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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
v. Henderson County
Nos. 05 CRS 52027,
06 CRS 247
Appeal by defendant from judgment entered 26 July 2006 by
Judge Zoro J. Guice, Jr., in Superior Court, Henderson County.
Heard in the Court of Appeals 27 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly D. Potter, for the State
Charlotte Gail Blake for defendant-appellant.
Defendant Gregory Angram appeals his convictions for felonious
possession of cocaine and being an habitual felon, arguing that the
trial court committed several prejudicial errors and that the
indictment for habitual felon status was fatally defective. After
a careful review of Defendant's arguments on appeal and the record,
briefs, and transcript before us, we find no prejudicial error and
affirm Defendant's convictions.
On 30 January 2006, Defendant was indicted for felonious
possession of cocaine and being an habitual felon.
At his trial
beginning on 24 July 2006, t
he State presented evidence tending to
show the following:
On 17 March 2005, Officer Mike Vestley of theHendersonville Police Department was sent to the Caldwell Inn to
execute an arrest warrant for Defendant. Arriving shortly after
midnight, Officer Vestley
and another officer walked up to the
porch, looked in a window, and observed Defendant sitting on a
sofa, holding some type of metal object in his left hand and a
lighter in his right hand and smoke being emitted from either his
mouth or the metal object. The officers tapped on the glass
because the screen door was locked, and Defendant looked over and
then put the metal object down on his left side. After Defendant
opened the screen door, Officer Vestley informed him that he had
child support warrants for you and handcuffed him, then said,
I'll take the crack pipe too. Once Defendant was secure in a
patrol car, Officer Vestley field tested the metal object, getting
a positive result for crack cocaine on the off white crumbs on a
brass fitting of the object. Defendant stipulated at trial that
the substance was cocaine.
The jury found Defendant guilty of possession of cocaine, and
he subsequently admitted to being an habitual felon. Following the
jury's verdict, the trial court sentenced Defendant to a term of
145 to 183 months' imprisonment.
Defendant now appeals, arguing
that the trial court erred by (I) accepting Defendant's admission
that he was an habitual felon; (II) allowing Officer Vestley to
testify, over defense objection, regarding his familiarity with
Defendant and the location where he was arrested; and (III)
overruling Defendant's objection, motion to strike, and request for
a mistrial, following Officer Vestley's rebuttal testimony that heknew a defense witness because he had previously arrested her for
a federal probation violation.
First, Defendant argues that the trial court erred by
accepting his admission that he was an habitual felon, because the
indictment was allegedly defective. Defendant contends that the
date of conviction for one of the three underlying felonies on the
habitual felon indictment was incorrect. Specifically, Defendant
notes that the indictment states that he was convicted on 29
September 1997 in file number 97-CRS-25854 for felony breaking,
entering, and larceny. However, the prior record level worksheet
shows that the date of conviction for this offense was 20 September
The indictment also states that the date of the offense was
15 September 1997.
This Court has previously stated:
By knowingly and voluntarily pleading guilty,
an accused waives all defenses other than the
sufficiency of the indictment. Nevertheless,
when an indictment is alleged to be facially
invalid, thereby depriving the trial court of
jurisdiction, the indictment may be challenged
at any time. Our Supreme Court has stated
that an indictment is fatally defective when
the indictment fails on the face of the record
to charge an essential element of the
State v. McGee, 175 N.C. App. 586, 587-88, 623 S.E.2d 782, 784
(citations omitted), disc. review denied and appeal dismissed, 360
N.C. 542, 634 S.E.2d 891 (2006). Additionally, N.C. Gen. Stat. §
14-7.3 provides in part:
An indictment which charges a person with
being an habitual felon must set forth thedate that prior felony offenses were
committed, the name of the state or other
sovereign against whom said felony offenses
were committed, the dates that pleas of guilty
were entered to or convictions returned in
said felony offenses, and the identity of the
court wherein said pleas or convictions took
N.C. Gen. Stat. § 14-7.3
(2005). However, we have also held that
[i]t is well established that an indictment is sufficient under
the Habitual Felons Act if it provides notice to a defendant that
he is being tried as a recidivist. State v. Williams, 99 N.C.
App. 333, 335, 393 S.E.2d 156, 157 (1990); see also State v.
Briggs, 137 N.C. App. 125, 130, 526 S.E.2d 678, 681 (2000)
purpose of an habitual felon indictment is to provide a defendant
'with sufficient notice that he is being tried as a recidivist to
enable him to prepare an adequate defense to that charge,' and not
to provide the defendant with an opportunity to defend himself
against the underlying felonies.) (quoting State v. Cheek, 339
N.C. 725, 729, 453 S.E.2d 862, 864 (1995)).
Here, despite Defendant's contentions, it is not apparent from
the record before us that the date of conviction in the indictment
is incorrect. Nevertheless, even assuming arguendo that the date
is erroneous, we conclude that it did not render the indictment
fatally defective. The indictment correctly stated the type of
offense for which defendant was convicted, the county in which he
was convicted, and the date of the offense. See State v. Lewis,
162 N.C. App. 277, 284-85, 590 S.E.2d 318, 324 (2004) (finding an
habitual felon indictment sufficient where it stated the type of
offense for which the defendant was convicted and the date of theoffense). Therefore, Defendant had sufficient notice
particular conviction being used to support his status as an
habitual felon. Accordingly, this assignment of error is
Next, Defendant contends that the trial court erred by
allowing Officer Vestley to testify over repeated objections that
he was familiar with Defendant and the location where Defendant was
, and committed plain error by not striking such testimony
or giving a limiting instruction. We disagree.
