NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 19 April Appeal by defendant from judgments entered 25 February 2010

Transcription

1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 19 April 2011 STATE OF NORTH CAROLINA v. Columbus County Nos. 05 CRS CRS CRS ANTHONY LEE VEREEN, Defendant. Appeal by defendant from judgments entered 25 February 2010 by Judge D. Jack Hooks, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 10 January Roy Cooper, Attorney General, by Tawanda N. Foster-Williams, Assistant Attorney General, for the State. Guy J. Loranger, for defendant appellant. MARTIN, Chief Judge. Defendant Anthony Lee Vereen appeals from judgments entered upon jury verdicts finding him guilty of three counts of driving while license revoked in violation of N.C.G.S (a) and one count of giving fictitious information to an officer in violation of N.C.G.S We find no prejudicial error.

2 -2- The evidence presented at trial tended to show that at about 10:00 a.m. on 3 November 2005, Trooper Scott Floyd of the North Carolina Highway Patrol was conducting a drivers license check point with another trooper at an intersection near Whiteville, North Carolina, when defendant drove up to the check point intersection. Trooper Floyd asked defendant for his driver s license and defendant said he didn t have any. When asked for his name, defendant told Trooper Floyd his name was Mr. Bellamy. After the other trooper recognized defendant, defendant told Trooper Floyd his real name was Anthony Lee Vereen. Over defendant s objection, Trooper Floyd testified that he verified that defendant s license was [s]uspended. Trooper Floyd then cited defendant for driving while license revoked and for giving a false name to an officer. At about 2:45 a.m. on 23 September 2006, Chadbourn Police Officer Bryan Wayne Campbell was conducting a drivers license check point with another officer at an intersection in Chadbourn, North Carolina. When defendant drove up to the check point intersection, Officer Campbell recognized him and defendant told the officer that he didn t have his driver license with him. When Officer Campbell [r]an a check on defendant, it came back suspended license. Officer Campbell then cited defendant for driving while license revoked.

3 -3- At approximately 11:00 p.m. on 6 August 2008, Whiteville Police Officer Donald Colby Pridgen conducted a routine traffic stop near the city limits of Whiteville, North Carolina, after observing a vehicle driving 38 miles per hour in a 25-mile-perhour zone. When Officer Pridgen approached the vehicle, he asked defendant, who was driving the vehicle, for his driver s license. Defendant told Officer Pridgen that he didn t have any. When the officer asked defendant whether defendant had left his license at home, [h]e told [Officer Pridgen] his license were [sic] suspended. After the officer confirmed through the Division of Criminal Information ( DCI ) system that defendant s license had been revoked, Officer Pridgen brought defendant before a magistrate and charged him with driving while license revoked. The charges were consolidated for trial and heard by a jury in Columbus County Superior Court, where the State s witnesses included Trooper Floyd, Officer Campbell, and Officer Pridgen. During Trooper Floyd s testimony, the trooper testified that, after he issued the citation to defendant, he requested a copy of defendant s official driving record from the North Carolina Division of Motor Vehicles ( DMV ) and requested copies of the certified suspension or revocation orders ( suspension letters ) sent to defendant prior to 3 November Trooper Floyd

4 -4- testified, without objection, that defendant was issued ten suspension letters from the DMV prior to 2005, and testified that he later requested copies of other suspension letters sent to defendant by the DMV after the date of the first charged offense in the present case and prior to the dates of the other charged offenses in this case. The State offered into evidence a redacted copy of defendant s certified driving record from the DMV and at least ten unredacted copies of suspension letters sent to defendant by the DMV between 2004 and The unredacted suspension letters admitted into evidence identified the underlying convictions that led to the suspensions or revocations detailed therein. Defendant did not present any evidence at trial, and moved to dismiss the charges at the close of the State s evidence and at the close of all of the evidence, which motions were denied. Defendant was found guilty of all four charges and, on 25 February 2010, was sentenced to two consecutive terms of 120 days of imprisonment. Defendant appeals. I. Defendant first contends the trial court erred by admitting both the unredacted suspension letters and Trooper Floyd s testimony identifying the convictions that led to defendant s

