{ "id": 8436539, "name": "STATE OF NORTH CAROLINA v. TONY EDWARD ENGLISH", "name_abbreviation": "State v. English", "decision_date": "2005-07-05", "docket_number": "No. COA04-890", "first_page": "277", "last_page": "287", "citations": [ { "type": "official", "cite": "171 N.C. App. 277" } ], "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": "613 S.E.2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632964 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that statements made for purposes of corroboration rather than truth of the matter asserted are admissible under Crawford v. Washington" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0330-01" ] }, { "cite": "601 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631756 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0866-01" ] }, { "cite": "358 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631751, 12631754, 12631756, 12631757, 12631758, 12631675 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0863-01", "/se2d/601/0865-02", "/se2d/601/0866-01", "/se2d/601/0867-03", "/se2d/601/0867-01", "/se2d/601/0201-02" ] }, { "cite": "611 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632704, 12632705, 12632703 ], "opinion_index": 0, "case_paths": [ "/se2d/611/0845-02", "/se2d/611/0845-03", "/se2d/611/0845-01" ] }, { "cite": "359 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632704, 12632705, 3798850, 3795458, 12632706, 3800710, 3803057, 3799314, 3804662, 3798683, 12632703 ], "opinion_index": 0, "case_paths": [ "/se2d/611/0845-02", "/se2d/611/0845-03", "/nc/359/0325-04", "/nc/359/0325-03", "/se2d/611/0846-01", "/nc/359/0325-05", "/nc/359/0325-02", "/nc/359/0325-06", "/nc/359/0325-07", "/nc/359/0325-01", "/se2d/611/0845-01" ] }, { "cite": "543 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155648, 1155842, 1155834, 1155719 ], "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0368-02", "/nc/351/0368-01", "/nc/351/0368-03", "/nc/351/0368-04" ] }, { "cite": "523 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239132 ], "year": 1999, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0235-01" ] }, { "cite": "170 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006375 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that statements made for purposes of corroboration rather than truth of the matter asserted are admissible under Crawford v. Washington" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0632-01" ] }, { "cite": "259 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "286", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572652 ], "year": 1979, "pin_cites": [ { "page": "437", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0430-01" ] }, { "cite": "333 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "705" }, { "page": "707" }, { "page": "702" }, { "page": "707-08" } ], "opinion_index": 0 }, { "cite": "314 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693853 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "408" }, { "page": "411" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0401-01" ] }, { "cite": "696 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "314", "parenthetical": "quoting State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985)" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899866 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "639", "parenthetical": "quoting State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985)" }, { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0638-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "801", "parenthetical": "\"[A] defendant may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.\"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "341-42", "parenthetical": "\"[A] defendant may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "246", "parenthetical": "\"The constitutional right of an accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "558", "parenthetical": "\"The constitutional right of an accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "166 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "598 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "217" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8996879 ], "year": 2004, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0279-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203", "parenthetical": "\"Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\"" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "159 L. Ed. 2d 403", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 5868041 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "605 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "709", "parenthetical": "remanding for resentencing because record was bare of any evidence or stipulation other than a worksheet" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411467 ], "year": 2004, "pin_cites": [ { "page": "392-93", "parenthetical": "remanding for resentencing because record was bare of any evidence or stipulation other than a worksheet" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0374-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "742", "parenthetical": "\"There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.