State v Kelly, (05-486) 01/03/2006

    Johnston County Sheriff's Deputy Brian Clifton (“Deputy Clifton”) and Detective Jack Coats (“Detective Coats”) were on patrol on 27 October 2003. Deputy Clifton worked in full uniform. Detective Coats wore a T-shirt marked “sheriff” with his badge displayed. Both officers were riding in a marked patrol car equipped with blue lights and a siren.    Deputy Clifton and Detective Coats were traveling South on McLamb Road towards the intersection with Woods Crossroads Road. As they approached the intersection, Deputy Clifton looked to his left and noticed a black BMW automobile traveling at a high rate of speed. The vehicle was “gaining on a potato truck that was in front of it as it neared the intersection.” The BMW passed the potato truck near the intersection. Deputy Clifton turned right onto Woods Crossroads Road, activated his blue lights, and passed the potato truck in pursuit of the BMW. The patrol car reached a speed of approximately 100 miles per hour. The speed limit on Woods Crossroads Road is fifty-five miles per hour.
    The BMW decelerated and made a right turn onto Jada Allen Road. As Deputy Clifton decelerated, a truck pulled in front of the patrol car from the right side of the road. Deputy Clifton activated his siren, passed the truck, and turned right onto Jada Allen Road. The patrol car was able to pull within one car length of the BMW on Jada Allen Road. Deputy Clifton was able to determine the driver was the only person located inside the vehicle. The patrol car reached a speed of approximately eighty miles per hour on Jada Allen Road.
    The patrol car pursued the BMW as it turned onto Dakota Lane, a dirt path with mobile homes situated on both sides. At this time, Detective Coats recognized defendant as the driver. The BMW traveled over a speed bump at a high rate of speed, became airborne, and landed into a ditch on the side of the road. After the BMW hit the ditch, it became airborne again and traveledthrough the front yards of two mobile homes. The BMW traveled through two sets of barbed wire fencing before coming to a stop behind one of the mobile homes.
    The driver of the BMW exited the car, looked back towards the patrol car, and proceeded to run. Deputy Clifton also recognized at this time defendant as the driver. Defendant stopped, turned around, and faced Deputy Clifton in a “fighting stance.” Detective Coats approached defendant from behind and forced him onto the ground. Defendant continued to struggle and Deputy Clifton sprayed him once with pepper spray. At that point, defendant was handcuffed. Detective Coats performed a pat down of defendant's outer clothing and felt a “large bulge” in his left coat pocket. Detective Coats removed a plastic bag containing a large amount of material which appeared to be crack cocaine from defendant's pocket. The material was later determined to be crack cocaine weighing 26.5 grams.
    The jury found defendant to be guilty of possession of cocaine with intent to sell or deliver and felony fleeing to elude arrest. Defendant pled guilty to being an habitual felon. The trial court sentenced defendant within the presumptive range to an active term of imprisonment of 120 to 153 months. Defendant appeals.

Defendant argues the trial court committed plain error in not dismissing the charge against him. He asserts the evidence was insufficient to persuade the trier of fact that he was guilty of possession of cocaine with intent to sell or deliver.
Defendant failed to move to dismiss the charge against him at the close of the State's evidence and at the close of all evidence. “A defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action[.]” N.C.R. App. P. 10(b)(3) (2005). Defendant attempts to circumvent this bar by arguing plain error. “Plain error, however, only applies to jury instructions and evidentiary matters in criminal cases. While this is a criminal case, defendant's failure to [move] to dismiss does not trigger a plain error analysis.” State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004); see also State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995) (Our Supreme Court declined to undertake a plain error analysis where the defendant failed to properly preserve the issue of sufficiency of the evidence for appellate review under Rule 10(b)(3).). This assignment of error is dismissed.

