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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 March 2007
STATE OF NORTH CAROLINA
No. 03 CRS 52545
Appeal by Defendant from judgment entered 16 July 2004 by
Judge B. Craig Ellis in Hoke County Superior Court. Heard in the
Court of Appeals 19 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Hope Murphy White, for the State.
D. Tucker Charns for Defendant-Appellant.
On 12 January 2004, Defendant was indicted by a grand jury on
one charge of first-degree burglary. He was tried on that charge
in a jury trial held before the Honorable B. Craig Ellis in Hoke
County Superior Court between 13 July and 16 July 2004.
At trial, the State presented evidence tending to show that on
3 October 2003, Rufus Hamilton (Hamilton) was at his residence in
Raeford, North Carolina. Sometime during that day, Angela Oxendine
(Oxendine) introduced Hamilton to Defendant, who is her cousin.
Defendant was introduced to Hamilton as Papa. At that time,
Defendant possessed a shotgun and a rifle, both of which he sold to
Hamilton for thirty-seven dollars. After purchasing the guns from
Defendant, Hamilton began repairing them in his front yard whileDefendant sat with him. During this time, Defendant asked Hamilton
for more money for the guns, but Hamilton refused. Defendant left
Hamilton's residence later that day.
That night, Hamilton was in his bedroom painting the two guns
when a masked man, carrying a hammer, walked through the front door
of his home and entered Hamilton's bedroom. Hamilton described the
mask as little and testified that it failed to prevent him from
being able to identify the perpetrator. Upon entering the bedroom,
the man grabbed the rifle, which was loaded, and held it to
Hamilton's head. He used the hammer to break the lock to a
strongbox in which Hamilton kept his wallet and the cash proceeds
of his monthly social security check. The man then left the
residence with the rifle, the wallet, and more than four hundred
dollars in cash that he had taken from the strongbox. Once the
perpetrator had left, Hamilton called the police.
Deputy Burly Locklear of the Hoke County Sheriff's Department
was the first law enforcement officer to respond to the scene. He
spoke to Hamilton, who said that [Papa] came into the house and
took [my] rifle and robbed [me]. After talking with Hamilton,
Deputy Locklear turned the investigation over to Detective Michael
Hallman, also of the Hoke County Sheriff's Department. Once
Detective Hallman assumed responsibility of the scene inside the
house, Deputy Locklear looked for evidence outside the residence.
While Deputy Locklear was outside, a witness told him that he
recently saw Papa running quickly down the road. Detective
Hallman also interviewed Hamilton, who said that a man named Papacame into the house, grabbed a rifle, broke the lock off the
strongbox, took money, and fled the scene. While Hamilton did not
know Papa's real name, he did identify him as Angela Oxendine's
cousin. Given this information, Detective Hallman, along with
other law enforcement officers, proceeded to Oxendine's residence.
However, they were unable to speak with Oxendine or Defendant that
At the time of the robbery, Defendant was staying with
Oxendine and her boyfriend in a trailer close to Hamilton's
residence. At some point during the night of 3 October, Defendant
woke Oxendine and her boyfriend and gave them each twenty dollars
for allowing him to stay in their home. Shortly thereafter,
Defendant and Oxendine's boyfriend went outside behind a barn.
Oxendine testified that Defendant was carrying a flashlight and
something long. She was told by the men that the long object was
The following day, Oxendine was taken into custody on an
unrelated warrant and Defendant voluntarily appeared before law
enforcement officers. While in custody, Oxendine was questioned by
Detective Hallman and signed a written statement that implicated
Defendant in the burglary. At trial, this statement was admitted
in evidence as State's Exhibit No. 2. Defendant, however, denied
any involvement. That same day, Detective Hallman again proceeded
to Hamilton's residence and presented Hamilton with a photographic
lineup that contained a picture of Defendant. He asked Hamilton
to see if he could pick out the person who had committed the[burglary][.] After studying each photograph very carefully[,]
Hamilton identified Defendant as the perpetrator of the offense.
Upon returning to the police station, Detective Hallman received an
unsolicited verbal statement from Oxendine that once again
implicated Defendant in the crime. This statement was not recorded
or signed by Oxendine.
After the close of the State's case, Defendant offered
evidence tending to show that, while he was staying with Oxendine,
he was working for James Curtis McNair doing odd jobs for which he
was given periodic cash payments. Mr. McNair testified that
Defendant could not have spent the day of 3 October with Hamilton
because that entire day, Defendant was working with him. Defendant
testified that, on the night of 3 October, he watched a baseball
game and went to bed. Defendant testified further that he was
recovering from a gunshot wound, was taking pain medication, and
therefore had limited mobility. He stated that he did not recall
entering Oxendine's bedroom or paying anyone twenty dollars.
