Opinion
No. COA10-799
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgment entered 5 March 2010 by Judge Eric L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Mercedes O. Chut, for Defendant.
Meckelnburg County Nos. 09 CRS 25799, 201759-60.
Defendant appeals from judgment entered 5 March 2010 pursuant to jury verdicts finding him guilty of felonious breaking or entering a motor vehicle and attaining habitual felon status and his subsequent guilty plea to a second charge of felonious breaking or entering a motor vehicle. The trial court found Defendant had a prior record level of V, based on 15 prior record points, and sentenced Defendant to a term of 115 to 147 months imprisonment. Defendant gave notice of appeal in open court. Where the State presented substantial evidence that Defendant committed felonious breaking or entering a motor vehicle and where classifications of out-of-state convictions for sentencing purposes may have been erroneous but not prejudicial, we find no error.
On 10 January 2009, Wesley Hawthorn and his friend, Brent Rankin, went to a Carolina Panther's football game in Charlotte, North Carolina. Hawthorn drove his 2005 Ford Explorer and parked near the stadium. Hawthorn locked his vehicle and he and Rankin went to the game. During their return to the vehicle after the game, Hawthorn noticed the interior light of his vehicle was lit. As they neared the vehicle they observed a man, later identified as Defendant, leaning in through the passenger door and rifling through the center console of the vehicle. Hawthorn and Rankin approached Defendant from behind, subdued him, and held him until the police arrived. The window on the vehicle's passenger front door had been shattered and Defendant had in his pockets compact discs and a knife, which Hawthorn had kept in the center console of his vehicle.
Defendant testified on his own behalf that he has a severe drinking problem and had been drunk on the night in question. Defendant stated he had started drinking that morning, drank the entire day with his friends, and also smoked marijuana and crack earlier in the day. Defendant testified that he had no recollection of any of the events of that day from the time he arrived at a tailgate party at the football game, until he woke up in the hospital that night. Witnesses for Defendant also testified that Defendant had been drinking since he was at least fifteen years old and that he was "very drunk" and "very high" at the tailgate party.
Defendant now argues the trial court erred in denying his motion to dismiss the charge of felonious breaking and entering a motor vehicle. Defendant contends that due to his extreme intoxication, there was insufficient evidence that he broke into the vehicle with the intent to commit a larceny. We disagree.
"In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator." State v. Boyd, 177 N.C. App. 165, 175, 628 S.E.2d 796, 804 (2006) (citing State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002)).
The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citing State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978)). "The trial court . . . is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight." Id. (citing State v. McNeill, 280 N.C. 159, 185 S.E.2d 156 (1971)). This Court reviews the trial court's denial of a motion to dismiss for insufficient evidence de novo. State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008).
Here, Defendant was charged with felonious breaking or entering a motor vehicle. The elements of this offense are: "1) a breaking or entering 2) without consent 3) into any motor vehicle 4) containing goods, freight, or anything of value 5) with the intent to commit any felony or larceny therein." State v. Riggs, 100 N.C. App. 149, 155, 394 S.E.2d 670, 673 (1990); see also N.C. Gen. Stat. § 14-56 (2009) (providing in part that a person is guilty of a Class I felony if that "person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, containing any goods, wares, freight, or other thing of value"). At trial, the State presented evidence that the vehicle's window had been smashed and that Mr. Hawthorn discovered Defendant leaning into the vehicle. Defendant had already taken some compact discs and a knife from the vehicle and placed them in his pockets. This is sufficient evidence that Defendant broke into the vehicle with the intent to commit a larceny therein for the trial court to deny Defendant's motion to dismiss and send the charge to the jury.
Additionally, we note that the trial court properly ignored Defendant's evidence of voluntary intoxication in considering Defendant's motion to dismiss. State v. Jones, 147 N.C. App. 527, 545, 556 S.E.2d 644, 655 (2001) (In ruling on a motion to dismiss, "the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence."). Moreover, it is well established that whether a defendant's voluntary intoxication left him unable to form the specific intent necessary for a charged offense is a question for the jury and cannot be established as a matter of law by the trial court. See State v. Robertson, 138 N.C. App. 506, 507, 531 S.E.2d 490, 492 (2000) ("Because the intoxication defense focuses not just on the level of intoxication, but on its effect on a defendant's state of mind as well, its validity necessarily involves matters for a jury to decide."). Accordingly, we hold the trial court did not err in denying Defendant's motion to dismiss.
