{ "id": 8155651, "name": "STATE OF NORTH CAROLINA v. FLOYD JEAN DAVIS", "name_abbreviation": "State v. Davis", "decision_date": "2007-10-02", "docket_number": "No. COA06-1558", "first_page": "242", "last_page": "250", "citations": [ { "type": "official", "cite": "186 N.C. App. 242" } ], "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": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "year": 2005, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "553 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "692-93" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360317 ], "year": 2001, "pin_cites": [ { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0532-01" ] }, { "cite": "126 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1962, "pin_cites": [ { "page": "129" }, { "page": "132-33" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "455 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917460 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "244" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0240-01" ] }, { "cite": "233 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "588", "parenthetical": "\"The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status.\"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569971 ], "year": 1977, "pin_cites": [ { "page": "435", "parenthetical": "\"The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0431-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "415 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "781", "parenthetical": "holding that, to sustain a conviction under N.C. Gen. Stat. \u00a7 90-113.22, the State must prove that the defendant possessed drug paraphernalia with the intent \"to use [it] in connection with controlled substances\"" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314523 ], "year": 1992, "pin_cites": [ { "page": "164", "parenthetical": "holding that, to sustain a conviction under N.C. Gen. Stat. \u00a7 90-113.22, the State must prove that the defendant possessed drug paraphernalia with the intent \"to use [it] in connection with controlled substances\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0157-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-113.22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "154 L. Ed. 2d 455", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 1035", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9299489, 9299432, 9299337, 9299309, 9299407, 9299602, 9299634, 9299381, 9299573, 9299290, 9299356, 9299517, 9299454, 9299551 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/1035-09", "/us/537/1035-07", "/us/537/1035-03", "/us/537/1035-02", "/us/537/1035-06", "/us/537/1035-13", "/us/537/1035-14", "/us/537/1035-05", "/us/537/1035-12", "/us/537/1035-01", "/us/537/1035-04", "/us/537/1035-10", "/us/537/1035-08", "/us/537/1035-11" ] }, { "cite": "566 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220160, 220167, 220042, 220015, 220191 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0757-05", "/nc/355/0757-02", "/nc/355/0757-04", "/nc/355/0757-01", "/nc/355/0757-03" ] }, { "cite": "561 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "927" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9132055 ], "year": 2002, "pin_cites": [ { "page": "798-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0795-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "231 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549989 ], "year": 1977, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0274-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "347 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "318 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737959 ], "year": 1986, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0102-01" ] }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "543 U.S. 1156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5954496, 3438538, 5882348, 5904846, 3432719, 5947982, 5866896, 5941907, 5884692, 5964821, 5953528, 3439161, 5932858, 5911709 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/543/1156-09", "/us/543/1156-11", "/us/543/1156-01", "/us/543/1156-14", "/us/543/1156-03", "/us/543/1156-13", "/us/543/1156-08", "/us/543/1156-02", "/us/543/1156-10", "/us/543/1156-04", "/us/543/1156-06", "/us/543/1156-07", "/us/543/1156-05", "/us/543/1156-12" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "746", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "year": 2004, "pin_cites": [ { "page": "412", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "410 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "63", "parenthetical": "\"In noncapital felony trials, this right to confrontation is purely personal in nature and may be waived by a defendant.\"" }, { "parenthetical": "internal citations omitted" }, { "page": "63" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "330 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508634 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "178", "parenthetical": "\"In noncapital felony trials, this right to confrontation is purely personal in nature and may be waived by a defendant.