\"" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "year": 2002, "pin_cites": [ { "page": "505", "parenthetical": "\"There is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0499-01" ] }, { "cite": "577 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "326", "parenthetical": "\"An unsupported statement by the State that an offender has eleven points, and thus is a record level IV, even if uncontested, does not rise to the level sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4).\"" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191220 ], "year": 2003, "pin_cites": [ { "page": "502", "parenthetical": "\"An unsupported statement by the State that an offender has eleven points, and thus is a record level IV, even if uncontested, does not rise to the level sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4).\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0490-01" ] }, { "cite": "583 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "387", "parenthetical": "\"A statement by the State that an offender has seven points, and thus is a record level III, if only supported by a prior record level worksheet, is not sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4), even if uncontested by defendant.\"" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957257 ], "year": 2003, "pin_cites": [ { "page": "557", "parenthetical": "\"A statement by the State that an offender has seven points, and thus is a record level III, if only supported by a prior record level worksheet, is not sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0546-01" ] }, { "cite": "607 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "\"It has been repeatedly held that the submission of a worksheet by the State is .insufficient to satisfy the State's burden under this statute[.]\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803713, 3794938, 3798181, 3794766, 3798927, 3796600, 3795001, 3803738 ], "year": 2004, "pin_cites": [ { "parenthetical": "\"It has been repeatedly held that the submission of a worksheet by the State is .insufficient to satisfy the State's burden under this statute[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0194-08", "/nc/359/0194-05", "/nc/359/0194-07", "/nc/359/0194-03", "/nc/359/0194-02", "/nc/359/0194-04", "/nc/359/0194-01", "/nc/359/0194-06" ] }, { "cite": "595 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "189", "parenthetical": "\"It has been repeatedly held that the submission of a worksheet by the State is .insufficient to satisfy the State's burden under this statute[.]\"" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8895190 ], "year": 2004, "pin_cites": [ { "page": "23", "parenthetical": "\"It has been repeatedly held that the submission of a worksheet by the State is .insufficient to satisfy the State's burden under this statute[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0001-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "61" }, { "page": "199" } ], "opinion_index": 1, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 909, "char_count": 22728, "ocr_confidence": 0.736, "pagerank": { "raw": 1.0488923562627206e-07, "percentile": 0.553449641272522 }, "sha256": "f496cdc947ca3c77c6e586bba3e125d8ddc06b9e7353310d468fe6252053eeee", "simhash": "1:976bf5aa462f1d52", "word_count": 3647 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge STEELMAN concurs with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TONY EDWARD ENGLISH" ], "opinions": [ { "text": "McGEE, Judge.\nTony Edward English (defendant) was convicted on 5 November 2003 of sale, delivery, and possession with intent to sell or deliver a controlled substance. Defendant admitted he had attained habitual felon status. The evidence at trial tended to show that Officer Harrland McKinney (Officer McKinney) was an undercover officer with the Street Drug Interdiction Unit of the Charlotte Mecklenburg Police Department on the night of 10 April 2003. Officer McKinney saw Sean Williams (Williams), a person Officer McKinney knew had previously been involved with drugs, standing on a street corner. Officer McKinney approached Williams and asked to buy \u201ca twenty,\u201d which Officer McKinney testified was slang for a twenty dollar rock of crack cocaine. Williams initially offered to get into Officer McKinney\u2019s vehicle to \u201ctake [Officer McKinney] to get it[,]\u201d but Officer McKinney refused. Williams then told him to return ten minutes later.\nWhen Officer McKinney returned, defendant was standing on the corner with Williams. Defendant was holding a clear plastic bag. Williams reached into the bag, pulled out a rock of crack cocaine, and walked over to Officer McKinney\u2019s vehicle. Officer McKinney inspected the rock briefly. Satisfied that the rock was crack cocaine, Officer McKinney gave Williams a twenty dollar bill. Williams ran over to defendant and handed defendant the twenty dollar bill. Officer McKinney drove away and immediately called in other officers to arrest Williams and defendant.