However, he did recall going out to the barn during the night, but
testified that he did so to put away tools that he had used that
At the close of all the evidence, the jury found Defendant
guilty of first-degree burglary. Based on this verdict and
Defendant's prior record level of IV, Judge Ellis sentenced
Defendant to a minimum term of 117 months and a maximum term of 150
months imprisonment. On 11 July 2005, Defendant petitioned this
Court to issue our writ of certiorari to review this case onappeal, having failed to enter notice of appeal from the 16 July
2004 judgment. By order filed 1 August 2005, Defendant's petition
was allowed. For the reasons stated, we find Defendant received a
fair trial, free of prejudicial error.
Defendant first argues that the trial court erred in
permitting Detective Hallman to testify as to the substance of the
verbal statement that Oxendine made to the police and in admitting
in evidence the written statement that Oxendine made to Detective
Hallman. We find Defendant's contentions without merit.
While Oxendine was in custody, she made a verbal statement to
Detective Hallman, in the presence of another officer, regarding
Defendant's participation in the burglary. At trial, after
Oxendine had testified and over Defendant's objection, the State
sought to introduce the substance of Oxendine's statement through
the testimony of Detective Hallman. The trial court gave a
limiting instruction that the jury was to use any such statement
only for the purpose of corroborating Ms. Oxendine's testimony.
After this limiting instruction was given, Detective Hallman
testified that Oxendine told him that when Defendant returned on
the night of the alleged incident, he got a shovel and a
flashlight to go bury the wallet and the rifle and asked if
[Oxendine] would come help by holding the flashlight.
(See footnote 1)
BecauseOxendine did not testify to making such a statement, Hallman's
testimony may have been inadmissible. However, since Defendant has
failed to allege or demonstrate any prejudice suffered as a result
of the admission of the testimony, we overrule this assignment of
In an appeal in a criminal case, the burden is on the
defendant to demonstrate not only that the trial court erred, but
also that the error had a prejudicial effect at trial. State v.
, 139 N.C. App. 132, 532 S.E.2d 569 (2000). In order to
meet this burden, a defendant has to 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). In this
case, even assuming arguendo
that the trial court erred in
permitting Detective Hallman to testify as to the substance of
Oxendine's verbal statement, nevertheless Defendant does not assert
that he suffered any prejudice by such alleged error and,
therefore, he has failed to meet his burden. That is, in his
brief to this Court, Defendant fails to argue or demonstrate how,
absent this evidence, there is a reasonable possibility that a
different result would have been reached at his trial.
Accordingly, this assignment of error is overruled.
Defendant next specifically challenges the trial court's
admission of a portion of Oxendine's written statement.
(See footnote 2)
though Defendant failed to object at trial, because he proceeds
under a plain error argument on appeal, we consider this assignment
In criminal cases, questions not preserved by objection at
trial may still be made the basis of an assignment of error on
appeal. N.C. R. App. P. 10(c)(4). For such assignments of error
argued in a brief to this Court, a defendant proceeds under plain
error review. Id.
Under plain error analysis, it must first be
determined whether the trial court's action constituted error.
State v. Duff
, 171 N.C. App. 662, 615 S.E.2d 373, disc. review
, 359 N.C. 854, 619 S.E.2d 853 (2005). If it is determined
that the trial court erred, it must then be determined if the error
amounted to plain error. Id.
Plain error results when the error
is 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.
, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). A reversal for
plain error is only appropriate in the most exceptional cases.
State v. Duke
, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005), cert.
, ___ U.S. ___, 166 L. Ed. 2d 96 (2006). During redirect examination, the following exchange occurred
between the prosecutor and Oxendine:
Q. . . . Final question, Did he ever say
where he got the sixty dollars? And your
answer to that on the 4
th of October 2003,
No, but I do believe he did it 'cause I know
Now, when you said that, you were talking
about Donald Collins, weren't you?
A. Yeah. At the time, I was.
On appeal, Defendant argues that the admission of this statement
was improper under Rule 602 of the North Carolina Rules of Evidence
because Oxendine did not have any personal knowledge of the
circumstances surrounding the crime. In response, the State
contends that this statement was admissible both as character
evidence under Rule 405(b) and as lay witness opinion testimony
under Rule 701.
