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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-597


Filed: 5 June 2007


v .                         Moore County
                            No.    03 CRS 56127
                                05 CRS 2077
                                05 CRS 51257


    Appeal by defendant from judgment entered 13 December 2005 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 7 February 2007.

    Roy Cooper, Attorney General, by Ashby T. Ray, Assistant Attorney General, for the State.

    Haral E. Carlin, for defendant-appellant.

    ELMORE, Judge.

    Steven Garrick Smith (defendant) was convicted of felonious fleeing to elude arrest and found to be a habitual felon on 14 September 2005. Sentencing was postponed because defendant had disappeared from the proceedings. On 13 December 2005, defendant pled guilty to assault with a deadly weapon with intent to kill, discharging a weapon into occupied property, and possession of a firearm by a felon. Pursuant to defendant's plea agreement, these cases were consolidated with his 14 September 2005 convictions, and defendant received a sentence of 93 months to 121 months. Defendant appeals these convictions.    Defendant was driving a burgundy Ford Windstar van in Southern Pines on 28 December 2003. Jack Austin, a patrol officer with the Southern Pines Police Department, recognized defendant as the driver of the van and called in defendant's name to dispatch. After being informed that defendant's license had been revoked, Officer Austin pursued defendant's van. As Officer Austin neared defendant's van, he activated his blue lights and attempted to initiate a traffic stop. Defendant did not stop, but instead continued driving, sped through a stop sign, and turned onto South Gaines Street, which was congested with people. Officer Austin requested assistance and continued his pursuit. He estimated that defendant had accelerated to forty-five to fifty miles per hour, and noted that although his patrol car was traveling at forty miles per hour in a twenty-five mile per hour zone, he was still unable to catch up to defendant's vehicle. The speed limit returned to thirty-five miles per hour further down South Gaines Street. Defendant turned his van toward a house on South Gaines Street and skidded twenty-five to thirty feet into the yard before stopping three feet from the house. Defendant then exited the van and took off on foot. Other officers arrived to help Officer Austin locate defendant. Defendant was eventually found hiding under a van. Defendant was unwilling to come out from under the van, and was subsequently pepper-sprayed, after which defendant submitted to arrest.
    Defendant first argues that the trial court erred by denying his motion to dismiss the charge of felonious fleeing to eludearrest based on the destruction of exculpatory evidence by the State. Defendant further argues that by denying his motion, the trial court required defendant to testify on his own behalf, thereby shifting the burden of proof from the State to defendant and compelling defendant to present incriminating testimony against himself in violation of the United States and North Carolina Constitutions. We find these arguments to be without merit.
    Before the jury was empaneled, defense counsel filed a motion with the district attorney's office requesting copies of the dispatch tape from the afternoon of 28 December 2003, reasoning that the tape “would be very relevant evidence and perhaps exculpatory.” The prosecutor stated that when he had requested the recordings from that day, he was informed that the Southern Pines Police Department only keeps the recordings for thirty days. Defendant made his request on 2 September 2005, nearly two years after the incident. The prosecutor further responded, “Obviously if it had been requested within thirty days of the incident those tapes or any recordings would be available, but with the passage of time and nearly two years or eighteen months approximately the State is not in possession of . . . the recordings. And I . . . believe . . . there is also not a written transcription.”
    The trial court granted defendant's motion and required the State “to provide to the defendant a copy of any 911 recording or dispatch recordings in its possession and to provide such to the defendant, if any exist.” It appears that there was no 911 recording and the prosecutor stated that “[t]he recording of thepolice dispatch is not in existence. It was at one point and is no longer. The State has not tried to go around that.” The prosecutor further stated that neither he nor anybody else on behalf of the State had listened to the dispatch tape. Defendant then made another motion to dismiss “pursuant to the fact that the information [contained on the dispatch tape] is no longer available.” Defense counsel argued that the evidence was potentially exculpatory because it might show
        that perhaps the chase was much shorter than indicated and did not reach and could not have reached the speeds indicated and that there was not careless and reckless driving. And as those are key aggravating factors which raise this from a misdemeanor which is aggravated by a series of other misdemeanor offenses to felony level, we would say that that is very, very relevant information. And there's no way the defense can contradict the testimony of the officers with respect to - with respect to the information that would have been on the tape.

The following exchange then ensued between the trial judge and defense counsel:
        THE COURT: Well, as I understand it, you're saying your client can testify and contradict the officers' testimony?

