Opinion
No. 08-865.
Filed April 21, 2009.
Appeal from the Carteret (07CRS5491) (07CRS54447).
Appeal by defendant from judgment entered 8 April 2008 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 11 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State. John T. Hall, for defendant-appellant.
Thomas Neal Robinson ("defendant") appeals a judgment entered upon a jury verdict finding him guilty of felonious larceny and felonious possession of stolen property worth more than $1,000.00. Defendant also appeals his guilty plea admitting to attaining the status of an habitual felon. We find no error occurred at trial or during sentencing, but remand for correction of a clerical error.
Defendant was hired by James Gillikin ("Gillikin") to work on his commercial fishing boats in 2007. Defendant worked for Gillikin for approximately two weeks. Shortly after his employment with Gillikin ended on 22 August 2007, Gillikin found defendant lying in the back of his shop on some garbage bags. Defendant told him he had nowhere to stay that night. Gillikin told him, "this isno place for this. I'm not going to have you around here." Defendant said he needed to get to Chincoteague, Virginia, and that he could make some big money there. Gillikin walked away and defendant left the shop.
Gillikin owned a 1994 GMC truck ("the truck"), which he allowed his employees to use for errands. That evening, the keys to the truck were secured in Gillikin's office. The truck was parked outside of Gillikin's office. The next morning, the back door to Gillikin's office was "jimmied open" and both the keys and the truck were missing. Gillikin reported the theft to law enforcement. The Carteret County Sheriff's Department entered the truck's tag numbers into a national crime database. On 29 August 2007, Deputy Ray Miller of the Harris County Mississippi Sheriff's Department ("Deputy Miller"), found the truck at a gas station in Gulfport, Mississippi. Defendant was sitting in the driver's seat of the truck and a person he said he picked up hitchhiking was sitting in the passenger's seat.
Defendant was charged with felonious larceny, possession of stolen property and attaining the status of an habitual felon. The jury found defendant guilty of felonious larceny and possession of stolen property worth more than $1,000.00. Defendant pled guilty to attaining the status of an habitual felon. The trial court determined defendant's prior record level was a level five with 16 points. Defendant was sentenced as an habitual felon to a minimum term of 121 months and a maximum term of 155 months in the North Carolina Department of Correction for felonious larceny. After sentencing defendant for possession of stolen property, the trial court arrested the judgment. Defendant appeals.
I. Admissibility of Evidence
Defendant argues the trial court erred in excluding an out-of-court statement made by defendant to Deputy Miller. We disagree.
When Deputy Miller arrested the defendant, he noted in his report that defendant "advised [he] borrowed the truck from the owner." During cross-examination of Deputy Miller, defendant moved to admit the report into evidence and the trial court sustained the State's objection on the basis that the statement was a self-serving declaration, stating "[i]t's not time for the defendant to offer evidence." Defendant later made an offer of proof regarding the report but decided not to testify or present any other evidence.
"The standard of review for this Court assessing evidentiary rulings is abuse of discretion." State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004) (citing State v. Meekins, 326 N.C. 689, 696, 392 S.E.2d 346, 350 (1990)).
"The phrase `self-serving' does not describe an independent grounds for exclusion but rather is merely a convenient term to characterize a particular form of otherwise inadmissible hearsay." State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987). Self-serving statements by the defendant are not admissible unless they corroborate defendant's testimony or where the State opens the door to such testimony by introducing statements made by the defendant. See State v. Davis, 246 N.C. 73, 75, 97 S.E.2d 444,445-46 (1957) (holding that excluding statements made by defendant on November 8th on the ground that they were self-serving was not error where State had not introduced any part of the defendant's conversation on that day); State v. Stanton, 319 N.C. 180, 191, 353 S.E.2d 385, 392 (1987) (holding no error in excluding statements made by defendant where defendant had not yet testified, statements offered for substantive not corroborative purpose).
This Court has held that by simply introducing into evidence a statement made by a defendant, the State does not open the door for the introduction of another statement made later that day by the defendant. A party is only entitled to introduce evidence that would have been inadmissible if offered initially where the other party introduces evidence that raises specific issues or raises evidence as to a particular fact that is covered by the subsequent statement.
State v. Vick, 341 N.C. 569, 579, 461 S.E.2d 655, 661 (1995) (internal citations omitted). In State v. Price, 301 N.C. 437, 450, 272 S.E.2d 103, 112 (1980), the Supreme Court held a self-serving "statement to the officers at the time of defendant's arrest that the shooting had been in self-defense was properly excluded" because of its hearsay character. However, even if self-serving, an out-of-court statement that fits one of the hearsay exceptions is admissible. State v. Harper, 51 N.C. App. 493, 497, 277 S.E.2d 72, 75 (1981).
