An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 02-1120


Filed: 2 December 2003


v .                         Cumberland County
                            Nos. 01 CRS 58576 and 58577

    Appeal by defendants from judgments entered 25 April 2002 by Judge William C. Gore, Jr. in the Superior Court in Cumberland County. Heard in the Court of Appeals 21 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney Generals Grady L. Balentine, Jr. and John P. Barkley, for the State.

    Kathryn L. VandenBerg, for defendant-appellant Adrian McClain.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant Demetrius Shawn Hill.

    HUDSON, Judge.

    On 16 October 2001, a grand jury indicted Defendants Demetrius Shawn Hill (Hill) and Adrian Leon McClain (McClain) on charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. At the close of all the evidence, the court dismissed the conspiracy counts. The jury convicted them both on the remaining robbery with a dangerous weapon count. The court sentenced Hill to prison for 94 to 122 months, and McClain for 79 to 102 months. For the reasons discussed below, we conclude there was no error.     The State's evidence at trial tended to show the following: on the evening of 11 July 2001, Robert Morris took his two young grandchildren and his dog for a walk in his Fayetteville, North Carolina neighborhood. A car passed them, circled back around, and parked across the street. A man, later identified as McClain, got out of the passenger side of the car and approached Mr. Morris and his grandchildren. The man pointed a small-caliber revolver at Mr. Morris' head and demanded Mr. Morris give him everything he had in his pockets. Mr. Morris described the man as “aggressive” and “demanding,” but “cool as a cucumber.” Right after the man took Mr. Morris' cell phone and wallet, and returned to his car, Fayetteville Police Officer Rodney Miller arrived at the scene. As Officer Miller approached the scene, the man who had just robbed Mr. Morris fled on foot.
    Mr. Morris told Officer Miller that the fleeing man had robbed him of his cell phone and wallet at gun point. Officer Miller detained the driver of the car, whom he identified as Hill, and then radioed for backup. Officer Christopher Cody of the Fayetteville Police Department arrived with a police dog, which tracked McClain's scent. The track eventually led to the apprehension of McClain, who was walking along some railroad tracks. The officers conducted a show-up at the tracks, during which Mr. Morris identified McClain as the man who had just robbed him.
    McClain testified in his own defense. On direct examination, McClain testified that, after he saw Mr. Morris, he told Hill tomake a u-turn. Then McClain tried to figure out a way to rob Mr. Morris without a weapon. He approached and asked Mr. Morris for a cigarette, but Mr. Morris did not have one. According to McClain, he asked Mr. Morris to give him everything he had, at which point Mr. Morris pulled out a small pocketknife. McClain told Mr. Morris that no one needed to get hurt, and Mr. Morris put the knife away. McClain had a bulge in his shirt that he used to simulate a weapon, but testified that he did not use a weapon. Mr. Morris gave McClain his wallet and cell phone, and McClain returned to the car. Once inside the car, he told Hill to drive away, but Hill refused because Officer Miller's police cruiser had just pulled up behind them. McClain then ran from the car, between two houses and into the woods, and was later apprehended at the railroad tracks.
    On cross-examination by the State, McClain testified that he and Hill had smoked marijuana earlier that evening and needed money to buy more marijuana. He further testified that he and Hill agreed to find someone to rob, and that they jointly decided to rob Mr. Morris. Although McClain claimed that they did not reach an agreement to commit a robbery, he testified that Hill knew what he was planning.
    Hill offered no evidence.
    Both defendants argue first that the trial court erred or abused its discretion in granting the State's motion for a joint trial. For the following reasons, we disagree.
    A trial court's denial of a motion to sever will not be disturbed on appeal absent an abuse of discretion. State v.Brower, 289 N.C. 644, 658-59, 224 S.E. 2d 551, 562 (1976), recons. denied, 293 N.C. 259, 243 S.E.2d 143 (1977). Further, G.S. . 15A-927(a)(2) provides that when a pre-trial motion to sever is made, failure to renew the motion “before or at the close of all the evidence” waives any right to severance. This Court has also held that failure to renew a motion to sever as required by G.S. 15A-927(a)(2) waives any right to severance and that on appeal the Court is limited to reviewing whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision to join. State v. Agubata, 92 N.C. App. 651, 660-61, 375 S.E.2d 702, 708 (1989). Here, Hill objected to the joinder of defendants on the first day of trial, but he was required to renew his motion to sever at the close of all of the evidence. Hill failed to renew his motion at the close of all the evidence as required by G.S. . 15A-927(a)(2) and therefore waived his right to sever. McClain made no motion to sever either prior to trial or at the close of all evidence, and thus he too has waived his right to sever. Therefore, the question remaining is whether joinder of defendants' cases for trial was an abuse of discretion.
    Pursuant to G.S. . 15A-926(b)(2)(a), the court may join defendants when “each of the defendants is charged with accountability for each offense.” Here, both defendants were charged with robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, these offenses arising out of the same set of operative facts. Therefore, the prerequisite necessary for the trial court to consider joinder was satisfied,and we overrule these assignments of error.
    McClain contends in his second argument that the trial court violated his right to be present and his right to the effective assistance of counsel by hearing and deciding motions outside of the presence of both him and his counsel. For the reasons set forth below, we overrule this assignment of error.
    After the trial court ruled on joinder, McClain's defense counsel requested time to arrange some unrelated matters. The court asked counsel if he wished to be excused during the hearing of the co-defendant's pre-trial motions, and counsel accepted. He and McClain then left the courtroom. When he and McClain returned to the courtroom, the court advised them that it had ruled on Hill's motions and invited McClain to raise any issues prior to bringing in the jury. At the close of all evidence, McClain's counsel again acknowledged, without comment or objection, that he was not present when co-defendant Hill's motions were considered.
    In McClain's absence, the court ruled as follows: it allowed Hill's motion to sequester the State's witnesses; denied Hill's motion to suppress identification testimony because there had been no pre-trial identification; denied Hill's motion to suppress statements after the State indicated it would not be introducing any such statements; allowed Hill's motion for the recordation of certain proceedings; and denied Hill's motion to compel disclosure of the victim and law enforcement witnesses because all individuals were present to testify. The court had previously decided all other pre-trial motions. McClain has not shown how these rulingsor his absence from these hearings prejudiced him. On this record, including counsel's waiver of his right to be present during these motion hearings, we are unable to conclude that McClain was prejudiced by his absence from the hearing on these motions, and we overrule this assignment of error.
    Next, Hill argues that he is entitled to a new sentencing hearing because the State failed to prove his prior convictions in accordance with G.S. . 15A-1340.14(f). We disagree.
    Pursuant to G.S. . 15A-1340.14(f), prior convictions shall be proved by any of the following methods:
        (1) Stipulation of the parties.