        [DEFENSE COUNSEL]: Yes, Your Honor, but that subjects him to cross examination and --

        THE COURT: Well, of course it does, just like you're going to cross examine the officers, I mean. So it seems to me that's not quite an accurate statement to say that the defendant doesn't --

        [DEFENSE COUNSEL]: Well --

        THE COURT: _ have any evidence to present to - to --
        [DEFENSE COUNSEL]: that's true, Your Honor. However --

        THE COURT: _- to counteract the testimony of the officer. Go ahead.

        [DEFENSE COUNSEL]: However, my point would be, Your Honor, that that would be evidence that is not biased; it is not my client speaking; it is not - it is not the officers' recollection. It is what it is in terms of the length of the chase, you know, what the information was that was initially reported and what the information that was reported in at the conclusion of the matter and key information that was reported along the way. That would be very definitive, very clear; it would be what it is. And it would be evidence that would be helpful to the defendant and - in preparing for the case and also in use for cross examination purposes and also to raise reasonable doubts.

        THE COURT: The defendant's oral motion to dismiss for the reasons stated by counsel is denied.

    Fleeing to elude arrest is a Class 1 misdemeanor if a person “operate[s] a motor vehicle on a street . . . while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties.” N.C. Gen. Stat. § 20-141.5(a) (2005). If two or more aggravating factors are present at the time the violation occurs, then fleeing to elude arrest becomes a Class H felony. N.C. Gen. Stat. § 20-141.5(b) (2005). These aggravating factors include “[s]peeding in excess of 15 miles per hour over the legal speed limit”; “[r]eckless driving as proscribed by G.S. 20- 140”; and “[d]riving when the person's drivers license is revoked.” Id.
    Defendant argues that the trial court committed reversible error by “informing defense counsel that he would have to put hisclient on the witness stand and have him subjected to cross examination . . . [which] shifted the burden of proof from the State to prove the defendant's guilt beyond a reasonable doubt to the defendant to prove his innocence.” We must disagree. Defendant has not demonstrated how either the trial court's statement or its denial of defendant's motion to dismiss shifted the burden of proof. The dispatch recording was simply unavailable, through no devious act by the prosecution. “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” State v. Hunt, 345 N.C. 720, 725, 483 S.E.2d 417, 420 (1997) (citations omitted). The judge's suggestion, that if defendant had a different recollection of the chase he was welcome to testify to that effect, did not shift the State's burden or infringe upon defendant's right to remain silent.
    Defendant next argues that the trial court erred by denying defendant's motion to dismiss the habitual felon indictment. Defendant avers that as a result, he was improperly subjected to double jeopardy and given a punishment grossly disproportionate to the crime committed. Defendant argues that his conviction for felony fleeing to elude arrest “is at it's [sic] base a misdemeanor” because fleeing to elude arrest is a misdemeanor, as are the two aggravating factors that elevated the crime to a felony, driving while license is revoked and reckless driving. Thus, under defendant's reasoning, the three misdemeanors should add up to another misdemeanor, rather than the H felony specifiedin N.C. Gen. Stat. § 20-141.5(b). This particular argument has already been addressed by this Court, and it was untenable then as it is now:
        Defendant suggests that the finding of aggravating factors merely changes the level of punishment, and not the actual definitional classification of the crime. However, as the SUPREME COURT OF NORTH CAROLINA recently noted in State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004), “'[w]hen the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.'” Jones, 358 N.C. at 477, 598 S.E.2d at 128 (citation omitted). . . . Here, the statutory language of N.C. Gen. Stat. § 20-141.5(b) contains no ambiguity whatsoever, clearly stating that the violation is a felony when two or more aggravating factors are found.