Defendant also argues the trial court erred in calculating his prior record level for felony sentencing purposes. Defendant contends the trial court did not conduct the statutorily required analysis when classifying his convictions from South Carolina. Defendant's argument is misplaced.
In calculating a defendant's prior record level for sentencing purposes, "[t]he State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." N.C. Gen. Stat. § 15A-1340.14(f)(4) (2009). The State may prove the existence of a defendant's prior convictions through:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
N.C. Gen. Stat. § 15A-1340.14 (2009). The North Carolina General Statutes further provide for the inclusion of out-of-state convictions in the prior record level calculation as follows:
Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.
N.C. Gen. Stat. § 15A-1340.14(e) (2009). "[T]he question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court." State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006). However, the trial court is only required to make a substantial similarity determination when the State seeks to assign an out-of-state felony conviction a more serious classification than the default Class I status. State v. Hinton, 196 N.C. App. 750, 755, 675 S.E.2d 672, 675 (2009). Otherwise, "the trial court must classify the out-of-state [felony] convictions as Class I felonies for sentencing purposes." Id. A trial court's determination of a defendant's prior record level is subject to de novo review by this Court on appeal. State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009), dis. review denied, ___ N.C. ___, 691 S.E.2d 414 (2010).
Here, the State submitted a prior record level worksheet listing twenty-nine alleged prior convictions for the trial court's consideration in determining defendant's prior record level. Six of the prior convictions are from South Carolina. In support of the alleged convictions, the State offered two computerized criminal history reports. One report detailed Defendant's North Carolina convictions and the other listed Defendant's convictions from South Carolina. In proving the existence of Defendant's South Carolina convictions, the State did not attempt to assign any of them a more serious classification than the default Class I status. Accordingly, the trial court was not required to make a determination that the convictions were substantially similar to North Carolina felonies. If the State sufficiently established the convictions were felonies in South Carolina, then the trial court was required to consider the convictions as Class I felonies for sentencing purposes.
We agree with Defendant that the trial court may have erred in its treatment of his convictions from South Carolina. The trial court appears to have treated one of his South Carolina convictions as a Class A1 or Class 1 misdemeanor and assigned one prior record level point to the conviction without making a determination that the South Carolina conviction was substantially similar to a North Carolina Class A1 or Class 1 misdemeanor. However, because we find the trial court correctly determined that Defendant had fifteen prior record level points, Defendant was not prejudiced by the trial court's error. See Bohler, 198 N.C. App. at 638, 681 S.E.2d at 807 (holding the trial court's error in classification of the Defendant's out-of-state convictions was harmless where it "did not adversely affect the prior record level determination").
In considering the Defendant's convictions from South Carolina, the evidence in the record before this Court sufficiently establishes that only two of the six are felonies. The computer printout provided by the State regarding Defendant's convictions from South Carolina for "Assault Battery," "Burglary 3rd/Petty Larceny," "Public Consumption," and "Access After the Fact Burg 3rd" does not establish that these convictions were for felony offenses. Thus, these offenses must be treated as misdemeanors and, because the State did not establish that any of the convictions were for offenses that were substantially similar to North Carolina Class A1 or Class 1 misdemeanors, assigned by default as Class 3 misdemeanors for sentencing purposes. However, the computer printout does establish that Defendant's South Carolina convictions for "Voluntary Manslaughter" and "Access After the Fact Burg 3rd" are felonies in South Carolina. Because the State did not attempt to show these two convictions were substantially similar to North Carolina felonies of a class higher than I, the trial court was required to assign both as Class I felonies for sentencing purposes. Accordingly, Defendant has four prior record level points based on his convictions from South Carolina. N.C. Gen. Stat. § 15A-1340.14(b)(4) (2009) (providing that a defendant receives two prior record points for each of his prior Class H or I felony convictions).
