An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1462

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2006

STATE OF NORTH CAROLINA

v .                         Mecklenburg County
                            Nos. 03 CRS 248566-67
CAMERON JEROD BLAIR                    04 CRS 14736

    Appeal by defendant from a judgment entered 14 June 2005 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 June 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General H. Dean Bowman, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant.

    BRYANT, Judge.

    Cameron Jerod Blair (defendant) appeals from a judgment entered 14 June 2005 consistent with a jury verdict convicting him of first-degree murder, possession of a firearm by a felon and possession of a stolen vehicle. The charges were consolidated and defendant was sentenced to life imprisonment without parole.
    The State's evidence showed: at approximately 3:30 p.m. on 9 October 2003, the body of sixteen-year old Joseph Mendoza was found
dead lying in the middle of a path in Campbell Creek Park in Charlotte. Mendoza's pockets were emptied and a .380 caliber shell casing was found approximately four feet from his body. The autopsy revealed Mendoza died as a result of a gunshot wound to the back of the head fired from two or more feet away.    At approximately 7:00 p.m. on the night of 9 October, the police went to Brenda Hollis' home to look for her fourteen-year- old niece and defendant's girlfriend, Kyjai Ferguson, who had been reported missing by her mother. A white Nissan was parked in the driveway. The police entered the Hollis home looking for Kyjai and defendant. Defendant hid in a closet and the officers who searched the house did not find him. After the police left with Kyjai and Yolanda, her cousin, defendant hid in the attic. At the law enforcement center, officers interviewed Kyjai and Yolanda.
    According to Kyjai, while in the car headed to the park, defendant asked Mendoza if he wanted to die. When they got to the parking lot, Kyjai stayed in the car and defendant and Mendoza walked towards the park. A couple of minutes later, defendant came running back nervous and shaking and with a silver .380 caliber gun in his pocket. When Kyjai asked about Mendoza, defendant said they were chased by a dog and were separated. Kyjai and defendant left the park without Mendoza and went to the hotel room of Sean, a fellow gang member. Defendant and Sean talked outside the presence of Kyjai and both returned to the room acting nervous and Sean was angry. After they left Sean's hotel room, Kyjai asked defendant “why did [you] do that to [Mendoza]”, defendant replied that they were not getting along that much.
    According to Kyjai's cousin, Yolanda, defendant said he and the “Blood” (Mendoza) were in the park. Defendant kept putting the gun to Mendoza's head and when he cocked the gun, Mendoza startedrunning, and defendant shot Mendoza in the back of the head. After Mendoza died, defendant took $120 from his pocket.
    At approximately 10:30 p.m. on 9 October 2003, officers returned to the Hollis home because of a report that the white Nissan parked in the driveway had been recently stolen. A blue bandana associated with the gang referred to as the “Crips” was on the Nissan's hood when the officers arrived. The car was removed from the premises and searched. Police found clothing, assorted papers, a cartridge casing and a box containing twenty-nine live rounds of .380 caliber ammunition in the car. They also found a black handled silver colored knife and a .380 caliber automatic pistol in the car. Defendant's fingerprints were found on the rearview mirror and on the Nissan's hood. At approximately 2:30 a.m. on 10 October 2003, officers returned to the Hollis home for a third time because they were told defendant was in the attic. Officers found defendant, handcuffed him, and found a key to the Nissan in his pocket.
    At the law enforcement center defendant was read his rights. He was informed that his girlfriend and her cousin had indicated he was involved in a homicide. Defendant signed a waiver of rights form after he asked whether he would have to “sit here and wait [for a lawyer]”, and was told that he would be appointed counsel “at some point.” Defendant initially denied having anything to do with the homicide. Later he told officers that he, a friend named Sean, and Mendoza all went to the park; that Sean and Mendoza walked off together. When Sean and Mendoza did not return,defendant drove to a nearby apartment complex and slept in the car for a couple of hours. Defendant returned to the park and retrieved a .380 caliber handgun from the location in which they previously had left drugs. He picked up Kyjai and drove her to the Hollis home. Defendant, a professed member of the “Crips” gang, admitted telling Yolanda that he murdered a “Blood” because he wanted people to make him out to be a bigger man. Defendant said he picked the Nissan up from Sean and had paid $180 to use it and would bring it back the next day.
    Defendant testified at trial he did not kill Mendoza, did not steal money from him by using a deadly weapon, and did not know that the Nissan he had been driving was stolen. He admitted that he was a convicted felon and that he had possessed a gun on at least one occasion. Defendant appeals.