State v. Scott, 167 N.C. App. 783, 786-87, 607 S.E.2d 10, 13 (2005).
    Defendant further argues that the habitual felon law subjects him to double jeopardy because he was “convicted once of driving while licensed revoked and . . . [t]hat conviction [was] used once again to enhance his level of punishment to the felony of fleeing to elude arrest and then the third time to use the felony of fleeing to elude arrest to enhance his sentence to a Class C felon under the habitual felon statute.” However, “[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.” State v. Glasco, 160 N.C. App. 150, 160, 585 S.E.2d 257, 264 (2003) (citing State v. Misenheimer, 123 N.C. App. 156, 158, 472 S.E.2d 191, 192-93 (1996).    Defendant was properly convicted of felony fleeing to elude arrest, and that felony conviction, in concert with three other felony convictions, properly served as the basis for defendant's habitual felon status. “When an habitual felon . . . commits any felony under the laws of the State of North Carolina, the felon must, upon conviction . . . be sentenced as a Class C felon.” N.C. Gen. Stat. § 14-7.6 (2005). Accordingly, we find no error in defendant's sentence.
    Defendant next argues that the trial court committed reversible plain error by not dismissing the habitual felon charge because the State failed to prove beyond a reasonable doubt that defendant was the same person alleged to have committed the other felonies underlying the habitual felon charge. Defendant notes that this error was not preserved by objection at trial, and therefore argues plain error. Plain error, however, only applies to jury instructions and evidentiary matters. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004) (citations omitted). “[P]lain error review is inappropriate as this assignment of error concerns the sufficiency of the evidence, not an instructional error or an error concerning the admissibility of evidence.” State v. Bartley, 156 N.C. App. 490, 494, 577 S.E.2d 319, 322 (2003). Accordingly, this assignment of error is dismissed.
Defendant next argues that the trial court erred by allowing the State to amend the habitual felon indictment after empanelling a jury. Defendant objected to this amendment, and argues that theamendment substantially altered and materially changed the charges set forth in the indictment, thereby prejudicing defendant by depriving him of the opportunity to adequately present his defense. Again, we disagree.
    One of the indictments incorrectly listed the date of conviction as 18 November 1987, with an offense date of October, 1996. When the State submitted its certified copies of the prior convictions, the parties discovered the error. The true date of conviction was 18 November 1997. Defendant submitted that the indictment was therefore “fatally flawed.” The State argued that “the 1987 is nothing more than a typographical or a clerical error which should be 1997.” The State explained that defendant had “received notice as far as the offense date and the conviction as far as it being off by one number, one numerical digit.” The State moved to correct the typographical error, and the trial court allowed it.
    Generally, an indictment may not be amended. N.C. Gen. Stat. § 15A-923(3) (2005). However, this Court has defined “amendment,” as used in N.C. Gen. Stat. § 15A-923(3), as “any change in the indictment which would substantially alter the charge set forth in the indictment.” State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994) (quoting State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984)). Our Supreme Court has upheld an amendment to an indictment as long as there was no “change in the essential element of the offense.” State v. Snyder, 343 N.C. 61, 67, 468 S.E.2d 221, 225 (1996). “The failure to state accuratelythe date or time an offense is alleged to have occurred does not invalidate a bill of indictment nor does it justify reversal of a conviction obtained thereon.” State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d 327, 329 (1986) (citation omitted). Accordingly, the trial court did not err by allowing the typographical error on the indictment to be corrected.
    Defendant finally argues that the trial court committed reversible plain error by allowing the State to present testimony that the neighborhood in which the crime was committed had a reputation as being a high crime area. The particular exchange to which defendant now objects occurred between the prosecutor and Officer Kyle Marsh, who responded to Officer Austin's request for assistance.
        [PROSECUTOR]: Do you recall where you were and what you were doing when that call first came over?

        OFFICER MARSH: I was at the Southern Pines Town Garage. I was actually performing K-9 training at the time with narcotics. Officer Austin has just checked out on patrol. We had a specific code for checking out in high crime areas. Officer Austin had done that and advised the specific zone he was in. I heard him come over the radio and ask communications to check for a [10-27], a driver's license check on Steven Garrick Smith.

Defendant avers that this “testimony was clearly hearsay.” “Defendant is correct that the 'applicable general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay.'” State v. Ligon, 332 N.C. 224, 235, 420 S.E.2d 136, 142 (1992) (quoting State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985)). Nevertheless, we must disagree in this situation, and hold that this testimony was not hearsay.
    “Hearsay” is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). A “statement” is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.” Id., Rule 801(a). Rule 802 prohibits the use of hearsay as evidence “except as provided by statute or by these rules.” Id., Rule 802. In Ligon, our Supreme Court held that the trial court did not err in admitting evidence of the reputation of a defendant's neighborhood as “an area where drugs are frequently bought and sold.” Ligon, 332 N.C. 224 at 235, 420 S.E.2d at 142. The Court held that such testimony was not hearsay, but had been offered to explain “why the victim went there in the first place and why the defendant was at the scene.” Id. at 235-36.
    Officer Marsh offered information about the neighborhood's reputation not for the truth of the matter asserted, that the neighborhood was a “high crime area,” but to explain why he had responded to Officer Austin's dispatch. “[O]ut of court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.” State v. Thomas, 350 N.C. 315, 339, 514 S.E.2d 486, 501 (1999). In addition, “statements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsayevidence.” Id. We therefore hold that Officer Marsh's statement about the neighborhood's reputation was not offered for the truth of the matter asserted and is therefore admissible under our rules of evidence. Accordingly, defendant's final argument is overruled.
    No error.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

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