Opinion
No. COA02-236
Filed 6 May 2003 This case not for publication
Appeal by defendant from judgments entered 6 September by Judge Wiley F. Brown in Harnett County Superior Court. Heard in the Court of Appeals 13 November 2002.
Attorney General Roy Cooper, by Assistant Attorney General Dennis P. Myers, for the State. Robert T. Newman, Sr., for defendant appellant.
Harnett County Nos. 99 CRS 15492, 00 CRS 10990.
Rufus Deangelo Barnes ("defendant") appeals from his convictions of possession with the intent to sell and deliver a controlled substance, the sale and delivery of a controlled substance, and attaining the status of habitual felon. For the reasons stated herein, we conclude that the trial court did not err.
At trial, the State presented evidence tending to show the following: On 4 November 1999, Richard Fink ("Fink") met with Officer James Page ("Officer Page") of the Dunn Police Department ("the DPD") for the purpose of assisting the DPD in identifying individuals engaged in the sale of illegal narcotics. Officer Page installed audio and video equipment inside of Fink's vehicle, gave him twenty dollars and instructed him to drive to Pope Street to purchase illegal drugs. Fink testified that upon arriving at Pope Street, he gave defendant twenty dollars in exchange for rock cocaine, returned directly to Officer Page, and gave him the substance purchased from defendant. Officer Page viewed the videotape and Fink identified defendant as the individual who sold him cocaine. Officer Page sent the substance to the State Bureau of Investigation ("SBI") for testing. The SBI lab report indicated that the substance contained ".1 gram of cocaine."
At trial, defendant represented himself and admitted that he had sold drugs in the past, but was no longer in the "drug business." Defendant denied that he sold drugs on Pope Street. At the conclusion of the evidence, the jury found defendant guilty and sentenced him to a minimum term of imprisonment of ninety-three months, with a maximum term of 121 months. Defendant appeals.
Defendant presents five assignments of error on appeal, arguing that the trial court erred in (1) denying defendant's motion to dismiss for insufficient evidence; (2) failing to set aside defendant's habitual felon conviction; (3) admitting a photograph of defendant into evidence over his objection; (4) admitting into evidence a videotape depicting defendant selling drugs. In his final assignment of error, defendant contends that the Habitual Felon statute violates the United States and North Carolina Constitutions. For the reasons stated herein, we find no error by the trial court. By his first assignment of error, defendant argues that the trial court committed reversible error by denying his motion to dismiss for insufficient evidence. Defendant contends that the SBI lab report was not admissible, because the State failed to provide to him a copy of the report and the lab report was not properly authenticated before being admitted into evidence. Thus, defendant reasons that there was not sufficient evidence that the substance allegedly purchased was an illegal controlled substance.
In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The standard of review for a "motion to dismiss based on insufficiency of the evidence is the substantial evidence test." State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). "The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense." Id.
According to North Carolina General Statutes § 15A-903(d), the State is required to disclose to the defendant all documents and tangible objects "which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belonged to the defendant." N.C. Gen. Stat. § 15A-903(d) (2001). North Carolina General Statutes § 15A-903(e) permits "the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies . . . within the possession, custody, or control of the State. . . ." N.C. Gen. Stat. § 15A-903(e) (2001).
Here, examining the evidence in the light most favorable to the State, pursuant to a written request by counsel for defendant and in accordance with North Carolina General Statutes § 15A-903(e), a document entitled "Answer To Request for Discovery" was filed by the State on 26 April 2000, approximately eighteen months prior to defendant's trial. The document read in pertinent part:
The State of North Carolina voluntarily discloses to the defendant the following . . .
. . . .
5. The State has the following documents/tangible objects or copies thereof which are deemed subject to discovery under N.C.G.S. § 15A-903(d): SBI lab analysis
6. There are results . . . or reports of tests of the type described in N.C.G.S. § 15A-903(e) made in connection with this case in our control. A copy is attached. . . .
. . . .
While defendant asserts that neither the record nor the transcript show that a copy of the lab report was furnished to him, there was substantial evidence that the State provided defendant with a copy of the SBI lab report, and advised defendant of the State's intent to introduce the report as evidence at trial. We conclude that the trial court did not err in denying defendant's motion to dismiss. In his second assignment of error, defendant argues that the trial court committed reversible error by failing to set aside his conviction as a Habitual Felon. Defendant contends that the State failed to produce a "live witness" to authenticate judgment and commitment sheets of his previous felonies. Defendant further challenges the validity of his prior conviction for maintaining a dwelling for keeping controlled substances.
The Habitual Felons Act provides that prior convictions of a defendant are admissible and "may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction." N.C. Gen. Stat. § 14-7.4 (2001). "In all cases where a person is charged . . . with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses." Id. Here, defendant contends that the admissibility of his prior convictions was in violation of the Habitual Felons Act, because the State failed to produce a witness to authenticate the record. However, defendant concedes that the State did produce certified copies of his prior convictions. Therefore, defendant's court record of prior convictions was properly before the court.
