Defendant appeals from a judgment entered 12 April 2006 by
Judge R. Stuart Albright in Randolph County Superior Court. Heard
in the Court of Appeals 5 June 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Tracy C. Curtner, for the State.
Anne Bleyman for defendant-appellant.
BRYANT, Judge.
Alfonza Dawnta Coltrane
(See footnote 1)
(defendant) appeals from a 12 April
2006 judgment entered consistent with jury verdicts finding him
guilty of
failing to heed light and siren, felony operation of a
motor vehicle to elude arrest, exceeding the posted speed limit,
failing to drive vehicle on the right half of the highway, and
failing to stop for a stop sign.
The State presented evidence tending to show: On 15 December
2002 at approximately ll:37 p.m. Officer Jay Carter with the
Liberty Police Department was on routine patrol in his police car
when he observed a red Acura speeding through town. Officer Carterfollowed the vehicle, estimating the Acura's speed to be
approximately fifty miles per hour in a thirty-five mile per hour
zone. Officer Carter stopped his patrol car and with a stationary
radar, clocked the Acura's speed at forty-nine miles per hour. He
resumed following the Acura, while the driver accelerated to
approximately eighty miles per hour. Officer Carter activated his
blue lights, but the driver of the Acura failed to stop. Officer
Carter activated his siren, but the driver continued to speed away.
The driver crossed center lines, failed to stop at stop signs, and
drove in a careless and reckless manner. After entering Alamance
County, the driver of the Acura suddenly stopped the vehicle in the
middle of the road. Two occupants of the Acura exited the vehicle;
one from the driver's side door, the other exited the passenger's
side door. Officer Carter recognized the driver as defendant based
upon previous encounters with him. Despite Officer Carter yelling
for defendant to stop, defendant ran away from Officer Carter, and
proceeded to run through several residential yards until Officer
Carter lost sight of him near defendant's residence. Officer
Carter was unable to locate defendant and returned to his patrol
car. At that time, he found a teenage girl in the backseat of the
Acura. Officer Carter called for back up assistance to retrieve
the girl, tow the Acura, and have arrest warrants issued for
defendant. The Acura was not owned by defendant.
On 30 December 2002 warrants were issued for defendant's
arrest on misdemeanor charges of: speeding; failing to drive on
the right side of the highway; failing to heed light or siren;driving while license revoked; failing to stop for a stop sign;
reckless driving; resisting a public officer; and operating a motor
vehicle emitting white or clear lights on the rear of the vehicle.
A warrant was also issued for a felony charge of speeding to elude
arrest. These offenses were allegedly committed on 15 December
2002. Officers were initially unable to locate defendant, but
defendant was later arrested on 1 October 2004.
On 13 January 2005 defendant was tried in Randolph County
District Court and convicted on each of the misdemeanor charges,
which defendant appealed to Superior Court. As to the felony
offense of speeding to elude arrest, defendant waived a probable
cause hearing, and the case proceeded to Superior Court. On 6 June
2005 the grand jury issued a one count indictment for felony
speeding to elude arrest.
On 11 April 2006, defendant's case was tried before a jury
during the Criminal Session of Guilford County Superior Court, the
Honorable R. Stuart Albright, judge presiding. The charges of
driving while license revoked and operating a motor vehicle
emitting white or clear lights on the rear of the vehicle were
dismissed. On 12 April 2006 a jury found defendant guilty of the
remaining charges (misdemeanor failing to heed light and siren;
speeding; failing to drive vehicle on the right half side of the
highway; failing to stop at a stop sign; reckless driving;
resisting a public officer; and felony operation of a motor vehicle
to elude arrest). The trial court arrested judgment on the charges
of reckless driving and resisting a public officer and defendantwas sentenced to a minimum term of eleven months to a maximum term
of fourteen months.
(See footnote 2)
Defendant appeals.
_________________________
Defendant argues the trial court erred by: (I) admitting
404(b) evidence of defendant's similar driving offenses and fleeing
to elude arrest and (II)
calculating his prior record level
incorrectly.
I
Defendant argues the trial court erred by admitting 404 (b)
evidence. Specifically,
the prosecution introduced evidence
regarding defendant's subsequent offenses of felony speeding to
elude arrest, failing to heed lights or siren, and failing to yield
at a stop sign or flashing red light in order to establish the
identity of defendant as the perpetrator of the crimes at issue.
Rule 404 (b) states:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404 (b) (2005). “Rule 404 (b) is one
of inclusion, 'subject to but
one exception requiring its exclusion
if its
only probative value is to show that the defendant has thepropensity or disposition to commit an offense of the nature of the
crime charged.'”