\nBased on Officer McKinney\u2019s description, Officer Shawn Blee (Officer Blee) discovered defendant on a nearby street. Defendant fled and Officer Blee gave chase. A few minutes later, Office Blee located defendant in the backyard of a residence. Defendant appeared to be chewing something, which Officer Blee ordered him to spit out. The item defendant had been chewing was a twenty-dollar bill. No drugs were found on defendant. The rock sold to Officer McKinney was later determined by laboratory analysis to be .10 grams of cocaine.\nDefendant was convicted of all charges and he admitted he was an habitual felon. He was sentenced to a minimum term of 120 months and a maximum term of 153 months. Defendant appeals.\nI.\nDefendant first argues that his case should be remanded for resentencing. Defendant specifically contends that the prior record level determined by the trial court is improper under N.C. Gen. Stat. \u00a7 15A-1340.14. We agree.\nA trial court must \u201cdetermine the prior record level for the offender pursuant to [N.C.]G.S. [\u00a7] 15A-1340.14\u201d before imposing sentence. N.C. Gen. Stat. \u00a7 15A-1340.13(b) (2003). The minimum sentence imposed must be \u201cwithin the range specified for the class of offense and prior record level[.]\u201d Id. As an habitual offender, it was determined that defendant had eight prior record points and a prior record level III, for sentencing under N.C.G.S. \u00a7 15A-1340.14.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f) (2003) states that prior convictions may be proved by:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(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.\n(4)Any other method found by the court to be reliable.\n\u201cThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists[.]\u201d N.C.G.S. \u00a7 15A-1340.14(f). During sentencing, the trial court was informed that the files concerning some of defendant\u2019s previous offenses had been destroyed, and thus no proof of these offenses could be offered. To meet its burden, the State would have had to either obtain a stipulation from defendant or prove the convictions by \u201c[a]ny other method found by the court to be reliable.\u201d Id.\nThe State presented a prior record level worksheet that listed defendant\u2019s prior convictions by class of felony, classifying defendant as a record level III offender. Neither defendant nor his defense counsel stipulated to the contents of the prior record worksheet. Rather, the record shows that defense counsel expressly declined to stipulate to the worksheet and renewed defendant\u2019s motion to suppress two of the listed convictions.\nOur Court has repeatedly held that a prior record level worksheet, standing alone, does not meet the State\u2019s burden for establishing prior convictions under N.C.G.S. \u00a7 15A-1340.14(f). See State v. Johnson, 164 N.C. App. 1, 23, 595 S.E.2d 176, 189, disc. review denied, 359 N.C. 194, 607 S.E.2d 659 (2004) (\u201cIt has been repeatedly held that the submission of a worksheet by the State is .insufficient to satisfy the State\u2019s burden under this statute[.]\u201d); State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003) (\u201cA statement by the State that an offender has seven points, and thus is a record level III, if only supported by a prior record level worksheet, is not sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4), even if uncontested by defendant.\u201d); State v. Bartley, 156 N.C. App. 490, 502, 577 S.E.2d 319, 326 (2003) (\u201cAn unsupported statement by the State that an offender has eleven points, and thus is a record level IV, even if uncontested, does not rise to the level sufficient to meet the catchall provision found in N.C.G.S. \u00a7 15A-1340.14(f)(4).\u201d); State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002) (\u201cThere is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant\u2019s prior convictions is, without more, insufficient to satisfy the State\u2019s burden in establishing proof of prior convictions.\u201d).\nThe State has not established that defendant stipulated to the prior convictions at issue, nor has it presented records pursuant to N.C.G.S. \u00a7 15A-1340.14(f) to prove the existence of the prior convictions. Therefore, the State did not meet its evidentiary burden under the statute. See State v. Spellman, 167 N.C. App. 374, 392-93, 605 S.E.2d 696, 709 (2004) (remanding for resentencing because record was bare of any evidence or stipulation other than a worksheet), disc. review denied, 359 N.C. 325, 611 S.E.2d 845. Therefore, we remand for resentencing.\nDefendant makes two additional arguments for resentencing. Specifically, defendant argues that the trial court erred in imposing an aggravated sentence when the aggravating factor on which the sentence was based required that defendant join \u201cwith more than one other person in committing the offense[,]\u201d and defendant joined with only one other person. N.C. Gen. Stat. \u00a7 15A-1340.16(d)(2) (2003) (emphasis added). Defendant further argues that, for the trial court to use this aggravating factor for sentencing purposes, it must have first submitted the issue to the jury for the jury to find the aggravating factor beyond a reasonable doubt. See Blakely v. Washington, 542 U.S. \u2014, 159 L. Ed. 2d 403 (2004). However, because we remand for resentencing on other grounds, we do not reach the merits of these arguments.