Defendant continues this assignment of error by arguing that his prior conviction for maintaining a dwelling for keeping controlled substances in violation of North Carolina General Statutes § 90-108(a)(7) was not valid. We disagree. Defendant relies on State v. Best, 292 N.C. 294, 233 S.E.2d 544 (1977) in furtherance of his argument. However, we find Best distinguishable from the present case. In Best, our Supreme Court held that a medical doctor could not be convicted of the sale and delivery of a controlled substance pursuant to North Carolina General Statutes section 90-95. Id. at 302, 233 S.E.2d at 549. Here, defendant contends that Best extends to laymen and therefore he cannot be convicted of maintaining a place to keep controlled substances. Defendant misapprehends the law as it is applied in Best and there is no indication that the decision in Best applies to laymen. Moreover, this Court has held that charges of being a Habitual Felon cannot be defended by a collateral attack on prior convictions. State v. Creason, 123 N.C. App. 495, 500, 473 S.E.2d 771, 773 (1996). We overrule this assignment of error.
By his third assignment of error, defendant argues that the trial court committed reversible error by admitting a photograph of him into evidence over his objection. We disagree.
According to North Carolina General Statutes § 15A-1443(a),
[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States 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 out of which the appeal arises.
N.C. Gen. Stat. § 15A-1443(a) (2001). "Whether the [trial court's] actions amount to reversible error is a question to be considered in light of all of the circumstances, and the burden is on the defendant to show prejudice." State v. Heath, 77 N.C. App. 264,271, 335 S.E.2d 350, 355 (1985), rev'd on other grounds, 316 N.C. 337, 341 S.E.2d 565 (1986).
In the present case, the State's evidence tended to show that defendant was captured on videotape selling illegal narcotics to Fink. Testimony from Fink revealed that he purchased drugs from defendant and that defendant was the person depicted in the videotape. Officer Page testified that he received the substance from Fink, sent it to the SBI lab for analysis, and that the report indicated that the substance contained ".1 gram of cocaine." Officer Page further testified that he was familiar with defendant from a prior domestic disturbance investigation. Moreover, on direct examination, defendant complained that the State should have presented "all of [his] pictures" to the jury, but on appeal complains that his photograph was admitted into evidence. In light of the State's overwhelming evidence against defendant, he fails to show how the admission of his photograph was prejudicial.
Defendant further contends that he was prevented from impeaching Finks's character and credibility on cross-examination. We disagree. North Carolina General Statutes § 8C-1, Rule 608(b) reads in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. . . .
N.C. Gen. Stat. § 8C-1, Rule 608(b) (2001) (emphasis added). The record reveals that defendant was allowed to cross-examine Fink exhaustively about his prior conviction for writing fifty-two checks on an account that failed to contain sufficient funds. On cross-examination defendant also attempted to ask Fink the following:
Q: Have you ever used drugs?
. . . .
Q: Have you ever bought drugs . . .?
. . . .
The State objected to each question and the trial court sustained the objections. Defendant fails to show that the questions were related to Fink's character for truthfulness or untruthfulness. Therefore, this assignment of error is overruled.
Next, defendant argues that the trial court committed reversible error by admitting into evidence a videotape of him selling drugs to Fink. Specifically, defendant contends that the State failed to establish a proper foundation or a proper chain of custody. We disagree.
At trial, the State moved to introduce into evidence, for corroborative purposes, a videotape depicting defendant selling drugs to Fink. Defendant failed to object and the videotape was admitted into evidence. Defendant has failed to preserve this alleged error for appellate review. See N.C.R. P. 10(b)(1) (2002). Also, defendant does not allege in this assignment of error that the trial court committed plain error under North Carolina Rules of Appellate Procedure 10(c)(4) (2002). Defendant has not properly preserved this issue for our review. Therefore, this assignment of error is overruled.
In his last assignment of error, defendant argues that the North Carolina General Statutes §§ 14-7.1 to -7.6 (Habitual Felons Act) is unconstitutional on the following grounds: (1) the Act violates the Separation of Powers Clause of the North Carolina Constitution, see N.C. Const. art. I, § 6; (2) the combined use of the Act and Structured Sentencing, see N.C. Gen. Stat. §§ 15A-1340.10 — 1340.23 (2001), violates the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution by subjecting him to double jeopardy; and (3) violated defendant's equal protection rights under the U.S. Constitution and the North Carolina Constitution, see U.S. Const. amend. XIV; N.C. Const. art. I, § 19. We disagree.
This Court has previously rejected an identical challenge to the Habitual Felons Act as violating Article I, Section 6 of our State's constitution. See State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870 (2000). Our courts have continuously held that the procedures set forth in the Habitual Felon Act comport with a criminal defendant's federal and state constitutional guarantees. See State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000) (citing State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985)), and State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993) (upholding Habitual Felons Act against due process, equal protection, and double jeopardy challenges). Accordingly, this assignment of error is overruled. For the reasons contained herein, we hold that the trial court did not err.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).