In the instant case, after Deputy Miller testified that defendant told him the passenger was a hitchhiker he picked up, defendant sought to admit his statement to Deputy Miller that he borrowed the truck from the owner. The State's witness did not open the door to the defendant's statement about borrowing the truck because the introduction of defendant's statement regarding the hitchhiker did not raise evidence as to that particular fact. Vick, 341 N.C. at 579, 461 S.E.2d at 661. The trial court did not abuse its discretion in excluding the statement because the State did not open the door to the statement and it was not offered to corroborate the defendant's testimony since the defendant did not testify.
Defendant argues the statement was admissible under the state of mind exception to the hearsay rule. Because defendant raises this argument for the first time on appeal, we do not address this contention. Our review is limited to those assignments of error which are properly preserved. N.C.R. App. P. 10(b)(1) (2009). Defendant also argues in his brief that exclusion of the statement was a violation of his right to confront the witnesses before him and the right to due process. Defendant did not make this argument at trial, nor did he specifically allege plain error, therefore, this issue is also not preserved. N.C.R. App. P. 10(b)(1), (c)(4) (2008); State v. Campbell, 359 N.C. 644, 665-66, 617 S.E.2d 1, 15 (2005).
II. Insufficient Evidence
Defendant argues the trial court erred in denying his motion to dismiss the felonious larceny charge for insufficient evidence. We disagree.
The standard of review on a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the offense and that the defendant is the perpetrator of the offense. State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The evidence is to be viewed in the light most favorable to the State. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
"To convict a defendant of larceny, the State must show that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently." State v. Watson, 179 N.C. App. 228, 245-46, 634 S.E.2d 231, 242 (2006) (quoting State v. Jackson, 75 N.C. App. 294, 297, 330 S.E.2d 668, 669 (1985)). Larceny is a felony if the property is worth more than $1,000.00. N.C. Gen. Stat. § 14-72(a) (2009).
Defendant argues there was no testimony as to the specific registration number of the truck and there was insufficient evidence that the defendant "knew, or had reason to believe, the 1994 GMC truck had been stolen." We disagree.
Gillikin, the truck's owner, testified he did not loan defendant his truck the night it was stolen. He discovered the back door to his office had been broken into and the keys were taken without his consent. Defendant was found with the truck several days later in another state. "When goods are stolen, one found in possession so soon thereafter that he could not have reasonably got the possession unless he had stolen them himself, the law presumes he was the thief." State v. Graves, 72 N.C. 482, 485 (1875). While recent possession is not evidence of guilt, it raises an inference that will permit the case to go to the jury. State v. Greene, 289 N.C. 578, 583, 223 S.E.2d 365, 368-69 (1976). The jury can infer from this evidence that defendant was aware the truck was stolen, and intended to permanently deprive the owner of the truck.
Gillikin also testified the insurance company valued his truck at over $4,000.00. When Gillikin reported his truck as stolen, he testified that he gave police the tag numbers and a description of the truck. Deputy Miller testified he identified the truck located in Mississippi by matching the tag and vehicle numbers with the information he received from the Carteret County Sheriff's Department. Viewing the evidence in the light most favorable to the State, we conclude the trial court did not err in denying defendant's motion to dismiss. We also note that even if the trial court erred in excluding defendant's statement that he borrowed the truck, this error would not affect the trial court's ruling on the motion to dismiss. Conflicting evidence is to be resolved in favor of the State. State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000).
III. Habitual Felon Plea
Defendant next argues the trial court should have rejected his admission of attaining the status of an habitual felon because defendant was not informed of the possible range of sentences which could be imposed against him as a result of his guilty plea. The State argues we should dismiss this assignment of error because this issue does not meet one of the exceptions under N.C. Gen. Stat. § 15A-1444 (2007). We agree.