\nII.\nDefendant next argues that he is entitled to a new trial because the trial court erred in admitting evidence.\nA.\nFirst, defendant argues that the trial court erred by permitting the State to read into evidence a laboratory report identifying the substance purchased by Officer McKinney as cocaine without the preparer of the report being available for cross-examination. The laboratory report confirmed that the substance purchased by Officer McKinney was .10 grams of cocaine. Officer McKinney, rather than the preparer of the report, read this report into evidence. Defendant argues that under the United States Supreme Court\u2019s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), such reading violated defendant\u2019s Sixth Amendment right to confront the witnesses against him. Specifically, defendant argues that the laboratory report was testimonial and improperly admitted into evidence because the report was not presented by its preparer, who was not deemed unavailable by the trial court, and because defendant did not have the opportunity to cross-examine the report\u2019s preparer. See Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203 (\u201cWhere testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\u201d).\nOur Court has held that, in evaluating whether a defendant\u2019s right to confrontation has been violated, we must determine: \u201c(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant.\u201d State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217, disc. review denied, 358 N.C. 734, 601 S.E.2d 866 (2004). However, we need not employ this analysis in the case before us because defendant explicitly waived his right to cross-examine the report\u2019s preparer.\nOur Supreme Court has held that \u201cthe constitutional right of an accused to be confronted by the witness against him is a personal privilege, which [the accused] may waive even in a capital case.\u201d State v. Moore, 275 N.C. 198, 210, 166 S.E.2d 652, 660 (1969); see also State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985) (\u201cThe constitutional right of an accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case.\u201d); State v. Hutchins, 303 N.C. 321, 341-42, 279 S.E.2d 788, 801 (1981) (\u201c[A] defendant may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.\u201d).\nIn the present case, defense counsel offered to stipulate to the laboratory report at the beginning of defendant\u2019s trial. The trial court asked whether defense counsel was \u201cstipulating that the report may be received into evidence, without further authentication or further testimony,\u201d and defense counsel answered in the affirmative. The trial court then confirmed defendant\u2019s stipulation through extensive questioning of defendant.\nThe Court: . . . You have the right to a trial, by a jury. And in that trial, by jury, you have the right to require that the state prove each and every element of the offenses beyond a reasonable doubt.\nOne of the . . . charges ... is that the substance [sold to Officer McKinney] was an illegal drug. And, you can require that the state prove that it was ... an illegal drug.\nThey may do that in one of several ways, such as calling laboratory witnesses and that kind of thing.\nYour attorney has indicated that, on your behalf, she is willing to stipulate that the lab report that she\u2019s received, in the discovery, is accurate; and, that the substance was cocaine.\nDid you understand her to say that?\n[Defendant]: Yes, sir.\nThe Court: And, are you agreeing that that stipulation is accurate and may be received by the Court?\n[Defendant]: Yes, sir.\nThe Court: And, do you understand, again, that you can require the state to prove this; that you don\u2019t have to stipulate to it?\n[Defendant]: Yes, sir.\nThe Court: Now, you, making this stipulation, voluntarily, without any threat or coercion against you?\n[Defendant]: Yes, sir.\nThe Court: All right. Do you have any questions about it, at all?\n[Defendant]: No, sir.\nThe Court: And, do you understand that this means that the state wouldn\u2019t have to call their chemist or laboratory person to come in and testify as to what the substance was; or, whether anything is in the report. That the jury will get to see the report, without that having to happen?\n[Defendant]: Yes, sir.\nThe Court: And, you are agreeing that that\u2019s all right?\n[Defendant]: Yes, sir.\nThe Court: Very well. Thank you, sir.\nThen, let the record show that the defendant has, upon informed choice, exercise of free will, voluntarily agreed and stipulated that the laboratory report identifying the reported substance as cocaine, shall be received, without further authentification or, without requirement of expert testimony or otherwise.\nThe trial court\u2019s thorough inquiry ensured that defendant not only stipulated to the contents of the laboratory report but also understood the nature of the question being put to him. Defendant clearly waived his Sixth Amendment right to confront the preparer of the laboratory report. We overrule this assignment of error.\nB.