5 -5- license revocations. At trial, defendant objected to the introduction into evidence of the suspension letters, which the trial court overruled. However, before the State sought to admit the suspension letters, Trooper Floyd read almost the entire contents of each of the suspension letters to the jury without objection. The trooper gave testimony which included the date each suspension letter was sent to defendant by the DMV, the effective date of the suspension detailed therein, whether the suspension was indefinite or set to expire after a fixed period of time, the description of the underlying conviction giving rise to the suspension, and the violation date of the underlying conviction. Although defendant objected to Trooper Floyd s testimony regarding two of the suspension letters, defendant failed to object to Trooper Floyd s testimony about the contents of the other suspension letters, which included testimony that defendant s license had been suspended for prior convictions of driving while license suspended, failing to pay fines, and multiple counts of failing to appear. This Court frequently has held that when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost. State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989). Because

6 -6- evidence of defendant s prior convictions, including one of defendant s prior convictions for driving while license suspended or revoked, was admitted without objection from defendant through Trooper Floyd s testimony, we conclude defendant s later objection to the admission of the unredacted copies of his suspension letters was insufficient to preserve his objection to the admission of this evidence. Where a criminal defendant fails to object to the admission of certain evidence, the applicable standard of review is plain error. See State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000). The plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury s finding that the defendant was guilty. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alteration in original) (internal quotation marks omitted). To

7 -7- satisfy his burden of showing that [an] error constituted plain error, a defendant must prove (i) that a different result probably would have been reached but for the error[,] or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). Thus, [b]efore deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). The elements of driving while license revoked in violation of N.C.G.S (a) are (1) the defendant s operation of a motor vehicle (2) on a public highway (3) while his operator s license is revoked. State v. Cruz, 173 N.C. App. 689, 697, 620 S.E.2d 251, 256 (2005) (quoting State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989)). The State must also prove the defendant had actual or constructive knowledge of the... revocation in order for there to be a conviction under this statute. Id. (internal quotation marks omitted). Admission of a letter of suspension is appropriate as evidence of notice in a charge of driving while license revoked.... State v. Scott, 167 N.C. App. 783, 785, 607 S.E.2d 10, 12 (2005)

8 -8- (citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)). Defendant contends the underlying convictions that were included in the unredacted suspension letters did not carry any probative value and only served to prejudice the jury by portraying [defendant] as someone who frequently drove with his license suspended or who failed to appear in court and pay his fines. Defendant directs our attention to State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5, rev d per curiam for the reasons stated in dissent, 356 N.C. 418, 571 S.E.2d 583 (2002), and State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10 (2005), for support of this contention. In Wilkerson, this Court considered whether the defendant was unfairly prejudiced by the admission of the underlying facts and circumstances of his prior drug activities and subsequent convictions. Wilkerson, 148 N.C. App. at 312, 559 S.E.2d at 7. This Court s dissent, later adopted by the Supreme Court, held that the testimony of an investigating officer and of a special agent with the State Bureau of Investigation concerning evidence underlying defendant s prior convictions was [properly] admitted under Rule 404(b) to show defendant s intent and knowledge with respect to the charged drug offenses [in that case]. Id. at 311, 323, 324, 559 S.E.2d

9 -9- at 6, 13, 14 (Wynn, J., dissenting). However, the bare fact of defendant s prior convictions, where defendant did not testify and such evidence was not being offered under Rule 609(a) for impeachment purposes, should have been excluded under Rule 404(b). dissenting). Id. at 320, 324, 559 S.E.2d at 12, 14 (Wynn, J., Therefore, in a criminal prosecution, the State may not introduce prior crimes evidence under Rule 404(b) by introducing the bare fact that the defendant was previously convicted of a crime. Id. at 327, 559 S.E.2d at 16 (Wynn, J., dissenting). In Scott, this Court considered whether the trial court erroneously admitted unredacted letters of license suspensions which were, as in the present case, offered as evidence of notice for [the crime of driving while license revoked,] and included the specific prior offenses underlying defendant s previous license suspensions. Scott, 167 N.C. App. at 785, 607 S.E.2d at 12. Citing Wilkerson, this Court concluded that the trial court s admission of multiple letters of suspension, with no redaction of the specific offenses for which the license was revoked, including multiple counts of driving while impaired, [wa]s a violation of Rule 404(b), as no basis in th[e] case ha[d] been shown for admission of the bare facts of the specific offenses. Scott, 167 N.C. App. at , 607 S.E.2d

