Appeal by defendant from a judgment dated 28 June 2006 by
Judge R. Stuart Albright in Randolph County Superior Court. Heard
in the Court of Appeals 26 April 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Bruce T. Cunningham, Jr. for defendant.
David Lee Wood (defendant) appeals from a judgment dated 28
June 2006 and entered consistent with a jury verdict finding him
guilty of felonious possession of stolen property and possession of
a firearm by a felon. For the reasons stated herein, we find
defendant received a fair trial free from error.
Facts and Procedural History
On 22 June 2005, Charles Satterfield returned to his home in
Randolph County, North Carolina, to find that a cement block had
been thrown through his kitchen window. Mr. Satterfield determined
that his house had been broken into and that a lockbox, a .40
caliber Ruger pistol, a magazine for that pistol, and a nylon gun
holster were missing. Three latent fingerprints were lifted from
a piece of broken glass intact in the frame. The prints were sent
to the Guilford County Sheriff's Department for identification and
one was later determined to be from defendant's left index finger.
To Mr. Satterfield's knowledge, defendant had never before been to
Mr. Satterfield's house.
On 24 June 2005, Charles Ward contacted the Randolph County
Sheriff's Department concerning a handgun he had recently
purchased. Officers visited Mr. Ward and were given a
semiautomatic handgun. The serial number of the handgun obtained
from Mr. Ward matched the serial number given the Sheriff's
Department by Mr. Satterfield for his stolen .40 caliber Ruger
Defendant was subsequently interviewed by police, and he gave
a statement that he had sold a gun to Ward. On 16 July 2005,
defendant was arrested and, on 10 October 2005, defendant was
indicted for felonious breaking and entering, felonious larceny,
felonious possession of stolen property, and possession of a
firearm by a felon.
Defendant was tried before a jury on 27 June 2006 at the
Criminal Session of Superior Court in Randolph County, theHonorable R. Stuart Albright presiding. On 28 June 2006, the jury
returned its verdict finding defendant guilty of felonious
possession of stolen property, guilty of possession of a firearm by
a felon, not guilty of felonious breaking and entering, and not
guilty of felonious larceny. The trial court subsequently
sentenced defendant to imprisonment for a term of twenty to twenty-
four months. Defendant appeals.
Defendant raises the issues of whether: (I) the trial court
erred in denying defendant's motion to sever the charge of
possession of a firearm by a felon from the charge of stolen
property; (II) the trial court erred in admitting defendant's prior
conviction into evidence and failing to give a limiting instruction
regarding the prior conviction; (III) the trial court committed
plain error in failing to redact defendant's statement; (IV)
defendant received ineffective assistance of counsel; (V) the trial
court erred in entering judgment on the charge of possession of a
firearm by a felon because this offense is a recidivist offense
and not a substantive crime; and (VI) his conviction for possession
of a firearm by a felon is a violation of his right to be free from
 Defendant first argues the trial court erred in denying
defendant's motion to sever the charge of possession of a firearm
by a felon from the charge of stolen property. We disagree. A trial court's denial of a motion to sever will not be
disturbed on appeal absent an abuse of discretion. State v.
, 163 N.C. App. 458, 463, 593 S.E.2d 793, 796, disc. review
, 358 N.C. 548, 599 S.E.2d 910 (2004). Further, [i]f a
defendant's pretrial motion for severance is overruled, he may
renew the motion on the same grounds before or at the close of all
the evidence. Any right to severance is waived by failure to renew
the motion. N.C. Gen. Stat. § 15A-927(a)(2) (2005). Where a
defendant has waived any right to severance, on appeal this Court
is limited to reviewing whether the trial court abused its
discretion in ordering joinder at the time of the trial court's
decision to join. McDonald
, 163 N.C. App. at 463-64, 593 S.E.2d
at 797 (citation omitted). Two or more offenses may be properly
joined when the offenses charged are 'part of the same act or
transaction' or are 'so closely connected in time, place, and
occasion that it would be difficult to separate proof of one charge
from proof of the others.' State v. Lundy
, 135 N.C. App. 13, 16,
519 S.E.2d 73, 77 (1999) (quoting State v. Fink
, 92 N.C. App. 523,
527, 375 S.E.2d 303, 306 (1989)), appeal dismissed and disc. review
, 351 N.C. 365, 542 S.E.2d 651 (2000); see also
Stat. § 15A-926(a) (2005).
Defendant moved pre-trial to sever the charge of possession of
firearm by a felon from the charges of felonious breaking and
entering, felonious larceny, and felonious possession of stolen
property. However, defendant failed to renew his motion to sever
at the close of all of the evidence, as required by N.C.G.S. §15A-927(a)(2). Defendant has therefore waived his right to
severance and the question before this Court is whether joinder of
defendant's offenses for trial was an abuse of discretion.