\nDefendant next argues that the trial court erred by allowing Officer McKinney to testify that the neighborhood in which defendant was arrested had a reputation as a \u201cheavy, heavy area for drug use and drug sales.\u201d Our Court has held that \u201c[i]n North Carolina, the \u2018general rule is that in a criminal prosecution evidence of the reputation of a place or neighborhood is ordinarily inadmissible hearsay.\u2019 \u201d State v. Williams, 164 N.C. App. 638, 639, 696 S.E.2d 313, 314 (2004) (quoting State v. Weldon, 314 N.C. 401, 408, 333 S.E.2d 701, 705 (1985)). For the reasons below, we agree with the State\u2019s arguments that this general rule does not mandate that defendant receive a new trial.\nFirst, \u201c[i]f a statement is offered for any purpose other than that of proving the truth of the matter asserted, it is not objectionable as hearsay.\u201d State v. White, 298 N.C. 430, 437, 259 S.E.2d 281, 286 (1979) (internal citations omitted); see also State v. Walker, 170 N.C. App. 632, 613 S.E.2d 330 (2005) (holding that statements made for purposes of corroboration rather than truth of the matter asserted are admissible under Crawford v. Washington). In the instant case, Officer McKinney\u2019s testimony regarding the neighborhood\u2019s reputation was prompted by a question by the State as to why Officer McKinney was in the neighborhood. This statement was offered to explain why Officer McKinney subsequently solicited drugs from a pedestrian in that neighborhood, and not as an assertion that the neighborhood was, in fact, known for its heavy drug traffic. Thus, the statement was not hearsay and was admissible.\nSecond, even were we to consider the statement to be inadmissible hearsay, \u201c[e]rroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state\u2019s primary contentions ... or where there is overwhelming evidence of [the] defendant\u2019s guilt.\u201d Weldon, 314 N.C. at 411, 333 S.E.2d at 707; see also State v. Stevenson, 136 N.C. App. 235, 241, 523 S.E.2d 734, 737 (1999), disc. review denied, 351 N.C. 368, 543 S.E.2d 144 (2000) (citations omitted). In Williams, the defendant was in possession of what appeared to be cocaine but was in fact Goody\u2019s Headache Powder. A police officer testified that the incident took place in a \u201cneighborhood known as an \u2018open air market for drugs.\u2019 \u201d Williams, 164 N.C. App. at 639, 596 S.E.2d at 314. Our Court considered the other evidence introduced during the trial and concluded that \u201cthere is a reasonable possibility that, had the erroneous reputation evidence not been admitted, the jury would have reached a different result at trial.\u201d Id. at 647, 596 S.E.2d at 319. We therefore remanded for a new trial. Id. However, in Weldon, a police officer found six grams of heroin in the defendant\u2019s house and testified at trial that the house \u201chad a reputation as a place where illegal drugs could be bought or sold.\u201d Weldon, 314 N.C. at 402, 333 S.E.2d at 702. Our Supreme Court found that the trial court erred in admitting this testimony but concluded that its admission did not require a new trial due to the overwhelming evidence of the defendant\u2019s guilt (specifically, heroin was found in the defendant\u2019s house). Id. at 411, 333 S.E.2d at 707-08.\nIn the present case, the other evidence of defendant\u2019s guilt, including Officer McKinney\u2019s testimony about defendant\u2019s role in the drug sale, the laboratory analysis proving the substance was crack cocaine, and defendant\u2019s possession of a twenty dollar bill, is sufficiently overwhelming that there is not a reasonable possibility that exclusion of the reputation testimony could have resulted in a different verdict. Defendant\u2019s arguments for a new trial are without merit.\nNo error; remand for resentencing.\nJudge BRYANT concurs.\nJudge STEELMAN concurs with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "STEELMAN, Judge\nconcurring.\nI fully concur with the majority opinion in this case, but write separately because I believe defendant\u2019s appellate counsel should be sanctioned for presenting the argument discussed in section IIA of the opinion.\nAppellate counsel has a duty to zealously and diligently represent his or her client. This is especially true when that client is a criminal defendant facing incarceration because of a conviction in the trial court. However, there are limits to zealous representation. Rule 34(a)(1) of the Rules of Appellate Procedure states that counsel may be sanctioned when \u201cthe appeal [is] not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.\u201d N.C. R. App. P. 34(a)(1) (2005). These strictures apply to each of the arguments made within an appellate brief.\nIn defendant\u2019s sixth assignment of error he asserts as error: \u201cThe Trial Court\u2019s failure to intervene ex mero mo tu when State\u2019s witness Officer McKinney read into evidence, and the State later introduced as Exhibit No. 4, the chemist\u2019s report regarding the analysis of the substance . . . .\u201d This assignment of error concludes by stating, \u201cTo the extent this error is not otherwise preserved, defendant asserts plain error.