State v Davis, (05-442) 01/17/2006

Appeal by defendant from judgment entered 9 February 2005 by Judge Mark E. Klass in Rowan County Superior Court. Heard in the Court of Appeals 2 November 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State.

James M. Bell for defendant-appellant.

    CALABRIA, Judge.

    Freddie Revon Davis (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of felonious possession of a firearm by a felon and attaining the status of an habitual felon. Defendant was sentenced to a term of 107 months to 138 months imprisonment in the North Carolina Department of Correction. We find no error.
    The State presented evidence showing: defendant had a lengthy romantic relationship with Jane Baker (“Baker”) that ended approximately in August 2003. Subsequently, Baker moved in with Jan Willis (“Willis”) at 102 Lakewood Drive in Salisbury, North Carolina. Willis testified she saw defendant on two occasionsafter Baker moved in and prior to the evening in question, 28 October 2003, at her 102 Lakewood Drive apartment. On each occasion, defendant was dressed in black and upon seeing Willis, ran away.
    On 28 October 2003 at 6:40 p.m. Baker stepped outside her front door and upon seeing defendant, immediately came back inside. Baker called the police and, fearing defendant would run away again, Willis drove her car to the apartment complex entrance. Seeing defendant's car parked across from the complex entrance, Willis drove back to her apartment. Upon seeing defendant still at her front door, Willis attempted to have a conversation with him so as to keep him stationary until the police arrived. Subsequently, Willis went inside, retrieved the phone from Baker, informed the police of what had transpired, and encouraged Baker to go outside and speak with the defendant to assure he did not flee. As Baker and defendant continued to argue, Willis went across the street to waive down the police when they arrived. Officer M.P. Benjamin (“Officer Benjamin”) arrived and immediately asked defendant if he had a gun to which defendant responded affirmatively. Defendant first handed the gun and then, separately, its loaded magazine to Officer Benjamin. Officer Benjamin asked defendant if he was a convicted felon to which defendant responded affirmatively. Officer Benjamin then arrested defendant for possession of a firearm by a convicted felon. At trial, defendant admitted he was convicted of a felony on 26 May 1988.    Defendant presented evidence showing: he went to 102 Lakewood Drive on 28 October 2003 to return several items, including Baker's gun, to her at her request. Also, Baker testified that though Willis believed the person she saw at 102 Lakewood prior to the incident on 28 October 2003 to be the defendant, she could not be certain. Defendant was convicted and appeals.
I. Speculative Testimony:
    Defendant first argues the trial court erred by overruling his objection to testimony suggesting he was stalking Baker by peeping through her window. Defendant contends such an error violates N.C. Gen. Stat. § 8C-1, Rule 602 (2005), because the testifying witness, Willis, had no personal knowledge of the alleged peeping and thus, her testimony amounted to mere speculation. We disagree.
    “Whenever evidence is admitted over objection and the same or similar evidence is theretofore or thereafter admitted without objection, the objection is deemed waived.” State v. Wright, 302 N.C. 122, 125-26, 273 S.E.2d 699, 702 (1981) (citations omitted); see also State v. Greene, 285 N.C. 482, 496, 206 S.E.2d 229, 238 (1974) (explaining that “[t]he admission of testimony over objection is ordinarily harmless when testimony of like import is thereafter introduced without objection.”).
    The testimony in question arose from the following interchange between the State and Willis.

        State: And what was [appellant] doing when you first saw him on this occasion?
        Willis: I don't know if he had already been to our window or was coming to our window.
            Appellant counsel: Objection.
            Court: Overruled.
        State: How close was he to your apartment when you saw him?

        Willis: From here to the front door.

