State v McKenzie, (02-747) 07/15/2003

Appeal by defendant from judgments entered 16 August 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 24 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.

Richard E. Jester, for defendant-appellant.

    CALABRIA, Judge.

    Herbert Levon McKenzie (“defendant”) was convicted of robbery with a dangerous weapon, assault with a deadly weapon inflicting serious injury and the status of habitual felon. Judge Catherine C. Eagles (“Judge Eagles”) calculated defendant's prior record level as level three, and sentenced him to two consecutive terms of a minimum of 96 months and a maximum of 125 months.
    The evidence at trial tended to show the following: on 6 January 2001, the victim, Kenneth Debnam (“Debnam”), after purchasing some marijuana, visited his friend, Gary Baker (“Baker”). Debnam testified defendant was also at Baker's house. Debnam explained he had seen defendant a couple of times before, and his name “referred to something small, short. . . . But Icouldn't make out exactly what the full name was at the time.” Defendant later testified his nickname was “Little Herb.” Debnam testified defendant left Baker's apartment a few minutes before he did, and Debnam saw defendant in the parking lot. Debnam “was going to ask him if he wanted a smoke [of weed]” but “he [defendant] turned around showing me the gun.” Defendant pointed the gun at Debnam's head, near his ear, and then pointed it away from his head and fired one shot. Defendant demanded money; Debnam gave defendant his marijuana and thirty dollars cash. When defendant demanded more, Debnam “tried to wrestle for the gun” but he “tripped and fell and he [defendant] backed up” and shot. Debnam was shot in his right side, below his rib cage. Debnam explained, “I was just laying there. And I reached in my pocket and I pulled out some more money to try to get him away from me. . . .[H]e reached down to pick it up. I guess he seen the money to pick it up, and he kicked me in the mouth.”
    Defendant testified that on 6 January 2001, he was at his girlfriend's apartment. During the evening, he went next door to Baker's apartment where he smoked marijuana with Baker. Debnam was not present. Defendant went back to his girlfriend's place where he drank liquor. He then smoked more marijuana. He fell asleep and awoke to being arrested by the police.
    Defendant appeals asserting the trial court erred by: (I) permitting the testimony of Sergeant Cheek; (II) failing to dismiss the case for insufficient evidence of identity; (III) failing to instruct the jury as requested by defendant; (IV) calculatingdefendant's prior record level; and (V) sentencing defendant for being a habitual felon.
I. Testimony
    Defendant asserts the trial court erred in permitting Sergeant Brian Cheek (“Sergeant Cheek”) to testify because the State failed to provide Sergeant Cheek's report to defendant through discovery. At trial, defendant objected to the admissibility of Sergeant Cheek's testimony because he never received a copy of Sergeant Cheek's report despite having requested all reports in discovery. The State explained, however, Sergeant Cheek never created a report, and the information he testified to was contained in another report provided to defendant. Judge Eagles overruled defendant's objection, noting “I don't think you have to create reports that aren't otherwise created. But in any event there's no prejudice since the information is in the other report.” We agree. In the case at bar, North Carolina General Statute Sections 15A-901 through 910 govern discovery. Nothing in these provisions required Sergeant Cheek to write a report, and the trial court properly concluded the laws governing discovery were not violated. Accordingly, we hold the trial court did not err.
II. Motion to Dismiss
    Defendant asserts the trial court erred by denying his motion to dismiss the charges for insufficient evidence tending to prove he was the assailant. Specifically, defendant directs this Court to the fact that Baker testified he knew defendant as “Carlos,” but could not identify defendant from photographs taken during theinvestigation, and Debnam could not provide defendant's name. The trial court, in ruling on this motion to dismiss, taking the evidence in the light most favorable to the State, determined there was sufficient evidence, meaning “'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[,]'” that defendant was the perpetrator of the crimes. State v. Gay, 151 N.C. App. 530, 532, 566 S.E.2d 121, 123 (2002), disc. rev. denied, 356 N.C. 685, ___ S.E.2d ___ (2003) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). Despite the conflicting evidence regarding defendant's identity, Debnam testified that he clearly saw defendant and defendant was the assailant who robbed and shot him. This testimony constituted sufficient evidence of defendant's identity, and we affirm the ruling of the trial court.
III. Jury Instruction
    Defendant asserts the trial court erred by refusing to instruct the jury that “testimony of a police officer is to be accorded no greater weight than the testimony of a lay witness.” “[A] trial court is not required to give a requested instruction verbatim even when it is a correct statement of law, so long as the requested instruction is given in substance.” State v. Thompson, 328 N.C. 477, 491, 402 S.E.2d 386, 393 (1991). Regarding credibility of witnesses and weight to be accorded, the trial court instructed the jury:
        In reaching your verdict you are the sole judges of credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believeall, part, or none of what a witness has said from the witness stand.
        In deciding whether to believe a witness, you should apply the same tests of truthfulness that you apply in your everyday affairs. These tests may include the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which he or she testified; the manner and appearance of the witness; any interest, bias or prejudice the witness may have; the apparent understanding and fairness of the witness; whether the testimony is reasonable and whether the testimony is consistent with other believable evidence in the case.
        You are also the sole judges of the weight to be given the evidence. If you decide that certain evidence is believable, it is still up to you to decide how important that evidence is in light of all the other believable evidence in the case.

