State v. Smith

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1036
NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Columbus County
No. 11 CRS 50365-366,
11 CRS 50392, 11 CRS 50425
LAWRENCE E. SMITH

Appeal by defendant from judgments entered 22 February 2013

by Judge D. Jack Hooks, Jr. in Columbus County Superior Court.

Heard in the Court of Appeals 18 February 2014.

Roy Cooper, Attorney General, by Creecy Johnson, Special
Deputy Attorney General, for the State.

Jennifer Harjo, Public Defender, New Hanover County, by
Brendan O’Donnell, Assistant Public Defender, for
defendant-appellant.

STEELMAN, Judge.

The trial court did not commit plain error in admitting the

recording of defendant’s unredacted statement to law enforcement

officers into evidence. Where the State presented substantial

evidence that defendant was the perpetrator of the Sam’s Pit

Stop robbery, the trial court did not err in denying defendant’s
 -2-
motion to dismiss. Where the State presented admissible

evidence of defendant’s prior felony status, the trial court did

not err in denying defendant’s motion to dismiss the first

charge of possession of a firearm by a felon. Where the second

charge of possession of a firearm by a felon was not listed in a

separate indictment, the indictment was fatally defective, so

the trial court lacked jurisdiction to enter judgment based on

that charge.

I. Factual and Procedural Background

In January of 2011, the Sam’s Pit Stop store, located in

Hallsboro, was robbed. Employee Alisa Mitchell (Mitchell)

testified that, at roughly 10:00 p.m., a black man,

approximately 5’3” or 5’4”, wearing dark clothes and a bandana

covering his face, robbed the store with a revolver. The man

also demanded a pack of Newport cigarettes. There was a

surveillance video of this robbery, which was shown to the jury

at trial.

On 6 January 2011, the Time Saver 4 store was robbed.

Employees Elijah Kemp (Kemp) and Gloranda Stephens (Stephens)

testified that three people entered the store, one of whom was a

black man with a gun. Holding the employees at gunpoint, the

robbers took money and cigarettes. Some of the money stolen
 -3-
consisted of coins wrapped into rolls. Stephens described the

gun as having a “little brown handle.” There was a surveillance

video of this robbery, which was shown to the jury at trial.

On 26 January 2011, the L&D Quick Mart near Whiteville was

robbed. Tonia Irwin (Irwin), an employee, testified that a

black man with a bandana covering his face, armed with a black

gun, entered the store and demanded the store’s money bag.

Irwin testified that the money bag usually contained wrapped

coins.

On 28 January 2011, Lieutenant Blake Potter (Potter) of the

Columbus County Sheriff’s Department was notified to be on the

lookout for a dark-colored Chevy Impala “in reference to a local

string of armed robberies.” Potter spotted a car matching that

description, followed it, and when it turned into a driveway,

Potter initiated a traffic stop. When the driver emerged from

the vehicle, Potter ordered him back into the vehicle, but he

fled. While the driver was not apprehended that day, Potter

identified him in court as Lawrence Edward Smith (defendant).

A passenger in defendant’s vehicle, Victoria Baxley

(Baxley) spoke with Columbus County Sheriff’s Detective Rene

Trevino (Trevino), and consented to a search of the car. During

the search, police found a black .357 revolver with a brown
 -4-
handle, and an identification card for Lawrence Smith, as well

as a brown jacket and a bandana. A search of the vehicle after

it was impounded also revealed the presence of coin wrappers.

With Baxley’s consent, Trevino searched a hotel room in Loris,

South Carolina, and found a coin wrapper and a black bandana.

Defendant was arrested in Boardman, and was questioned by

law enforcement officers. A portion of this interview was

recorded. In the recorded portion, defendant discussed a

robbery at an unspecified location, followed by one in New Hope,

one in Hallsboro, and one at the L&D Quick Mart; defendant also

made statements suggesting that he participated in the L&D and

Time Saver 4 robberies, and that he participated in the robbery

in Hallsboro. Defendant made no statements referring to Sam’s

Pit Stop by name. Defendant also admitted to a robbery in South

Carolina in 2005, to which he had pled guilty, and to an

unspecified criminal charge pending in Robeson County. At

trial, the recording of defendant’s interview was played for the

jury.

On 7 April 2011, defendant was indicted for two counts of

possession of a firearm by a felon, and three counts of robbery

with a dangerous weapon relating to the L&D Quick Stop, the
 -5-
Sam’s Pit Stop, and the Time Saver 4 robberies.1 The jury found

defendant guilty of all charges. On 22 February 2013, the trial

court entered judgment, imposing three consecutive active terms

of imprisonment of 80-105 months.

Defendant appeals.

II. Defendant’s Statement to Police

In his first argument, defendant contends that the trial

court committed plain error in admitting defendant’s unredacted

statement to law enforcement into evidence, or alternatively

that counsel’s failure to object to this evidence constituted

ineffective assistance of counsel. We disagree.

