{ "id": 8520437, "name": "STATE OF NORTH CAROLINA v. WILLIE WOOTEN", "name_abbreviation": "State v. Wooten", "decision_date": "1991-09-17", "docket_number": "No. 903SC953", "first_page": "125", "last_page": "131", "citations": [ { "type": "official", "cite": "104 N.C. App. 125" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "347 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "318 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738200 ], "year": 1986, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0030-01" ] }, { "cite": "307 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "316" } ], "opinion_index": 0 }, { "cite": "309 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761304 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0587-01" ] }, { "cite": "395 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "125" }, { "page": "127" } ], "opinion_index": 0 }, { "cite": "327 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492889 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0378-01" ] }, { "cite": "370 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524166 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0024-01" ] }, { "cite": "78 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609941 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0404-01" ] }, { "cite": "197 S.E. 176", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "213 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629537 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/213/0590-01" ] }, { "cite": "220 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "324", "parenthetical": "citing State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938)" } ], "opinion_index": 0 }, { "cite": "289 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566560 ], "year": 1975, "pin_cites": [ { "page": "52", "parenthetical": "citing State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938)" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0047-01" ] }, { "cite": "252 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570231 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0728-01" ] }, { "cite": "259 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572690 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0441-01" ] }, { "cite": "284 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "517", "parenthetical": "citing State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979) and State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979)" } ], "opinion_index": 0 }, { "cite": "304 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569232 ], "year": 1981, "pin_cites": [ { "page": "497", "parenthetical": "citing State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979) and State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0485-01" ] } ], "analysis": { "cardinality": 674, "char_count": 12767, "ocr_confidence": 0.753, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33423763315930777 }, "sha256": "68a9e1db431c5dc5ef76772f21e50edfa6b550f9faf10bc03c65c795e2184823", "simhash": "1:9389f77a80415af3", "word_count": 2108 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE WOOTEN" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nDefendant first contends that the trial court erred in allowing the prosecution to inquire about the seven plastic bags containing cocaine residue and the $1,109.25 found in the defendant\u2019s possession when he was arrested. This contention is without merit.\nAt trial the defendant testified in his own behalf. During cross-examination by the district attorney the defendant testified as follows:\nQ: Mr. Wooten, have you ever sold any cocaine, sir?\nA: Have I ever sold any?\nQ: Yes.\nA: No. I haven\u2019t.\nQ: Do you ever use any cocaine?\nA: I don\u2019t even drink no liquor no more.\nQ: Ever possessed any cocaine?\nA: No, sir.\nUpon further questioning the following exchange took place.\nQ: And, at the time you were stopped, you were almost directly in front of Bellvoir Estates, weren\u2019t you?\nA: I was \u2014I was almost to the store.\nQ: Had you got to Bellvoir Estates yet?\nA: When I was arrested?\nQ: Uh-huh?\nA: That\u2019s where they arrested me; at the store.\nQ: At Bellvoir Estates?\nA: Uh-Huh. No; at convenience store. That\u2019s where they arrested me at.\nHi H\u00ed Hi\nQ: And, in your car, Mr. Wooten, you had several bags\u2014 TALTON: Objection.\nQ: \u2014cocaine residue?\nCOURT: Overruled.\nA: I told you those bags \u2014 this guy, I picked him up that morning. He left that pouch in my car. . . .\nThis was proper impeachment.\n[I]t is well settled in this jurisdiction that when a defendant becomes a witness and testifies in his own behalf, he is subject to cross-examination like any other witness, G.S. \u00a7 8-54 (1981), and, for purposes of impeachment, he may be cross-examined by the district attorney concerning any specific acts of misconduct which tend to impeach his character.\nState v. Galloway, 304 N.C. 485, 497, 284 S.E.2d 509, 517 (1981) (citing State v. Herbin, 298 N.C. 441, 259 S.E.2d 263 (1979) and State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979)). Further, \u201c \u2018[a]ny act of the witness which tends to impeach his character may be inquired about or proven by cross-examination.\u2019 \u201d State v. Poole, 289 N.C. 47, 52, 220 S.E.2d 320, 324 (1975) (citing State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938)).