        (2) An original or copy of the court record of the prior conviction.

        (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.

        (4) Any other method found by the court to be reliable.

G.S. . 15A-1340.14(f) (2001). The “State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” Id. Moreover, “[t]he original or a copy of the court records . . . is prima facie evidence that the offender named is the same person as the offender before the court, and that the facts set out in the record are true.” Id.
    In State v. Eubanks, this Court reviewed the followingexchange that occurred between the prosecutor, defense counsel, and the trial court:
    THE COURT: Evidence for the State?

    [THE PROSECUTOR]: If Your Honor please, under the Structured Sentencing Act of North Carolina, the defendant has a prior record level of four in this case, Your Honor.

    THE COURT: Do you have a prior record level worksheet?

    [THE PROSECUTOR]: Yes, sir, I do.

    THE COURT: All right. Have you seen that, Mr. Prelipp [attorney for defendant]?

    MR. PRELIPP: I have, sir.

    THE COURT: Any objections to that?

    MR. PRELIPP: No, sir.
151 N.C. App. 499, 504-05, 565 S.E.2d 738, 742 (2002). The Court noted that “[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” Id. at 505, 565 S.E.2d at 742. The Court, in finding no error in defendant Eubanks' sentencing, held that “this colloquy might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's worksheet.” Id. at 506, 565 S.E.2d at 743 (citations and quotation marks omitted).
    Here, transcript reflects the following exchange regarding Hill's sentencing:
        THE COURT: All right. As to Mr. Hill, do you agree and stipulate that this is the defendant's record and that he is subject to level IV sentencing, or do you wish to beheard on that, sir -- excuse me --ma'am?

        MS. MILLER (defendant Hill's attorney): Uh, no.

        THE COURT: You do not so stipulate?

        MS. MILLER: No, we stipulate. We don't wish to be heard.

We believe that this exchange between the court and Hill's counsel constitutes a clear and unequivocal stipulation, and as the Court did in Eubanks, we find no merit in this argument.
    Hill next argues that he was denied effective assistance of counsel by his trial counsel's “acquiescence in the non-recordation of voir dire, despite having requested recordation.”
    G.S. . 15A-1241 provides in relevant part:
        (a) The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:

         (1) Selection of the jury in noncapital cases;

         (2) Opening statements and final arguments of counsel to the jury; and

         (3) Arguments of counsel on questions of law.

Defendant Hill's counsel moved pre-trial for the recordation of jury voir dire. At the beginning of the trial, as the parties and the court were going through these motions, Hill's counsel effectively withdrew her motion for recordation by stating the following: “for the motion for recordation, um, the clerk (sic) does not have to record jury voir dire.” Hill now argues that this tactic amounts to ineffective assistance of counsel. We disagree.    “Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel.” State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, (2002) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)). A claim of ineffective assistance of council “must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance.” Id.
    Ineffective assistance of counsel claims are ordinarily raised in post-conviction proceedings by way of a motion for appropriate relief and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524.
    Here, Hill has failed to make any showing either that counsel's performance was substandard, or that the outcome would have been different as a result of counsel's withdrawing her recordation request. Though defendant makes arguments premised upon the need for a complete transcript for effective appellate assistance, his argument is insufficient to show ineffective assistance of counsel. Thus, we overrule this assignment of error.
    No error.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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