Opinion
No. COA09-953.
Filed April 6, 2010.
Cleveland County No. 06 CRS 6595, 96, 97.
Appeal by defendant from judgment entered 20 February 2009 by Judge J. Gentry Caudill in Cleveland County Superior Court. Heard in the Court of Appeals 13 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley. Parish, Cooke Condlin, by James R. Parish, for defendant-appellant.
Where the habitual felon indictment and the judgments showing three prior felony offenses presented in support of defendant's habitual felon status list the "same name" for purposes of N.C. Gen. Stat. § 14-7.4, the trial court did not err by denying defendant's motion to dismiss the habitual felon charge. The trial court did not commit plain error in its instructions to the jury when it clearly stated that in order to find defendant guilty of being a habitual felon, the jury had to find that he had been previously convicted of three felonies.
I. Factual and Procedural Background
This matter comes before this Court for a second time. The factual background is contained in State v. Parks, 193 N.C. App. 247, 666 S.E.2d 889 (2008) (unpublished) and is not repeated. This Court vacated the judgments entered by the trial court and the case was remanded to the superior court for a new trial on the issue of whether defendant had obtained habitual felon status. See id.
This case was tried before a jury on 16 February 2009. The State presented certified copies of three felony judgments previously entered against defendant. Each of the three judgments were received into evidence and published to the jury with no objection from defendant. The jury found defendant guilty of obtaining habitual felon status. The trial court determined that defendant was a prior record level IV for felony sentencing purposes. Defendant's convictions were consolidated for judgment and the trial court imposed an active prison term of 132 to 168 months. Defendant appeals.
II. Habitual Felon Status
In his first argument, defendant contends that the trial court erred by denying his motion to dismiss the charge of being an habitual felon based upon the insufficiency of the evidence. We disagree.
"Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon." N.C. Gen. Stat. § 14-7.1 (2009). In all cases where a person is charged under the provisions of this Article 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 (2009). "Thus, in order to withstand defendant's motion to dismiss the habitual felon charge, the State had to present substantial evidence that defendant had three prior felony convictions." State v. Lindsey, 118 N.C. App. 549, 552-53, 455 S.E.2d 909, 911 (1995).
Defendant argues that the State failed to present sufficient evidence that he had three prior felony convictions because there were name and age discrepancies between the habitual felon indictment in the present case and the prior judgments presented by the State in support of his habitual felon status. In State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990), this Court rejected a similar argument. In Petty, the State introduced into evidence a prior judgment of conviction in the name "Martin Petty." Id. at 469, 397 S.E.2d at 340. The habitual felon indictment in that case listed the name "Martin Bernard Petty." Id. This Court stated that "absolute identity of name is not required under this statute." Id. at 470, 397 S.E.2d at 341. This Court reasoned that absolute identity or a specific degree of identity between names could be required by the legislature as demonstrated by N.C. Gen. Stat. § 15A-924(d); however, the plain language of N.C. Gen. Stat. § 14-7.4 did not require such specificity. Id. This Court held that Martin Petty and Martin Bernard Petty were the "same name" for purposes of N.C. Gen. Stat. § 14-7.4. Id. see also State v. Hairston, 137 N.C. App. 352, 355, 528 S.E.2d 29, 31 (2000) (where the State presented two certified copies of felony convictions of "William Roosevelt Hairston, Jr.," and one certified copy of a felony conviction of "William Roosevelt Hairston," we held that "[w]hile two of these convictions had `Jr.' in the name, and the other did not, the names on these certified copies are identical to defendant in every other way and therefore satisfy the `same name' requirement of N.C. Gen. Stat. § 14-7.4." (citation omitted)); State v. Hodge, 112 N.C. App. 462, 469, 436 S.E.2d 251, 256 (1993) ("[F]or purposes of G.S. § 14-7.4 `Michael Hodge' and `William Michael Hodge' are the same name. . . .").
In Petty, the defendant also pointed to age discrepancies on two of the judgments. Petty, 100 N.C. App. at 469, 397 S.E.2d at 340. We held that "any discrepancy between the actual age of the defendant at the time of conviction and his age as reflected on the record of conviction, goes to the weight of the evidence and not its admissibility." Id. at 470, 397 S.E.2d at 341.