While we are not persuaded by the State's argument, we need
not reach the substantive elements of this assignment of error.
That is, because of the ample evidence properly admitted against
Defendant, even assuming arguendo that the trial court erred in
admitting Oxendine's written statement, this alleged error does not
rise to the level of plain error. See, e.g., State v. Brigman, ___
N.C. App. ___, 632 S.E.2d 498 (finding no plain error when the
evidence against the defendant was overwhelming), appeal dismissed
and disc. review denied, ___ N.C. ___, 636 S.E.2d 813 (2006). In
the present case, there was evidence presented regarding Hamilton's
knowledge of the perpetrator, his immediate identification of
Defendant to law enforcement officers as the perpetrator, and his
subsequent identification of Defendant during a photographiclineup. Moreover, on cross-examination, Hamilton testified that he
was a hundred percent sure [Defendant is] the one[.]
Additionally, Oxendine testified that during the night of 3
October, she and her boyfriend were awakened by Defendant so that
Defendant could give them each twenty dollars. During her
testimony, Oxendine described how, after giving them this money,
Defendant, accompanied by Oxendine's boyfriend, went behind the
barn with a flashlight and something long in his hands. Based on
this evidence, we cannot say that absent the statement made by
Oxendine, the jury probably would have reached a different result.
Therefore, this argument has no merit and is overruled.
Finally, Defendant argues that the trial court committed plain
error by permitting the State to ask Defendant questions about a
prior armed robbery conviction and Defendant's confession to that
crime. We disagree.
For the purposes of impeachment, a witness, including the
defendant, may be cross-examined with respect to prior
convictions. State v. Gallagher
, 101 N.C. App. 208, 211, 398
S.E.2d 491, 492-93 (1990) (citing N.C. Gen. Stat. § 8C-1, Rule
609(a)). Such an inquiry is typically limited to the name of the
crime, the time and place of the conviction, and the punishment
levied. State v. Lynch
, 334 N.C. 402, 432 S.E.2d 349 (1993).
However, when a defendant in a criminal case offers evidence which
raises an inference favorable to his case, the State has the right
to explore, explain or rebut the evidence. State v. Brown
, 310N.C. 563, 571, 313 S.E.2d 585, 590 (1984) (citation omitted). The
State may introduce evidence which might otherwise be inadmissible,
if used for the purpose of correcting inaccuracies or misleading
omissions in a defendant's testimony. State v. Braxton
, 352 N.C.
158, 531 S.E.2d 428 (2000), cert. denied
, 531 U.S. 1130, 148 L. Ed.
2d 797 (2001).
In this case, during cross-examination, the State, as was its
prerogative, asked Defendant if he had been convicted of any crimes
in the last ten years. Defendant testified that he caught a[n]
[armed] robbery charge when [he] was a teenager and that he was
subsequently convicted of that crime. When given the opportunity
to clarify this prior conviction, Defendant explained that he was
charged with it, but he didn't never enter that store. This
testimony thereby created the inference that, although Defendant
had previously been convicted of armed robbery, he participated in
that crime only in an indirect capacity and did not physically
confront the victim.
After this testimony, the State used a three-page statement
signed by Defendant to frame questions aimed at rebutting
Defendant's contention that he never entered the store or
physically confronted his previous armed robbery victim. Through
questioning, the State elicited testimony from Defendant that after
committing the previous armed robbery, he signed a statement
admitting that he walked in the store[,] . . . grabbed the clerk's
left arm[,] . . . pointed the gun at her[,] . . . [and told her to]
'open up the cash register.' This testimony was intended to rebutDefendant's earlier testimony that he did not enter the store and
was clearly appropriate under the law of our State. Therefore, we
conclude that the trial court did not err in permitting this line
of questioning. Accordingly, this assignment of error is
For the reasons stated, we find
NO PREJUDICIAL ERROR.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
Defendant erroneously argues that this statement was
contained in State's Exhibit No. 2, Oxendine's written statement.
On the contrary, the evidence establishes that Oxendine made the
challenged statement orally to Detective Hallman after her written
statement had been completed. Although Detective Hallman notedthis verbal statement in the police report he prepared, the
statement was not reduced to writing or made part of Exhibit 2, nor
was Hallman's police report offered in evidence as an exhibit.
This statement was admitted as State's Exhibit No. 2 during
redirect examination of Oxendine when she was recalled to the
witness stand after Detective Hallman completed his testimony.
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