State v Pratt, (02-1394) 06/03/2003

Appeal by defendant from judgment entered 4 June 2002 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 26 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General David G. Heeter, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

CALABRIA, Judge.

    Defendant was charged with felonious breaking or entering and felonious larceny. By a separate bill of indictment, defendant was charged with attaining the status of habitual felon. The State's evidence tended show that in the summer of 2001, Officer Karl Wolf (“Officer Wolf”) and Detective Eddie McCluney (“Detective McCluney”) were members of a High Point Police Department task force created to investigate several residential burglaries committed in the Greenway area off McGuinn Drive. While on assignment that summer, Officer Wolf saw a baldheaded man, whom he considered a suspect, riding a purple-colored bicycle. On 17 July 2001, Officer Wolf observed a purple-colored mountain bikealongside a house on McGuinn Drive while patrolling the Greenway area. Officer Wolf parked his patrol vehicle and proceeded back to the bicycle's location. He noticed that the front door to the house was open and called for additional units.
    As Officer Wolf approached the residence, he observed defendant exit the house through the front door. Defendant was wearing gloves and carrying a bag. Officer Wolf ran towards defendant, who was climbing onto the purple mountain bike. Defendant rode away and Officer Wolf chased him on foot. Defendant subsequently crashed his bicycle into a flower bed. Defendant fell off the bicycle and a Nintendo game console and several cartridges fell out of his bag. Defendant fled on foot and Officer Wolf chased him. A K-9 unit eventually found defendant hiding under the deck of a house. Mr. Pendry, the owner of the house broken into, identified the game and cartridges as items missing from his house on McGuinn Drive.
    A jury found defendant guilty of felonious breaking or entering, felonious larceny and being an habitual felon. The trial court sentenced defendant to 133 to 169 months imprisonment. Defendant appeals.
    Defendant contends the trial court had no jurisdiction to try him as an habitual felon because the principal felony indictments did not refer to his alleged status as an habitual offender. Defendant concedes this issue has been resolved against him in State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861 (1982) wherein we held that the Habitual Felons Act did not require the principalfelony indictment to include a defendant's recidivist status since a separate indictment gives a defendant adequate notice of the State's intent to prosecute him as an habitual felon. Id., N.C. App. at 78, 286 S.E.2d at 863. Defendant, however, argues Keyes has been disapproved by State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996), and therefore, his habitual felon conviction should be vacated.
    Contrary to defendant's assertion, the holding in Keyes was in no way modified by Patton. Rather, our Supreme Court held in Patton that a separate habitual felon indictment for each substantive felony indictment was not required to provide adequate notice of the State's intention to prosecute a defendant as a recidivist. Patton, 342 N.C. at 635-6, 466 S.E.2d at 709-10. Because this issue has already been decided against defendant, defendant's assignment of error is overruled.
    Defendant next contends the trial court erred in imposing his sentence under the habitual felon case file number 01 CRS 23145 and not the underlying felony case file number 01 CRS 91580. Defendant argues that because being an habitual felon is not a crime but a status, his case must be remanded so that sentence may be imposed in the underlying felony case file number.
    Here, a jury found defendant guilty of breaking or entering, larceny and attaining the status of being an habitual felon and the trial court sentenced him accordingly. Furthermore, the judgment and commitment form entered in defendant's case, clearly states that file number 01 CRS 023145 corresponds to defendant's habitualfelon status and that file number 01 CRS 091580 corresponds to defendant's breaking or entering and larceny convictions. Defendant's assignment of error is overruled.
    Defendant finally contends the trial court erred in admitting evidence of similar offenses. Over defendant's objection, Officer Wolf testified that “a rash of burglaries” had taken place in the Greenway area of High Point and a special unit had been established to investigate the crimes. Officer Wolf further testified he observed a suspect, who was a bald man on a purple bike, in the Greenway area one and a half weeks before the 17 July incident. Detective McCluney also testified that he was part of the special unit and was aware of a number of break-ins in the Greenway area. The trial court sustained defendant's objection as to Detective McCluney's testimony and instructed the jury that his testimony was offered to explain why the police were in the Greenway area on 17 July and not “to prove that this defendant had anything to do with any other cases[.]”
    Defendant argues the admission of this testimony violated N.C. Gen. Stat. § 8C, Rule 404(b) (2001), which provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Defendant argues that this evidence convinced the jury he had a “propensity” to break the law. Evidence of other wrongs, however, “may be admissible for other purposes, such as proof of motive[.]” Id.    Evidence of the other break-ins to which defendant objects, is admissible. We see no prejudice to defendant here. The testimony of Officer Wolf and Detective McCluney was admitted to show why a task force had been formed and their involvement in the task force. We note that the effect of the officers' testimony was carefully circumscribed by the trial court in its ex mero moto limiting instructions during Detective McCluney's testimony. Finally, Officer Wolf's testimony regarding his observation of a balding man on a purplish bike during his summer assignment explained why, on 17 July 2001, Officer Wolf stopped his patrol vehicle to investigate a potential break-in. We find that any error in admission of evidence of other crimes is harmless and not prejudicial based on the plenary evidence that defendant committed the charged offenses.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***