State v. Stevenson, 169 N.C. App. 797, 800, 611
S.E.2d 206, 209 (2005) (quoting
State v. Coffey, 326 N.C. 268,
278-79, 389 S.E.2d 48, 54 (1990)) (emphasis in original). Where
evidence of other conduct or other crimes is introduced for some
purpose other than to establish a defendant's propensity to commit
a particular crime, “the ultimate test for determining whether such
evidence is admissible is whether the incidents are sufficiently
similar and not so remote in time as to be more probative than
prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.”
Id. Once the court determines that the evidence is admissible, the
court must then conduct a Rule 403 balancing test to determine
whether the probative value of the evidence outweighs the danger of
unfair prejudice to the defendant.
See N.C. Gen. Stat. § 8C-1,
Rule 403 (2005). This determination is within the discretion of
the court and abuse of discretion occurs only where the trial
court's ruling is “so arbitrary that it could not have resulted
from a reasoned decision.”
State v. Bidgood, 144 N.C. App. 267,
272, 550 S.E.2d 198, 202,
cert. denied, 354 N.C. 222, 554 S.E.2d
647 (2001).
Two years after the date of offense in the present case (12
December 2004) defendant engaged in actions involving the
commission of motor vehicle offenses and fleeing to elude arrest
which were substantially similar to the current facts. On that
date, defendant was observed by Officer Ray Chapuis, formerly of
the Liberty Police Department, driving a gold Chrysler Concord inthe town of Liberty. Officer Chapuis knew defendant from prior
motor vehicle stops involving defendant, and knew his license to be
revoked. After passing defendant as he came toward his marked
patrol car, Officer Chapuis made a U-turn and began following the
vehicle driven by defendant. This vehicle was not owned by
defendant. Officer Chapuis activated his blue lights and siren,
but defendant did not stop. Officer Chapuis chased defendant and
defendant sped up. Officer Chapuis continued to follow defendant
and observed defendant failing to stop at stop signs, driving left
of center, and driving erratically. Defendant then abruptly
stopped the vehicle he was driving, and exited from the driver's
side. Another person exited from the passenger's side. Defendant
ran on foot and Officer Chapuis chased him through several
residential yards before losing sight of him. Defendant was
subsequently arrested and charged and was found guilty by a jury on
1 February 2006 (prior to the 12 April 2006 jury verdict in this
case) of felony fleeing to elude arrest, failure to heed light or
siren, failure to yield at a stop sign and/or flashing red light,
and transporting unsealed wine/liquor in the passenger area of a
vehicle.
In the instant case, after a
voir dire of Officer Chapuis, the
State moved to admit his testimony as to defendant's 12 December
2004 actions and prior convictions as evidence of identity.
Defendant objected, arguing that this evidence was inadmissible,
and contending that it was offered for an improper purpose of
proving that defendant had the disposition to commit the offense offleeing to elude arrest. The trial court allowed Officer Chapuis'
testimony and stated after the
voir dire that “in a criminal case
the identity of the perpetrator of the crime is always a material
fact. In this case, at least at this point, identity does appear to
be an issue.” The trial court found the evidence was offered to
prove identity and that it did so by establishing several
similarities between the two cases including the following: that
defendant was driving a car and committed several violations of the
motor vehicle laws; when Officer Chapuis activated his blue light
and siren, defendant sped up in an attempt to get away from Officer
Chapuis; defendant was driving a car which he did not own; during
the chase, defendant abruptly stopped his car in the middle of the
road, exited the driver's side, and escaped by running away on
foot. While noting that identity of the perpetrator is always a
material fact in any criminal case, the trial court found that all
of the facts of the 12 December 2004 chase involving Officer
Chapuis were substantially similar to the facts in the instant case
and tended to prove the identity of defendant.
We agree with the trial court that the evidence admitted here
is sufficiently close in time and unusually similar in nature to
show defendant's identity.
See State v. Gary, 348 N.C. 510, 521,
501 S.E.2d 57, 64-65 (1998) (quotation omitted) (“In order for
evidence of [a] defendant's prior crimes or bad acts to be
admissible to show the identity of the defendant as the perpetrator
of the crime for which he is being tried, there must be some
unusual facts present in both crimes or particularly similar actswhich would indicate that the same person committed both crimes.”);
State v. Brewington, 170 N.C. App. 264, 278, 612 S.E.2d 648, 657,
disc. review denied, 360 N.C. 67, 621 S.E.2d 881 (2005) (“To be
relevant in a particular case, evidence of prior bad acts must be
sufficiently similar to the crime charged and be temporally
proximate to that crime.”)
.
