An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-940
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Wake County No. 12 CRS 4725, 4726 KELVIN MELTON
Appeal by defendant from judgment entered 17 October 2012
by Judge G. Wayne Abernathy in Wake County Superior Court.
Heard in the Court of Appeals 21 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General David P. Brenskelle, for the State.
Paul F. Herzog for defendant.
HUNTER, Robert C., Judge.
Defendant appeals the judgment entered after a jury found
him guilty of assault with a deadly weapon with intent to kill
inflicting serious injury (“AWDWIKISI”) and attaining the status
of being a habitual felon. On appeal, defendant argues: (1) the
trial court committed prejudicial error in admitting a -2- handwritten letter into evidence and allowing it to be published
to the jury in violation of Rule 901; (2) the trial court erred
in admitting the testimony of Jamil Gressett with regard to a
conversation he had with an acquaintance of defendant’s; (3)
the trial court erred in denying defendant’s motion to dismiss
the charge of being a violent habitual felon; and (4) the trial
court violated N.C. Gen. Stat. § 15A-1442(5a) by finding that
defendant’s New York conviction for first degree manslaughter
was substantially similar to a violent felony in North Carolina.
After careful review, we find no prejudicial error.
Background
The evidence presented at trial tended to establish the
following: In 2002, Lechon Simpson (“Lechon”) met Crystal Evans
(“Crystal”) in New York City. In 2006, they moved to Raleigh
together and took up residence in an apartment at the back of a
house occupied by Crystal’s mom and her boyfriend Rayfield
Harper (“Mr. Harper”). Lechon and Crystal had a son in 2009.
Defendant, who is also known as “Dizzy,” was Crystal’s ex-
boyfriend. Lechon claimed that Crystal had told him that her
relationship with defendant was “not serious.” Although Lechon
had not met defendant, Crystal had shown Lechon pictures of him. -3- Crystal returned to New York for a visit in August 2011.
When she returned to Raleigh, Lechon claimed that she began
acting “weird.” Eventually, Crystal took some clothes and their
son and moved out of the residence. Lechon tried to contact
Crystal many times; their phone calls became increasingly
heated. After Crystal left the residence, Lechon found a
handwritten letter under their mattress dated “8-7-11,” but it
was not signed. The letter is addressed to Crystal and is, in
essence, a love letter, that includes such statements as:
“Crystal I never stopped loving you” and “I Love You.” Although
the letter is not signed, the trial court allowed Lechon to
testify at trial, over objection, that he recognized the
handwriting in the letter as defendant’s. Lechon based his
conclusion on the fact that he had seen other letters in the
past with similar handwriting signed “Dizzy.”
On 13 September 2011, Lechon was at home with his nephew.
He went to bed early, but awoke around 4:00 a.m. when the
burglar alarm went off. Thinking it was Crystal, Lechon jumped
out of bed. The kitchen light was on and Lechon saw Crystal
standing in the bedroom doorway; he grabbed her by the arm.
Crystal told him to “Get the F off my arm.” Lechon testified
that he then saw defendant standing there, rocking back and -4- forth. Lechon claimed at trial that although he was not
entirely sure it was defendant standing there, he just “had a
feeling” it was him and asked: “Dizzy?”. Lechon left the
bedroom by another door and ran into an eighteen- or nineteen-
year-old Hispanic male pointing a gun in his face. The teenager
was later identified as Jamil Gressert (“Jamil”). Defendant was
standing next to Jamil. Defendant told Lechon to “shut the fuck
up” and not to move. Defendant and Lechon got into a physical
altercation. During the fight, Lechon realized that Jamil was
shooting at him. Lechon claimed that Jamil shot at him four
times. Lechon was able to escape through the back door of the
apartment, and he ran to a store and called for an ambulance.
Lechon was taken to Wake Med for treatment. Emergency room
personnel determined that he had been shot through the hand and
in the teeth. Bullet fragments were scattered through his oral
cavity and in his neck near his voice box.
At trial, Jamil testified on behalf of the State. He
claimed that he was a member of the “Bloods” gang in Syracuse
and had been an official member since he was sixteen. In
describing the structure of the gang, Jamil alleged that his
immediate boss was “Jamar” who reported to “Donna G.” At the -5- top of the hierarchy was defendant, whom Jamil knew as “Dizzy.”
Jamil stated that he had met defendant in 2009.
