complied with request.)
A [Defendant] (indicating).
Q Is that the gentleman in the black jacket beside Mr. Crawford?
A Yes, sir.
MR. HIPPS: I just want the record to reflect he has pointed to . . . defendant.
THE COURT: Let the record so reflect.
Brock further testified that a photograph of defendant, marked as State's Exhibit No. 1, fairly and accurately depicted the way defendant looked on the night Brock was robbed. Brock testified that for about ten minutes during the robbery, defendant's face was less than two feet from Brock's face. Brock testified that defendant hit him in the back of the head with the pistol. Brock further testified that he was "positive" that defendant was the man who robbed him on 25 July 2001. Brock also testified that he did not see defendant on the night of the robbery and that he only knew defendant through Bostick, who had pointed defendant out to Brock some time after the robbery.
Keith Ellerbe, Brock's step-father, testified about the reputation of the Armstead Street area as follows:
Q Have you. . . . Mr. Ellerbe, are you aware of any type of reputation in the area of Armstead Street?
A Certainly.
Q And what is that reputation that you know?
A Well, it's not a good reputation. . . .
Detective Keith Mabe also testified about the reputation of the Armstead Street area:
Q Detective Mabe, based on your investigation, [were] you able to determine where . . . defendant . . . lives?
A Yes, I was.
Q Tell this jury [defendant's] address — where he lives.
A He lives at 114 Church Street in Rockingham.
Q And are you aware of any type of — of Armstead Street's reputation?
A Yes, I am.
Q How do you know Armstead Street?
A It's one of our drug areas, crime areas.
Q And based on your own experiences, what, if anything, would you characterize as the reputation of Armstead Street?
A I don't understand what —
Q How would you characterize the reputation?
A It could be considered a bad area in places.
Q Now tell the jury how far away Armstead Street is from 114 Church Street, which is the address of . . . defendant.
A Roughly a tenth of a mile.
At sentencing, the trial court conducted the following colloquy:
THE COURT: Does the State have any record worksheet to submit to the Court concerning . . . defendant?
MR. HIPPS: Yes, Your Honor. I have in my hand a worksheet for prior sentencing levels. The name on the worksheet is Tremayne Willie Cox aka Snook. The file number is 01 CRS52721.
Prior convictions, Your Honor, I have a prior conviction of assault on a government official, File No. 00 CR 609. Date of conviction 3-30-2000, in Richmond County. Conviction of possession of drug paraphernalia, 00 CRS 607. Date of conviction is March 30th of 2000. Possession with intent to sell and deliver cocaine, File No. 00 CRS 606. Date of conviction, 4-27-2000, in Richmond County.
Conviction of unauthorized use of a motor vehicle in File No. 98 CR 9819. Date of conviction, 2-5-99. Prior conviction of carrying a concealed weapon in File No. 98 CR 2391. Date of conviction June 11th of 1998, in Richmond County. And a traffic offense, Your Honor, which I will not read.
Judge, for sentencing purposes, he'll have one H or I conviction, which will give him two points. Three misdemeanor convictions. Total points will be four.
I will tell the Court, to put it on the record, I have one point also — the fact that he was on probation when this was committed. He was on probation for possession with intent to sell and deliver cocaine. However, he was revoked and he actually served his time. So we're not using that as a point.
The total amount of points will be four. So for purposes of sentencing he'd be a level two.
If I may approach.
THE COURT: All right. Any dispute about the points that — I think you added wrong. Class H is two points; right?
MR. HIPPS: Yes, Your Honor.
THE COURT: And you say he's got three. You added that to four. That's five.
MR. HIPPS: May I approach, Your Honor?
I apologize.
THE COURT: Let's see.
. . . .
It's still four points.
MR. HIPPS: Four points is correct.
THE COURT: The Court finds he's got four record points.
Now you contend he was on probation?
MR. HIPPS: Judge, my contention is that I believe he had a probationary sentence for possession with intent to sell and deliver cocaine.
THE COURT: All right.
MR. HIPPS: And that at some point that probation was revoked, and he actually served his time in prison for that drug offense.
I was not able to ascertain whether or not he was in fact on probation during the commission of this offense. I just know that he had served his active time.