10 -10- at 12 (citing Wilkerson, 148 N.C. App. at , 559 S.E.2d at 11 (Wynn, J., dissenting)). Accordingly, we held that such error in admission [wa]s not so harmless as to prevent the conclusion that, in accordance with N.C.G.S. 15A-1443(a), had the error in question not been committed, a different result would have been reached. Id. at 786, 607 S.E.2d at (internal quotation marks omitted). Defendant urges this Court to conclude that the trial court s admission of the unredacted suspension letters in the present case requires the same analysis and outcome as Scott. However, in Scott, we reviewed the trial court s error under N.C.G.S. 15A-1443(a), while, here, we review the issue on appeal only for plain error, which places a much heavier burden upon the defendant than that imposed by N.C.G.S. 15A-1443 upon defendants who have preserved their rights by timely objection. See Walker, 316 N.C. at 39, 340 S.E.2d at 83. Thus, in order to find that the trial court committed plain error by admitting the unredacted suspension letters, defendant must convince us that, absent the error[,] the jury probably would have reached a different verdict. See id. (emphasis added). In the present case, Trooper Floyd and Officers Campbell and Pridgen testified without objection that defendant was operating a motor vehicle on a public highway when each of the

11 -11- officers cited defendant for or charged defendant with driving while license revoked. Officer Pridgen testified without objection that, after he had stopped defendant for speeding in August 2008, defendant told the officer that his license was suspended. Defendant also concedes that both the suspension letters and Trooper Floyd s testimony regarding the content of the suspension letters were relevant and admissible in [defendant s] case... for the purpose of showing that his driver s license was suspended or revoked, and that he had knowledge of this fact at the time of the charged offenses. In other words, defendant does not dispute that the evidence presented by the State was sufficient to establish the elements of the offense of driving while license revoked in violation of N.C.G.S (a). Nevertheless, we recognize that this Court held in Scott that the admission of unredacted suspension letters [could not] be said to be harmless error, see Scott, 167 N.C. App. at 786, 607 S.E.2d at 13, and so conclude that, here, the trial court erred by admitting defendant s unredacted suspension letters which included defendant s prior convictions where defendant did not testify and evidence of such convictions was not admissible under Rules 404(b) or 609. However, because [t]he improper admission of a defendant s prior conviction is not... reversible per se, see State v.

12 -12- Badgett, 361 N.C. 234, 247, 644 S.E.2d 206, 214, cert. denied, 552 U.S. 997, 169 L. Ed. 2d 351 (2007), and due to the strength of the officers testimony concerning defendant s admissions, we are not persuaded that defendant has overcome his heav[y] burden to establish that the unredacted suspension letters tilted the scales and caused the jury to find defendant guilty of the charged offenses. See Walker, 316 N.C. at 39, 340 S.E.2d at 83. Accordingly, while we conclude the admission of defendant s unredacted suspension letters by the trial court was error, we further conclude that the trial court s admission of this evidence did not constitute plain error and does not entitle defendant to a new trial. II. Defendant next contends the trial court committed plain error when instructing the jury as to the offense of driving while license revoked. Defendant asserts that the trial court erred when, after instructing the jury on the elements of the offense, the trial court charged the jury as follows: So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, and these are the three charges, the defendant drove a motor vehicle on a highway while his driver license was suspended or revoked; and that the defendant knew on that date that his license was suspended or revoked because at least four days before the alleged offense the Department of Motor Vehicles deposited

13 -13- notice of the suspension or revocation in the United States mail in an envelope with postage prepaid and addressed to the defendant at his address as shown on the records of the Department, then it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as one [sic] or more of these things, it would be your duty to return a verdict of not guilty. (Emphasis added.) These instructions are consistent with the language of the charge portion of North Carolina Pattern Jury Instruction , and this Court has recognized that [t]he preferred method of instructing the jury is the use of the approved guidelines of the North Carolina Pattern Jury Instructions. State v. Solomon, 117 N.C. App. 701, 706, 453 S.E.2d 201, 205, disc. review denied, 340 N.C. 117, 456 S.E.2d 325 (1995). Nevertheless, defendant challenges the jury charge because he contends the instruction failed to inform the jury that defendant could rebut the evidence presented by the State that defendant knew his license was revoked at the time of the charged offenses. In deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury s finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at Based on our review of the record

