STATE OF NORTH CAROLINA
No. 02 CRS 15846
RONALD J. SMITH, JR.,
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.
A jury convicted defendant, Ronald J. Smith, Jr., of speeding in excess of 80 miles per hour. We hold that defendant received a trial free of prejudicial error.
Id. at 617-18, 422 S.E.2d at 682. The Court held that such
instructions in fact afforded the defendants the same benefit as a
formal alibi instruction and, therefore, the defendant was not
prejudiced by the trial court's error in failing to give an alibi
instruction. Id. at 618, 422 S.E.2d at 682.
The instructions given in this case were virtually identical to those in Hood. In addition, the trial court specifically instructed the jury that "the State has the burden of proof in regard to the identity of the Defendant as the perpetrator of the crime, and this must be beyond a reasonable doubt as well. This means that you, the jury, must be satisfied beyond a reasonable doubt that the Defendant was the perpetrator of the crime . . . with which he is charged before you may return a verdict of guilty." Under Hood, these instructions in their totality provided the same benefit as a formal alibi instruction. Accordingly, even assuming arguendo that the trial court erred in failing to give the requested instruction, defendant has failed to demonstrate any prejudice. This assignment of error is overruled. Defendant next argues the evidence is insufficient to establish the elements of the offense of speeding and that the trial court, therefore, erred in allowing the speeding charge to proceed to the jury . Defendant made a motion to dismiss at the close of the State's evidence, but failed to renew that motion at the close of all the evidence. Under such circumstances, the North Carolina Supreme Court has held, based on N.C.R. App. P. 10(b)(3), that "the issue of insufficiency was not preserved for appellate review." State v. Richardson, 341 N.C. 658, 676_77, 462 S.E.2d 492, 504 (1995).
Defendant asks the Court to review the sufficiency of evidence under the plain error doctrine. Plain error, however, only applies to jury instructions and evidentiary matters. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004). The doctrine does not apply when a defendant has failed to make a motion to dismiss at the close of all the evidence. Richardson, 341 N.C. at 676-77, 462 S.E.2d at 504 (refusing to apply plain error doctrine when a defendant failed to renew his motion to dismiss); Freeman, 164 N.C. App. at 677, 596 S.E.2d at 322 (accord). The issue of the sufficiency of the evidence has not, therefore, been preserved for appellate review.
Finally, defendant argues that the trial court erred in admitting into evidence his 10-year-old conviction for possession of marijuana. During defendant's testimony, the prosecutor cross- examined him about his criminal record:
Q. Well, let's talk about you. What have you been convicted of in the last 10years that carries a sentence of 60 days or more?
A. I think carrying a weapon, concealed weapon, as far as I know.
. . . .
Q. So that's the only thing you have testified to that you have a conviction on?
A. Um _
Q. Or is it now you remember more since I do have a printout of your record?
A. I'm just trying to think. I don't know what other than that that might have carried jail time. I'm assuming that maybe a traffic offense would not.
Q. Well _
A. If there is something there _
Q. Convicted of possessing marijuana?
A. In the last ten years?
Q. Well, it's 1993.
MR. SNEAD [Defense counsel]: Objection. Your Honor.
THE COURT: Overruled.
A. Not that _
MR. SNEAD: May I be heard?
THE COURT: No. Go ahead.
A. Not _ I don't believe I had a conviction in '93.
Q. Well, you were placed on probation, weren't you?
A. Not in the last ten years.
Q. 1994? You don't remember?
A. No sir, I don't.
Q. Well, you testified that you had a carrying a concealed weapon conviction in Florida _
A. Yes, sir.
Q. _ back in 1997, correct?
A. That might have been the right year.
Q. A felony, correct?
A. I believe it is down there.
N.C.R. Evid. 609(b) provides that "[e]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date . . . ." The trial in this case took place on 30 June 2003. Since the record does not reveal the precise date of defendant's conviction or, if confined for that conviction, the date of his release, we cannot determine whether the trial court erred in overruling the objection.
In any event, defendant has failed to argue how he was prejudiced by the State's question. Defendant denied that he had a marijuana conviction and the State never offered evidence otherwise. Further, defendant admitted not only that he had a much more recent felony conviction for carrying a concealed weapon, but also that he had so many driving violations that he would lose his driving privileges if the jury convicted him . Given that evidence, we do not believe that "a different result would have been reached at the trial" in the absence of the State's question about thepossible 1993 marijuana conviction. N.C. Gen. Stat. § 15A-1443 (2003).
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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