\"" }, { "page": "178" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0174-01" ] }, { "cite": "164 L. Ed. 2d 523", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "547 U.S. 1073", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0644-01" ] }, { "cite": "423 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "772", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "333 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548569 ], "year": 1992, "pin_cites": [ { "page": "138", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0128-01" ] }, { "cite": "400 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "403", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "328 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539317 ], "year": 1991, "pin_cites": [ { "page": "200", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0191-01" ] } ], "analysis": { "cardinality": 849, "char_count": 20583, "ocr_confidence": 0.743, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47190202980945994 }, "sha256": "33d16a7a6e2dd10e3f7d16e21598faff844e2ad39caa48c8cd125b4cb9a0fea8", "simhash": "1:6f6b5e04f60e1c1e", "word_count": 3382 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FLOYD JEAN DAVIS" ], "opinions": [ { "text": "WYNN, Judge.\nA defendant may waive the general right to be present at his trial through his voluntary and unexplained absence from court. Here, Defendant Floyd Jean Davis contends the trial court erred by allowing his trial to proceed in absentia. Because the record shows that Defendant had knowledge of the date and time that his trial reconvened and failed to appear or provide any reasonable excuse for his absence, we affirm the trial court\u2019s decision to move forward with the proceedings without Defendant.\nOn 26 January 2006, Mitchell County Deputy Sheriff Frank Catalano went to Defendant\u2019s home to serve an arrest warrant on him. Pursuant to a consent search of Defendant\u2019s home, Deputy Catalano found a pen barrel, scale, and piece of folded-up aluminum foil inside a plastic grocery bag in a kitchen drawer. A charred residue on the aluminum foil was later determined to be a legal substance often converted into methamphetamine; additionally, the inside of the pen barrel was found to be coated with methamphetamine hydrochloride, a controlled substance. After being advised of his legal rights, Defendant stated that the methamphetamine found was his and that he used the drug to relieve back pain.\nDefendant\u2019s trial for felony possession of methamphetamine, misdemeanor possession of drug paraphernalia, and habitual felon status began on 20 June 2006; he and his defense counsel were both present, and the jury was selected that day. When court reconvened the following morning, on 21 June 2006, Defendant was absent because he had gone to Spruce Pine Community Hospital with heart problems and was subsequently transferred by ambulance to Mission Memorial Hospital in Asheville due to chest pains and to have an \u201cappropriate workup by the cardiologist.\u201d Following testimony by a doctor who had treated Defendant, the trial court continued the case until 30 June 2006.\nWhen court reconvened again on 30 June 2006, Defendant was not present. Defense counsel informed the trial court that he did not know where his client was, and that he had spoken to Defendant the previous afternoon and instructed him to be at court that morning. Additionally, defense counsel told the trial court that he had no medical records showing that Defendant was unable to be present at court that morning. The clerk likewise stated that Defendant had been informed and was aware of his court date and time. Neither defense counsel nor the clerk\u2019s office had received any message from Defendant as to why he was not present in court on 30 June 2006.\nAfter denying defense counsel\u2019s motion for mistrial based on Defendant\u2019s absence, the trial court instructed the State to move forward with presentation of its evidence to the jury. The State offered testimony from two witnesses: a Special Agent Senior Forensic Chemist with the North Carolina State Bureau of Investigation (SBI), as to the residues on the aluminum foil and the inside of the pen barrel, respectively; and Deputy Catalano, as to his search of Defendant\u2019s home and Defendant\u2019s voluntary statement after his arrest. Defendant did not offer any evidence, and defense counsel moved for a dismissal of the two charges for insufficiency of evidence at both the close of the State\u2019s evidence and the close of all evidence. After denying the motions to dismiss, the trial court moved forward with the charge conference, the prosecutor and defense counsel offered closing arguments, and the trial court gave his jury charge.\nAccording to the transcript, the jury returned guilty verdicts on both charges after ten minutes of deliberation. With Defendant still absent from the courtroom, the trial court moved forward with the habitual felon phase of the trial. The State then offered an additional witness, a legal assistant with the district attorney\u2019s office, who testified as to Defendant\u2019s criminal record and prior felony convictions. Defendant offered no evidence. After an additional ten minutes of deliberation, the jury returned with a verdict of guilty of habitual felon status.