An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-242


Filed: 18 February 2003


v .                         Beaufort County
                            No. 01 CRS 705, 709

    Appeal by defendant from judgment entered 4 September 2001 by Judge William C. Griffin, Jr., Superior Court, Beaufort County. Heard in the Court of Appeals 21 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas B. Wood, for the State.

    Paul Pooley for the defendant-appellant.

    WYNN, Judge.

    Following his conviction for certain drug offenses and having obtained the status of habitual felon, defendant, Kenneth Ray Pierce, raises the following dispositive issue on appeal: Did the State fail to introduce sufficient evidence of the third felony alleged in the habitual felon indictment? At oral argument, the State conceded that the record on appeal failed to show sufficient evidence to support the defendant's conviction of having obtained the status of an habitual felon. Accordingly, we reverse defendant's conviction on attaining habitual felon status, and remand for resentencing on the remaining charges of possession with the intent to sell and distribute cocaine and the sale and delivery of cocaine.     On 26 February 2001, defendant was indicted for possession with the intent to sell and distribute cocaine and for the sale and delivery of cocaine. On the same date, defendant was indicted as being a habitual felon within the meaning of N.C. Gen. Stat. § 14- 7.1 based upon convictions for felonious breaking and entering (date of offense 27 October 1985 and date of conviction 20 January 1986); common law robbery (date of offense 25 January 1988 and date of conviction 3 June 1988); and, possession of cocaine (date of offense 18 September 1998 and date of conviction 19 October 2000).
    After defendant was convicted of the underlying felony, defendant was tried for having attained habitual felon status. At the close of the State's evidence, defendant moved to dismiss the habitual felon charge based upon legally insufficient evidence of the third felony alleged in the indictment. The trial court denied defendant's motion, entered judgment in conformity with the jury's verdict of guilty, and sentenced defendant to a minimum of 107 months and a maximum of 138 months imprisonment.
    On appeal, defendant again argues that the State failed to introduce sufficient evidence to support the alleged third felony conviction used in the habitual felon status indictment.   (See footnote 1)  Toclassify a person as a habitual felon, the State must prove beyond a reasonable doubt that the defendant has been convicted or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof after 6 July 1967 and after attaining the age of 18 years. See N.C. Gen. Stat. § 14-7.1 (2001).
    In this case, the indictment charging defendant with having obtained the status of habitual felon set forth the third felony as follows:
    And on September 18, 1998, the defendant did commit the felony of possession with intent to sell or deliver cocaine in violation of N.C.G.S. 90-95(a)(1) and that on or about October 19, 2000, the defendant was convicted of the felony of possession of cocaine in the Beaufort County Superior Court, Washington, North Carolina.

    At trial, the prosecutor apparently recognized that 19 October 2000 represented the date on which the defendant's probation had been revoked by the trial court, not the date of conviction. Accordingly, the prosecutor moved and the trial court granted an amendment to the indictment indicating that defendant's conviction occurred on 12 January 2000, and was revoked on 19 October 2000. Contrary to defendant's assignment of error to that amendment, we hold that the trial court acted properly in allowing the State's motion to amend the indictment. See State v. Locklear, 117 N.C.App. 255, 260, 450 S.E.2d 516, 519 (1994)(stating “it was the fact that another felony was committed, not its specific date which was the essential question in the habitual felon indictment”).
    Having obtained an amendment to correct the date of conviction for the third offense, the record on appeal shows that during the habitual felon status proceedings, the State moved to admit   (See footnote 2)  certified copies of documents and judgments from criminal files 85 CRS 7171, 88 CRS 355 and 99 CRS 7774 concerning defendant. The record further shows that judgments entered for 85 CRS 7171 and 88 CRS 355 sufficiently support the jury's finding that defendant committed the first two felonies alleged in the habitual felon indictment.
    As to the third felony, the State submitted a copy of the information in 99 CRS 7774 which charged defendant with felonious possession of cocaine (N.C. Gen. Stat. § 90-95(A)(3)) on 31 October 1999. However, the record does not contain a judgment under 99 CRS 7774. Rather, the record contains a judgment under 98 CRS 6622 showing that defendant pled guilty to simple possession of cocaine (N.C. Gen. Stat. § 90-95(A)(1)) and possession of drugparaphernalia (N.C. Gen. Stat. § 90-113.22) with an offense date of 31 October 1999.
    Under N. C. Gen. Stat. § 14-7.4 (2001), “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.” As the State conceded at oral argument in this case, the record on appeal fails to show evidence sufficient to support the third felony listed under the indictment for habitual felon. Moreover, neither the transcript of the proceedings nor any other evidence shows that the State submitted a certified copy of a judgment to support the third felony. Therefore, we reverse defendant's conviction of being a habitual felon and remand for resentencing on the charges of possession with the intent to sell and distribute cocaine and the sale and delivery of cocaine.
    Reversed in part and remanded.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).     

Footnote: 1
     Defendant argues that the trial court should have granted his motion to dismiss the charge of having obtained the status of habitual felon. In considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the state, State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992), and determine whether there is substantial evidence of (1) each essential element of the offense charged, or of a lesser offense included therein, and of (2) defendant's being the perpetrator of such offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117(1980). “Substantial evidence is defined as the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed. Powell, 299 N.C. at 98, 261 S.E.2d at 117.
Footnote: 2
        Defendant argues that although the state moved to admit certified copies of defendant's criminal record, the records were never admitted by the court. Indeed, the record on appeal contains an Exhibit List which indicates that copies of indictments were admitted instead of the judgments. However, the record on appeal contained copies of judgments that support two of the felonies under the indictment for habitual felon. Nonetheless, at oral argument, the State acknowledged that neither the transcript nor the record on appeal confirmed that the two judgments were admitted during the trial. We resolve this matter by not reaching it since we conclude that there was insufficient evidence to support the third felony under the habitual felon indictment.

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