Around 13 September 2011, Jamil received a call from “Donna
G.” telling Jamil that “Dizzy” wanted him to come to North
Carolina. Jamil took the train to Raleigh that same day.
Defendant picked him up from the train station in a van with
Crystal, Crystal’s son, and another female. They went to
Walmart to buy Jamil black clothing. Then, they went to a hotel
in Raleigh. Defendant told Jamil that it was his “mission” to
shoot Lechon. Crystal showed Jamil a picture of Lechon from
Facebook. Defendant then told Jamil that the plan was to go to
Lechon’s house about four in the morning because that was the
time Lechon and his nephew were planning to do some drug runs.
Defendant gave Jamil a .25 semi-automatic handgun for the
shooting.
That evening, Crystal called her mother several times to
see if Lechon was still at home. Following these calls, Crystal
called Mr. Harper to pick them up and take them to Lechon’s
home. Crystal told Mr. Harper that she needed to pick up a
change of clothes for her son. Mr. Harper picked them up and
drove them to Lechon’s residence. Crystal, Jamil, and defendant
went inside the house. After defendant and Lechon began -6- fighting, Jamil claimed that defendant told him to “Do it. Bust
it.” Lechon eventually knocked the gun out of Jamil’s hand
after Jamil fired four or five shots.
Defendant, Jamil, and Crystal all left the house to find
Lechon after he ran out the back door. When they could not find
him, Mr. Harper drove them back to the hotel where Jamil and
defendant wiped down the room in an effort to remove any
fingerprints. They called a taxi to pick them up, and they
checked into another hotel in Johnston County. Defendant called
a man named “Tony” to pick them up; however, after “Tony” picked
them up, the police pulled them over and arrested them.
On 30 April 2012, defendant was indicted by superseding
indictment for the felony offenses of attempted first degree
murder and conspiracy to commit first degree murder. That same
day, defendant was also indicted for AWDWIKISI and conspiracy to
commit AWDWIKISI (“assault conspiracy”). Defendant was later
indicted for the offense of being a violent habitual felon.
Defendant’s trial began 8 October 2012. At the close of
evidence, the trial court dismissed the assault conspiracy
charge. On 12 October 2012, the jury found defendant guilty of
AWDWIKISI and for being a violent habitual felon. The jury -7- found defendant not guilty of attempted first degree murder and
conspiracy to commit first degree murder.
At sentencing, the trial court determined that defendant
was a level V offender and sentenced him to life without parole.
Defendant gave notice of appeal in open court.
Arguments
Defendant first argues that the trial court committed
prejudicial error by admitting the handwritten letter Lechon
found under his mattress into evidence. Specifically, defendant
contends that the letter was not properly authenticated pursuant
to Rule 901. We disagree.
“A trial court’s determination as to whether a document has
been sufficiently authenticated is reviewed de novo on appeal as
a question of law.” State v. Crawley, __ N.C. App. __, __, 719
S.E.2d 632, 637 (2011).
N.C. Gen. Stat. § 8C-1, Rule 901 (2012) provides:
(a) General provision.--The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations.--By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: -8-
(1) Testimony of Witness with Knowledge.-- Testimony that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting.-- Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
“Rule 901 does not require the proponent of evidence to
conclusively prove that tendered documents or electronic
evidence is definitively a record, only that the evidence is
relevant for the jury to conclude that it is authentic.”
Crawley, __ N.C. App. at __, 719 S.E.2d at 637. Our Supreme
Court has concluded that a trial court does not err by admitting
evidence pursuant to Rule 901 “if it could reasonably determine
that there was sufficient evidence to support a finding that the
matter in question is what its proponent claims.” State v.
Wiggins, 334 N.C. 18, 34, 431 S.E.2d 755, 764 (1993).
During voir dire and again before the jury, Lechon
testified that he was familiar with defendant’s handwriting
because, between 2002 and 2006, he had seen at least ten letters
handwritten by defendant addressed to Crystal. Specifically,
Lechon claimed that Crystal had shown him letters from defendant
in the past because defendant had made threats against him in
those letters. Lechon stated that the handwriting in the letter -9- found under the mattress looked “exactly the same” as that of
the other letters written by defendant. Over objection by
defendant, the trial court admitted the letter and allowed it to
be published to the jury.