\u201d\nAppellant\u2019s counsel proceeds to argue for eight pages in the brief that the trial court\u2019s error violated defendant\u2019s constitutional right to confront a witness under the rationale of Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d 177, 199, (2004). Although defendant asserts plain error, appellant counsel fails to argue it in the brief. The argument ignores facts as set forth in the majority\u2019s opinion, which reveal that not only did defendant\u2019s trial counsel stipulate that the laboratory report could be received into evidence, but the trial judge had an extensive conversation with defendant to make certain he understood the ramifications of the stipulation. The trial judge went above and beyond what he was required to do to insure defendant\u2019s constitutional rights were fully protected. However, appellant\u2019s counsel completely ignores defendant\u2019s stipulation that \u201cthe report may be received into evidence without further authentication or further testimony.\u201d Appellate counsel never attempts to argue that the stipulation was somehow invalid, nor that trial counsel was ineffective in any manner.\nThe role of the appellate courts is to review and correct errors which actually occurred in the trial division. The function of an appellant\u2019s brief is to clearly and concisely bring those errors to the appellate court\u2019s attention, together with controlling authorities. It is not the function of an appellate brief to discuss intellectual and academic points of law that do not arise from the facts of the case being discussed.\nI do not undertake the writing of the concurrence lightly. It was not my intent to discourage criminal appellate counsel from zealously representing their clients, but rather to emphasize that there are limits to what is acceptable conduct by counsel, even in criminal cases.\nThere was no basis in fact or law for the arguments asserted by appellate counsel for defendant pertaining to his sixth assignment of error. For these reasons, I believe this Court should impose sanctions upon counsel for the appellant.", "type": "concurrence", "author": "STEELMAN, Judge" } ], "attorneys": [ "Attorney General Roy A. Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TONY EDWARD ENGLISH\nNo. COA04-890\n(Filed 5 July 2005)\n1. Sentencing\u2014 habitual felon \u2014 prior record level\nDefendant\u2019s sentencing for sale, delivery, and possession with intent to sell or deliver a controlled substance which was enhanced by his status as an habitual felon is remanded for re-sentencing, because: (1) a prior record level worksheet standing alone does not meet the State\u2019s burden for establishing prior convictions under N.C.G.S. \u00a7 15A-1340.14(f); and (2) the State did not establish that defendant stipulated to the prior convictions at issue nor has it presented records pursuant to N.C.G.S. \u00a7 15A-1340.14(f) to prove the existence of the prior convictions.\n2. Constitutional Law\u2014 right of confrontation \u2014 laboratory report \u2014 stipulation\nThe trial court did not violate defendant\u2019s Sixth Amendment right of confrontation in a sale, delivery, and possession with intent to sell or deliver a controlled substance case by permitting the State to read into evidence a laboratory report identifying the substance purchased by an officer as cocaine without the preparer of the report being available for cross-examination, because defendant explicitly waived his right to cross-examine the report\u2019s preparer when: (1) defense counsel stipulated to the laboratory report at the beginning of defendant\u2019s trial and affirmed that no further authentication or testimony was required; and (2) the trial court confirmed defendant\u2019s stipulation through extensive questioning of defendant and further showed that defendant understood the nature of the question being put to him.\n3. Evidence\u2014 hearsay \u2014 neighborhood had reputation for drug use and drug sales\nThe trial court did not err in a sale, delivery, and possession with intent to sell or deliver a controlled substance case by allowing an officer to testify that the neighborhood in which defendant was arrested had a reputation as a heavy, heavy area for drug use and drug sales, because: (1) the testimony was prompted by a question by the State as to why the officer was in the neighborhood; (2) the statement was offered to explain why the officer subsequently solicited drugs from a pedestrian in that neighborhood, and not as an assertion that the neighborhood was, in fact, known for its heavy drug traffic; and (3) even if the evidence was considered to be inadmissible hearsay, its admission did not require a new trial due to the overwhelming evidence of defendant\u2019s guilt including an officer\u2019s testimony about defendant\u2019s role in the drug sale, the laboratory analysis proving the substance was crack cocaine, and defendant\u2019s possession of a twenty dollar bill.\nJudge Steelman concurring.\nAppeal by defendant from judgment entered 5 November 2003 by Judge Timothy S. Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals 9 March 2005.\nAttorney General Roy A. Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant." }, "file_name": "0277-01", "first_page_order": 307, "last_page_order": 317 }