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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-252


Filed: 4 September 2007


         v.                        Caldwell County
                                Nos.    04 CRS 51048, 5340

    Appeal by Defendant from judgment entered 18 April 2006 by Judge Yvonne Mims Evans in Superior Court, Caldwell County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Rufus C. Allen, for the State.

    Jarvis John Edgerton, IV, for Defendant-appellant.

    WYNN, Judge.

    Defendant Phoutthasong Bandon 's appeal arises from a conviction of possession of marijuana with intent to sell or deliver, sale of marijuana, maintaining a vehicle for the purpose of keeping a controlled substance , and being an habitual felon. Based on the reasons set forth below, we find no error.
    At trial, the State presented testimony by Officer Morris Macchia, of the Caldwell County Sheriff's Department, who testified that he arrested Defendant for selling drugs to an undercover officer on 20 April 2004. Defendant informed Officer Macchia that his date of birth was 31 July 1974 and the officer used this information to obtain Defendant's driver's license record from the North Carolina Department of Motor Vehicles. James Amelia, anemployee of the North Carolina Department of Correction in Probation and Parole, testified that parole records listed Defendant's date of birth as 31 July 1974.
    Next, Carol Austin, Caldwell County Assistant Clerk of Court in the Criminal Division, testified she identified certified copies of the bills of indictments and judgments recording Defendant's prior felony convictions in case numbers 91 CRS 2994 and 94 CRS 288. The State admitted into evidence, without objection, certified copies of the indictments and judgments in 91 CRS 2994, 94 CRS 288, and 96 CRS 4842.   (See footnote 1)  These documents listed Defendant's date of birth as 31 July 1974 and also listed the dates of offenses corresponding to the allegations in the habitual felon indictment.
    Defendant made a motion to dismiss the habitual felon charge at the conclusion of the State's evidence, arguing that the State failed to document Defendant's date of birth via “a driver's license, passport, [or] birth certificate.” Counsel averred that no evidence of Defendant's actual date of birth existed, because his family emigrated from Laos when he was a child. The trial court denied his motion.
    Defendant presented testimony by Eddie Kiser, that he met Defendant in 1980, when Kiser's church “sponsored a family to come over here from Laos.” When asked his opinion of Defendant's age at the time of his arrival in 1980, Kiser replied, “[t]hey were all really small. They were undernourished . . . I thought [Defendant]was probably three or four.” Kiser further explained that Defendant's mother lost “the family's papers” when her pocket book was stolen during a trip to Texas. The family “had to go to Charlotte, back to Immigration, to get paperwork.” On their way home from Charlotte, Defendant's mother was killed in a vehicular accident.
    Defendant's next witness, his brother Soutthanou Bandon, testified that he and Defendant were born in Laos and came to the United States from Thailand with their mother and father in 1980. Their mother died in an automobile accident in 1984. Sautthanou explained that he did not know Defendant's date of birth and no records existed in his home village. Soutthanou and Defendant were assigned birth dates on their citizenship documents after their father was granted United States citizenship. Soutthanou stated that he did not know why he was assigned his particular date of birth but acknowledged that it “could be” his real birth date.
    Following a jury trial, Defendant was convicted of possession of marijuana with intent to sell or deliver, sale of marijuana, maintaining a vehicle for the purpose of keeping a controlled substance , and being a habitual felon and sentenced to a consolidated term of one hundred seven months to one hundred thrity-eight months imprisonment.
     On appeal, Defendant asserts that he was denied effective assistance of counsel when his counsel neglected to renew his motion to dismiss the habitual felon charge at the conclusion of all the evidence, thereby waiving defendant's right to challengethe sufficiency of the evidence on appeal . Specifically, Defendant claims he had a meritorious appeal because the State failed to adduce adequate proof of his date of birth; and absent such evidence the State did not show that he committed at least two of the three felonies alleged in the habitual felon indictment after his eighteenth birthday. We disagree.
    To prevail on an ineffective assistance of counsel claim, Defendant must show both unreasonably deficient performance by counsel and “'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” State v. Al-Bayyinah, 359 N.C. 741, 751, 616 S.E.2d 500, 509 (2005) (quoting Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984)), cert. denied, 547 U.S. 1076, 164 L. Ed.2d 528 (2006). “[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985).
    In considering a motion to dismiss, a trial court must deny a defendant's motion if it finds “substantial evidence -- whether direct, circumstantial, or both -- to support a finding that the offense charged has been committed and that the defendant committed it[.]” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383(1988). “Substantial evidence is [such] relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
    In ruling on a motion to dismiss, “all evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and resolving in its favor any contradictions in the evidence.” State v. Williams, 334 N.C. 440, 447, 434 S.E.2d 588, 592 (1993), judgment vacated on other grounds, 511 U.S. 1001, 128 L. Ed. 2d 42 (1994). “Defendant's evidence . . . may be considered only insofar as it explains or clarifies evidence offered by the State or is not inconsistent with the State's evidence.” State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994) (citation omitted).
    Defendant's habitual felon indictment listed his date of birth as 31 July 1974, and alleged prior convictions for three felonies committed on 25 March 1991, 1 December 1993, and 15 April 1996, and bearing file numbers 91 CRS 2994, 94 CRS 288, and 96 CRS 4842. According to Section 14-7.1 “felonies committed before a person attains the age of 18 years shall not constitute more than one felony. . . .” Therefore, the indictment properly alleged Defendant's conviction for three prior felonies, two of which were committed after his eighteenth birthday on 31 July 1992. Id. Moreover, Defendant does not contest the evidence of his prior convictions or the dates he committed these offenses. Rather, heargues that “the State did not tender any reliable evidence regarding [his] actual age.”
    The State adduced sufficient evidence of Defendant's date of birth to support the trial court's denial of his motion to dismiss the habitual felon indictment at the close of the State's evidence. Defendant's statement to Macchia that he was born on 31 July 1974 was consistent with the date of birth uniformly reflected on multiple certified public records entered into evidence by the State without objection or request by Defendant for a limiting instruction. A reasonable juror could find the documentary evidence, coupled with Defendant's admission at the time of his arrest, sufficient to establish his date of birth as 31 July 1974, as alleged in the habitual felon indictment. See State v. Joyner, 295 N.C. 55, 62, 243 S.E.2d 367, 372 (1978) (citing N.C.R. Evid. 803(8)) (providing that certified copies of public records “are admissible into evidence . . . for purposes of proof of matters relevant to the information contained in the official record”); see also N.C. Gen. Stat. § 14-7.4 (2005) (providing that a certified copy of a court record “shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein”).
     We further hold that there was no probability that the trial court would have granted Defendant's renewed motion to dismiss at the conclusion of all the evidence. Contrary to his claim on appeal, Defendant did not undermine the State's case with proofthat he was arbitrarily assigned a date of birth after arriving in the United States. Viewed in the light most favorable to the State, Defendant's evidence tended to show that his parents reported his date of birth to immigration officials after their papers were lost in 1984. A jury could reasonably infer that Defendant's parents knew his actual date of birth and reported it accurately. Moreover, Kiser's lay estimate of Defendant's age based on his malnourished appearance twenty-six years prior to trial did not refute the State's proffer, but was an issue for the jury to consider in weighing the evidence.
    Accordingly, Defendant suffered no prejudice from the alleged error of his counsel, we overrule his ineffective assistance claim. Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
    The record on appeal includes additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem these assignments of error abandoned.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     Defendant stipulated to the fact and date of the prior conviction in 96 CRS 4842.

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