Based on Lechon’s testimony concerning his familiarity with
defendant’s handwriting, there was sufficient evidence to
support a finding that the letter was written by defendant. He
testified that he had not only seen at least ten letters
handwritten by defendant, but he also provided an explanation as
to why Crystal had shown these letters to him. Any question as
to the credibility or reliability of the handwritten letter was
a matter for the jury. Thus, the trial court did not err in
admitting the handwritten letter pursuant to Rule 901 and
publishing it to the jury.
Next, defendant argues that the trial court erred in
allowing Jamil to testify about his conversation with Donna G.
where she told Jamil that defendant wanted him to come to North
Carolina. Specifically, defendant contends that this testimony
was inadmissible hearsay and its admission violated the
Confrontation Clause under Crawford v. Washington. We disagree.
“The trial court’s determination as to whether an out-of-
court statement constitutes hearsay is reviewed de novo on -10- appeal.” State v. Castaneda, __ N.C. App. __, __, 715 S.E.2d
290, 293 (2011).
“‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C–1, Rule 801(c) (2013). “[O]ut-of-court statements
offered for purposes other than to prove the truth of the matter
asserted are not considered hearsay.” State v. Call, 349 N.C.
382, 409, 508 S.E.2d 496, 513 (1998). This Court has noted
that:
statements of one person to another to explain subsequent actions taken by the person to whom the statements were made are admissible as non-hearsay evidence. The reason such statements are admissible is not that they fall under an exception to the hearsay rule, but that they simply are not hearsay—they do not come within the . . . legal definition of the term.
Castaneda, __ N.C. App. at __, 715 S.E.2d at 293 (internal
citations and quotation marks omitted); see also State v. Call,
349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998).
Here, when the State asked Jamil how and why he came to
North Carolina in September 2011, he stated: “I got a call. I
got a call from Donna G.” and she told him that “Dizzy said to
come down to North Carolina.” This testimony simply explains -11- why Jamil came to North Carolina. Accordingly, his testimony
does not constitute hearsay because it is not being offered for
the truth of the matter asserted; instead, it is being offered
to explain his subsequent actions. Therefore, the trial court
did not err in admitting this evidence.
Furthermore, with regard to defendant’s argument that this
testimony violated the Confrontation Clause, it is without
merit. “The Confrontation Clause does not bar the use of
testimonial statements for purposes other than establishing the
truth of the matter asserted.” State v. Miller, 197 N.C. App.
78, 87, 676 S.E.2d 546, 552 (2009) (internal quotation marks
omitted). In other words, non-hearsay statements do not come
within the purview of the Confrontation Clause. Here, as
discussed, since Jamil’s statements were not admitted to
establish the truth of the assertions—that defendant ordered him
to North Carolina—but were instead used to provide an
explanation of why Jamil came to North Carolina, they were
offered for a purpose other than establishing the truth of the
matter asserted. Therefore, the Confrontation Clause was not
implicated. Defendant’s argument is without merit. -12- Next, defendant argues that the trial court erred by
denying his motion to dismiss the charge of being a violent
habitual felon. We disagree.
In determining whether a trial court erred in failing to
grant a defendant’s motion to dismiss based on the insufficiency
of the evidence, this Court’s review is well-established: “Upon
defendant’s motion for dismissal, the question for the Court is
whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant’s being the perpetrator of such
offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (2000). The trial court must review the evidence in the
light most favorable to the State. State v. Barnes, 334 N.C.
67, 75, 430 S.E.2d 914, 918 (1993).
Pursuant to N.C. Gen. Stat. § 14-7.7, a violent habitual
offender is defined as “[a]ny person who has been convicted of
two violent felonies in any federal court, in a court of this or
any other state of the United States, or in a combination of
these courts.” Violent felonies include any Class A through E
felonies under North Carolina law and any substantially similar
offenses in other jurisdictions. Id. N.C. Gen. Stat. § 14–7.10 -13- explains how the State may prove that a defendant has prior
convictions of violent felonies in other jurisdictions:
A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
“In creating this statutory prima facie case, the General
Assembly has dictated what amount of evidence is sufficient for
the judge to submit an habitual felon case to the jury.” State
v. Hairston, 137 N.C. App. 352, 354-55, 528 S.E.2d 29, 31
(2000).
Here, the State presented a “Certificate of Disposition”
from the Supreme Court of New York stating that defendant had
been convicted of manslaughter in the first degree (“first
degree manslaughter”) and robbery in the first degree. This
evidence established a prima facie habitual felon case under
N.C. Gen. Stat. § 14–7.7 and was sufficient to submit it to the
jury. “[B]ecause the State has met the prima facie requirement,
any discrepancies in other details contained in the judgments
are for the jury to consider in weighing the evidence.” State -14- v. Wolfe, 157 N.C. App. 22, 36, 577 S.E.2d 655, 665 (2003).
