Not overruled or negatively treated on appealinfoCoverage
North Carolina Court of AppealsApr 21, 2009
196 N.C. App. 517 (N.C. Ct. App. 2009)

No. 08-850.

Filed April 21, 2009.

Appeal from the Buncombe (07CRS51429-30) (07CRS412).

Appeal by defendant from judgment entered 5 November 2007 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 23 March 2009.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Vaughan S. Monroe, for the State. J. Clark Fischer for defendant-appellant.

Melvin Cornelius Davidson ("defendant") appeals from his judgment upon conviction on the charges of felonious breaking or entering, felonious larceny, injury to personal property, and being an habitual felon. We find no error.

On 6 February 2007, Richard Metz lived at 32 Thurland Avenue in Asheville, North Carolina. His father-in-law, George Gibson, owned the home adjacent to Metz's home, but did not live there. Just before 11:00 a.m. on the 6th, Metz watched defendant exit a green car and enter Gibson's home through the basement. Metz called Gibson and asked if anyone was supposed to be working at the residence. When Gibson said no, Metz called the police to the scene. Officer Charles Wells of the Asheville Police Department responded to the call. Upon arriving, Officer Wells spoke with both Metz and Gibson. Gibson told Officer Wells that he owned the house, was trying to renovate it in order to rent it out, and that nobody should be in the residence. Metz then told Officer Wells that he had seen a green car drop a person off, and that the person entered the house without permission. Officer Wells approached the house and heard rattling coming from the basement. Defendant soon exited the basement with a blue and gray backpack that contained copper piping from the furnace of the residence. Officer Wells ordered defendant to the ground and placed him under arrest.

At trial, testifying on his own behalf, defendant claimed that he had been hired to perform PVC pipe work at the house by a man named Jason. Defendant further testified that Jason gave him a bag with tools in it, and dropped him off in front of Gibson's home. Defendant stated that his job was to "tear out all the pipings, tear down the furnace, [and] bring everything to the door." Defendant claimed that he was doing this work when he was arrested.

Defendant was convicted of felonious breaking or entering, felonious larceny, and injury to personal property. Defendant also pled guilty to being an habitual felon. The trial court consolidated the convictions and sentenced defendant to a term of 120 to 153 months imprisonment. Defendant appeals.

Defendant argues that the trial court erred by allowing the State to present inadmissible hearsay evidence. Defendant had testified that he had been to Asheville Metal Recycling previously, but had not been there the day before he entered Gibson's home. On cross-examination, defendant was presented with a receipt that an employee of Asheville Metal Recycling had given to police. Defendant continued to deny that he had visited the recycling center the day before he entered Gibson's home. Subsequently, Detective Janice Hawkins of the Asheville Police Department testified as follows:

Q. Now, did you also, after speaking to the Defendant, did he tell you he took things on occasion to Asheville Metal Recycling?

A. He did.

Q. Did you go to Asheville Metal recycling with his picture?

A. I did.

Q. Were they familiar with him?

[DEFENDANT'S ATTORNEY]: Object, hearsay.

THE COURT: Let me hear it again.

[THE STATE]: Were they familiar with the Defendant.

THE COURT: Sustained.

Q. After showing, I believe it's Ms. Shipley, after showing her the Defendant's photo —

A. Yes.

Q. I'll show you State's Exhibit 3. Did she give you that receipt?

A. Yes, she did. She did.

Q. Dated February 5th, `07?

[DEFENDANT'S ATTORNEY]: Object, hearsay.

THE COURT: Overruled, about that particular transaction.

A. Yes, she did.

Q. That's what she gave you after you showed her the Defendant's picture?

A. Yes, she said, "That man" —

[DEFENDANT'S ATTORNEY]: Objection to what she said, Your Honor.

THE COURT: Overruled.

A. Yes, she did.

Defendant argues that because no employee of Asheville Metal Recycling appeared to testify regarding the purported transaction or to authenticate the receipt, Detective Hawkins's testimony constituted inadmissible hearsay. Defendant further contends that the testimony was prejudicial because the effect of the evidence was to show the jury that he was engaged in selling scrap metal in the period immediately preceding the break-in at Gibson's home, and thus the jury would conclude that he had a dishonest motive for being at Gibson's home.

After careful review of the record, briefs and contentions of the parties, we find no error. Even assuming, arguendo, that admission of the evidence was error, we conclude it was harmless error in light of the overwhelming evidence of defendant's guilt. "The erroneous admission of evidence requires a new trial only when the error is prejudicial." State v. Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000) (citing State v. Locklear, 349 N.C. 118, 149, 505 S.E.2d 277, 295 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999)). "To show prejudicial error, a defendant has the burden of showing that `there was a reasonable possibility that a different result would have been reached at trial if such error had not occurred.'" Id. (citing Locklear, 349 N.C. at 149, 505 S.E.2d at 295; N.C. Gen. Stat. § 15A-1443(a) (1999)).

Here, defendant was arrested while in the act of removing the copper piping from Gibson's residence. Defendant testified that he was hired to remove the piping. However, when Detective Hawkins interviewed defendant after his arrest, defendant did not tell Detective Hawkins he was working there. Instead, he told her that "they were demolishing the house" and he "had gone there that day to retrieve the copper piping." [T. p. 47] Moreover, Gibson testified that defendant did not have permission to be in the residence or to remove the copper piping, and that he had not hired anybody to perform such work.

In addition to the above evidence, defendant claimed that he had been hired to remove the piping by someone named Jason, and that Jason dropped him off in a truck. However, defendant failed to provide any contact information for Jason, nor did he know Jason's last name. Furthermore, Metz testified that he witnessed defendant being dropped off in front of the residence by a green car, not a truck as testified to by defendant. After defendant was arrested, a green car driven by Sandra Jennings returned to the scene. Metz testified that it was the same car that had dropped the defendant off. Defendant was familiar with Jennings, although he denied seeing her that day. A sticker on the back of the green car said "Destiny Auto Sales." Later, while interviewing defendant, Detective Hawkins observed a phone number written on the palm of defendant's hand. When she asked defendant about the phone number, he dismissed it, stating, "Oh, I don't know." Detective Hawkins later called the number and learned it was the number for Destiny Auto Sales. Finally, later that day, Detective Hawkins drove by Destiny Auto Sales and found the same green car parked at the dealership. [T. pp. 50-51]

In light of the above evidence, we conclude that defendant has failed to demonstrate prejudice. See State v. Grant, 178 N.C. App. 565, 576, 632 S.E.2d 258, 266 (2006) ("`Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state's primary contentions, or where there is overwhelming evidence of [the] defendant's guilt'") (alteration in original) (quoting State v. Weldon, 314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985)), disc. review denied and appeal dismissed, 361 N.C. 223, 642 S.E.2d 712 (2007). Accordingly, we find no error.

No error.

Judges McGEE and JACKSON concur.

Report per Rule 30(e).