Our Rules of Evidence preclude the introduction of evidence of
other crimes, wrongs, or acts to prove the character of a person in
order to show that he acted in conformity therewith in committing
the alleged crime charged. N.C. Gen. Stat. § 8C-1, Rule 404(b)
(2005). Nevertheless, such evidence is allowed for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident. Id. Defendant argues that Officer
Vestley's testimony that he knew Defendant from previous arrests
and that he had made several drug arrests at the Caldwell Inn
were allowed in violation of Rule 404(b).
Under North Carolina law, [t]
he erroneous admission of
evidence requires a new trial only when the error is prejudicial.
State v. Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000)
(citing State v. Locklear, 349 N.C. 118, 149, 505 S.E.2d 277, 295
(1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999)). Prejudice exists
when there is a reasonable possibility that, had
the error in question not been committed, a different result would
have been reached at the trial[.] N.C. Gen. Stat. § 15A-1443(a)
The defendant has the burden of showing such prejudice.
In the instant case, Officer Vestley observed Defendant
smoking crack cocaine and seized the object Defendant was using to
smoke the crack cocaine. At trial, Defendant stipulated that the
substance found in the pipe was cocaine. Even assuming arguendo
that admission of Officer Vestley's challenged testimony was error,
Defendant has failed to demonstrate any prejudice in light of the
other, extensive evidence against him. See State v. Grant, 178
N.C. App. 565, 576, 632 S.E.2d 258, 266 (2006) (
admission of evidence may be harmless where there is an abundance
of other competent evidence to support the state's primary
contentions, or where there is overwhelming evidence of [the]
defendant's guilt. (internal quotation and citation omitted)),
disc. review denied and appeal dismissed, 361 N.C. 223, 642 S.E.2d
Moreover, although Defendant also alleges plain error, [t]he
plain error rule applies only in truly exceptional cases, such
that the appellate court would be convinced that absent the error
the jury probably would have reached a different verdict. State
v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60-61 (2000)
(citation and quotation omitted), cert. denied, 532 U.S. 997, 149
L. Ed. 2d 641 (2001). To meet this burden, a defendant mustconvince the appellate court, using support from the record, that
the claimed error is so fundamental, so basic, so prejudicial, or
so lacking in its elements that justice could not have been done.
State v. Fleming, 350 N.C. 109, 132, 512 S.E.2d 720, 736, cert.
denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). Thus, the bare
assertion of plain error in an assignment of error, without
accompanying explanation, analysis, or specific contentions in a
defendant's brief, is insufficient to show plain error. Cummings,
352 N.C. at 637, 536 S.E.2d at 61; see also N.C. R. App. P.
Here, Defendant fails to argue plain error in his brief to
this Court, beyond his bare assertion that it was plain error for
the trial court not to strike Officer Vestley's testimony or offer
a limiting instruction. This assignment of error is overruled.
Lastly, Defendant asserts that the trial court erred in
overruling his objection, denying his motion to strike, and failing
to grant his motion for a mistrial
, based on the rebuttal testimony
of Officer Vestley that he knew a defense witness because he had
arrested her for a federal probation violation. We disagree.
Whether to declare a mistrial is a decision
within the sound discretion of the trial court
and its ruling will not be disturbed on appeal
unless it is so clearly erroneous as to amount
to a manifest abuse of discretion. It is
appropriate for a trial court to declare a
mistrial only when there are such serious
improprieties as would make it impossible to
attain a fair and impartial verdict under the
State v. Bowman
, 349 N.C. 459, 472, 509 S.E.2d 428, 436 (1998)
(quotations and citations omitted), cert. denied
, 527 U.S. 1040,
144 L. Ed. 2d 802 (1999). We note too that our Rules of Evidence
allow cross-examination as to [s]pecific instances of the conduct
of a witness, for the purpose of attacking or supporting his
credibility, . . . in the discretion of the court, if probative of
truthfulness or untruthfulness[.] N.C. Gen. Stat. § 8C-1, Rule
In the instant case, defense witness Rosselle Lindsey
testified that she, not Defendant,
was the one who opened the door
for Officer Vestley, and that she did not see defendant smoke crack
cocaine. On cross-examination, Ms. Lindsey stated that she
recognized Officer Vestley, had in fact seen him many times, but
denied that he had ever arrested her for violating federal
probation. The State then recalled Officer Vestley to the stand,
at which point he testified that Ms. Lindsey was not present at the
Caldwell Inn when he arrested Defendant, and that he had previously
arrested Ms. Lindsey for a federal probation violation. Defendant
objected, moved to strike, and moved for a mistrial. The objection
was overruled and the motions denied.
Even assuming arguendo
that admission of the evidence
concerning Ms. Lindsey's prior arrest was error, we find no
prejudice, as Ms. Lindsey had herself admitted on the stand that
she did time for crack cocaine. Additionally, we see no abuse of
discretion in allowing rebuttal testimony by the State that was
probative of Ms. Lindsey's character for untruthfulness and whatshe has testified to on cross examination. As previously
the State presented overwhelming evidence that Defendant
possessed the cocaine.
e therefore conclude the trial court did
not abuse its discretion by refusing to declare a mistrial.
assignment of error is overruled.
No prejudicial error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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