Here, defendant's alleged theft and subsequent possession of
the firearm as a result of his alleged breaking and entering are so
closely related in time, place, and occasion that it would be
difficult to separate proof of one charge from proof of the others.
Accordingly, the trial court did not abuse its discretion in
consolidating the charges against defendant in one trial. This
assignment of error is overruled.
 Defendant next contends the trial court erred in admitting
defendant's prior conviction into evidence and failing to give a
limiting instruction regarding the prior conviction. We disagree.
Defendant first argues the trial court erred in admitting
defendant's prior conviction into evidence. Defendant contends the
admission of his prior conviction into evidence where the charges
against him were not tried in separate trials caused him undue
prejudice. It is well settled that,
[o]n appeal, the standard of review of a
trial court's decision to exclude or admit
evidence is that of an abuse of discretion. An
abuse of discretion will be found only when
the trial court's decision was so arbitrary
that it could not have been the result of a
State v. Sloan
, 180 N.C. App. 527, 532, 638 S.E.2d 36, 40 (2006)
(quoting Brown v. City of Winston-Salem
, 176 N.C. App. 497, 505,
626 S.E.2d 747, 753 (2006)), appeal dismissed and disc. reviewdenied
, 361 N.C. 367, 644 S.E.2d 560 (2007). Further, under the
Felony Firearms Act, records of prior convictions of any offense
. . . shall be admissible in evidence for the purpose of proving a
violation of this section. N.C. Gen. Stat. § 14-415.1(b) (2005).
As there is no indication that defendant agreed to stipulate to his
prior felony conviction, the State had no choice but to introduce
evidence of defendant's conviction in order to prove its case as to
the charge of possession of a firearm by a felon. See State v.
, 128 N.C. App. 745, 747, 497 S.E.2d 111, 112-13 (1998)
(holding the trial court did not err in admitting evidence of the
defendant's prior felony conviction where the defendant did not
offer to stipulate that he had a prior felony conviction, nor did
[the d]efendant argue that his stipulation would render evidence of
the name and nature of the prior offense inadmissible pursuant to
Rule 403 of the North Carolina Rules of Evidence). Thus, the
trial court did not abuse its discretion in admitting defendant's
prior conviction. This assignment of error is overruled.
Defendant also contends the trial court committed plain error
when it failed to instruct the jury on the limited use of
defendant's prior conviction. Defendant contends the failure of
the trial court to instruct the jury on the limited use of
defendant's prior conviction was so prejudicial that it had a
probable impact on the verdict. We disagree.
Because defendant failed to object to the jury instructions in
this case, this assignment of error must be analyzed under the
plain error standard of review. State v. Holden
, 346 N.C. 404,434-35, 488 S.E.2d 514, 530-31 (1997). Plain error with respect to
jury instructions requires the error 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. Id.
at 435, 488 S.E.2d at 531.
Further, [i]n deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt. State v. Bell
359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (citation and quotations
omitted), cert. denied
, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005).
Defendant's prior conviction admitted at trial was for the
offense of felony breaking and entering. In the instant case, the
jury returned verdicts of not guilty as to the charges against
defendant of felonious breaking and/or entering and felonious
larceny and guilty as to the charges of felonious possession of
stolen property and possession of a firearm by a felon. A review
of the record before this Court shows the State presented
sufficient evidence to support the jury's verdict of guilty as to
the charges of felonious possession of stolen property and
possession of a firearm by a felon, see Issue IV, infra
, and the
lack of any instructions to the jury regarding the use of
defendant's prior conviction could not have been so prejudicial
that it had a probable impact on the jury's verdict. This
assignment of error is overruled.
 Defendant next argues the trial court committed plain
error in failing to redact from defendant's statement to Detective
Julian, mention of his release from prison. Again, as defendant
did not object to the admission of the statement at trial, on
appeal he must show the trial court committed plain error. State
, 181 N.C. App. 236, 244-46, 638 S.E.2d 914, 920 (2007).
Defendant's statement to Detective Julian was admitted at
trial and published to the jury. Defendant's statement reads, in
Jonathan brought a grill to my mother's house
on the night of July the 4th. I sold a pistol
to [Charles] Ward that Jonathan  brought to
me. It had been a couple of weeks ago. I got a
hundred and thirty dollars  for the gun.
Jonathan said he got the grill out of the back
of a truck up the road. I did not know where
the gun came from. That is all I have sold
[Charles Ward] since I got out of prison.
As in Issue II, supra
, defendant argues he suffered undue
prejudice through the admission of evidence regarding his prior
criminal conviction. However, as we have held that it was not
error to introduce defendant's prior felony conviction and it was
not plain error for the trial court to fail to give a limiting
instruction regarding the conviction, defendant cannot show the
trial court's failure to redact defendant's statement that he had
been in prison was so prejudicial that it had a probable impact on
the jury's verdict. This assignment of error is overruled.