\nThe trial court had previously entered an order of arrest against Defendant because he was not present when his trial reconvened on 30 June 2006. At the conclusion of the trial, the trial court ordered that, after Defendant had been located and arrested, he be held without bond until sentencing could occur. On 14 July 2006, the trial court entered judgment on the jury verdicts against Defendant and sentenced him as an habitual felon in the presumptive range of 116 to 149 months\u2019 imprisonment on the consolidated charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. At sentencing, Defendant informed the trial court that he had been back in the hospital for his heart on 30 June 2006, the date of his trial, and his wife had failed to telephone defense counsel as she had promised. Defendant offered no written documentation in support of his statement that he had been in the hospital.\nDefendant now appeals, arguing that the trial court erred by (I) denying his motion for a mistrial; (II) denying his motion to dismiss both charges at the close of evidence; (III) arraigning him as an habitual felon in open court and allowing the State to move forward immediately with habitual felon proceedings.\nI.\nDefendant first argues that the trial court erred by denying his motion for a mistrial based on his absence from the courtroom during his trial. We disagree.\nUnder North Carolina law, a trial court is required to declare a mistrial upon a defendant\u2019s motion \u201cif there occurs during the trial an error or legal defect in the proceedings, . . . , resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C. Gen. Stat. \u00a7 15A-1061 (2005). Nevertheless, the decision to grant a mistrial is within the sound discretion of the trial court, and a mistrial is \u201cappropriate only when there are such serious improprieties as would make it impossible to achieve a fair and impartial verdict under the law.\u201d State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403 (1991) (citation omitted). The trial court\u2019s decision will be given \u201cgreat deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.\u201d State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citation omitted). This Court will find an abuse of discretion only where a trial court\u2019s ruling \u201cis manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).\nAlthough our state Constitution provides that, \u201c[i]n all criminal prosecutions, every person charged with crime has the right ... to confront the accusers and witnesses with other testimony,\u201d N.C. Const, art. I, \u00a7 23, the right of a defendant to be present at his own trial is not absolute. See State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) (\u201cIn noncapital felony trials, this right to confrontation is purely personal in nature and may be waived by a defendant.\u201d). Significantly, \u201c[a] defendant\u2019s voluntary and unexplained absence from court subsequent to the commencement of trial constitutes such a waiver. Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred.\u201d Id. (internal citations omitted).\nHere, Defendant\u2019s trial commenced on 20 June 2006, when a jury was impaneled and opening arguments were made. Defendant was not present when his trial resumed on 21 June; after hearing an explanation from defense counsel and testimony from a doctor who had treated Defendant, the trial court continued the case until 30 June, to give Defendant an opportunity for further treatment and recovery. Nevertheless, on 30 June, Defendant was not present at the time his trial was scheduled to resume.\nAfter waiting for over forty-five minutes, the trial court ascertained that Defendant was aware of the date and time that his trial was scheduled to resume, and that he had failed to provide any reason or notice to defense counsel or the clerk\u2019s office as to his failure to appear. The trial court then offered a full restatement of the facts related to the earlier session of the trial, Defendant\u2019s medically excused absence on 21 June 2006, and the continuance, and concluded:\nBased on that, the Court concludes that the Court has a right to go forward with the trial of this case having been shown no good reason as to why the defendant has not appeared and based on the foregoing findings and conclusions the Court is going to proceed with the trial of this matter in the absence of the defendant .... So [defense counsel] will be proceeding on behalf of his client in his client\u2019s absence in the defense of this case.\nThese facts support the trial court\u2019s determination that Defendant waived his right to appear, and we see no abuse of discretion in the trial court\u2019s decision to deny defense counsel\u2019s motion for a mistrial. Accordingly, we find no merit in these assignments of error.\nII.\nNext, Defendant contends the trial court erred by denying his motions to dismiss the charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia at the close of the State\u2019s evidence and again at the close of all evidence on the grounds that the evidence was insufficient to establish each element of the crimes and Defendant\u2019s identity as the perpetrator. We disagree.