An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-50

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            Nos. 01 CRS 62657
                                02 CRS 3718
DARRELL WAYNE COOK

    Appeal by defendant from judgment entered 21 August 2002 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 12 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.

    Irving Joyner for defendant-appellant.

    TIMMONS-GOODSON, Judge.

    Darrell Wayne Cook (“defendant”) appeals his convictions for possession of cocaine, conspiracy to sell and deliver cocaine, and attaining habitual felon status. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we remand the case to the trial court for resentencing.
    The State's evidence presented at trial tends to show the following: On 10 December 2001, defendant and an acquaintance, Carlton Lavarr Kimbrough (“Kimbrough”), were standing on a street corner in Winston-Salem. Winston-Salem Police Department Detectives Michael Cardwell (“Detective Cardwell”) and Doug Nance (“Detective Nance”) were patrolling the area in an unmarked police vehicle. The detectives were investigating a report that anindividual named “Bo” was selling drugs in the area.
    As the detectives approached defendant and Kimbrough, Detective Cardwell asked the two men if they knew where the detectives could find “Bo.” Defendant replied that he did not know “Bo,” and defendant then asked Detective Cardwell what he needed. Based upon his experience as a narcotics officer, Detective Cardwell interpreted defendant's question as an invitation for a drug sale. Detective Cardwell replied that he wanted a “twenty,” which, Detective Cardwell testified, is “common slang for one piece of crack cocaine or $20.00 worth of crack cocaine.” Defendant then looked at Kimbrough, turned to Detective Cardwell, and said “we gotcha.” Defendant instructed the detectives to drive their vehicle down the street and away from a marked police vehicle parked nearby.
    Defendant and Kimbrough then walked down the street to meet the detectives' vehicle. Detective Cardwell testified that as Kimbrough approached the vehicle, defendant stood behind Kimbrough and “looked around as if watching” for other police officers. Kimbrough pulled a plastic bag out of his pocket containing several pieces of crack cocaine. Kimbrough then removed a single piece of cocaine from the bag and allowed Detective Cardwell to taste it to verify its authenticity. Detective Cardwell received the piece of cocaine in exchange for a $20.00 bill, from which the serial number had been recorded for evidentiary purposes.
    After the exchange, the detectives drove away and observed defendant and Kimbrough's behavior through the rear window of thevehicle. Detective Cardwell testified that he observed the men exchange an unidentifiable object as they walked down the street. The detectives then radioed descriptions of defendant and Kimbrough to officers located in an arrest vehicle parked nearby. The officers in the arrest vehicle proceeded to where defendant and Kimbrough were walking and apprehended the two men. Just before defendant and Kimbrough were apprehended, one of the arresting officers, Officer Jeff Brannon (“Officer Brannon”), observed defendant discard a clear plastic bag containing a white object. As Officer Brannon approached defendant, defendant stated, “Man, I didn't throw that dope.” The small bag was subsequently determined to contain approximately two grams of crack cocaine.
    Defendant was indicted for possession of cocaine, conspiracy to sell and deliver cocaine, and attaining habitual felon status. Defendant's trial began 19 August 2002, and on 21 August 2002, the jury found defendant guilty of possession of cocaine and conspiracy to sell and deliver cocaine. Defendant subsequently pled guilty to attaining habitual felon status and was sentenced to 140 to 177 months incarceration. Defendant appeals.