 Defendant next contends he was denied his right to
effective assistance of counsel in violation of the Sixth Amendmentbecause his trial counsel's failure to stipulate to defendant's
prior conviction, to request a limiting instruction, and to object
to mention of defendant's release from jail were objectively
unreasonable and prejudicial to defendant. We disagree
To prevail on a claim of ineffective assistance of counsel,
a defendant must first show that his counsel's performance was
deficient and then that counsel's deficient performance prejudiced
his defense. State v. Allen
, 360 N.C. 297, 316, 626 S.E.2d 271,
286 (2006) (citing Strickland v. Washington
, 466 U.S. 668, 80 L.
Ed. 2d 674 (1984)).
Deficient performance may be established by
showing that counsel's representation fell
below an objective standard of
reasonableness. Generally, to establish
prejudice, a defendant must show that there is
a reasonable probability that, but for
counsel's unprofessional errors, the result of
the proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
(quoting Wiggins v. Smith
, 539 U.S. 510, 534, 156 L. Ed. 2d
471, 493 (2003)). This Court's review of ineffective assistance of
counsel claims will be decided on the merits when the cold record
reveals that no further investigation is required, i.e., claims
that may be developed and argued without such ancillary procedures
as the appointment of investigators or an evidentiary hearing.
State v. Fair
, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)
(citations omitted), cert. denied
, 535 U.S. 1114, 153 L. Ed. 2d 162
(2002). Based on our review of the record before this Court, weconclude that we may address defendant's claim of ineffective
assistance of counsel on the merits.
Even assuming arguendo
the performance of defendant's trial
counsel was deficient for not stipulating to defendant's prior
conviction, requesting a limiting instruction regarding the prior
conviction and objecting to defendant's unredacted statement,
defendant was not prejudiced by his trial counsel's actions.
Defendant argues he was prejudiced because there is a 'reasonable
probability' that the errors of [his trial] counsel affected the
outcome of the trial, especially in light of the failure to request
a jury instruction on the use of the prior conviction. However,
defendant was found not guilty on the charges of felonious breaking
and/or entering and felonious larceny, the two charges most likely
to have been influenced by defendant's prior conviction of
felonious breaking and entering.
Furthermore, even had defendant's trial counsel stipulated to
defendant's prior conviction, received a limiting instruction
regarding the prior conviction and successfully had defendant's
statement redacted, there is not a reasonable probability that the
result of the trial would have been different. Evidence presented
at the trial established that defendant's fingerprint was found at
the scene of the crime, that defendant confessed to selling a
pistol to Charles Ward, that Charles Ward was known to deal in
stolen goods, and that Charles Ward turned over the stolen handgun
at issue in this case to the Randolph County Sheriff's Department.
This evidence is sufficient to support the jury's verdict of guiltyas to the charges of felonious possession of stolen property and
possession of a firearm by a felon. This assignment of error is
 Defendant also contends the trial court erred in entering
judgment on the charge of possession of a firearm by a felon
because this offense is a recidivist offense and not a
substantive crime. Under N.C. Gen. Stat. § 14-415.1, it is
unlawful for any person who has been convicted of a felony to
purchase, own, possess, or have in his custody, care, or control
any firearm . . . . N.C. Gen. Stat. § 14-415.1(a) (2005). Thus,
the State need only prove two elements to establish the crime of
possession of a firearm by a felon: (1) defendant was previously
convicted of a felony; and (2) thereafter possessed a firearm.
Defendant argues the first element is not actually an element of a
substantive offense, but rather a recidivist component and thus
possession of a firearm by a felon can only be used as a sentencing
enhancement. Defendant's argument is misplaced.
A recidivist statute's primary purpose is
to deter repeat offenders and, at some point
in the life of one who repeatedly commits
criminal offenses serious enough to be
punished as felonies, to segregate that person
from the rest of society for an extended
period of time. This segregation and its
duration are based not merely on that person's
most recent offense but also on the
propensities he has demonstrated over a period
of time during which he has been convicted of
and sentenced for other crimes.
State v. Kirkpatrick
, 345 N.C. 451, 454, 480 S.E.2d 400, 402 (1997)
(quoting Rummel v. Estelle
, 445 U.S. 263, 284, 63 L. Ed. 2d 382,
397 (1980)). Recidivist statutes increase the severity of the
punishment for the crime being prosecuted; they do not punish a
previous crime a second time. State v. Vardiman
, 146 N.C. App.
381, 383, 552 S.E.2d 697, 699 (2001), appeal dismissed
, 355 N.C.