    Defendant's concern regarding Willis' presumed lack of personal knowledge in this above specific instance regarding the alleged peeping is more than overshadowed by other evidence pointing to his presence at the 102 Lakewood location on several other occasions. Specifically, Willis testified she had seen defendant on two occasions prior to the incident on 28 October 2003 near her apartment. Both times defendant was dressed in black and when confronted, ran away. Further, on the evening of the incident defendant parked his car across the street from the apartment entrance at 102 Lakewood Drive. Such evidence of defendant's continued presence at the residence of both Willis and Baker overrides any potential concern regarding the admission of the prior cited testimony. This assignment of error is overruled.
II. Ex Post Facto Law:
    Defendant next argues the trial court committed error by disallowing his motion to dismiss on grounds he was subjected to an ex post facto law. Defendant contends application of a 1995amendment to N.C. Gen. Stat. § 14-415.1 to be an ex post facto law. We disagree.
    This Court previously addressed this specific question and found it without merit. See State v. Johnson, 169 N.C. App. 301, 307, 610 S.E.2d 739, 743, disc. review denied, 359 N.C. 855, 619 S.E.2d 855 (2005) (holding N.C. Gen. Stat. § 14-415.1 does not violate either state or federal ex post facto clauses adding “the [1995] amendment to N.C. Gen. Stat. § 14-415.1 constituted a retroactive civil or regulatory law, and as such does not violate the ex post facto clause”). Accordingly, we overrule this assignment of error.
III. Indictment:
    Defendant next argues the trial court erred by permitting the State to amend the indictment after it rested. Defendant contends in most cases indictments may not be amended at trial. We disagree.
    Though bills of indictment may not be amended, see N.C. Gen. Stat. § 15A-923(e) (2005), our Supreme Court has stated “the term amendment [is] any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (citation and internal quotation marks omitted). Further, “[e]rror as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead thedefendant to his prejudice.” N.C. Gen. Stat. § 15A-924(a)(4) (2005) (emphasis added).
    In the instant case, the trial court permitted the State to amend the indictment to reflect the date of conviction for the crime of possession of a handgun by a convicted felon as 26 May 1988 as opposed to 25 May 1988. The bill of indictment for attaining the status of an habitual felon already had the correct date of 26 May 1988. As noted in Price, 310 N.C. at 599, 313 S.E.2d at 558-59, changing the offense date in an indictment “d[oes] not substantially alter the charge set forth in the indictment” where time is not an essential element of the charge (emphasis added). In the instant case, timing of the offense was not an essential element of the charge and thus amending the indictment to reflect the accurate date of conviction did not prejudice defendant. This assignment of error is overruled.
IV. Double Jeopardy Clause:
    Defendant next argues the trial court erred by disallowing his motion to dismiss regarding the use of one of his prior convictions as both the underlying conviction for the indictment for possession of a firearm by a convicted felon and as one of the three underlying felonies used to elevate his status to that of an habitual felon. Defendant contends such a practice violates the Double Jeopardy Clause in both the state and federal constitutions. We disagree.
    This Court previously addressed this specific question and found it without merit. See State v. Glasco, 160 N.C. App. 150,160, 585 S.E.2d 257, 264, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003) (explaining “[o]ur courts have determined that elements used to establish an underlying conviction may also be used to establish a defendant's status as a habitual felon.”). We overrule this assignment of error.
V. State Exhibits:
    Defendant next argues the trial court erred by permitting the jury to review three State exhibits in the jury room. Defendant contends considerable surplus and potentially prejudicial information regarding him, beyond that necessary to illustrate his three prior felony convictions to adjudicate him as an habitual felon, was reviewed by the jury in violation of N.C. R. Evid. 402 and 403. We disagree.
    “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R. App. P. 10(b)(1) (2005). Further, “[a]ssignments of error...in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” N.C. R. App. P. 28 (b)(6) (2005).
    The following interchange occurred regarding the admission of State Exhibit Numbers 6, 7, and 8.

        Court: (to the State) You may proceed with your evidence.
        State: Thank you, Your Honor. Your Honor, at this time the State will move to introduce what's been marked as State's Exhibit Number 6...State's Exhibit Number 7 and State's Exhibit Number 8...(each exhibit was described at length)...we would move to introduce those certified copies and ask they be published to the jury.

        Court: Any objections?

        Appellant Counsel: No, Your Honor.

        Court: So admitted.

        (Exhibits passed to the jury)

The jury retired for deliberation and subsequently asked the court if they could review the three aforementioned exhibits. Defendant counsel objected, was overruled, and the three exhibits were sent to the jury.
    In the instant case, defendant failed to object to the admission of the substantive evidence, State Exhibit Numbers 6, 7, and 8. Thus, according to N.C. R. App. P. 10(b)(1), defendant failed to properly preserve this question for appellate review. Further, though defendant did object to the jury request to review the three exhibits, no argument or citation to authority was presented regarding whether delivery of the exhibits was error or not. Thus, according to N.C. R. App. P. 28 (b)(6), defendant abandoned this argument. This assignment of error is overruled.
VI. Sentencing:
    Defendant's final assignment of error asserts the trial court erred by sentencing him as an habitual felon. Defendant contends his prior arguments in this brief regarding both the ex post facto and double jeopardy clauses suffice here to explain why it wasimpermissible to use the same conviction for felonious possession of a handgun as one of the three prior convictions to attain the status of an habitual felon. Defendant's prior arguments were refuted and for those same reasons, they are equally unavailing here. This assignment of error is overruled.
    No error.
    Judges HUDSON and BRYANT concur.
    Report per Rule 30(e).

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