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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-143


Filed: 4 September 2007


         v.                        Henderson County
                                Nos. 05 CRS 52027,
GREGORY ANGRAM                               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.

    WYNN, Judge.

    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 1997. 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 offense.”

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 place.

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) ( “The 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 of the particular conviction being used to support his status as an habitual felon. Accordingly, this assignment of error is overruled.
     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 arrested , 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) (2005). The defendant has the burden of showing such prejudice. Id.
     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) (“ Erroneous 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 712 (2007) .
    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. 10(c)(4).
    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 law.
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 608(b) (2005).
    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 discussed, the State presented overwhelming evidence that Defendant possessed the cocaine. W e therefore conclude the trial court did not abuse its discretion by refusing to declare a mistrial. This assignment of error is overruled.
    No prejudicial error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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