\nHere, the defendant first testified that he had never possessed any cocaine. It was then proper impeachment for the district attorney to ask the defendant about the bags containing cocaine residue found in the defendant\u2019s possession when he was arrested.\nDefendant argues the testimony is not admissible under Rule 404(b) and relies on State v. Brady, 238 N.C. 404, 78 S.E.2d 126 (1953), and State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456 (1988). Regardless of whether this testimony would otherwise be allowable under Rule 404(b), in this circumstance it is proper impeachment testimony and is therefore admissible.\nDefendant also contends that it was error to permit the State to question the defendant as follows:\nQ: And, you on that day had in your pocket over a thousand dollars in cash money \u2014\nTALTON: Objection.\nQ: \u2014didn\u2019t you?\nTALTON: Objection.\nCOURT: Overruled.\nQ: Is that correct, sir?\nA: Yes, sir.\nAssuming arguendo that the trial court committed error by allowing this testimony, it was not prejudicial error. The defendant was given ample opportunity to explain his possession of the money, and in fact did so during cross-examination. The defendant testified:\nQ: Where did that money come from?\nA: I told you. I got it, I saved it on the job. I had got paid, and I was taking that money to go Christmas shopping and send my kids some money up north.\nDefendant\u2019s first assignment of error is overruled.\nII\nDefendant next contends that the trial court committed error by imposing consecutive sentences for the possession of cocaine with intent to sell or deliver, sale of cocaine and delivery of cocaine because the charges arose from a single transaction. We agree. .\nThe Supreme Court has squarely addressed this issue in State v. Moore, 327 N.C. 378, 395 S.E.2d 124 (1990). In Moore, two bills of indictment charged the defendant with possession of a controlled substance with intent to sell or deliver, sale of a controlled substance, and delivery of a controlled substance. Id. at 380, 395 S.E.2d at 125. The defendant was found guilty of possession of a controlled substance (a lesser included offense) and possession with intent to sell; two counts of sale of a controlled substance, and two counts of delivery of a controlled substance. Id. As in the instant case each indictment stemmed from a single transaction, and the trial court imposed consecutive sentences for both the sale and delivery of the controlled substance. Id. In remanding for re-sentencing the court stated:\n\u201cA defendant may be indicted and tried under N.C.G.S. \u00a7 90-95(a)(l) in such instances for the transfer of a controlled substance, whether it be by selling the substance, or by delivering the substance, or both. We conclude that a defendant may not, however, be convicted under N.C.G.S. \u00a7 90-95(a)(l) of both the sale and delivery of a controlled substance arising from a single transfer. Whether the defendant is tried for transfer by sale, by delivery, or by both, the jury in such cases should determine whether the defendant is guilty or not guilty of transferring a controlled substance to another person.\u201d\nId. at 382-383, 395 S.E.2d at 127.\nAccordingly, we vacate the defendant\u2019s sentences for sale and delivery and remand for entry of judgment and re-sentencing for transferring a controlled substance.\nIll\nFinally, the defendant assigns as error the length of the sentences ordered by the trial court on the basis that they inappropriately exceed the presumptive sentences set by the North Carolina Fair Sentencing Act. We disagree.\nThe defendant claims the trial court erred in considering the defendant\u2019s previous conviction for driving under the influence as an aggravating factor because the State failed to prove the conviction in accordance with G.S. 15A-1340.4(e) which provides:\nA 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 ....\nId.\nThis argument is wholly without merit. The Supreme Court addressed this issue in State v. Graham, 309 N.C. 587, 308 S.E.2d 311 (1983). There the court stated:\nWe disagree that these are the exclusive methods by which prior convictions may be shown. As we emphasized in State v. Thompson, [309] N.C. [421], 307 S.E.2d 156 (1983), this Court and the Court of Appeals have repeatedly held that the enumerated methods of proof of N.C. Gen. Stat. \u00a7 15A-1340.4(e) are permissive rather than mandatory. [Citations omitted.] . . . Clearly the conviction could have been proven by . . . defendant\u2019s admission.\nId. at 593, 308 S.E.2d at 316. Here, the defendant testified on cross-examination as follows:\nQ: Ah, Mr. Wooten, that picture was taken when you were arrested for driving while impaired. Is that right?\nA: I think so.\nQ: Back in the early \u201980\u2019s wasn\u2019t it?\nA: Yes, sir.\n* * *\nQ: You don\u2019t remember going down to the jail on September 11, 1982 and having a picture taken?\nA: Well, I know I got a DUI, and I remember I took a picture.\nThe defendant also claims the conviction does not meet the statutory requirements because the statute provided for punishment of \u201cno less than 30 days nor more than six months\u201d at the time of his conviction. This argument also fails. G.S. \u00a7 15A-1340.4(a)(l)o only requires that the \u201ccriminal offenses [be] punishable by more than 60 days\u2019 confinement.\u201d\nFinally the defendant contends that the application of maximum sentences for each of the crimes is \u201cgrossly unjust.\u201d \u201cThe \u2018weight to be given mitigating and aggravating factors is a matter solely within the trial court\u2019s discretion.