While defendant asked for a specific instruction cautioning the jury not to afford more weight to the testimony of a police officer than to the testimony of a lay witness, the trial court's instruction properly addressed the substance of this request, and explained to the jury that they are “sole judges of credibility of each witness” and “of the weight to be given the evidence.”
IV. Prior Record Level Calculation
    Defendant asserts the trial court erred in calculating his prior record level. Defendant argues the State presented no evidence proving defendant's prior common law robbery conviction, and accordingly defendant was improperly classified as a level three offender.
    Our law provides: “[a] prior conviction shall be proved by any of the following methods: . . .(2) [a]n original or copy of the court record of the prior conviction. . . . (4) [a]ny other methodfound by the court to be reliable.” N.C. Gen. Stat. § 15A- 1340.14(f) (2001). Moreover, “[t]he State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender [is defendant]” but “[e]vidence presented by either party at trial may be utilized to prove prior convictions.” Id.
    In the case at bar, there were four prior convictions. To prove habitual felon status, the State introduced Exhibits 12-14, the indictment, transcript of plea, and judgment for defendant's convictions for common law robbery, possession of cocaine and sale of cocaine. To calculate defendant's prior record level, the trial court utilized a common law robbery conviction that was a different conviction than the one utilized to prove habitual felon status. Defendant asserts this was error because no evidence was presented to prove the second common law robbery crime. We disagree. State's Exhibit 12 includes a copy of the judgment for the common law robbery conviction utilized for the prior record level as well as the common law robbery conviction utilized to prove habitual felon status. Accordingly, the State complied with N.C. Gen. Stat. § 15A-1340.14(f), and the court properly considered the additional common law robbery offense in calculation of defendant's prior record level.
    Defendant also asserts the trial court improperly assessed one point for the commission of the crime while he was on supervised probation. Defendant asserts there was no proof of his probationary status. State Exhibit 14 documents that on 7 August2000, for the offense of possession of cocaine, defendant was placed on sixty months probation. The crimes in the case at bar occurred five months thereafter, in January 2001, within the sixty month period of probation. Accordingly, we hold the trial court, in calculating his prior record level, properly considered the offense was committed while defendant was on probation.
V. Sentencing Form
    Finally, defendant asserts the trial court improperly sentenced defendant to prison for being a habitual felon. A “habitual felon conviction is not a separate crime for which a defendant can be separately sentenced. . . the trial court must sentence a convicted habitual felon for the underlying felony . . . .” State v. Wilson, 139 N.C. App. 544, 552, 533 S.E.2d 865, 871 (2000). The State admits the trial court did err; however, since the transcript reveals the court intended to sentence defendant to prison for the substantive crimes, the judgment referencing only habitual felon status was a clerical error. We take judicial notice of the judgment entered 15 August 2002, rectifying this error.
    Affirmed.
    Chief Judge EAGLES and Judge HUNTER concur.
    Report per Rule 30(e).

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