A. Standard of Review

“In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,

361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555

U.S. 835, 172 L. Ed. 2d 58 (2008).

1
Defendant was also charged with second-degree kidnapping. The
trial court dismissed this charge at the close of the State’s
evidence.
 -6-
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

It is well established that ineffective
assistance of counsel claims “brought on
direct review will be decided on the merits
when the cold record reveals that no further
investigation is required, i.e., claims that
may be developed and argued without such
ancillary procedures as the appointment of
investigators or an evidentiary hearing.”
Thus, when this Court reviews ineffective
assistance of counsel claims on direct
appeal and determines that they have been
brought prematurely, we dismiss those claims
without prejudice, allowing defendant to
bring them pursuant to a subsequent motion
for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881

(2004) (citations omitted) (quoting State v. Fair, 354 N.C. 131,
 -7-
166, 557 S.E.2d 500, 524 (2001)), cert. denied, 546 U.S. 830,

163 L. Ed. 2d 80 (2005).

B. Analysis

Prior to trial, defendant did not make a motion to suppress

his statement to law enforcement officers. At trial, defendant

made no objection to the admission of his statement or any part

thereof. On appeal, we review the admission of this evidence

only for plain error.

Defendant contends that the unredacted statement referred

to crimes “stemming back to [defendant’s] youth[;]” the

statement mentions that “[defendant] was robbing when [he] was

younger,” that defendant committed a robbery in South Carolina

in 2005 to which he pled guilty (although the charge was

ultimately dismissed), and that defendant had a charge pending

against him in Robeson County. Defendant contends that the

evidence of this other criminal conduct was irrelevant and

inadmissible. The entirety of defendant’s recorded interview,

including these references, was admitted into evidence and

played before the jury.
 -8-
Defendant contends that “the jury was overwhelmed with

evidence of the defendant’s prior crimes and wrongs, his gang

participation, and hearsay statements that he was guilty of the

charged crimes.” By contrast, defendant contends that the

State’s evidence in this case was not very strong.

In the course of this interview, defendant made specific

reference to the robberies for which he was being tried, and

acknowledged his participation in them. Lieutenant Potter was

able to identify defendant as the man who fled from him. Based

upon this and other evidence, a jury could reasonably have found

defendant guilty of the crimes charged, even in the absence of

his statements concerning other crimes contained in defendant’s

statement.

On appeal, in order to demonstrate plain error, defendant

must show that absent the trial court’s alleged error, the jury

would probably have reached another verdict. We hold that

defendant has not met this burden, and that the trial court did

not commit plain error in admitting the recorded statement into

evidence.

In the alternative, defendant contends that trial counsel’s

failure to object to the admission of the recorded interview

constituted ineffective assistance of counsel. We hold,
 -9-
however, that such a claim is premature, and dismiss this

portion of defendant’s appeal without prejudice to defendant’s

right to file a motion for appropriate relief in the trial

court.

This argument is without merit.

III. Identity of Robber at Sam’s Pit Stop

In his second argument, defendant contends that the trial

court erred in denying his motion to dismiss the charge of

robbery with a dangerous weapon at Sam’s Pit Stop, arguing that

the State failed to present sufficient evidence that defendant

committed this crime. We disagree.

A. Standard of Review

“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).

“‘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
 -10-
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

B. Analysis

Defendant contends that no evidence was presented to the

jury to suggest that Sam’s Pit Stop was located in Hallsboro,

and that his admission in his statement, that he was involved in

a robbery in Hallsboro, was insufficient to connect him with the

Sam’s Pit Stop robbery.

Defendant notes that Mitchell, the only eyewitness to the

Sam’s Pit Stop robbery, did not identify defendant as the

perpetrator. Nor did Mitchell identify the revolver found in

defendant’s car as the one used in the robbery. Nor was

evidence presented that the items found in the car or hotel room

were taken from Sam’s Pit Stop. Defendant further contends that

the Time Saver and L&D robberies were not sufficiently similar

to tie defendant to the Sam’s Pit Stop robbery.

We acknowledge that the evidence in the record concerning

the Sam’s Pit Stop robbery was circumstantial. However, our

Supreme Court has held that:

Circumstantial evidence may withstand a
motion to dismiss and support a conviction
even when the evidence does not rule out
every hypothesis of innocence. If the
evidence presented is circumstantial, the
court must consider whether a reasonable
 -11-
inference of defendant’s guilt may be drawn
from the circumstances. Once the court
decides that a reasonable inference of
defendant’s guilt may be drawn from the
circumstances, then it is for the jury to
decide whether the facts, taken singly or in
combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and

quotation marks omitted). In the instant case, the State

presented evidence of the surveillance videos from the robberies

at Sam’s Pit Stop and the Time Saver 4, allowing the jury to see

the robbers. In both videos, the jury saw a black man in a

black hooded sweater, of average height, with his face covered,

in one instance by the hood and in the other by a hood and a

bandana. The video of the Sam’s Pit Stop robbery was not

clearly admitted for solely illustrative purposes. State v.