_________________________

    Defendant raises three issues on appeal: whether the trial court erred in (I) instructing the jury as to defendant's prior conviction; (II) admitting the testimony of Kyjai that defendant “killed [Mendoza]”; and (III) admitting defendant's statements made to law enforcement after he invoked his right to counsel.
I

    Defendant first argues the trial court committed plain error in instructing the jury as to defendant's prior conviction for possession of a stolen vehicle. Defendant alleges the trial court gave a contradicting and erroneous instruction such that defendant was prejudiced. However, defendant did not object to the trialcourt's jury instructions; therefore we review the instructions for plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
    “In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998). “[T]he charge of the court must be read as a whole . . ., in the same connected way that the judge is supposed to have intended it and the jury to have considered it[.]” State v. Wilson, 176 N.C. 751, 754-55, 97 S.E. 496, 497 (1918). “It will be construed contextually, and isolated portions will not be held prejudicial when the charge as [a] whole is correct. If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.” State v. Nicholson, 355 N.C. 1, 59, 558 S.E.2d 109, 147 (2002). Further, an instructional error will not be deemed prejudicial when other evidence against defendant is overwhelming. State v. Williams, 355 N.C. 501, 586, 565 S.E.2d 609, 658 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).     
    At various times during the trial, the trial court instructed the jury that evidence of or evidence underlying defendant's prior conviction could be used in one of three ways _ evidence of intent;impeachment; and as an element of the offense of possession of a firearm by a convicted felon. The State first introduced evidence of defendant's previous offense of possession of a stolen vehicle through the testimony of Detective Spaulding, who testified about the facts underlying defendant's prior conviction, and not that defendant had been convicted. Defendant, found with the keys to the Nissan in his pocket, told Detective Spaulding defendant thought the vehicle was stolen but he drove it anyway. Before Detective Spaulding went into detail about his interaction with defendant on that occasion, the trial court gave the jury a limiting instruction as to the evidence stating:
        Members of the jury, this evidence is being received for the limited purpose of establishing that the defendant had the intent to possess a vehicle which had been stolen and also his knowledge that the vehicle was stolen concerning the case which you are now trying.
            
        This is evidence of a prior case.
        
        It is received for that very limited purpose of the State attempting to establish that the defendant had the intent to possess the vehicle and the knowledge that the vehicle was taken.
        
        This evidence should be considered by you for no other purpose than what I have just instructed you.

At the conclusion of Detective Spaulding's testimony, the trial court again reminded the jurors that the evidence was admitted for the specific purpose of establishing defendant's intent. This testimony was properly admitted pursuant to N.C. Rules of Evidence, Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Detective Spaulding's testimony was more than sufficient to supportan inference of defendant's knowledge and intent in the present case. See State v. Renfro, ___ N.C. App. ___,___, 621 S.E.2d 221, 225 (2005) (evidence pertaining to the underlying facts and circumstances of defendant's prior convictions were properly admitted solely for the limited purpose of showing defendant had the intent and knowledge necessary for the charge). Evidence as to defendant's prior conviction _ the actual Judgment and Commitment - was introduced later in the trial to establish an element of the offense of possession of a firearm by a felon.
    During the final charge to the jury, the trial court instructed the jury it could consider the evidence of defendant's prior conviction for impeachment purposes:
        When evidence has been received that at an earlier time the defendant was convicted of a criminal charge you may consider this evidence for one purpose only. If considering the nature of the crime you believe that this bears on truthfulness then you may consider it together with all other facts and circumstances bearing upon the defendant's truthfulness in deciding whether you will believe or disbelieve his testimony at trial. It is not evidence of the defendant's guilt in this case.

    Also during its final charge the trial court instructed the jury that defendant's prior conviction could also be used to establish an element of the offense of possession of a firearm by a felon.
        The defendant has been charged with possessing a handgun after having been convicted of a felony. For you to find the defendant guilty of this offense the State must prove two things beyond a reasonable doubt: First, that the defendant was convicted of a felony in Mecklenburg County. Second, that thereafterthe defendant possessed a handgun. If you find from the evidence beyond a reasonable doubt that the defendant was convicted of a felony in Mecklenburg County and that the defendant possessed a handgun it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things it would be your duty to return a verdict of not guilty.

Defendant acknowledges the trial court's instructions were correct as given, but argues that if the jurors considered his prior conviction only for the purpose of determining his credibility, insufficient evidence remained to prove that he was a convicted felon. However, in addition to the State's introduction of defendant's prior conviction, defendant testified on direct and admitted that he was a convicted felon and that he possessed a firearm on at least one occasion.
    Moreover, the evidence against defendant for possession of a stolen vehicle was overwhelming. Defendant had told Yolanda the Nissan was his mother's car; however defendant paid Sean to use the car daily. Yolanda testified she and defendant had installed a stereo in the Nissan. Kyjai testified she and defendant stayed in the car overnight on some occasions. They both kept personal belongings and clothes in the car. When defendant was arrested, the key to the Nissan was found in his pocket. Defendant's fingerprints were found inside the car and the murder weapon was found inside the driver's door pocket. Given this evidence, there is no reasonable possibility the outcome of the trial would have been different. This assignment of error is overruled.
II