    Defendant argues the trial court committed reversible error by allowing the prosecution to introduce into evidence and publish to the jury citations Deputy Clifton had issued to defendant during the State's evidence of the charge of felony speeding to elude arrest. We disagree.
    Citations were issued to defendant on the date of his arrest for: (1) operating a motor vehicle while fleeing or attempting to elude a law enforcement officer; (2) operating a motor vehicle at a speed of eighty miles per hour in a fifty-five miles per hour zone and while defendant's license was revoked; and (3) operating a motor vehicle while displaying fictitious tags and without due caution and circumspection at a speed or in a manner so as to endanger persons and property. At trial, the second and third citations were introduced into evidence and published to the jury.
    Defendant failed to object to the admission of the two citations. We review for plain error. State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1983); N.C.R. App. P. 10(b)(2) (2005); N.C.R. App. P. 10(c)(4) (2005). Defendant argues the trial court's admission of the citations constitutes plain error. To award a new trial for plain error, the trial court's 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. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).    “At no time during the selection of the jury or during trial may any person read the indictment to the prospective jurors or to the jury.” N.C. Gen. Stat. § 15A-1221(b) (2003). The purpose of this rule is to protect jurors from being “given a distorted view of the case before them by an initial exposure to the case through the stilted language of indictments and other pleadings.” State v. Leggett, 305 N.C. 213, 218, 287 S.E.2d 832, 836 (1982).
    Defendant relies on State v. Jones, in which this Court stated, “While a citation is not an indictment, we find no distinction between the potential for prejudice resulting from the language of this citation and that found in 'indictments and other pleadings.'” 157 N.C. App. 472, 477, 579 S.E.2d 408, 411 (2003) (emphasis supplied). In Jones, this Court did not engage in a plain error analysis.
    In Jones, the citation “contained a signed portion entitled 'MAGISTRATE'S ORDER-MISDEMEANOR ONLY' stating 'there is probable cause for the defendant's detention on the stated charges[.]'” 157 N.C. App. at 477, 579 S.E.2d at 411. The citation also contained “a section entitled 'COURT USE ONLY' with what appear to be instructions to transfer these offenses to superior court along with the related felony eluding arrest charge[.]” Id. This Court stated, “the jury could interpret these statements by two different judicial authorities as conclusive evidence that defendant is guilty of the offenses mentioned therein.” Id. Here, the citations contained a section entitled, “MAGISTRATE'S ORDER- MISDEMEANOR ONLY” signed by the magistrate.    This Court's holding in Jones does not automatically require reversal under plain error review. Other overwhelming evidence was presented to establish defendant's guilt. Defendant has failed to show the jury would have probably reached a different result absent the admission and publication of the citations. Bagley, 321 N.C. at 213, 362 S.E.2d at 251. This assignment of error is overruled.

    Defendant contends the trial court erred in calculating his prior record level points by not requiring the State to prove by a preponderance of the evidence that his out of state convictions are substantially similar to North Carolina offenses. We disagree.
    N.C. Gen. Stat. § 15A-1340.14(a) (2003) provides, “The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender's prior convictions that the court finds to have been proved in accordance with this section.” N.C. Gen. Stat. § 15A-1340.14(f) (2003) sets forth methods by which a prior conviction shall be proved: (1) stipulation of the parties; (2) an original or copy of the court record of the prior conviction; (3) a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; or (4) any other method found by the court to be reliable. “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” Id.    N.C. Gen. Stat. § 15A-1340.14(e) (2003), entitled, “Classification of Prior Convictions from Other Jurisdictions,” provides:
        Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.

    At the sentencing hearing, defendant stipulated to being an habitual felon. The State introduced a prior record level worksheet into evidence. The worksheet stated defendant was convicted in Florida of delivering/distributing marijuana in 1986, possessing marijuana in 1986, and possessing cocaine in 1988. The possession of marijuana and possession of cocaine convictions were classified as Class 1 misdemeanors. The delivering/distributingmarijuana conviction was classified as a Class I felony. In addition to these Florida convictions, the worksheet showed defendant's numerous other prior convictions in Harnett, Sampson, and Johnston counties in North Carolina. Defendant received a total of thirteen prior record level points and was classified as a Prior Record Level IV for sentencing purposes.
    The State failed to produce any evidence that the Florida convictions were substantially similar to the North Carolina offenses. The State contended defendant would be sentenced as a Prior Record Level IV. Defense counsel then stipulated that a Prior Record Level IV was correct.
    “There is no doubt that a mere worksheet, standing alone, is insufficient to adequately establish a defendant's prior record level.” State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005). However, defense counsel stipulated to a Prior Record Level IV for sentencing purposes pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(1). This renders defendant's argument that the State failed to prove substantial similarity ineffective. See id. at 828, 616 S.E.2d at 917 (Our Supreme Court held that the defendant orally stipulated to his prior record level and was not entitled to a new sentencing hearing.).

    Defendant argues his constitutional right to effective assistance of counsel was violated where defense counsel failed to: (1) move to dismiss at the close of the State's evidence and at theclose of all evidence; (2) properly subpoena witnesses to court; and (3) object to the introduction of the citations. We disagree.
    A defendant who attacks his conviction on the basis that counsel was ineffective has the burden of satisfying a two-part test.
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). In order to demonstrate prejudice, the defendant must show “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A- 1443(a) (2003). Defendant has failed to show how any of defense counsel's alleged failures prejudiced his defense. We are not persuaded that a different result would have been reached, but for counsel's alleged failures. This assignment of error is overruled.