\nTo survive a motion to dismiss, the State must have presented \u201csubstantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). \u201cSubstantial evidence\u201d is \u201crelevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.\u201d Id. (citations omitted). In considering a motion to dismiss by the defense, such evidence \u201cmust be taken in the light most favorable to the state. . . . [which] is entitled to all reasonable inferences that may be drawn from the evidence.\u201d State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).\nNorth Carolina law makes it illegal for any person to possess a controlled substance. N.C. Gen. Stat. \u00a7 90-95(a)(3) (2005). Felonious possession of a controlled substance has \u201ctwo essential elements. The substance must be possessed, and the substance must be \u2018knowingly\u2019 possessed.\u201d State v. Rogers, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922 (1977). Moreover, \u201c[w]hen such materials are found on the premises under the control of the accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Even a \u201cresidue quantity\u201d of a controlled substance is sufficient to convict a defendant of felonious possession of the controlled substance. State v. Williams, 149 N.C. App. 795, 798-99, 561 S.E.2d 925, 927, disc. review denied, 355 N.C. 757, 566 S.E.2d 481, cert. denied, 537 U.S. 1035, 154 L. Ed. 2d 455 (2002).\nLikewise, under North Carolina law, \u201c [i]t is unlawful for any person to knowingly use, or to possess with intent to use, drug paraphernalia ... to inject, ingest, inhale, or otherwise introduce into the body a controlled substance which it would be unlawful to possess.\u201d N.C. Gen. Stat. \u00a7 90-113.22(a) (2005); see also State v. Hedgecoe, 106 N.C. App. 157, 164, 415 S.E.2d 777, 781 (1992) (holding that, to sustain a conviction under N.C. Gen. Stat. \u00a7 90-113.22, the State must prove that the defendant possessed drug paraphernalia with the intent \u201cto use [it] in connection with controlled substances\u201d).\nIn the instant case, the State offered testimony from an SBI agent that the residue inside the pen barrel found at Defendant\u2019s home was methamphetamine, and that the residue on the aluminum foil was a legal, uncontrolled substance that is often converted into methamphetamine. Deputy Catalano also testified that he found the aluminum foil and the pen barrel inside a kitchen drawer in Defendant\u2019s home. Additionally, Deputy Catalano recounted Defendant\u2019s voluntary statement to police that:\nOn today\u2019s date officer came to serve his warrant on me. I come out on my own. They found meth in my house. I told them it was mine. I use it \u2014 I use for my \u2014 for my pain because my back it was broke at work. The pain med they give me don\u2019t work. The meth does. . . . They found it in my kitchen drawer.\n(Emphasis added). We find this evidence to be sufficient as a matter of law to withstand a motion to dismiss the charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. This assignment of error is rejected.\nIII.\nFinally, Defendant argues that the trial court erred by arraigning him as an habitual felon pursuant to North Carolina General Statutes \u00a7 15A-928 in open court, and by moving forward immediately with habitual felon proceedings following Defendant\u2019s convictions, while he was still not present in the courtroom. Defendant essentially contends the trial court was without subject matter jurisdiction .to proceed with the habitual felon proceedings. We disagree.\nHabitual felon status is acquired when any person has been convicted of or pled guilty to three felony offenses in any federal or state court or combination thereof. N.C. Gen. Stat. \u00a7 14-7.1 (2005). Under longstanding precedent of our courts, being an habitual felon is not a substantive offense and is instead used only to enhance the sentence of an underlying felony committed while the defendant was an habitual felon. See State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977) (\u201cThe only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status.\u201d) Thus, \u201c[b]eing an habitual felon is not a crime but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence.\u201d Id.\nA trial court must arraign a defendant for habitual felon status \u201c[a]fter commencement of the trial and before the close of the State\u2019s case, ... in the absence of the jury[.]\u201d N.C. Gen. Stat. \u00a7 15A-928(c) (2005). If the defendant remains silent in the face of the allegations, \u201cthe State may prove that element of the offense charged before the jury as a part of its case.\u201d Id. at \u00a7 15A-928(c)(2). The purpose of Section 15A-928 is \u201cto insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent.\u201d State v. Jernigan, 118 N.C. App. 240, 244, 455 S.E.2d 163, 166 (1995).\nAs noted earlier, a defendant may waive his right to be present at his noncapital felony trial through his \u201cvoluntary and unexplained absence from court subsequent to the commencement of trial.