14 -14- before us, we conclude defendant s argument is without merit. In order to convict a defendant of the offense of driving while license revoked under N.C.G.S (a), the burden is on the State to prove that defendant had knowledge at the time [he was] charged [with the offense] that his operator s license was suspended or revoked. State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976). This Court has previously held that [t]he State satisfies its burden of proof of a [N.C.G.S. ] violation when, nothing else appearing, it has offered evidence of compliance with the notice requirements of [N.C.G.S. ] because of the presumption that he received notice and had such knowledge. Cruz, 173 N.C. App. at 697, 620 S.E.2d at 256 (first alteration in original) (internal quotation marks omitted). N.C.G.S provides that notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the [DMV]. N.C. Gen. Stat (a) (2009); see also id. ( The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. ). [I]f notice of a revocation is sent via the mail,... there is a rebuttable presumption that defendant has received knowledge of the

15 -15- revocation four days after a certificate or affidavit states that a copy of an official notice has been mailed to defendant s address. Cruz, 173 N.C. App. at 698, 620 S.E.2d at (emphasis added). Defendant suggests the State failed to present evidence that created a rebuttable presumption that defendant knew of his license revocation because he asserts that the State s own evidence cast[s] doubt on whether [defendant s] actual address was the same as the one listed with [the] DMV. However, our review of the record shows, and defendant concedes, that the suspension letters sent to defendant were addressed to 125 Shelly Lane, Whiteville, North Carolina, which is the same address listed on defendant s certified driving record from the DMV. The record also includes a copy of a certificate from an employee of the DMV, which provides proof that notice of defendant s license revocation was given in accordance with N.C.G.S See N.C. Gen. Stat (a) ( Proof of the giving of notice in either such manner may be made by a notation in the records of the Division that the notice was sent to a particular address and the purpose of the notice. ). Since the requirements of N.C.G.S are satisfied when the State presents evidence that notice of defendant s license revocation was deposited in the United States mail and addressed to

16 -16- [defendant] at his address as shown by the records of the Division, see id., and since defendant concedes that the State provided evidence of these requirements and proof of such is included in the record, we are not persuaded by defendant s suggestion that the State failed to create a rebuttable presumption that defendant knew of his license revocation at the time of the three charged offenses. Moreover, defendant himself recognizes that, if notice of a revocation is sent via the mail,... there is a rebuttable presumption that defendant has received knowledge of the revocation four days after a certificate or affidavit states that a copy of an official notice has been mailed to defendant s address. See Cruz, 173 N.C. App. at 698, 620 S.E.2d at Thus, by satisfying the notice requirements of N.C.G.S , the State raised prima facie presumption of receipt [by defendant of notice of his license revocation], and defendant was obligated to rebut the presumption. Defendant chose not to present any evidence at trial; [therefore,] the presumption was clearly not rebutted. See State v. Coltrane, 184 N.C. App. 140, 143, 645 S.E.2d 793, 795, disc. review on additional issues denied, 361 N.C. 698, 652 S.E.2d 922 (2007), aff d per curiam, 362 N.C. 284, 658 S.E.2d 656 (2008). Because no evidence of defendant s rebuttal to the State s evidence was forthcoming, we conclude

17 -17- that the trial court did not err by charging the jury in accordance with Pattern Jury Instruction , and instructing the jury to return a guilty verdict if it found beyond a reasonable doubt that, in addition to the other required elements of the offense of driving while license revoked, defendant had knowledge that his license was suspended or revoked at the time of the charged offenses because the DMV deposited notice in the mail in accordance with the requirements of N.C.G.S (Emphasis added.) Since the jury was still required to determine whether the State proved beyond a reasonable doubt that notice was given to defendant in accordance with N.C.G.S that his license had been suspended, we see no basis for concluding the trial court erred in charging the jury as it did in the present case. The substance of the remaining portion of defendant s argument on this issue brings forward an argument borrowed from a case addressing a constitutional challenge to a jury instruction. Because defendant has not properly preserved any such constitutional challenge to Pattern Jury Instruction , we decline to address the remainder of defendant s argument. No prejudicial error. Judges HUNTER and THIGPEN concur.

18 Report per Rule 30(e). -18-