An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-391
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 11 CRS 203106
MITCHELL LAMONT ROBINSON
Appeal by defendant from judgment entered 12 July 2013 by
Judge Eric L. Levinson in Mecklenburg County Superior Court.
Heard in the Court of Appeals 22 September 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amy L. Bircher, for the State.
Michael E. Casterline for defendant-appellant.
McCULLOUGH, Judge.
Defendant was indicted on charges of assault with a deadly
weapon and possession of a firearm by a felon. The prosecutor
subsequently voluntarily dismissed the former charge and elected
to proceed solely on the latter charge of possession of a
firearm by a felon. A jury found defendant guilty of the
charge. Defendant appeals from a judgment imposing a sentence
of a minimum term of 18 months and a maximum term of 22 months.
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The State presented evidence tending to show that on 19
January 2011 officers of the Charlotte Mecklenburg Police
Department (“CMPD”), in response to a dispatch, met Mr. Eric
Brown at a store. Mr. Brown, who was in a wheelchair, requested
assistance in removing items from a residence he shared with
defendant. The officers followed Mr. Brown to the residence a
short distance away and knocked on the door. Defendant opened
the door and the officers explained why they were there. The
officers observed that defendant had a scratch on his face.
They also saw a female seated on the couch. The woman had
scratches on her face and a bloody lip. She also was holding
her wrist.
Defendant initially agreed only to allow Mr. Brown to enter
and retrieve his belongings, but after the officers informed
defendant that they needed to enter the residence to check on
the female, defendant stepped back and allowed the officers to
enter. As the officers were checking on the female, they heard
loud screaming. The officers ran to a bedroom and found Mr.
Brown on the floor. Fearing defendant was about to assault Mr.
Brown, Officer David Koonce-Marrero drew his gun and Officer
Bryan Crum drew his taser on defendant and called for backup.
Defendant retreated and walked out.
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The officers decided to arrest defendant. Officer Crum
noticed a small round hole in a bedroom wall and asked defendant
whether he had any guns in the house. Defendant, who stipulated
at trial that he was a convicted felon, responded that he was
not allowed to have any guns.
After the woman was taken to the hospital by ambulance and
the house was empty of people, Officer Crum obtained and
executed a warrant to search the residence. He discovered a
Ruger 9 millimeter pistol with a live round in the chamber and
an empty magazine in the attic which was accessible through a
ceiling panel in the closet of a bedroom where defendant’s
social security card and a recreational center identification
card in defendant’s name were found. Investigator Kharyn Nyx of
the CMPD, who assisted with the search, photographed the firearm
and magazine in the attic space, placed the gun in a bag,
brought it back to police headquarters, prepared a property
sheet for the evidence, and turned it over to property control.
Angela Flanders, a crime scene investigator with CMPD,
testified that she collected buccal swabs from defendant, placed
them in a package, sealed the package, and turned the package
over to property control. Eve Rossi, a criminalist specializing
in forensic biology, testified that she compared DNA collected
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from defendant’s buccal swabs with DNA collected from swabs of
the gun taken by a person who is no longer employed with CMPD,
and determined that the major or dominant DNA profile which was
found on the gun matched defendant’s DNA profile.
Defendant contends the court erred by admitting the opinion
testimony of Ms. Rossi concerning her analysis of the DNA
material found on the gun. He argues admission of the evidence
violated his right to confront the witnesses against him because
the person who swabbed the gun was not available to testify and
be cross examined. He also argues the evidence was not properly
authenticated inasmuch as a complete chain of custody was not
established since the person who swabbed the gun did not testify
and verify that the tested swab was the same she took from the
gun.
In admitting the opinion testimony of the analyst, the
trial judge remarked that the case of State v. Ortiz-Zape, 367
N.C. 1, 743 S.E.2d 156 (2013), cert. denied, ___ U.S. ___, ___
L.E. 2d ___, 2014 U.S. LEXIS 3730 (2014) could not be
“meaningfully distinguished” with the situation at bar.
Defendant Ortiz-Zape argued the court’s admission of opinion
testimony of an analyst who did not personally test or observe
the testing of a controlled substance violated his right to
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confront the witnesses against him. Our Supreme Court rejected
this argument, noting that “when an expert gives an opinion, the
opinion is the substantive evidence and the expert is the
witness whom the defendant has the right to confront.” Id. at
12, 743 S.E.2d at 163.
We agree with the trial judge’s assessment that the
circumstances of this case are not materially distinguishable.
Here, as in Ortiz-Zape, the witness who gave the opinion was
available to be cross examined. The fact the person who swabbed
the gun was unavailable to testify provided fodder for cross
examination of the witness.
As for defendant’s argument that the evidence was not
properly authenticated, it is a general principle that a
“requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its
proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).
“The item offered must be identified as being the same object
involved in the incident and it must be shown that the object
has undergone no material change.” State v. Campbell, 311 N.C.
386, 388, 317 S.E.2d 391, 392 (1984). “[D]etermining the
standard of certainty that is required to show” that the item is
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the same and in an unchanged condition is within the discretion
of the trial judge. Id. at 388-89, 317 S.E.2d at 392.
“Although a defendant may point to gaps or flaws in the chain of
custody or procedure, a showing that the evidence was tampered
with or altered is generally required for a reversal of the
trial court’s decision to admit the evidence.” State v. Hyman,
153 N.C. App. 396, 400, 570 S.E.2d 745, 748 (2002), cert.
denied, 357 N.C. 253, 583 S.E.2d 41 (2003). Defendant has not
made this showing.
We hold defendant received a fair trial, free of
prejudicial error.
No error
Judges CALABRIA and GEER concur.
Report per Rule 30(e).