\u2019 State v. Penly, 318 N.C. 30, 52, 347 S.E.2d 783, 796 (1986). The defendant has shown no abuse of discretion in the present case, and his assignment of error is overruled.\u201d State v. Swann, 322 N.C. 666, 675, 370 S.E.2d 533, 538 (1988).\nRemanded for re-sentencing.\nJudges Johnson and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Edwin B. Hatch, for the State.", "Willis A. Tait\u00f3n for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE WOOTEN\nNo. 903SC953\n(Filed 17 September 1991)\n1. Criminal Law \u00a7 86.5 (NCI3d)\u2014 cross-examination of defendant \u2014possession of bags with cocaine residue \u2014admissibility for impeachment\nWhere defendant testified in a prosecution for narcotics offenses that he had never possessed any cocaine, the district attorney could properly impeach defendant by asking him about plastic bags containing cocaine residue found in defendant\u2019s vehicle at the time of his arrest.\nAm Jur 2d, Witnesses \u00a7\u00a7 524, 527, 536.\n2. Narcotics \u00a7 3.1 (NCI3d)\u2014 possession of large amount of money \u2014 cross-examination of defendant \u2014 no prejudicial error\nAssuming arguendo that the trial court in a prosecution for narcotics offenses erred in permitting the district attorney to question defendant about his possession of over a thousand dollars at the time of his arrest, this error was not prejudicial where defendant was permitted during cross-examination to explain his possession of the money.\nAm Jur 2d, Witnesses \u00a7\u00a7 524, 536.\n3. Narcotics \u00a7 5 (NCI3d)\u2014 sale and delivery of cocaine \u2014 single transaction \u2014separate sentences improper\nDefendant could not be convicted and sentenced under N.C.G.S. \u00a7 90-95(a)(l) for both the sale and the delivery of a controlled substance arising from one transaction.\nAm Jur 2d, Drugs, Narcotics, and Poisons \u00a7 41; Indictments and Informations \u00a7 223.\n4. Criminal Law \u00a7 1183 (NCI4th)\u2014 prior DUI conviction-aggravating factor \u2014 proof by defendant\u2019s admission \u2014 punishable by more than sixty days\u2019 imprisonment\nThe trial court could properly consider defendant\u2019s prior conviction for driving under the influence as an aggravating factor on the basis of defendant\u2019s admission during cross-exqjnination that he had been convicted of this offense. Furthermore, this offense was punishable by more than 60 days\u2019 imprisonment within the meaning of N.C.G.S. \u00a7 15A-1340.4(a)(l)o where the statute provided for punishment of \u201cno less than 30 days nor more than six months\u201d at the time of defendant\u2019s conviction.\nAm Jur 2d, Criminal Law \u00a7 599; Habitual Criminals and Subsequent Offenders \u00a7\u00a7 15, 15.5.\nAPPEAL by defendant from judgments entered 5 April 1990 by Judge Henry W. Hight, Jr. in PlTT County Superior Court. Heard in the Court of Appeals 20 August 1991.\nDefendant was indicted and convicted of the felonies of possession of cocaine with intent to sell, selling cocaine and delivering cocaine. He was sentenced to 10 years for the sale of cocaine, 10 years for the delivery of cocaine, and 10 years (suspended) for possession with intent to sell.\nOn the night of 6 April 1989 Detective Murphy, a drug agent with the Greene County Sheriff\u2019s Department, was operating as an undercover agent in a drug interdiction campaign in Pitt County. He was assisted by Deputy Sheriff Hill, who was the surveillance officer. At approximately 9:50 p.m. Detective Murphy drove his vehicle into the Bellvoir Estates Mobile Home Park in anticipation of making a cocaine purchase from a suspected cocaine dealer. Detective Murphy approached a group of three men, which included his confidential informant, the defendant and Mr. Johnson. Detective Murphy purchased cocaine from Mr. Johnson. Because Mr. Johnson did not have correct change, the defendant gave Detective Murphy $5.00, the change he was due. Detective Murphy returned to his vehicle where he began talking to his confidential informant. The defendant then called the confidential informant back over to him and criticized Mr. Johnson\u2019s deal. The defendant claimed that Mr. Johnson\u2019s cocaine had a lot of \u201cshake in it,\u201d baking soda, and that it \u201cwouldn\u2019t get you high.\u201d Detective Murphy then walked over to the two men and the defendant offered to sell Detective Murphy cocaine for $20.00. The defendant stated that his drugs \u201cmight be smaller, but they\u2019re more powerful.\u201d Detective Murphy purchased a small white rock in a plastic bag from the defendant for $20.00. The white rock was later identified as crack cocaine.\nOn 9 December 1989 Deputy Hill arrested the defendant. Deputy Hill had received a tip that a vehicle matching the description of the one known to belong to the defendant would be used in delivering cocaine to Bellvoir Estates around 3:00 p.m. Deputy Hill placed the defendant\u2019s car under surveillance and later stopped the defendant as he was preparing to drive into Bellvoir Estates. In a search of the defendant\u2019s car incident to arrest Deputy Hill discovered seven plastic bags, each containing cocaine residue and $1,109.25 in cash. At trial the prosecutor inquired into the defendant\u2019s possession of the cocaine and money found upon his arrest.\nDefendant appeals.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Edwin B. Hatch, for the State.\nWillis A. Tait\u00f3n for defendant-appellant." }, "file_name": "0125-01", "first_page_order": 153, "last_page_order": 159 }