THE COURT: And you're not sure whether he had already been —
MR. HIPPS: Mr. Todd Scott —
THE COURT: What?
MR. HIPPS: Mr. Todd Scott represented him on that case, Your Honor. He tells me that he wasn't in fact —
MR. SCOTT: He wasn't on probation, Judge. He did his time. It was revoked, and he did the remainder of his active time.
THE COURT: Well, he couldn't have been in prison when he committed the offense.
MR. SCOTT: Right. That's been quite some time ago.
MR. HIPPS: Yeah. He had served his time.
THE COURT: He had already done his time prior to the commission of the armed robbery?
MR. SCOTT: Right.
MR. HIPPS: That's my understanding from the record.
MR. SCOTT: Yes, sir; that's correct.
THE COURT: All right. Class D, Level 2. Does the State want to be heard on sentencing? Or do you have evidence you want to offer?
MR. HIPPS: Judge, the State doesn't have any other evidence on the support of sentencing, and we'd [leave] the sentencing to Your Honor.
The trial court then asked whether defendant wanted to present any evidence or be heard on sentencing. Defense counsel stated:
If Your Honor please. [Defendant] was working with his mother at Blessed Events, a gift and novelty shop, during the time that all this took place. His mother is a pastor in Rockingham. He does have a G.E.D.
If Your Honor please. He does help with the elderly in the community on occasion. He'll go and cut their grass, and what not. Do miscellaneous chores for them free of charge.
If Your Honor please. His goal is to continue on at some point to get some sort of electrical certification, or some sort of electronics degree.
We'd ask Your Honor that upon the active sentence that he be allowed to have work release.
I.
Defendant first argues the trial court erred by denying defendant's motion to dismiss the charge of robbery with a dangerous weapon at the close of the State's evidence. Under N.C. Gen. Stat. § 14-87(a) (2003), Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
Defendant asserts there was insufficient evidence that defendant was the perpetrator of the robbery.
Defendant moved to dismiss the charge at the close of the State's evidence and again at the close of all the evidence. By introducing evidence on his own behalf, defendant waived his right to assign error to the denial of his initial motion to dismiss. "Accordingly, only the sufficiency of the evidence at the close of all of the evidence is before us here." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
On a motion to dismiss for insufficiency of the evidence, a trial court must determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). If substantial evidence exists, the motion should be denied. Id. at 584, 461 S.E.2d at 663. A trial court views the evidence in the light most favorable to the State, drawing all inferences in the State's favor. Id. "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). On appeal, our Court does not review the credibility of witnesses or the weight of the testimony. State v. Buckom, 126 N.C. App. 368, 375, 485 S.E.2d 319, 323 (1997).
Brock identified defendant at trial and repeatedly identified defendant as the person who robbed him on 25 July 2001. Brock testified that defendant hit him in the back of the head with the pistol. Brock also testified that he did not see defendant on the night of the robbery and that the only way he knew defendant was through Bostick, who had pointed defendant out to Brock some time after the robbery. Brock's identification testimony, viewed in the light most favorable to the State, is relevant evidence that a rational jury could have accepted to support the conclusion that defendant committed the robbery. The jury properly resolved any contradictions or discrepancies in the identification testimony in favor of the State. Therefore, because there was substantial evidence that defendant perpetrated the robbery, we overrule this assignment of error.
II.
Defendant next argues the trial court erred by not requiring the State to carry its burden of proof with regard to defendant's prior convictions. We agree. N.C. Gen. Stat. § 15A-1340.14(a) (2003) requires that prior convictions be proven in order to determine a felony offender's prior record level. "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f) (2003). The State may carry its burden by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
The State's introduction of a defendant's prior record level worksheet, without more, is insufficient to meet the State's burden of proof on this issue. State v. Miller, 159 N.C. App. 608, 614-15, 583 S.E.2d 620, 624 (2003), aff'd per curiam, 358 N.C. 133, 591 S.E.2d 520 (2004); State v. Goodman, 149 N.C. App. 57, 71, 560 S.E.2d 196, 205 (2002), rev'd on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003). In Miller, the State submitted the defendant's prior record level worksheet but did not introduce the criminal information printouts upon which the worksheet was allegedly based. Miller, 159 N.C. App. at 615, 583 S.E.2d at 624. Also, the defendant in Miller did not stipulate to the prior convictions listed on the worksheet. Id. In Goodman, the State submitted the defendant's prior record level worksheet without supporting documentation of the convictions. Goodman, 149 N.C. App. at 71, 560 S.E.2d at 205. The defendant in Goodman objected to the worksheet, claiming that it was incorrect. Id. The trial court sentenced the defendant based upon the unverified worksheet. Id. In both cases, our Court held that the State had failed to meet its burden of proof that the prior convictions existed and that the defendant was the same person as the offender named on the worksheet. Miller, 159 N.C. App. at 615, 583 S.E.2d at 624; Goodman, 149 N.C. App. at 71, 560 S.E.2d at 205.
