Appeal by defendant from judgments entered 6 September by
Judge Wiley F. Brown in Harnett County Superior Court. Heard in
the Court of Appeals 13 November 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Dennis P. Myers, for the State.
Robert T. Newman, Sr., for defendant appellant.
TIMMONS-GOODSON, Judge.
Rufus Deangelo Barnes (“defendant”) appeals from his
convictions of possession with the intent to sell and deliver a
controlled substance, the sale and delivery of a controlled
substance, and attaining the status of habitual felon. For the
reasons stated herein, we conclude that the trial court did not
err.
At trial, the State presented evidence tending to show the
following: On 4 November 1999, Richard Fink (“Fink”) met with
Officer James Page (“Officer Page”) of the Dunn Police Department
(“the DPD”) for the purpose of assisting the DPD in identifying
individuals engaged in the sale of illegal narcotics. Officer Page
installed audio and video equipment inside of Fink's vehicle, gavehim twenty dollars and instructed him to drive to Pope Street to
purchase illegal drugs. Fink testified that upon arriving at Pope
Street, he gave defendant twenty dollars in exchange for rock
cocaine, returned directly to Officer Page, and gave him the
substance purchased from defendant. Officer Page viewed the
videotape and Fink identified defendant as the individual who sold
him cocaine. Officer Page sent the substance to the State Bureau
of Investigation (“SBI”) for testing. The SBI lab report indicated
that the substance contained “.1 gram of cocaine.”
At trial, defendant represented himself and admitted that he
had sold drugs in the past, but was no longer in the “drug
business.” Defendant denied that he sold drugs on Pope Street. At
the conclusion of the evidence, the jury found defendant guilty and
sentenced him to a minimum term of imprisonment of ninety-three
months, with a maximum term of 121 months. Defendant appeals.
____________________________________
Defendant presents five assignments of error on appeal,
arguing that the trial court erred in (1) denying defendant's
motion to dismiss for insufficient evidence; (2) failing to set
aside defendant's habitual felon conviction; (3) admitting a
photograph of defendant into evidence over his objection; (4)
admitting into evidence a videotape depicting defendant selling
drugs. In his final assignment of error, defendant contends that
the Habitual Felon statute violates the United States and North
Carolina Constitutions. For the reasons stated herein, we find no
error by the trial court. By his first assignment of error, defendant argues that the
trial court committed reversible error by denying his motion to
dismiss for insufficient evidence. Defendant contends that the SBI
lab report was not admissible, because the State failed to provide
to him a copy of the report and the lab report was not properly
authenticated before being admitted into evidence. Thus, defendant
reasons that there was not sufficient evidence that the substance
allegedly purchased was an illegal controlled substance.
In considering a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference that may
be drawn from the evidence.
State v. Benson, 331 N.C. 537, 544,
417 S.E.2d 756, 761 (1992). The standard of review for a “motion
to dismiss based on insufficiency of the evidence is the
substantial evidence test.”
State v. Jones, 110 N.C. App. 169,
177, 429 S.E.2d 597, 602 (1993),
cert. denied,
336 N.C. 612, 447
S.E.2d 407 (1994). “The substantial evidence test requires a
determination that there is substantial evidence (1) of each
essential element of the offense charged, and (2) that the
defendant is the perpetrator of the offense.”
Id.
According to North Carolina General Statutes § 15A-903(d), the
State is required to disclose to the defendant all documents and
tangible objects “which are material to the preparation of his
defense, are intended for use by the State as evidence at the
trial, or were obtained from or belonged to the defendant.” N.C.
Gen. Stat. § 15A-903(d) (2001). North Carolina General Statutes §15A-903(e) permits “the defendant to inspect and copy or photograph
results or reports of physical or mental examinations or of tests,
measurements or experiments made in connection with the case, or
copies . . . within the possession, custody, or control of the
State . . . .” N.C. Gen. Stat. § 15A-903(e) (2001).
Here, examining the evidence in the light most favorable to
the State, pursuant to a written request by counsel for defendant
and in accordance with North Carolina General Statutes § 15A-
903(e), a document entitled “Answer To Request for Discovery” was
filed by the State on 26 April 2000, approximately eighteen months
prior to defendant's trial. The document read in pertinent part:
The State of North Carolina voluntarily
discloses to the defendant the following . . .
. . . .
5. The State has the following
documents/tangible objects or copies thereof
which are deemed subject to discovery under
N.C.G.S. § 15A-903(d): SBI lab analysis
6. There are results . . . or reports of
tests of the type described in N.C.G.S. § 15A-
903(e) made in connection with this case in
our control. A copy is attached . . . .
. . . .
While defendant asserts that neither the record nor the transcript
show that a copy of the lab report was furnished to him, there was
substantial evidence that the State provided defendant with a copy
of the SBI lab report, and advised defendant of the State's intent
to introduce the report as evidence at trial. We conclude that the
trial court did not err in denying defendant's motion to dismiss. In his second assignment of error, defendant argues that the
trial court committed reversible error by failing to set aside his
conviction as a Habitual Felon. Defendant contends that the State
failed to produce a “live witness” to authenticate judgment and
commitment sheets of his previous felonies. Defendant further
challenges the validity of his prior conviction for maintaining a
dwelling for keeping controlled substances.
The Habitual Felons Act provides that prior convictions of a
defendant are admissible and “may be proved by stipulation of the
parties or by the original or a certified copy of the court record
of the prior conviction.” N.C. Gen. Stat. § 14-7.4 (2001). “In
all cases where a person is charged . . . 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.”