Kuplen, 316 N.C. 387, 417, 343 S.E.2d 793, 810 (1986) (stating

that “[f]or the trial court to give a proper instruction

limiting the State’s exhibits to illustrative use would have

required that the defendant specifically identify those exhibits

which he contended were subject only to illustrative use” and

“[h]e did not do so”). After the robbery, the clerk reported

what had happened, and could be heard on the video stating that

Sam’s Pit Stop was located in Hallsboro. The State also
 -12-
presented evidence of the revolver, defendant’s bandana and

clothing, and the coin wrappers found in the car and hotel room.

Based upon this evidence, taken together with defendant’s

admissions in the recorded interview, there was sufficient

evidence for the jury to draw a reasonable inference that

defendant was the perpetrator of the Sam’s Pit Stop robbery. We

hold that there was substantial evidence in the record that

defendant was the perpetrator of the Sam’s Pit Stop robbery.

The trial court did not err in denying defendant’s motion to

dismiss.

This argument is without merit.

IV. Evidence of Prior Felony

In his third argument, defendant contends that the trial

court erred in denying defendant’s motion to dismiss the charge

of possession of a firearm by a felon. We disagree.

A. Standard of Review

We have previously discussed the standard of review

relating to a motion to dismiss in Section III A of this

opinion.

B. Analysis

At trial, the State presented evidence of defendant’s prior

felony convictions in connection with the charge of possession
 -13-
of a firearm by a felon. The evidence of prior felony

convictions presented by the State was a print-out from the

statewide computer system (ACIS) stating that defendant was

convicted in 2006 of a felony in Scotland County. This print-

out was authenticated by the testimony of an assistant clerk

from Columbus County, and admitted into evidence. Defendant

contends that this evidence was insufficient to support the

charge of possession of a firearm by a felon. Specifically,

Defendant contends that the ACIS print-out is not a judgment of

a conviction or evidence of a plea of guilty, and thus does not

establish the fact of his prior conviction.

When a person is charged under this section,
records of prior convictions of any offense,
whether in the courts of this State, or in
the courts of any other state or of the
United States, shall be admissible in
evidence for the purpose of proving a
violation of this section. The term
“conviction” is defined as a final judgment
in any case in which felony punishment, or
imprisonment for a term exceeding one year,
as the case may be, is authorized, without
regard to the plea entered or to the
sentence imposed. A judgment of a conviction
of the defendant or a plea of guilty by the
defendant to such an offense certified to a
superior court of this State from the
custodian of records of any state or federal
court shall be prima facie evidence of the
facts so certified.
 -14-
N.C. Gen. Stat. § 14-415.1(b) (2013). N.C. Gen. Stat. § 14-

415.1 states that “records of prior convictions . . . shall be

admissible[,]” and then in a separate sentence that judgments or

pleas of guilty shall be prima facie evidence of the conviction.

This does not mean, however, that a certified copy of a judgment

or a plea of guilty is the only manner in which a prior

conviction may be established.

The statute pertaining to proof of prior convictions to

support a charge of habitual felon in N.C. Gen. Stat. § 14-7.4

provides that:

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 (2013). We have held, however, that

this statute

clearly indicates that the provision is
permissive, not mandatory, in that it
provides a prior conviction “may” be proven
by stipulation or a certified copy of a
record. See Campbell v. Church, 298 N.C.
476, 483, 259 S.E.2d 558, 563 (1979) (“the
use of ‘may’ generally connotes permissive
or discretionary action and does not mandate
 -15-
or compel a particular act”). Thus, although
section 14–7.4 contemplates the most
appropriate means to prove prior convictions
for the purpose of establishing habitual
felon status, it does not exclude other
methods of proof.

State v. Wall, 141 N.C. App. 529, 533, 539 S.E.2d 692, 695

(2000) (holding that facsimile copies of certified judgments

were admissible as evidence of prior felony convictions). In

the instant case, we hold that, as with the habitual felon

statute, while a copy of a judgment of a conviction or a plea of

guilty constitutes prima facie evidence of prior felony

convictions for purposes of N.C. Gen. Stat. § 14-415.1, it is

not the exclusive form of evidence of prior felony convictions.

In the instant case, the State presented as evidence the

ACIS print-out of defendant’s alleged prior felonies. In its

charge to the jury, the trial court stated:

Mr. Smith has been charged with two counts
of possession of a firearm by a convicted
felon.

. . .

