{ "id": 4179485, "name": "STATE OF NORTH CAROLINA v. DARRELL BOYD, Defendant", "name_abbreviation": "State v. Boyd", "decision_date": "2010-11-02", "docket_number": "No. COA10-25", "first_page": "632", "last_page": "645", "citations": [ { "type": "official", "cite": "207 N.C. App. 632" } ], "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": "656 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640325 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0001-01" ] }, { "cite": "649 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639304 ], "year": 2007, "pin_cites": [ { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0917-01" ] }, { "cite": "643 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638062 ], "year": 2007, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0039-01" ] }, { "cite": "637 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637286 ], "year": 2006, "pin_cites": [ { "page": "525", "parenthetical": "quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0523-01" ] }, { "cite": "140 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133610 ], "year": 2000, "pin_cites": [ { "page": "690, 540", "parenthetical": "stating that while defendant may have stipulated to the existence of his prior convictions he did not stipulate to them being substantially similar to corresponding North Carolina felony offenses that carried higher prior record points values" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0679-01" ] }, { "cite": "577 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491495 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0043-01" ] }, { "cite": "560 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125227 ], "year": 2002, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0057-01" ] }, { "cite": "605 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "675", "parenthetical": "internal citations omitted" }, { "page": "674" }, { "page": "675" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412328 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "579", "parenthetical": "internal citations omitted" }, { "page": "579" }, { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0575-01" ] }, { "cite": "188 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155648 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0365-01" ] }, { "cite": "186 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8155088 ], "year": 2007, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0128-01" ] }, { "cite": "182 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175550 ], "year": 2007, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0683-01" ] }, { "cite": "429 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "333 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547448 ], "year": 1993, "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0744-01" ] }, { "cite": "248 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "296 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564559 ], "year": 1978, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0058-01" ] }, { "cite": "509 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "349 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571595 ], "year": 1998, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0573-01" ] }, { "cite": "551 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. 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T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0078-01" ] }, { "cite": "145 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "266 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559633 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/266/0077-01" ] }, { "cite": "229 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1976, "pin_cites": [ { "page": "54", "parenthetical": "citing O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965)" }, { "page": "55" }, { "page": "53" }, { "page": "193" }, { "page": "55" }, { "page": "191" }, { "page": "54" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548355 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "190", "parenthetical": "citing O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965)" }, { "page": "193" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0187-01" ] }, { "cite": "663 N.Y.S.2d 610", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 1175945 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "614-15" }, { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/ad2d/232/0111-01" ] }, { "cite": "227 Ga. App. 413", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 413409 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "415" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ga-app/227/0413-01" ] }, { "cite": "111 S. Ct. 1801", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6221328 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1804" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/us/500/0248-01" ] }, { "cite": "333 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "393 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "549" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523319 ], "year": 1990, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0421-01" ] }, { "cite": "154 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "270 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566852 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0234-01" ] }, { "cite": "86 S. Ct. 1826", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12047531 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "1835" }, { "page": "919" } ], "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "370 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0 }, { "cite": "322 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515352 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "714" }, { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0709-01" ] }, { "cite": "683 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "554 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138439, 138410, 138317, 138387, 138292 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0221-01", "/nc/354/0221-03", "/nc/354/0221-04", "/nc/354/0221-02", "/nc/354/0221-05" ] }, { "cite": "551 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2001, "pin_cites": [ { "page": "135-36" }, { "page": "136", "parenthetical": "citation and quotation marks