Id. Here, defendant contends that the admissibility of
his prior convictions was in violation of the Habitual Felons Act,
because the State failed to produce a witness to authenticate the
record. However, defendant concedes that the State did produce
certified copies of his prior convictions. Therefore, defendant's
court record of prior convictions was properly before the court.
Defendant continues this assignment of error by arguing that
his prior conviction for maintaining a dwelling for keeping
controlled substances in violation of North Carolina General
Statutes § 90-108(a)(7) was not valid. We disagree. Defendant relies on
State v. Best, 292 N.C. 294, 233 S.E.2d
544 (1977) in furtherance of his argument. However, we find
Best
distinguishable from the present case. In
Best, our Supreme Court
held that a medical doctor could not be convicted of the sale and
delivery of a controlled substance pursuant to North Carolina
General Statutes section 90-95.
Id. at 302, 233 S.E.2d at 549.
Here, defendant contends that
Best extends to laymen and therefore
he cannot be convicted of maintaining a place to keep controlled
substances. Defendant misapprehends the law as it is applied in
Best and there is no indication that the decision in
Best applies
to laymen. Moreover, this Court has held that charges of being a
Habitual Felon cannot be defended by a collateral attack on prior
convictions.
State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d
771, 773 (1996). We overrule this assignment of error.
By his third assignment of error, defendant argues that the
trial court committed reversible error by admitting a photograph of
him into evidence over his objection. We disagree.
According to North Carolina General Statutes § 15A-1443(a),
[a] defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when 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) (2001). “Whether the [trial court's]
actions amount to reversible error is a question to be considered
in light of all of the circumstances, and the burden is on the
defendant to show prejudice.”
State v. Heath, 77 N.C. App. 264,271, 335 S.E.2d 350, 355 (1985),
rev'd on other grounds, 316 N.C.
337, 341 S.E.2d 565 (1986).
In the present case, the State's evidence tended to show that
defendant was captured on videotape selling illegal narcotics to
Fink. Testimony from Fink revealed that he purchased drugs from
defendant and that defendant was the person depicted in the
videotape. Officer Page testified that he received the substance
from Fink, sent it to the SBI lab for analysis, and that the report
indicated that the substance contained “.1 gram of cocaine.”
Officer Page further testified that he was familiar with defendant
from a prior domestic disturbance investigation. Moreover, on
direct examination, defendant complained that the State should have
presented “all of [his] pictures” to the jury, but on appeal
complains that his photograph was admitted into evidence. In light
of the State's overwhelming evidence against defendant, he fails to
show how the admission of his photograph was prejudicial.
Defendant further contends that he was prevented from
impeaching Finks's character and credibility on cross-examination.
We disagree. North Carolina General Statutes § 8C-1, Rule 608(b)
reads in pertinent part:
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however,
in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness . . . .
N.C. Gen. Stat. § 8C-1, Rule 608(b) (2001) (emphasis added). The record reveals that defendant was allowed to cross-examine
Fink exhaustively about his prior conviction for writing fifty-two
checks on an account that failed to contain sufficient funds. On
cross-examination defendant also attempted to ask Fink the
following:
Q: Have you ever used drugs?
. . . .
Q: Have you ever bought drugs . . .?
. . . .
The State objected to each question and the trial court sustained
the objections. Defendant fails to show that the questions were
related to Fink's character for truthfulness or untruthfulness.
Therefore, this assignment of error is overruled.
Next, defendant argues that the trial court committed
reversible error by admitting into evidence a videotape of him
selling drugs to Fink. Specifically, defendant contends that the
State failed to establish a proper foundation or a proper chain of
custody. We disagree.
At trial, the State moved to introduce into evidence, for
corroborative purposes, a videotape depicting defendant selling
drugs to Fink. Defendant failed to object and the videotape was
admitted into evidence. Defendant has failed to preserve this
alleged error for appellate review.
See N.C.R. P. 10(b)(1) (2002).
Also, defendant does not allege in this assignment of error that
the trial court committed plain error under North Carolina Rules of
Appellate Procedure 10(c)(4) (2002). Defendant has not properlypreserved this issue for our review. Therefore, this assignment of
error is overruled.
In his last assignment of error, defendant argues that the
North Carolina General Statutes §§ 14-7.1 to -7.6 (Habitual Felons
Act) is unconstitutional on the following grounds: (1) the Act
violates the Separation of Powers Clause of the North Carolina
Constitution, see N.C. Const. art. I, § 6; (2) the combined use of
the Act and Structured Sentencing, see N.C. Gen. Stat. §§
15A-1340.10 - 1340.23 (2001), violates the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section
19 of the North Carolina Constitution by subjecting him to double
jeopardy; and (3) violated defendant's equal protection rights
under the U.S. Constitution and the North Carolina Constitution,
see U.S. Const. amend. XIV; N.C. Const. art. I, § 19. We disagree.
This Court has previously rejected an identical challenge to
the Habitual Felons Act as violating Article I, Section 6 of our
State's constitution.
See State v. Wilson, 139 N.C. App. 544, 550-
51, 533 S.E.2d 865, 870 (2000). Our courts have continuously held
that the procedures set forth in the Habitual Felon Act comport
with a criminal defendant's federal and state constitutional
guarantees.
See State v. Hairston, 137 N.C. App. 352, 354, 528
S.E.2d 29, 31 (2000) (citing
State v. Todd, 313 N.C. 110, 118, 326
S.E.2d 249, 253 (1985)), and
State v. Hodge, 112 N.C. App. 462,
468, 436 S.E.2d 251, 255 (1993) (upholding Habitual Felons Act
against due process, equal protection, and double jeopardy
challenges). Accordingly, this assignment of error is overruled. For the reasons contained herein, we hold that the trial court
did not err.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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