Opinion
No. COA09-1104
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgment entered 26 March 2009 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 May 2010.
Attorney General Roy Cooper by Assistant Attorney General Christopher H. Wilson for the State. Jon W. Myers, for defendant-appellant.
Mecklenburg County Nos. 08 CRS 66959, 220950, 220952.
Defendant Angelo Evans appeals from a judgment entered after a jury convicted him of felonious breaking and entering, felonious possession of stolen goods, larceny after breaking and entering, and having attained the status of an habitual felon. After careful consideration of the arguments advanced in the parties' briefs in light of the record and the applicable law, we find no error in part and vacate and remand for resentencing in part.
On 1 May 2008, defendant was a resident at Hope Haven, a residential treatment center for recovering alcoholics located in Charlotte. Between noon and 4:45 p.m. on 1 May 2008, defendant went to the home of a former drinking buddy and consumed eight twelve-ounce cans of beer. Defendant returned to Hope Haven around 5:00 p.m., where he encountered a Hope Haven substance abuse counselor. Another substance abuse counselor, Scott Carter, was called in to assist and decided that it was necessary to administer a breathalyzer test to defendant. After administering the breathalyzer test, Carter transported defendant to the Mecklenburg County detoxification unit. Carter and defendant arrived at the detoxification unit around 5:35 or 5:40 p.m. Defendant walked out of the detoxification unit twenty minutes later.
At approximately 8:00 p.m. that same day, John Brasch encountered defendant in front of his residence. Defendant, who appeared to be drunk, entered Brasch's yard and made threatening gestures. When defendant laid two full bottles of liquor down in Brasch's yard, Brasch broke the bottles with a walking stick. Brasch called the police after defendant reached down and cut his hand on the broken bottles.
Two officers were dispatched to Brasch's residence just before 9 p.m. While responding to Brasch's call, the police encountered defendant in the 2300 block of East 5th Street and suspected he was the subject of the call they were in the process of answering. The officers determined that defendant was under the influence of alcohol and that he was bleeding to such an extent that he required medical attention. When the officers asked defendant for some identification, he showed them "a little silver digital camera." In addition, one of the officers noticed that defendant had a monogrammed towel draped over his shoulders. The police called a medic, and defendant was transported to Carolinas Medical Center.
After the police arrived at Brasch's residence in response to the disturbance he reported, they received a call about a breaking and entering at another residence three blocks away. The police arrived at the residence at which the breaking and entering had occurred and were advised that the perpetrator gained entry by breaking a window with a dog blanket that the occupant kept outside. The police and the occupant were able to determine that liquor, a digital camera and a towel bearing a Ritz Carlton monogram were missing. After recalling that defendant had a monogrammed towel in his possession when they encountered him, the police confirmed with hospital personnel that defendant arrived at the hospital with a Ritz Carlton towel in his possession. The police took the occupant of the "burglarized" residence to the hospital, where she identified her towel and camera. During a search of defendant's person at the hospital, the police found four credit cards bearing the occupant's name.
Based on this evidence, defendant was taken into custody and charged with felonious breaking and entering, larceny after breaking and entering, and felonious possession of stolen goods. At trial, defendant relied on the defense of voluntary intoxication in an attempt to negate the specific intent element of each of the charged crimes. The jury found defendant guilty of all substantive charges and of having attained the status of an habitual felon. Based on the jury's verdicts, the trial court consolidated defendant's convictions for judgment and sentenced defendant to a term of 121 to 155 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.
On appeal, defendant argues that the trial court committed plain and prejudicial error by refusing to allow the results of the breathalyzer test administered at Hope Haven into evidence. According to the evidentiary record, a breathalyzer test was administered to defendant when he returned to Hope Haven on the afternoon of 1 May 2008 for administrative purposes. At the time that defendant asked Carter to testify concerning the results of the test administered to defendant on that occasion, the State objected, stating, "We don't know that this breathalyzer, there's no foundation for its proper maintenance." After a bench conference, the trial court sustained the State's objection.
"It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). "[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record." Id. In this case, the record does not contain the results of the breathalyzer test administered to defendant at Hope Haven on the afternoon of 1 May 2008. "Without a showing of what the excluded testimony would have been, we are unable to say that the exclusion was prejudicial." Id. at 371, 334 S.E.2d at 61. As a result, defendant is not entitled to appellate relief on the basis of the trial court's decision to sustain the State's objection to the results of this breathalyzer test.
Secondly, defendant argues that he received ineffective assistance from his trial counsel due to the failure of his trial counsel to lay a proper foundation for the admission of the results of the Hope Haven breathalyzer test. We disagree.
"A defendant's right to counsel includes the right to the effective assistance of counsel." State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." Id. at 561-62, 324 S.E.2d at 248. To meet this burden, defendant must show that counsel's performance was deficient and that any deficient performance prejudiced defendant. Id. at 562, 324 S.E.2d at 248. "The fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings." Id. at 563, 324 S.E.2d at 248.
In order to establish that the failure of his trial counsel to lay the necessary foundation for the admission of the Hope Have breathalyzer test prejudiced him, defendant would, of necessity, have to demonstrate the nature of the evidence that the jury would have heard but for the alleged errors of his trial counsel. However, since the record does not contain the results of the breathalyzer test administered to defendant at Hope Haven on the afternoon of 1 May 2008, we have no basis upon which we can assess the impact of counsel's alleged error upon the jury.
Furthermore, defendant presented considerable evidence concerning his level of intoxication on 1 May 2008. For example, Carter testified about his observations of defendant on the day in question. In addition, Dr. Katayoun Tabrizi, an expert in psychiatry, testified that defendant's blood alcohol level was .27 at approximately 11 p.m. on the day in question, that defendant "probably had severe alcohol intoxication, and really the number is not that important" since "his behavior was really more of an indicator . . . as to how this — how impaired he was." Thus, we conclude that defendant has not established that he is entitled to appellate relief on the grounds of ineffective assistance of counsel.
In reviewing the record, however, we noticed that the trial court consolidated defendant's convictions for felonious breaking or entering, felonious larceny, and felonious possession of stolen property for judgment. "Although a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he can be convicted of and sentenced for only one of the offenses." State v. Little, 121 N.C. App. 619, 620, 468 S.E.2d 423, 424 (1996) (citing State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982)). "The judgment should therefore have been arrested as to the felonious possession conviction;" "consolidation of the convictions for judgment does not cure this error." State v. Owens, 160 N.C. App. 494, 499, 586 S.E.2d 519, 523 (2003). As a result, the trial court erred by sentencing defendant for both felonious larceny and felonious possession of stolen property relating to essentially the same items of property. Despite the fact that defendant has not raised this issue on appeal, we "exercise our discretion under the North Carolina Rules of Appellate Procedure to address this error," Id. at 498, 586 S.E.2d at 522, and vacate that portion of the trial court's judgment sentencing defendant for felonious possession of stolen property and remand this case for the entry of a new judgment predicated solely on the basis of defendant's convictions for felonious breaking or entering, felonious larceny, and obtaining the status of an habitual felon.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).