    We note initially that defendant's brief presents arguments supporting only eight of the original ten assignments of error. Pursuant to N.C.R. App. P. 28(b)(6), the two omitted assignments of error are deemed abandoned. We also note that in a footnote contained within his brief, defendant argues that a spelling error in his co-conspirator's name resulted in a “fatal variance . . .between the indictment and the proof [that] is a separate ground for reversing [] defendant's conviction.” Because defendant failed to challenge the validity of the indictment during trial and also failed to assign error to the indictment on appeal, defendant is prevented from raising the issue before this Court in this appeal. N.C.R. App. P. 10(b)(1) (2004). Accordingly, we limit our review to those assignments of error and issues properly preserved by defendant for appeal.
    The issues on appeal are whether the trial court erred by: (I) denying defendant's motion to dismiss the charge of conspiracy to sell and deliver cocaine; (II) allowing a witness to provide opinion testimony regarding the existence of a conspiracy to sell and deliver cocaine; (III) granting the State's motion to amend the habitual felon indictment; (IV) calculating defendant's prior convictions; and (V) denying defendant's motion to dismiss the habitual felon charge.
I.
    Defendant first assigns error to the trial court's denial of defendant's motion to dismiss the charge of conspiracy to sell and deliver cocaine. Defendant argues that the State presented insufficient evidence to support the charge. We disagree.
    In ruling on a motion to dismiss in a criminal case, the trial court must determine whether the State has presented sufficient evidence of each element of the offense charged. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984). “Substantial evidence is such relevant evidence as a reasonable mind mightaccept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing the evidence, the trial court must consider all the evidence in the light most favorable to the State, and the trial court must grant the State the benefit of every reasonable inference. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying the defendant's motion to dismiss.” State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983).
    In the instant case, the State provided circumstantial evidence to support the charge of conspiracy to sell and deliver cocaine. The relationship between circumstantial evidence and conspiracy in North Carolina has been explained as follows:
        A criminal conspiracy is an agreement by two or more persons to perform an unlawful act or to perform a lawful act in an unlawful manner. . . . The crime is complete once the agreement has been reached; no overt act is necessary to establish criminal liability. . . . Circumstantial evidence may be used to show conspiracy. Conspiracy “may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.” It is not necessary that the individual charged expressly state his willingness to participate; a mutual, implied understanding is sufficient.

State v. Rozier, 69 N.C. App. 38, 49-50, 316 S.E.2d 893, 900-01 (1984) (citations omitted). The question of whether a defendant's behavior constitutes conspiracy is reserved for the finder of fact. Id. at 54, 316 S.E.2d at 903.
    In the instant case, Detective Cardwell testified that when the detectives pulled their vehicle alongside defendant and Kimbrough, Detective Cardwell asked the two individuals if they knew where the detectives could find “Bo.” Detective Cardwell testified that defendant replied by stating, “I don't know Bo, what do you need?” When Detective Cardwell informed defendant that he wanted to buy a “twenty,” defendant looked towards Kimbrough before he replied “we gotcha.” Detective Cardwell further testified that defendant then instructed the detectives to move their vehicle away from a nearby marked police vehicle. Both detectives testified that defendant and Kimbrough then approached the detectives' vehicle together, and Detective Cardwell testified that while he and Kimbrough exchanged the cocaine and money, defendant “look[ed] around as if watching” for other police officers. The detectives testified that they saw defendant accept a small object from Kimbrough while the detectives drove away. Officer Brannon testified that as he and the other arresting officers approached defendant and Kimbrough, defendant discarded a small plastic bag containing over two grams of cocaine. Viewing this evidence in the light most favorable to the State, we conclude that the State presented sufficient evidence from which the jury could find that defendant conspired with Kimbrough to sell and deliver the cocaine. Thus, we also conclude that the trial court did not err in denying defendant's motion to dismiss the charge of conspiracy to sell and deliver cocaine.
II.
    In his next assignment of error, defendant argues that the trial court erred by allowing Detective Nance to provide opinion testimony regarding the charge of conspiracy to sell and deliver cocaine. Defendant contends that Detective Nance was prohibited from providing opinion testimony and personal conclusions regarding the existence of a conspiracy between defendant and Kimbrough. We disagree.
    It is well settled that “[q]uestions seeking an explanation on redirect examination of matters brought out by the defendant on cross examination are proper.” State v. Gappins, 320 N.C. 64, 67, 357 S.E.2d 654, 657 (1987). Accordingly, the answers to those questions are admissible “even though they might have been inadmissible if the State had opened the line of inquiry in the first instance.” Id.; See State v. Williams, 315 N.C. 310, 320, 338 S.E.2d 75, 82 (1986) (“It is well settled that evidence explanatory of testimony brought out on cross-examination may be elicited on redirect even though it might not have been properly admissible in the first instance.”). The rationale for this rule is found in the principle that “[a] defendant may not deliberately elicit testimony and then later complain of its admission.” Gappins, 320 N.C. at 67, 357 S.E.2d at 657. Therefore, where a defendant “opens the door” for opinion testimony on cross- examination, the trial court does not err by permitting a witness to testify as to his opinion on redirect examination.
    In the instant case, defendant's counsel began the cross-examination of Detective Nance by asking Detective Nance about Kimbrough's role in the cocaine sale. The following exchange occurred during cross-examination:
        COUNSEL:        It's fair to say [Kimbrough] was in charge?
        