In State v. Riley, 159 N.C. App. 546, 583 S.E.2d 379 (2003), the State submitted a prior record level worksheet and made unsupported statements about the defendant's prior record level based upon the worksheet. Id. at 557, 583 S.E.2d at 387. The defendant in Riley did not stipulate to the worksheet. Id. We held: "A statement by the State that an offender has seven points, and thus is a record level III, if only supported by a prior record level worksheet, is not sufficient to meet the catchall provision found in N.C.G.S. § 15A-1340.14(f)(4), even if uncontested by [the] defendant." Id.
In the present case, as in Miller, Goodman, and Riley, the State submitted a prior record level worksheet, but never introduced into evidence the trial court records or criminal information records of the alleged convictions listed on the worksheet. The State made unsupported statements about defendant's prior record level based upon the worksheet. Also, defendant did not stipulate to the convictions listed on the prior record level worksheet. See State v. Alexander, 359 N.C. 824, 830, 616 S.E.2d 914, 918 (2005) (holding that a defendant stipulated to the convictions listed on a prior record level worksheet when the defense attorney referred to the worksheet, thereby inviting the trial court to consult the worksheet). In this case, defendant remained silent during the State's presentation at sentencing. Defendant's attorney simply related some information about defendant and requested work release for defendant. Defendant never referred to the prior record level worksheet. Accordingly, the State failed to meet its burden of proof on defendant's prior convictions and we remand the matter for resentencing.
III.
Finally, defendant argues the trial court erred by allowing the State to present hearsay testimony regarding the reputation of the neighborhood where defendant lived. "The applicable general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay." State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985). The application of the rule excluding place or neighborhood reputation testimony has been largely confined to testimony concerning reputation for alcohol and drugs in prosecutions for alcohol and drug law violations. State v. Williams, 164 N.C. App. 638, 640-44, 596 S.E.2d 313, 315-17 (2004) (trial court erroneously allowed evidence that the defendant was in a neighborhood known as an "open air market for drugs" in a drug prosecution).
In the present case, the State presented testimony that the Armstead Street area did not have a good reputation and was a crime and drug area. The State also introduced evidence that Armstead Street was only one tenth of a mile from defendant's residence.
Assuming arguendo that such testimony was inadmissible hearsay, defendant must show he was prejudiced by its admission. State v. Teeter, 85 N.C. App. 624, 632, 355 S.E.2d 804, 809 (1987). A defendant is not prejudiced by trial errors which do not amount to constitutional violations unless "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2003). "Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the [S]tate's primary contentions, or where there is overwhelming evidence of [the] defendant's guilt." Weldon, 314 N.C. at 411, 333 S.E.2d at 707 (internal citations omitted).
In the case before us, there was abundant competent evidence to support the State's primary contention that defendant committed the robbery. Brock testified that defendant laid him on the trunk of the vehicle and pointed a gun at his forehead while another man emptied his pockets. Brock further testified that defendant hit him in the back of the head with defendant's pistol after defendant let him go. There is no reasonable possibility that the result of the trial would have been different had the reputation testimony not been admitted. We conclude the error was harmless and overrule this assignment of error.
Defendant does not present arguments on his remaining assignments of error and thereby abandons them pursuant to N.C.R. App. P. 28(b)(6).
No prejudicial error; remanded for resentencing.
Judges McCULLOUGH and JACKSON concur.
Report per Rule 30(e).