An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1479


Filed: 19 July 2005


v .                         Robeson County
                            No. 02 CRS 55918

    Appeal by defendant from judgment entered 24 June 2004 by Judge B. Craig Ellis in Robeson County Superior Court. Heard in the Court of Appeals 16 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

    Irving Joyner, for defendant-appellant.

    STEELMAN, Judge.

    Linda Hammonds (Hammonds) and Beth Locklear returned to Hammonds' home from a shopping trip between 12:30 and 1:00 p.m. on 26 May 2003 and found Hammonds' front door open. As Hammonds was exiting her truck, she saw a tall man wearing a faded brown t-shirt and blue jeans leave her house carrying a white pillowcase stuffed with something. Hammonds testified “I seen his face, his eyes and everything, 'cause his eyes, like, stood out ....” Hammonds ran after the man yelling at him, but he ran around the side of the house, through a wheat field, and disappeared into thick woods behind. When she looked behind her house, she also saw a different man running away from her house through the wheat field and into the woods. Hammonds made an in-court identification of defendantas the man she spotted exiting her house with the pillowcase. Sheriff's deputies identified two paths through the wheat field, and tracking dogs followed the trails until they disappeared in some water. Anthony “Buddy” Hunt (Hunt) testified that at “roundabout three, four o'clock, somewhere in that neighborhood[,]” he saw a man who was “wet and muddy and scratched up pretty good” wearing a faded brown t-shirt and blue jeans and carrying a “bed sheet in his hand or a pillowcase, something white, bag-ish like.” Hunt testified that this man went back into the woods, but returned later and approached him, asking for a cigarette and the use of Hunt's phone. Hunt identified defendant in court as the man who approached him, and testified that defendant told him his father was Jerry Scott, a man Hunt knew. Hunt agreed to drive defendant to a trailer that defendant indicated belonged to his cousin. Hunt also testified that he recognized the teardrop tattoo on defendant's face, and that he recalled seeing tattoos on the arms of the man he saw the day in question.
    Detective Darryl Little of the Robeson County Sheriff's Office testified that he was called to the scene of the breaking and entering that day, and in the course of his investigation he questioned both Hammonds and Hunt. He testified that he knew defendant, as well as defendant's brother Jeremy Scott, and came to believe defendant was involved in the crime. Detective Little prepared a photographic line-up including defendant (but not Jeremy Scott). Hammonds picked defendant out of the lineup. Hammondstestified that she knew Jeremy Scott, and that he was not the man who she saw exiting her house on 26 May 2003.
    The jury found defendant guilty of felonious breaking and entering and felonious larceny. Defendant was sentenced to consecutive active sentences of eleven to fourteen months. From these judgments defendant appeals.
    In defendant's first argument he contends that the trial court committed plain error by instructing the jury on the theory of acting in concert “in the absence of evidence which showed that the defendant was aided by another person in committing these crimes ....” We disagree.
    In a criminal case, “a question which was not preserved by objection noted at trial and which is not deemed preserved by rule of law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. Rule 10(c)(4)(2003). “ The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). “[T]he term 'plain error' does not simply mean obvious or apparent error . . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “[T]o reach the level of 'plain error' contemplated in Odom, the error . . . must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)(citations omitted). “In other words,the appellate court must determine that the error in question 'tilted the scales' and caused the jury to reach its verdict convicting the defendant.” Walker, 316 N.C. at 39, 340 S.E.2d at 83.
    In the instant case, there was evidence admitted at trial that Hammonds saw two men running away from her house and into the woods, one of whom was carrying a pillowcase full of her possessions. Sheriff's Department tracking dogs located and followed two sets of tracks. “'A defendant acts in concert with another to commit a crime when he acts in harmony or in conjunction with another pursuant to a common criminal plan or purpose.'” State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999)(quoting State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, 295 (1987). “To be convicted of a crime under the theory of acting in concert, the defendant need not do any particular act constituting some part of the crime. All that is necessary is that the defendant be 'present at the scene of the crime' and that he 'act[] together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.'” Lundy, 135 N.C. App. at 18, 519 S.E.2d at 78. Further, as there was ample evidence presented at trial that defendant personally committed all the elements of the crimes for which he was convicted, the acting in concert instruction, even assuming arguendo that it was given in error, was not prejudicial. State v. De Gina, 42 N.C. App. 156, 162, 256 S.E.2d 275, 279 (1979). Therefore, even if the instruction constituted error, defendant fails in his burden toprove prejudicial error, much less plain error. This argument is without merit.
    In his second argument, defendant contends that the trial court committed plain error by allowing the State to introduce court records of defendant's prior convictions as part of its rebuttal evidence. We disagree.
    Defendant testified at trial concerning his prior convictions, and the state cross-examined him on those convictions. The State then introduced the public records of those convictions into evidence. Defendant relies on State v. Brown, 1 N.C. App. 145, 149-50, 160 S.E.2d 508, 512 (1968)(citations omitted), for the proposition that “[w]hen a defendant takes the stand as a witness in his own behalf, he 'may be cross-examined with respect to previous convictions of crime, but his answers are conclusive, and the record of his convictions cannot be introduced to contradict him'.” Brown was decided before the North Carolina Rules of Evidence became effective in 1984.
        Prior to the adoption of the North Carolina Rules of Evidence, a witness' denial of a prior conviction on cross-examination could not be contradicted by the introduction of extrinsic evidence. Brandis on North Carolina Evidence § 112 (1982). The official commentary to the rules makes it clear that Rule 609(a) was intended to change the former practice and allow the record of the prior conviction to be introduced, regardless of the witness's denial.

State v. Dalton, 96 N.C. App. 65, 70, 384 S.E.2d 573, 576 (1989). This argument is without merit.    In his third argument, defendant contends that the trial court erred in determining his prior record level. We disagree.
    Defendant argues in his brief that the trial court erred by considering the fact that he was on probation at the time he committed the instant crimes in its calculation of his prior record level, and that this violated his Sixth Amendment right to a jury trial as recently visited in Blakely v. Washington, 542 U.S. __, 159 L. Ed. 2d 403 (2004).
     Although defendant argues that the Blakely line of cases requires that a jury determine that defendant committed the instant crimes while on probation if this fact is used to enhance his sentence, he provides no authority for this contention. The Second Circuit has held otherwise. United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) . Even assuming arguendo that the Fagans decision is incorrect, defendant's Blakely argument fails for other reasons. First, defendant stipulated to his prior record level, which obviates the need for a jury decision on that issue. Blakely, 542 U.S. at __, 159 L. Ed. 2d at 413. Second, defendant acknowledges in his brief that even if the trial court had not considered the fact that he was on probation in determining his prior record level, he would have still been sentenced at Level IV. Blakely is only implicated when a fact not found by the jury (nor stipulated by defendant) is used to elevate defendant's sentence beyond that authorized had the contested fact not been found. Id. at __, 159 L. Ed. 2d at 414. Finally, defendant has not properly preserved this argument for appeal. Rule 10(c)(1) of the NorthCarolina Rules of Appellate Procedure requires that the assignment of error in the record contain the “legal basis upon which error is assigned.” This argument is based on defendant's fifth assignment of error, which states in full: “The Trial Judge erred in determining the defendant's prior record level.” Failure to cite the legal basis subjects the assignment of error to dismissal. See State v. Thigpen, 10 N.C. App. 88, 90-91, 178 S.E.2d 6, 8 (1970) . This argument is without merit.
    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    Judges HUDSON and JACKSON concur.
    Report per Rule 30(e).

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