During the charge conference, the trial court provided the
following limiting instruction:
Evidence has been received tending to show
that on December 12, 2004 the Defendant
operated a motor vehicle to elude arrest. This
evidence was received solely for the purpose
of showing the identity of the person who
committed the crime charged in this case, if
it was committed. If you believe this
evidence, you may consider it, but only for
the limited purpose for which it was received
. . . I instruct you that the State has the
burden of proving the identity of the
Defendant as the perpetrator of the crime
charged beyond a reasonable doubt. This means
that you, the jury, must be satisfied beyond a
reasonable doubt that the Defendant was the
perpetrator of the crime charged before you
may return a verdict of guilty.
The trial court clearly communicated to the jury that the evidence
could only be considered for the limited purpose of establishing
identity
. This assignment of error is overruled.
II
Defendant argues the trial court erred by calculating his
prior record level incorrectly. Defendant is correct in his
assertion that “it would be unjust to allow a sentence to stand
where it has been made to appear that the prior record level has
been erroneously calculated due to a subsequent reversal of aconviction on appeal[.]”
See Bidgood, 144 N.C. App. at 275-76, 550
S.E.2d at 204 (remand for resentencing where one of the prior
convictions used to arrive at the defendant's prior record level
was subsequently overturned on appeal). However, where the
majority opinion in
State v. Coltrane,___ N.C. App. ___, ___ S.E.2d
___, 2007 N.C. App. LEXIS 1320 (No. COA06-895)(June 19, 2007)
has
found no error in determining defendant's 12 December 2004
convictions, defendant's argument is misplaced.
“When a defendant assigns error to the sentence imposed by the
trial court our standard of review is whether [the] sentence is
supported by evidence introduced at the trial and sentencing
hearing.”
State v. Chivers, ___N.C. App. ___, ___, 636 S.E.2d 590,
593 (2006) (quotation omitted). “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 (a) (2005). Each prior Class E, F or
G felony conviction is assigned four points; each prior Class H or
I felony conviction is assigned two points; each misdemeanor
conviction as defined in the statute is assigned one point.
See
N.C. Gen. Stat. § 15A-1340.14(b)(3), (4) and (5). If the
assignment of points gives a defendant at least five but not more
than eight points, his corresponding prior record level for
sentencing is a Level III. If the assignment of points gives
defendant at least nine but not more than fourteen points, his
corresponding prior record level is a Level IV. N.C. Gen. Stat. §15A-1340.14(c) (2005).
In the present case, the sentencing worksheet completed by the
trial court listed the following prior felony convictions:
1. Fleeing to Elude Arrest (04 CRS 58421)-
conviction date of 2/1/06 in Randolph County -
Class H;
2. Possession of Firearm by Felon (03 CRS
102695) - conviction date of 6/8/04 in
Guilford County - Class G;
3. Possession with intent to sell and
distribute cocaine (02 CRS 52033)- conviction
date of 7/30/02 in Alamance County - Class H;
and
4. Fleeing to Elude Arrest (03 CRS 102696) -
conviction date of 6/8/04 in Guilford County -
Class H.
In calculating defendant's prior convictions, the trial court
counted one prior Class G felony yielding four points; three prior
Class H felonies yielding six points; and two prior misdemeanors
yielding two points. Defendant had a subtotal of twelve prior
record points. Two additional points were added because all of the
elements of the present offense are included in a prior offense for
which defendant was convicted (one point) and because the offense
was committed while on probation (one point). This yielded a total
of fourteen prior record points, resulting in a felony prior record
Level IV. Defendant was convicted of one of the three Class H
felonies counted by the trial court on the same date upon which he
was also convicted of the Class G felony of possession of a firearm
by a felon. The sentencing statute instructs as follows:
(d) Multiple Prior Convictions Obtained in One
Court Week - For purposes of determining the
prior record level, if an offender isconvicted of more than one offense in a single
superior court during one calendar week, only
the conviction for the offense with the
highest point total is used. If an offender is
convicted of more than one offense in a single
session of district court, only one of the
convictions is used.
N.C. Gen. Stat. § 15A-1340.14 (d) (2005). Here, even though
defendant's Class H felony conviction of fleeing to elude arrest
(obtained on the same date as his Class G felony conviction) should
not have been added to his total points, his prior record level
remains a Level IV. Any error in the trial court's computations
under these circumstances is harmless.
See State v. Bethea, 173
N.C. App. 43, 60-61, 617 S.E.2d 687, 697-98 (2005) (harmless error
where trial court counted two of the defendant's convictions which
occurred on the same date resulting in total prior record points of
eleven, when including only one of those convictions would have
resulted in total prior record points of nine). Defendant was
properly sentenced as a prior record Level IV offender.
Id. This
assignment of error is overruled.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
Footnote: 1