Therefore, the trial court did not err in denying defendant’s
motion to dismiss the charge of being a violent habitual felon
and submitting it to the jury.
Relatedly, defendant also contends that New York’s crime of
first degree manslaughter is not substantially similar to a
Class A through E North Carolina felony. However, this argument
is without merit. Defendant’s argument is premised on the fact
that, under New York law, a person may be convicted of first
degree manslaughter four ways. Specifically, pursuant to NY
Penal Law § 125.20, a person is guilty of manslaughter in the
first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or -15- 3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.
Here, it is unclear from the record under which subsection
defendant was convicted of under New York law. The Certificate
of Disposition indicated that defendant was convicted of statute
“125.20 01”; however, the State did not present an indictment in
order to clarify under which subsection of the New York law
defendant was convicted. It appears from the transcript that
the trial court believed that the “01” indicated that he was
convicted under subsection 1 of the statute. However, according
to defendant, because subsections 3 and 4 are not substantially
similar to North Carolina felonies and it is unclear which
subsection defendant was convicted under, defendant is entitled
to a new sentencing hearing. The State disagrees, noting that
because all subsections constitute violent felonies for purposes
of the habitual felon charge, any error the trial court made in -16- assuming that defendant was convicted under subsection 1 was
harmless.
“Determining whether an out-of-state conviction is
substantially similar to a North Carolina offense is a question
of law involving the comparison of the elements of the out-of-
state offense to those of the North Carolina offense.” State v.
Wright, 210 N.C. App. 52, 71, 708 S.E.2d 112, 126 (2011); see
also State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600,
604 (2006). Questions of law are reviewed de novo. Hanton, 175
N.C. App. at 255, 623 S.E.2d at 604. Alleged errors at
sentencing with regard to whether an out of state conviction is
substantially similar to a North Carolina felony or misdemeanor
are subject to harmless error review. State v. Bohler, 198 N.C.
App. 631, 638, 681 S.E.2d 801, 807 (2009).
Defendant concedes that subsections 1 and 2 are
substantially similar to the North Carolina crimes of second
degree murder, a class B2 felony, and voluntary manslaughter, a
class D felony, respectively—both of which constitute violent
felonies pursuant to N.C. Gen. Stat. § 14-7.7. Furthermore, our
review establishes that both subsections 3 and 4 are
substantially similar to offenses in North Carolina that would
constitute violent felonies. A violation of subsection 3 -17- requires that the woman upon whom the abortional act is
committed die. This offense is substantially similar to
voluntary manslaughter, a Class D felony, at a minimum, or first
or second degree murder, depending on the circumstances
surrounding her death. Defendant contends that subsection 3 is
substantially similar to N.C. Gen. Stat. § 4-45, a Class H
felony. However, the North Carolina offense does not require
that the female die as a result of the act; if she does, a
defendant could be charged with manslaughter or murder, see
State v. Mitchner, 256 N.C. 620, 630, 124 S.E.2d 831, 838 (1962)
(noting that “[w]hether the death of a woman resulting from a
criminal abortion performed upon her in violation of G.S. [§]
14-45 is murder and not manslaughter is not presented on this
appeal, for the simple reason that defendant was convicted of
manslaughter”).
Similarly, a violation under subsection 4 requires a person
who is at least 18 years old intentionally engage in conduct
which creates a grave risk of physical injury to someone less
than 11 years old and cause his death. Again, at a minimum, the
most substantially similar North Carolina crime would be
voluntary manslaughter, a Class D felony, since subsection 4
requires the element of intent. See generally, State v. Brown, -18- 64 N.C. App. 578, 579-80, 307 S.E.2d 831, 832 (1983) (“The
difference between voluntary and involuntary manslaughter is a
question of intent. As it relates to involuntary manslaughter,
intent is not an issue.”).
Thus, any error the trial court may have committed in
assuming that defendant was convicted under subsection 1 would
be harmless since all four subsections constitute violent
felonies for purposes of being a habitual felon pursuant to N.C.
Gen. Stat. § 14-47.
Conclusion
Based on the foregoing reasons, defendant’s trial was free
from prejudicial error.
NO PREJUDICIAL ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).