        WITNESS:        Are you asking me my opinion?

        COUNSEL:        Yes.

        WITNESS:        I would say that they were both working in tandem with one another.

Thereafter, on redirect examination, the State sought to clarify Detective Nance's response, at which time the following exchange occurred:
        THE STATE:    When you indicated to the jury in response to one of the questions by defense counsel that they were working in tandem, can you explain to the jury what you mean by that?

        . . . .

        WITNESS:        They were working as partners.

        . . . .
    
        THE STATE:    How were they working as partners?
    
        WITNESS:        They worked together in the sale of narcotics in an effort to avoid detection and to prevent the seizure of the drugs and the money.
        
    We conclude that Detective Nance's testimony on redirect examination was admissible. By questioning Detective Nance regarding his opinion of Kimbrough's participation in the sale of cocaine, defendant “opened the door” to Detective Nance'ssubsequent testimony on redirect examination, regardless of whether that subsequent testimony would have been admissible during direct examination. Therefore, we also conclude that the trial court did not err in allowing Detective Nance to testify on redirect examination regarding Kimbrough's participation in the sale of cocaine.

III.
    Defendant next assigns error to the trial court's decision to grant the State's motion to amend the habitual felon indictment. Defendant argues that the trial court erred by allowing the State to amend the indictment in order to correct the date of one of defendant's prior convictions. We disagree.
    N.C. Gen. Stat. § 15A-923(e) (2003) provides that “[a] bill of indictment may not be amended.” However, “this statute . . . has been construed to mean only that an indictment may not be amended in a way which 'would substantially alter the charge set forth in the indictment.'” State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994) (quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. review denied and appeal dismissed, 294 N.C. 737, 244 S.E.2d 155 (1978)). Furthermore, “[a] change in an indictment does not constitute an amendment where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges.” State v. Campbell, 133 N.C. App. 531, 535-36, 515 S.E.2d 732, 735, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
    In the instant case, the habitual felon indictment againstdefendant was supported by three prior felony convictions, including a conviction in Forsyth County in July 1988 for felony breaking, entering, and larceny. The habitual felon indictment correctly listed the date of occurrence for this offense as 4 April 1988. However, the habitual felon indictment incorrectly listed the conviction date of the offense as 5 July 1988 rather than 6 July 1988. Prior to trial, the State moved the trial court to amend the habitual felon indictment in order to correct the error. The trial court allowed the correction, noting that
        the date of judgment apparently was improperly typed on that form as July 5th. The date is actually July 6th, which was signed by Judge Ross at that time in 1988.