\u201d Richardson, 330 N.C. at 178, 410 S.E.2d at 63. However, our state Supreme Court has also held that a defendant \u201cshould be present when evidence is introduced for the purpose of determining the amount of punishment to be imposed.\u201d State v. Pope, 257 N.C. 326, 330, 126 S.E.2d 126, 129 (1962). Likewise, \u201c[t]he accused has the undeniable right to be personally present when sentence is imposed. Oral testimony, as such, relating to punishment is not to be heard in his absence.\u201d Id. at 334, 126 S.E.2d at 132-33. Nevertheless, \u201c[a] judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u201d Id. at 335, 126 S.E.2d at 133.\nDefendant argues that the habitual felon proceedings fall between trial and sentencing, such that he could have waived his right to be present at his trial for the substantive offenses of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia, but he was constitutionally required to be present for the habitual felon proceedings because they concerned a sentence enhancement. Nevertheless, even assuming arguendo that Defendant is correct in this assertion, we find that he has failed to show any prejudicial effect resulting from his absence. On 20 June 2006, at the outset of Defendant\u2019s trial, and in Defendant\u2019s presence but before a jury had been seated, the trial court stated that there were three charges, namely, \u201cone possession of Schedule II controlled substances, one possession of drug paraphernalia and there\u2019s a third indictment of habitual felon.\u201d Moreover, in an indictment dated 8 February 2006, over four months before Defendant\u2019s trial, the State listed the prior felonies committed by Defendant and used by the State as the basis for the charge of habitual felon status.\nIn light of these facts, as well as Defendant\u2019s waiver of his right to be present at trial, we find that Defendant was \u201cinformed of the previous convictions the State intend[ed] to use\u201d and was \u201cgiven a fair opportunity to either admit or deny them or remain silent.\u201d Jernigan, 118 N.C. App. at 244, 455 S.E.2d at 166. Moreover, we note that this Court has previously found no error when a trial court moved forward with habitual felon proceedings after they had already begun and a defendant failed to return to court following a five-minute recess. State v. Skipper, 146 N.C. App. 532, 535-36, 553 S.E.2d 690, 692-93 (2001). This assignment of error is without merit.\nNo error.\nJudges HUNTER and BRYANT concur.\n. State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State.", "William D. Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FLOYD JEAN DAVIS\nNo. COA06-1558\n(Filed 2 October 2007)\n1. Criminal Law\u2014 motion for mistrial \u2014 defendant\u2019s absence from courtroom during trial \u2014 voluntary and unexplained absence \u2014 waiver of right\nThe trial court did not abuse its discretion in a felony possession of methamphetamine, misdemeanor possession of drug paraphernalia, and habitual felon case by denying defendant\u2019s motion for a mistrial based on his absence from the courtroom during his trial, because: (1) a defendant\u2019s voluntary and unexplained absence from court subsequent to the commencement of trial constitutes a waiver of his right to confront his accuser, and waiver is inferred unless defendant meets his burden to explain his absence; and (2) the facts support the determination that defendant waived his right to appear.\n2. Drugs\u2014 felony possession of methamphetamine \u2014 misdemeanor possession of drug paraphernalia \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motions to dismiss the charges of felony possession of methamphetamine and misdemeanor possession of drug paraphernalia because the evidence was sufficient as a matter of law to withstand the motions.\n3. Sentencing\u2014 habitual felon \u2014 defendant not present in courtroom\nThe trial court did not err by arraigning defendant as an habitual felon under N.C.G.S. \u00a7 15A-928 in open court, and by moving forward immediately with habitual felon proceedings following defendant\u2019s convictions while he was still not present in the courtroom, because: (1) even assuming defendant is correct in his argument that he was required to be present for the habitual felon proceedings since they concerned a sentence enhancement, he failed to show any prejudicial effect resulting from his absence; (2) defendant was informed of the previous convictions the State intended to use and was given a fair opportunity to either admit or deny them or remain silent; and (3) the Court of Appeals has previously found no error when a trial court moved forward with habitual felon proceedings after they had already begun and a defendant failed to return to court following a five-minute recess.\nAppeal by defendant from judgment entered 14 July 2006 by Judge Richard L. Doughton in Superior Court, Mitchell County. Heard in the Court of Appeals 21 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the State.\nWilliam D. Spence, for defendant-appellant." }, "file_name": "0242-01", "first_page_order": 272, "last_page_order": 280 }