222, 559 S.E.2d 794, cert. denied
, 537 U.S. 833, 154 L. Ed. 2d 51
Defendant contends that our Legislature is not prohibited from
enacting a statute which punishes a person who has previously been
convicted of a felony for possessing a gun, but that such a statute
must be considered a condition of the punishment imposed by the
judgment for the original conviction and therefore can be punished
only in a contempt proceeding and not as a substantive offense.
Defendant's contention is not correct. Our Courts have held that
[t]he Legislature, unless it is limited by
constitutional provisions imposed by the State
and Federal Constitutions, has the inherent
power to define and punish any act as a crime,
because it is indisputedly [sic] a part of the
police power of the State. The expediency of
making any such enactment is a matter of which
the Legislature is the proper judge.
It is for the [L]egislature to define a crime
and prescribe its punishment, not the courts
or the district attorney.
While a criminal statute must be strictly
construed, the courts must nevertheless
construe it with regard to the evil which it
is intended to suppress. The intent of the
legislature controls the interpretation of a
statute. When the language of a statute is
clear and unambiguous, there is no room for
judicial construction and the courts must give
the statute its plain and definite meaning,and are without power to interpolate, or
superimpose, provisions and limitations not
State v. Priddy
, 115 N.C. App. 547, 549, 445 S.E.2d 610, 612 (1994)
(internal citations and quotations omitted).
While N.C. Gen. Stat. § 14-415.1 has characteristics of a
recidivist statute, a plain reading of the statute shows it creates
a new substantive offense. See State v. Bishop
, 119 N.C. App. 695,
698, 459 S.E.2d 830, 832, appeal dismissed and disc. review denied
341 N.C. 653, 462 S.E.2d 518 (1995); State v. McNeill
, 78 N.C. App.
514, 516, 337 S.E.2d 172, 173 (1985), disc. review denied
, 316 N.C.
383, 342 S.E.2d 904 (1986)); see also State v. Bowden
, 177 N.C.
App. 718, 725, 630 S.E.2d 208, 213 (2006) (The mere fact that a
statute is directed at recidivism does not prevent the statute from
establishing a substantive offense.). N.C. Gen. Stat. § 14-415.1
states that [i]t shall be unlawful for a convicted felon to
possess a firearm. N.C. Gen. Stat. § 14-415.1(a) (2005). The
statute creates a substantive offense to which the Sixth Amendment
right to a jury trial applies, and not a sentencing requirement
aimed at reducing recidivism. When defendant violated N.C. Gen.
Stat. § 14-415.1 he did not violate a consequence of his original
conviction as defendant contends, but rather committed a new
substantive offense. This assignment of error is overruled.
 Defendant lastly argues his conviction for possession of
a firearm by a felon is a violation of his right to be free from
double jeopardy because the crime of possession of a firearm by afelon is a greater offense of the predicate felony and, therefore,
the same offense. We disagree.
It is well settled that '[t]he Double Jeopardy Clause of the
North Carolina and United States Constitutions protect against . .
. multiple punishments for the same offense.' Vardiman
, 146 N.C.
App. at 383, 552 S.E.2d at 699 (quoting State v. Gardner
, 315 N.C.
444, 451, 340 S.E.2d 701, 707 (1986)). [W]hether a statute
survives a double jeopardy constitutional analysis does not depend
on whether the statute is called substantive or status, or whether
the statute is comprised of elements or sentencing factors, but
what the statute accomplishes in reality. State v. Carpenter
N.C. App. 35, 49-50, 573 S.E.2d 668, 677 (2002) (citation and
Defendant contends that the offense of possession of a firearm
by a felon and his predicate felony of felonious breaking and
entering from 2001 are the same offense, because proof of his guilt
as to possession of a firearm by a felon automatically proves his
guilt of the felonious breaking and entering in 2001. However,
under N.C. Gen. Stat. § 14-415.1, it is the prior conviction
is an element which must be proved by the State. While proving the
prior conviction will necessarily establish that defendant was
guilty of committing the prior crime, N.C. Gen. Stat. § 14-415.1
does not impose any punishment solely for defendant's commission of
the prior crime, but instead requires the State further prove the
additional element of possession of a firearm. Thus the prior
constitutes a part of an entirely new offense. Therefore, defendant's prior conviction of felonious breaking and
entering is not an offense within the meaning of the Double
Jeopardy Clause when construed with his conviction of possession of
a firearm by a felon. Defendant was not prosecuted nor punished
again for the underlying 2001 conviction for felonious breaking and
entering; rather he was convicted and punished for his subsequent
act of unlawfully possessing a firearm as a convicted felon. See
State v. Crump
, 178 N.C. App. 717, 719, 632 S.E.2d 233, 236 (2006).
This assignment of error is overruled.
Judges McCULLOUGH and STROUD concur.
*** Converted from WordPerfect ***