For you to find the defendant guilty of
either counts [sic] of this offense, the
State of North Carolina must prove to you
beyond a reasonable doubt two things:

First, that on or about September 21, 2006
in the Superior Court of Scotland County the
defendant was convicted of a felony that was
committed on November 1, 2005 in violation
 -16-
of the laws of the State of North Carolina.

And, second, that thereafter the defendant
did possess a firearm.

The jury was permitted to consider the ACIS print-out as

evidence. The jury did so, and found defendant guilty. We hold

that it was not error for the trial court to allow the

submission of this evidence to the jury. This evidence

constituted substantial evidence of an element of the offense of

possession of a firearm by a felon, and accordingly the trial

court did not err in denying defendant’s motion to dismiss.

Defendant further contends that, if his trial counsel

failed to properly preserve his challenge to the denial of the

motion to dismiss, such conduct constitutes ineffective

assistance of counsel. As we have held, the trial court

properly admitted the ACIS print-out. Thus, any motion to

dismiss would have been denied. Because there was evidence

sufficient to support submitting this charge to the jury,

defendant cannot show the prejudice necessary to maintain a

claim of ineffective assistance of counsel. See State v.

Braswell, State v. Braswell, 312 N.C. 553, 566, 324 S.E.2d 241,

250 (1985) (holding that, where ”counsel's conduct did not

affect the outcome of the trial[,]” defendant could not show
 -17-
prejudice, and “was not denied effective assistance of

counsel”).

This argument is without merit.

V. Separate Indictment for Possession of Firearm by a Felon

In his fourth argument, defendant contends that the trial

court lacked jurisdiction over the charge of possession of a

firearm by a felon in case 11 CRS 50366, since that charge was

not listed in a separate indictment. We agree.

A. Standard of Review

“An attack on an indictment is waived when its validity is

not challenged in the trial court.” State v. Wallace, 351 N.C.

481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148

L. Ed. 2d 498 (2000). “However, where an indictment is alleged

to be invalid on its face, thereby depriving the trial court of

its jurisdiction, a challenge to that indictment may be made at

any time, even if it was not contested in the trial court.” Id.

B. Analysis

Defendant was charged with two counts of possession of

firearm by a felon. One of these counts was set forth in a

separate indictment, but the other was shown as a count in the

indictment for robbery with a dangerous weapon pertaining to the

L&D Quick Mart. Defendant contends that this rendered the
 -18-
indictment for the second possession of a firearm by a felon

charge fatally flawed.

N.C. Gen. Stat. § 14-415.1 provides that “The indictment

charging the defendant under the terms of this section shall be

separate from any indictment charging him with other offenses

related to or giving rise to a charge under this section.” N.C.

Gen. Stat. § 14-415.1(c) (2013). We recently held in State v.

Wilkins, ___ N.C. App. ___, 737 S.E.2d 791 (2013), that this

statutory provision requires that “a charge of Possession of a

Firearm by a Felon be brought in a separate indictment from

charges related to it[.]” Wilkins, ___ N.C. App. at ___, 737

S.E.2d at 794. In Wilkins, defendant was charged with both

assault with a deadly weapon and possession of a firearm by a

felon in the same bill of indictment. We held that this

rendered the possession of a firearm by a felon indictment

fatally defective. Id.

In the instant case, we hold that including both the

possession of a firearm by a felon and robbery with a dangerous

weapon charges in the same bill of indictment renders the charge

of possession of a firearm by a felon fatally defective.

Because of this fatal defect, the trial court did not have

subject matter jurisdiction over the second charge of possession
 -19-
of a firearm by a felon, and erred in entering judgment with

respect to that charge. We vacate defendant’s conviction for

possession of a firearm by a felon in case 11 CRS 50366, and

remand the consolidated judgment in cases 11 CRS 50365 and 11

CRS 50366 to the Superior Court of Columbus County for

resentencing. See State v. Wortham, 318 N.C. 669, 674, 351

S.E.2d 294, 297 (1987) (remanding a consolidated judgment for

resentencing where one of the charges was vacated).

V. Conclusion

The trial court did not commit plain error in admitting the

recording of defendant’s unredacted statement into evidence.

The trial court did not err in denying defendant’s motion to

dismiss the charge of robbery with a dangerous weapon at Sam’s

Pit Stop, since the State presented substantial evidence that

defendant was the perpetrator. Defendant’s first claim of

ineffective assistance of counsel is dismissed without

prejudice; his second is without merit. We hold that the trial

court did not err with regard to the possession of a firearm by

a felon charge shown on a separate bill of indictment. The

trial court lacked jurisdiction over the possession of a firearm

by a felon charge that was combined with the charge relating to
 -20-
the robbery at the L&D Quick Mart, so we vacate that conviction

and remand for resentencing.

NO ERROR IN PART, DISMISSED IN PART, VACATED IN PART.

Judges McGEE and ERVIN concur.

Report per Rule 30(e).