    Defendant next argues the trial court erred in admitting the testimony of Kyjai that defendant “killed [Mendoza]” because it was inadmissible hearsay and a violation of Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004). Defendant contends the testimony was not based on Kyjai's personal knowledge, but rather hearsay statements based on what Sean told her about defendant. We disagree.
    Kyjai's complete statement to the police, including statements made by Sean to her, was initially presented to the trial court in pre-trial hearings. Defense counsel stated that he may have objections to certain hearsay statements, but that he would address those objections as they arose during trial. When Kyjai's statement was introduced at trial, a redacted version was admitted, which omitted Sean's statement to Kyjai that defendant had killed Mendoza. Kyjai did not testify on direct about the conversation she had with Sean at the hotel. However, she did testify about her relationship with defendant:
        Q.    Why were you acting like you didn't
            care about the relationship?

        A.    Because [sic.] what he had done.
    
        Q.    When you say what he had done what
            do you mean by that?

        A.    Killed [Mendoza].

Kyjai's statement that defendant “Killed [Mendoza]” explained why her relationship with defendant had deteriorated, and was not, as defendant asserts, a hearsay statement attributable to Kyjai'sconversation with Sean. See N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). We note Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004) does not apply where Kyjai was available for cross-examination at trial and Sean's statement had been redacted.     Moreover, Rule 602 of the North Carolina Rules of Evidence provides “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that [she] has personal knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602 (2005). “Personal knowledge is not an absolute but may consist of what the witness thinks [she] knows from personal perception.” N.C. Gen. Stat. § 8C-1, Rule 602 (Commentary) (2005); State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661, 669 (2003).
    Notwithstanding Kyjai's conversation with Sean at the hotel room, she had ample opportunity in which to form her own personal perception of the events of 9 October 2003. Kyjai testified without objection that defendant asked Mendoza “how did he want to die” while they were in the car together on the way to the park. Defendant returned to the car shaking and nervous, with a gun in his pocket. When Kyjai asked defendant if he killed Mendoza over a bandana, defendant replied, “it's not a bandana, it's a flag.” Kyjai further testified, without objection, that defendant had talked to Yolanda about the murder. The morning after the murder defendant told Kyjai that “he didn't care what he had done” the night before. The State introduced, without objection, five letters written by defendant to Kyjai after he had been arrested. Defendant attempted to persuade Kyjai to testify at trial thatMendoza had tried to “set him up” on the night of the murder. Defendant wrote that “the story is only for you to know.” Therefore, this is plenary evidence of Kyjai's personal interaction with defendant which led her to the conclusion defendant had killed Mendoza. The trial court did not err in admitting Kyjai's testimony. See State v. Watkins, 169 N.C. App. 518, 527, 610 S.E.2d 746, 753 (2005) (witness testimony properly admitted where he had sufficient personal knowledge to identify defendant's voice during the shooting and that his opinion was rationally based on such perception). This assignment of error is overruled.

III

    Defendant argues the trial court erred in admitting defendant's statements made to law enforcement after he invoked his right to counsel. Because defendant did not properly preserve this issue for appellate review, we deem this issue abandoned. N.C. R. App. P. 28(b)(6).
    The assignment of error cited by defendant concerns a statement made by defendant to Detective Jeffrey Spaulding on 3 January 2003 about another case wherein defendant was arrested for possession of a stolen vehicle. However, in his brief, defendant argues the statement he made to Detective Furr on 10 October 2003 should not have been admitted into evidence. Defendant makes no argument in his brief that defendant's right to counsel was violated during the 3 January 2003 statement to Detective Spaulding. The statement made by defendant on 3 January 2003 was relevant to this trial only to the extent it was admitted pursuantto Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Defendant's objections during Detective Spaulding's testimony related to that statement's admission under Rule 404(b) rather than a violation of defendant's right to counsel.
    At the present trial, defendant did not object to the admission of Detective Furr's testimony regarding defendant's 10 October 2003 statement. The North Carolina Rules of Appellate Procedure provide that in order to preserve a question for appellate review, a party must have presented the trial court with 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). Constitutional claims not raised and passed upon at trial will not be considered on appeal. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). Appellate review is limited to those assignments of error that are properly set out in the record on appeal in conformity with Rule 10(a). See N.C. R. App. P. 10(a) (“the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal”). Since defendant failed to preserve the issue regarding the denial of his constitutional right to counsel on 10 October 2003, this issue is deemed abandoned. N.C. R. App. P. 28(b)(6).     
    No error.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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