    We agree with the trial court that the variance in the habitual felon indictment in the instant case was inadvertent. Furthermore, we note that this Court has previously held that amendment of a conviction date on a habitual felon indictment does not constitute a substantial change to the indictment. State v. Hargett, 148 N.C. App. 688, 693, 559 S.E.2d 282, 286, disc. review improvidently allowed, 356 N.C. 423, 571 S.E.2d 583 (2002); State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994). Defendant has failed to show he was surprised, misled, or prejudiced in any way by the trial court's subsequent change of the underlying conviction alleged in the indictment. As we stated in Locklear, “it was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment.” 117 N.C. App. at 260, 450 S.E.2d at 519. Therefore, we conclude that the trial court did not err in grantingthe State's motion to amend the habitual felon indictment.
IV.
    Defendant next assigns error to the trial court's judgment and commitment of defendant. Defendant argues that the trial court erred in calculating his prior record level for sentencing purposes. We agree.
    Based upon defendant's previous convictions, the trial court assigned defendant fifteen points and accordingly found defendant to have a prior record level V for sentencing purposes. According to the trial court's notes on the judgment sheet, five of the assigned points stemmed from five of defendant's previous class A1 or class 1 misdemeanor convictions, including: a 28 October 1983 conviction for misdemeanor larceny; a 12 March 1987 conviction for misdemeanor larceny; a 23 June 1987 conviction for misdemeanor larceny; a 25 February 1997 conviction for possession of drug paraphernalia; and a 4 January 2000 conviction for public disturbance. We note that although there is no specific crime in North Carolina with the title “public disturbance,” the term is defined in N.C. Gen. Stat. § 14-288.1(8) (2003) and the act forbidden by N.C. Gen. Stat. § 14-288.4 (2003), which prohibits “disorderly conduct.” However, we also note that N.C. Gen. Stat. § 14-288.4(b) states that “[a]ny person who willfully engages in disorderly conduct is guilty of a Class 2 misdemeanor.” Therefore, we conclude that the trial court erred in the calculation of defendant's prior class A1 or class 1 misdemeanor convictions by including defendant's 4 January 2000 conviction for “publicdisturbance.”
    Furthermore, as discussed above, during the trial court's calculation of defendant's prior class A1 or class 1 misdemeanor convictions, the trial court considered defendant's 28 October 1983 conviction for misdemeanor larceny. However, as defendant noted at trial, the 28 October 1983 conviction occurred the day after defendant had been convicted for breaking and entering a vehicle and felony larceny. N.C. Gen. Stat. § 15A-1340.14(d) (2003) provides that “[f]or purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used.” Therefore, we conclude the trial court also erred in the calculation of defendant's prior class A1 or class 1 misdemeanor convictions by including defendant's 28 October 1983 conviction for misdemeanor larceny.
    According to the judgment sheet, the ten other points assigned to defendant stemmed from five of defendant's prior class H or I felony convictions, four of which include: an 18 April 1983 conviction for two counts of felony breaking, entering, and larceny; the 27 October 1983 conviction for breaking and entering a vehicle and felony larceny; a 13 November 1984 conviction for felony breaking, entering, and larceny; and an 1 April 1985 conviction for felony breaking, entering, and larceny. With respect to the fifth felony, the following exchange occurred at defendant's sentencing hearing:        THE COURT:        Okay. Again, I hate to belabor this, 'cause we've spent some time talking about it; I'm looking at his prior convictions, and I find that five misdemeanors that are talked about on the front, and I'm struggling for the fifth felony, there was two counts of breaking and entering and larceny in 1983 that apparently were sentenced together.

        THE STATE:        On July [6]th, 1988 one of the underlyings, that's a felony breaking and entering and larceny, so the State is using one of those felonies for points as well.

        THE COURT:        Okay, sorry, I'm with you now.

    As discussed at trial, defendant's 6 July 1988 conviction for felony breaking, entering, and larceny is one of the three underlying felonies alleged to support defendant's indictment as a habitual felon. N.C. Gen. Stat. § 14-7.6 (2003) provides as follows:
        When an habitual felon as defined in this Article commits any felony under the laws of the State of North Carolina, the felon must, upon conviction or plea of guilty under indictment as provided in this Article (except where the felon has been sentenced as a Class A, B1, or B2 felon) be sentenced as a Class C felon. In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used.