In the instant case, the habitual felon indictment lists defendant's name as "Robert Demetrious Parks, Jr." At trial, the State introduced certified copies of three judgments previously entered against defendant for various felony offenses as State's Exhibits 1, 2, and 3. Copies of these prior judgments were then published to the jury. State's Exhibit 1 lists the name "Demetrius Lee Parks AKA Robert Parks." The judgment indicated that the defendant was a black male and his date of birth was 25 March 1979. State's Exhibit 2 lists the name "Robert Demetrius Parks." This judgment also indicated that the defendant was a black male whose date of birth was 25 March 1979. State's Exhibit 3 lists the name "Robert D. Parks." The defendant was a black male whose date of birth was 29 March 1975.
Each of the prior felony judgments list the name Robert Demetrious Parks in some form. Based upon the rationale of Petty and its progeny, we hold that the name on the habitual felon indictment and the names listed on the prior judgments are the same for purposes of N.C. Gen. Stat. § 14-7.4. Further, we note that at trial, Sergeant Scott Champion of the Shelby Police Department testified that defendant was a black male and his date of birth was 25 March 1979. Sergeant John Hamrick, the arresting officer for the offenses listed in Exhibit 3, testified that defendant was the perpetrator of those crimes and that the date of birth on the judgment was incorrect. Therefore, the date of birth shown on Exhibit 3 is nothing more than a clerical error, and goes only to the weight of the evidence and not its admissibility.
The State presented sufficient evidence tending to show defendant had been convicted of three felony offenses under N.C. Gen. Stat. § 14-7.1. The trial court properly denied defendant's motion to dismiss the charge of habitual felon status. This argument is without merit.
III. Jury Instructions
In his second argument, defendant contends that the trial court committed plain error in its instructions to the jury by referring to different offenses in different portions of the charge. We disagree.
The plain error rule is only applied where, "after reviewing the entire record, . . . 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) (quotation omitted). "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Id. at 661, 300 S.E.2d at 378 (quotation and alteration omitted).
In the instant case, the challenged portions of the trial court's instructions to the jury are as follows:
For you to find the defendant guilty of being an habitual felon, the State must prove three things beyond a reasonable doubt.
. . . .
And third, that on December the 3rd, 1999, the defendant, in Cleveland County Superior Court, was convicted of or pled guilty to the felony of assault with a deadly weapon inflicting serious injury that was committed on January the 9th, 1999, in violation of the law of the State of North Carolina. In the trial court's mandate to the jury, it stated that if the jury found beyond a reasonable doubt that defendant had been previously convicted of three felonies, one of which being: "on December 3rd, 1999, in Cleveland County Superior Court, the defendant was convicted of or pled guilty to the felony of felonious assault with a deadly weapon — attempted assault with a deadly weapon inflicting serious injury that occurred on January the 9th of 1999, in violation of the law . . . it would be your duty to return a verdict of guilty."
Defendant argues that the trial court erred by leaving out the word "attempted" when referring to his prior conviction of attempted assault with a deadly weapon in its instruction and then "compounded the misstatement by . . . in the mandate both incorrectly and correctly instructing but not identifying the mistake or correction; thus letting the jury believe the felony of assault with a deadly weapon and attempted assault with a deadly weapon inflicting serious injury were one and the same."
Defendant's argument fails for two reasons. First, our Supreme Court has held that a lapsus linguae, i.e., a slip of the tongue, "not called to the attention of the trial court when made will not constitute prejudicial error when it is apparent from a contextual reading of the charge that the jury could not have been misled by the instruction." State v. Barker, 338 N.C. 526, 565, 451 S.E.2d 574, 597 (1994) (citation omitted). Second, defendant cannot show any prejudice resulted from the instruction. For purposes of N.C. Gen. Stat. § 14-7.1, it is immaterial whether defendant was previously convicted of attempted assault with a deadly weapon inflicting serious injury or assault with a deadly weapon inflicting serious injury as both of these offenses are felonies under our General Statutes. See N.C. Gen. Stat. § 14-32(b); N.C. Gen. Stat. § 14-2.5.
The trial court correctly instructed the jury that in order to find defendant guilty of being a habitual felon, they had to find that he had been previously convicted of three felonies. The State published three prior judgments to the jury. Exhibit 2 clearly shows that defendant had been convicted of attempted assault with a deadly weapon inflicting serious injury, a class F felony. The trial court did not commit plain error when instructing the jury regarding habitual felon status. This argument is without merit.
No error.
Judges MCGEE and BEASLEY concur.
Report per Rule 30(e).