Defendant contends appellate review of the guilty plea is authorized by N.C. Gen. Stat. § 15A-1446(d)(16) (2007), which allows appellate review without an objection, motion or exception stated on the grounds that "[e]rror occurred in the entry of the plea." Defendant's reliance on N.C. Gen. Stat. § 15A-1446 is misplaced. Subject matter jurisdiction for defendant's appeal of his guilty plea in this case is governed by N.C. Gen. Stat. § 15A-1444. See State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869, disc. review denied, 356 N.C. 442, 573 S.E.2d 163 (2002) ("In North Carolina, a defendant's right to appeal in a criminal proceeding is purely a creation of state statute."). Although N.C. Gen. Stat. § 15A-1446 delineates requisites for preserving the right to appellate review, N.C. Gen. Stat. § 15A-1444 outlines the limited circumstances under which the defendant possesses the right to appellate review. N.C. Gen. Stat. § 15A-1444(e) (2007); State v. Barnett, 113 N.C. App. 69, 76, 437 S.E.2d 711, 715 (1993); see also State v. Absher, 329 N.C. 264, 265, 404 S.E.2d 848, 849 (1991) (holding Court of Appeals erred in not dismissing defendant's appeal from a judgment entered on a guilty plea since none of the exceptions under N.C. Gen. Stat. § 15A-1444 applied); State v. Hawkins, 110 N.C. App. 837, 839, 431 S.E.2d 503, 505 (1993) (appellate court lacked jurisdiction to hear appeal where requirements of N.C. Gen. Stat. § 15A-1444 were not met), overruled on other grounds by State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).
Even if defendant's appeal of his guilty plea does not satisfy one of the exceptions under N.C. Gen. Stat. § 15A-1444, defendant could have petitioned this Court for a writ of certiorari. N.C. Gen. Stat. § 15A-1444(e) (2007) (allowing defendant to petition for review by writ of certiorari); N.C.R. App. P. 21 (2009) (writ of certiorari may be issued where right to appeal has been lost). Here, defendant did not file a petition, nor did he request that we treat his appeal as a petition for writ of certiorari. Accordingly, this assignment of error is dismissed. See State v. Bolinger, 320 N.C. 596, 601, 359 S.E.2d 459, 462 (1987) (defendant was not entitled to review of allegation that the trial judge erred in accepting a guilty plea; since defendant made no motion to withdraw the guilty plea, he could only obtain appellate review upon grant of writ of certiorari, and defendant failed to petition for writ of certiorari).
IV. Sentencing
Defendant next argues the State improperly included a driving while impaired conviction in calculating the prior record level in violation of N.C. Gen. Stat. § 15A-1340.14(d) (2007). We disagree.
The statute provides that
[f]or purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.
N.C. Gen. Stat. § 15A-1340.14(d) (2007); see also N.C. Gen. Stat. § 14-7.6 (2007) ("In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used.").
On 3 February 1999, defendant was convicted of two offenses, driving while impaired under file number 98 CRS 5027 ("98 CRS 5027") and larceny of a boat under file number 98 CRS 5032 ("98 CRS 5032"). Defendant's conviction under 98 CRS 5032 was one of the underlying felonies for the habitual felon charge. In calculating his prior record level, the State considered only one of the February 1999 convictions, file number 98 CRS 5027. It was not error for the trial court to consider one of those convictions as the underlying felony for defendant's habitual felon status and the other conviction to calculate the prior record level. See State v. Smith, 139 N.C. App. 209, 219, 533 S.E.2d 518, 523-24 (2000) (no error where defendant was convicted on two separate assault charges; State applied one assault conviction as an underlying misdemeanor for habitual misdemeanor assault and the other assault conviction in calculating his prior record level); State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996).
V. Clerical Error
Defendant next argues the trial court lacked subject matter jurisdiction over defendant's conviction because the judgment does not include the file number of the larceny of a motor vehicle. Wedisagree with that contention, but remand for correction of the clerical error.
In State v. Ledwell, the defendant was convicted of attempting to obtain property by false pretenses and his sentence was enhanced by his habitual felon status. 171 N.C. App. 314, 320-21, 614 S.E.2d 562, 567 (2005). Defendant argued on appeal that he received a sentenced based solely on his habitual felon status because although the judgment listed both file numbers, the upper right corner of the judgment only listed the file number for the habitual felon indictment. Id. at 320, 614 S.E.2d at 567. This Court rejected that argument and held that the error was "no more than a clerical error," and although both file numbers should have been listed in the upper right-hand corner of the judgment, defendant was not prejudiced because the offense of attempting to obtain property by false pretenses was listed on the face of the judgment. Id. at 321, 614 S.E.2d at 567. In addition, "[d]efendant received notice by a proper indictment and was clearly charged with attempting to obtain property by false pretenses." Id.
Similarly, here, the indictment properly charged defendant with larceny of a motor vehicle and defendant's sentence was enhanced with his admission of attaining the status of an habitual felon. In the body of the trial court's judgment, the file numbers for both the habitual felon status and the larceny of a motor vehicle appear. However, only the file number for the habitualfelon status appears in the upper right-hand corner of the judgment. This is a clerical error.
"When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth." State v. Streeter, ___ N.C. App. ___, ___, 663 S.E.2d 879, 886 (2008) (citation omitted). Accordingly, we remand for correction of the clerical error.
No error in part, remanded in part.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).