(emphasis added). Thus, we conclude that the trial court also erred by including defendant's 6 July 1988 conviction for felonybreaking, entering, and larceny in the calculation of defendant's prior class H or I felony convictions. Therefore, we remand the case for resentencing, and we instruct the trial court to consider only those prior misdemeanor and felony convictions deemed to be proper for the determination of an habitual felon's sentence.
V.
    In his final assignment of error, defendant challenges the trial court's denial of his motion to dismiss the habitual felon charge. Defendant argues that the trial court was required to conduct a hearing to review defendant's evidence.
     As discussed above, in ruling on a motion to dismiss in a criminal case, the trial court must determine whether the State has presented sufficient evidence of each element of the offense charged. Bullard, 312 N.C. at 160, 322 S.E.2d at 387. In the instant case, defendant did not challenge the sufficiency of the evidence supporting the habitual felon charge; instead, defendant asserted in his motion to dismiss that the Habitual Felon Act, N.C. Gen. Stat. § 14-7.1 (2003) et. seq., “is unconstitutional on its face and as applied to this defendant.” Specifically, defendant asserted in his motion that: (i) the district attorney's “unbridled discretion” in deciding which individuals to prosecute under the Act violates the due process guarantees of the Fifth Amendment and the protection against arbitrary and capricious prosecution afforded by the Eighth Amendment; (ii) application of the Habitual Felon Act to defendant resulted in a discriminatory effect in violation of the Fourteenth Amendment; and (iii)application of the Habitual Felon Act in general and to defendant constitutes cruel and unusual punishment forbidden by the Eighth Amendment. In support of the motion to dismiss, defendant attached an article published in the 22 July 2002 edition of the Winston- Salem Journal, which, defendant alleged, concluded that “81% of the defendants convicted in Forsyth County as habitual felons were black. 17% were white.”
    At the sentencing phase of the trial, defendant's counsel reiterated the arguments supporting the motion to dismiss and requested that defendant be allowed to testify regarding defendant's addiction to cocaine. The trial court concluded that the State was not challenging defendant's assertion that defendant was a cocaine addict. Defendant made no subsequent requests that he have an opportunity to introduce any evidence or argument other than that attached to and alleged within the motion to dismiss. After hearing from the State regarding the motion, the trial court made the following conclusion:
        Well, the Court, after a review of the habitual felon statute, and a review of the motion filed by the Defense, will first of all, find that the habitual felon statute does not violate due process of law, both State and Federal. The Court would further find that based on the record of the Defendant, the considerations in the Court file, the evidence presented, that this application in this case would not amount to a selective prosecution or arbitrary prosecution by the State.

        The Court would further find that the application of the habitual felon statute in this case would not constitute cruel and unusual punishment as alleged by the Defense in their motion; and the Court will find that it is not in violation of any of theconstitutional provisions or amendments thereof of the State or Federal Constitutions.

        So the Court will deny the motion to dismiss the habitual felon indictment at this time.

Defendant subsequently pled guilty to attaining habitual felon status.
    We note that the courts of this state have previously rejected multiple challenges to the constitutionality of the Habitual Felon Act. In State v. Todd, our Supreme Court held that the Habitual Felon Act satisfied the requirements of the federal and state constitutions, and that our legislature was “within constitutionally permissible bounds in enacting legislation designed to identify habitual criminals and to authorize enhanced punishment as provided.” 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985). In State v. Wilson, this Court recognized that “it is well established that 'there may be selectivity in prosecutions and that the exercise of this prosecutorial prerogative does not reach constitutional proportion unless there be a showing that the selection was deliberately based upon “an unjustifiable standard such as race, religion or other arbitrary classification.”'” 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (citations omitted), appeal dismissed and disc. review denied, 353 N.C. 279, 546 S.E.2d 394 (2000); See State v. Parks, 146 N.C. App. 568, 571, 553 S.E.2d 695, 697 (2001) (holding that prosecutor's decision to prosecute all persons potentially eligible for habitual felon status is not violative of state or federal constitutions), appeal dismissed and disc. review denied, 355 N.C. 220, 560 S.E.2d 355, cert. denied,537 U.S. 832, 154 L. Ed. 2d 49 (2002).
    In the instant case, defendant offered no evidence at trial or in his motion to dismiss tending to show that the Forsyth County District Attorney's Office deliberately chose to prosecute defendant as an habitual felon based upon defendant's race or some other arbitrary classification. Likewise, defendant offered no evidence tending to show that the Forsyth County District Attorney's Office deliberately chose to prosecute other defendants as habitual felons based upon those defendants' race or some other arbitrary classification. There is no indication in the record that the trial court prevented defendant from offering any such evidence in the motion or at trial. In fact, the trial court heard argument from defendant prior to issuing its ruling on the motion. Thus, the trial court was bound by previous decisions upholding the prosecutorial discretion provided by the Habitual Felon Act and clearly rejecting constitutional challenges to the Act. Accordingly, because this Court is bound by the same precedent, we conclude the trial court did not err in denying defendant's motion to dismiss the habitual felon charge. Therefore, in light of our foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we remand the case to the trial court for resentencing.
    No error; remanded for resentencing.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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