Of the twenty-three North Carolina convictions listed by the State on the prior record level worksheet, only eight could be assigned prior record level points for felony sentencing purposes. Three of the listed felony convictions ("Attempt to Break or Enter" in file number 97 CRS 150154, "Break or Enter a Motor Vehicle" in file number 98 CRS 008401, and "Felony Larceny" in file number 01 CRS 163964) were used to indict Defendant for having attained the status of an habitual felon and thus could not also be used to calculate his prior record level. N.C. Gen. Stat. § 14-7.6 (2009) ("In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used."). The State presented no evidence tending to show that Defendant was actually convicted of one of the listed offenses ("Poss Drug Paraphernalia" in file number 00 CRS 035354) and thus it could not be used to calculate his prior record level. Five of the listed misdemeanor convictions ("Resisting Public Officer" in file number 97 CR 044718, "Carrying Concealed Weapon" in file number 00 CR 011653, "Intoxicated and Disruptive" in file number 00 CR 028943, "Carrying Concealed Weapon" in file number 00 CR 037800, and "Shoplifting Concealment Goods" in file number 08 CR 247104) were not convictions for Class A1 or Class 1 misdemeanors and were not convictions for impaired driving, impaired driving in a commercial vehicle, or misdemeanor death by vehicle and thus provide no points toward the calculation of Defendant's prior record level. N.C. Gen. Stat. § 15A-1340.14(b)(5) (2009) (providing for one prior record level point for each "Class A1 and Class 1 nontraffic misdemeanor offense, impaired driving (G.S. 20-138.1), impaired driving in a commercial vehicle (G.S. 20-138.2), and misdemeanor death by vehicle (G.S. 20-141.4(a2)), but not any other misdemeanor traffic offense under Chapter 20 of the General Statutes"). Another five of Defendant's convictions ("Misdemeanor Larceny" in file number 98 CRS 008401, "Misdemeanor Larceny" in file number 98 CRS 008402, "Misdemeanor Larceny" in file number 98 CRS 008403, "Break or Enter a Motor Vehicle" in file number 98 CRS 008402, and "Attempted Larceny (F)" in file number 98 CRS 008437) also cannot be used to calculate his prior record level because they occurred in the same calendar week as one conviction which was used to calculate his prior record level ("Break or Enter a Motor Vehicle" in file number 98 CRS 008403). N.C. Gen. Stat. § 15A-1340.14(d) (2009) (providing "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"). Lastly, the listed conviction for "Habitual Felon" in file number 01 CRS 163966 is not considered a conviction for felony sentencing purposes because "[h]abitual felon is a status meant to enhance a sentence after a person is convicted of a crime. The habitual criminal act does not create a separate offense that is sufficient to support a criminal sentence by itself." State v. Ledwell, 171 N.C. App. 314, 320-21, 614 S.E.2d 562, 567 (2005).
Defendant's remaining eight North Carolina convictions included six Class A1 or Class 1 misdemeanor convictions ("Poss Stolen Goods/Prop (M)" in file number 97 CR 44715, "Misdemeanor Larceny" in file number 98 CR 014797, "Possess Drug Paraphernalia" in file number 00 CR 034170, "Possess Drug Paraphernalia" in file number 00 CR 034328, "Poss Stolen Goods/Prop (M)" in file number 00 CR 039356, and "Possess Drug Paraphernalia" in file number 01 CR 011167), and two Class I felony convictions ("Break or Enter a Motor Vehicle" in file number 98 CRS 008403 and "Break or Enter a Motor Vehicle" in file number 01 CRS 015428). Each of these convictions is documented by the computer printout from the Division of Criminal Information submitted by the State, giving Defendant ten additional prior record level points. Additionally, the trial court correctly added one prior record level point because Defendant was convicted of breaking or entering a motor vehicle and he had previously been convicted of the same crime. N.C. Gen. Stat. § 15A-1340.14(b)(6) (2009) (providing for the addition of one prior record level point "[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level"). As ultimately determined by the trial court, Defendant has fifteen prior record level points, giving him a prior record level of V. Accordingly, Defendant was not prejudiced by any error the trial court may have made in determining the prior record level points attributable to his convictions from South Carolina.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).