State v. Robinson

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA14-391 NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 11 CRS 203106 MITCHELL LAMONT ROBINSON

Appeal by defendant from judgment entered 12 July 2013 by

Judge Eric L. Levinson in Mecklenburg County Superior Court.

Heard in the Court of Appeals 22 September 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Amy L. Bircher, for the State.

Michael E. Casterline for defendant-appellant.

McCULLOUGH, Judge.

Defendant was indicted on charges of assault with a deadly

weapon and possession of a firearm by a felon. The prosecutor

subsequently voluntarily dismissed the former charge and elected

to proceed solely on the latter charge of possession of a

firearm by a felon. A jury found defendant guilty of the

charge. Defendant appeals from a judgment imposing a sentence

of a minimum term of 18 months and a maximum term of 22 months. -2- The State presented evidence tending to show that on 19

January 2011 officers of the Charlotte Mecklenburg Police

Department (“CMPD”), in response to a dispatch, met Mr. Eric

Brown at a store. Mr. Brown, who was in a wheelchair, requested

assistance in removing items from a residence he shared with

defendant. The officers followed Mr. Brown to the residence a

short distance away and knocked on the door. Defendant opened

the door and the officers explained why they were there. The

officers observed that defendant had a scratch on his face.

They also saw a female seated on the couch. The woman had

scratches on her face and a bloody lip. She also was holding

her wrist.

Defendant initially agreed only to allow Mr. Brown to enter

and retrieve his belongings, but after the officers informed

defendant that they needed to enter the residence to check on

the female, defendant stepped back and allowed the officers to

enter. As the officers were checking on the female, they heard

loud screaming. The officers ran to a bedroom and found Mr.

Brown on the floor. Fearing defendant was about to assault Mr.

Brown, Officer David Koonce-Marrero drew his gun and Officer

Bryan Crum drew his taser on defendant and called for backup.

Defendant retreated and walked out. -3- The officers decided to arrest defendant. Officer Crum

noticed a small round hole in a bedroom wall and asked defendant

whether he had any guns in the house. Defendant, who stipulated

at trial that he was a convicted felon, responded that he was

not allowed to have any guns.

After the woman was taken to the hospital by ambulance and

the house was empty of people, Officer Crum obtained and

executed a warrant to search the residence. He discovered a

Ruger 9 millimeter pistol with a live round in the chamber and

an empty magazine in the attic which was accessible through a

ceiling panel in the closet of a bedroom where defendant’s

social security card and a recreational center identification

card in defendant’s name were found. Investigator Kharyn Nyx of

the CMPD, who assisted with the search, photographed the firearm

and magazine in the attic space, placed the gun in a bag,

brought it back to police headquarters, prepared a property

sheet for the evidence, and turned it over to property control.

Angela Flanders, a crime scene investigator with CMPD,

testified that she collected buccal swabs from defendant, placed

them in a package, sealed the package, and turned the package

over to property control. Eve Rossi, a criminalist specializing

in forensic biology, testified that she compared DNA collected -4- from defendant’s buccal swabs with DNA collected from swabs of

the gun taken by a person who is no longer employed with CMPD,

and determined that the major or dominant DNA profile which was

found on the gun matched defendant’s DNA profile.

Defendant contends the court erred by admitting the opinion

testimony of Ms. Rossi concerning her analysis of the DNA

material found on the gun. He argues admission of the evidence

violated his right to confront the witnesses against him because

the person who swabbed the gun was not available to testify and

be cross examined. He also argues the evidence was not properly

authenticated inasmuch as a complete chain of custody was not

established since the person who swabbed the gun did not testify

and verify that the tested swab was the same she took from the

gun.

In admitting the opinion testimony of the analyst, the

trial judge remarked that the case of State v. Ortiz-Zape, 367

N.C. 1, 743 S.E.2d 156 (2013), cert. denied, ___ U.S. ___, ___

L.E. 2d ___, 2014 U.S. LEXIS 3730 (2014) could not be

“meaningfully distinguished” with the situation at bar.

Defendant Ortiz-Zape argued the court’s admission of opinion

testimony of an analyst who did not personally test or observe

the testing of a controlled substance violated his right to -5- confront the witnesses against him. Our Supreme Court rejected

this argument, noting that “when an expert gives an opinion, the

opinion is the substantive evidence and the expert is the

witness whom the defendant has the right to confront.” Id. at

12, 743 S.E.2d at 163.

We agree with the trial judge’s assessment that the

circumstances of this case are not materially distinguishable.

Here, as in Ortiz-Zape, the witness who gave the opinion was

available to be cross examined. The fact the person who swabbed

the gun was unavailable to testify provided fodder for cross

examination of the witness.

As for defendant’s argument that the evidence was not

properly authenticated, it is a general principle that a

“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.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).

“The item offered must be identified as being the same object

involved in the incident and it must be shown that the object

has undergone no material change.” State v. Campbell, 311 N.C.

386, 388, 317 S.E.2d 391, 392 (1984). “[D]etermining the

standard of certainty that is required to show” that the item is -6- the same and in an unchanged condition is within the discretion

of the trial judge. Id. at 388-89, 317 S.E.2d at 392.

“Although a defendant may point to gaps or flaws in the chain of

custody or procedure, a showing that the evidence was tampered

with or altered is generally required for a reversal of the

trial court’s decision to admit the evidence.” State v. Hyman,

153 N.C. App. 396, 400, 570 S.E.2d 745, 748 (2002), cert.

denied, 357 N.C. 253, 583 S.E.2d 41 (2003). Defendant has not

made this showing.

We hold defendant received a fair trial, free of

prejudicial error.

No error

Judges CALABRIA and GEER concur.

Report per Rule 30(e).