omitted" }, { "page": "135" }, { "page": "134" }, { "page": "135" }, { "page": "135" }, { "page": "135", "parenthetical": "emphasis added" }, { "page": "136" }, { "page": "136" }, { "page": "135" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435462 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "520" }, { "page": "520" }, { "page": "520" }, { "page": "518" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0514-01" ] } ], "analysis": { "cardinality": 1217, "char_count": 32084, "ocr_confidence": 0.734, "pagerank": { "raw": 7.313464941937995e-08, "percentile": 0.4344401932313428 }, "sha256": "8addb1a8535730e190ee5a2bc1648ab78f8213bb4160b6cad3a9e4e724ec3b87", "simhash": "1:a308d569fe4e9456", "word_count": 5283 }, "last_updated": "2023-07-14T16:56:31.092499+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ARNOLD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DARRELL BOYD, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDarrell Boyd (\u201cdefendant\u201d) appeals from the trial court\u2019s order denying his motion to suppress and further claims that the trial court erred in: (1) denying his motion to replace a juror during trial, and (2) calculating his sentence. After careful review, we affirm the trial court\u2019s order denying defendant\u2019s motion to suppress and hold that the trial court did not err in denying defendant\u2019s motion to replace a juror. Because the trial court erred in calculating defendant\u2019s prior record level, we remand for a new sentencing hearing.\nBackground\nOn the morning of 1 May 1998, \u201cT.S.\u201d, a student at the University of North Carolina at Charlotte (\u201cUNCC\u201d), went to Wal-Mart and returned home at approximately 9:00 a.m. Her roommate left for work shortly thereafter. Suddenly, an African-American man wearing a blue bandana that covered his face from the nose down entered her apartment and pointed a gun at her. The intruder forced T.S. into her bedroom, shut the blinds, and told her to shut the blinds in her roommate\u2019s bedroom as well. The man then tied her hands to the foot of her roommate\u2019s bed and proceeded to search through the apartment. The intruder returned, pointed the gun at T.S.\u2019s head and threatened to kill her. The man asked T.S. if she would be willing to trade her life for sex. She replied, \u201cyes.\u201d The intruder had sex with T.S. and then led her to the bathroom and instructed her to take a bath. The assailant then tied T.S. to her bed, and told her to give him a ten-minute head start before she called the police. At the police station several months later, T.S. looked at a picture of defendant and stated that defendant\u2019s eyes resembled the eyes of the man who had sex with her; however, she did not otherwise recognize defendant as the man who had attacked her. T.S. stated at trial that she did not know defendant and had never had consensual sex with him.\nIn May 1998, \u201cJ.J.\u201d was living in Charlotte and attending UNCC. On 14 May 1998, J.J. worked until about 6:00 p.m., came home, ate dinner, watched television, and went to sleep. When she turned off the light in her bedroom, she saw a man standing in the doorway. The intruder came toward J.J., tackled her, hit her in the face with his fist, and covered her head with bedcovers. The man bound J.J.\u2019s hands with a belt from her bathrobe and had sex with her. The man made J.J. promise on her mother\u2019s life that she would not call the police after he left. The assailant then drew a bath for J.J. and told her to wash herself. He then left the apartment. J.J. did not identify defendant in court or by photographic lineup as the man who had sex with her. Like T.S., J.J. testified that she did not know defendant and had never had consensual sex with him.\nLab results showed that the DNA from biological material recovered during the examinations of T.S. and J. J. substantially matched the DNA sample provided by defendant. Defendant testified that he knew T.S. and J.J. and had engaged in consensual sex with both women.\nOn 25 June 2007, defendant was indicated on two counts of second-degree rape, three counts of second-degree sexual offense, first-degree burglary, one count of common law robbery, and one count of first-degree kidnapping in connection with the assault on J.J. On 9 July 2007, defendant was indicted on one count of felonious breaking and entering, one count of first degree kidnapping, four counts of first degree sexual offense, and four counts of first degree rape in connection with the assault on T.S. On 3 August 2009, all of the charges were joined for trial.\nPrior to trial, defendant filed a motion to suppress the DNA evidence taken from him while he was incarcerated in Ohio on unrelated charges. Defendant\u2019s DNA sample was taken at the request of a Charlotte detective who traveled to Ohio to talk with defendant. Defendant gave the DNA sample after being informed that it could exclude him from certain ongoing investigations. Specifically, defendant was told that the investigation concerned break-ins and assaults on women that occurred in Charlotte in 1998. Defendant acknowledged that he gave the DNA sample voluntarily by signing a document entitled \u201cConsent for Non-testimonial Identification Procedure.\u201d Despite signing the consent form, defendant argued that his consent was not voluntarily given. The trial court denied defendant\u2019s motion to suppress.\nDuring trial, a note was sent to the judge from juror one. The note requested permission for the jury to see a DVD that was shown by the State on the previous day, and also stated, \u201c[t]he accent Mr. Boyd is using today is fabricated. I speak two other languages and I know the difference in accents. Therefore can we please play the CD that was shown yesterday afternoon?\u201d The court questioned juror one about her ability to continue to listen to the remainder of the evidence before considering defendant\u2019s guilt or innocence, and juror one replied that she could. Defendant moved that juror one be replaced with an alternate; the court denied his motion.\nAt the close of the evidence, the trial court dismissed the common law robbery charge. The jury found defendant guilty of the remaining charges. At sentencing, the State argued .that defendant had a prior record level of III. Defense counsel objected to the State\u2019s calculation and argued: \u201c[T]he record is inaccurate. I believe the two charges from Ohio arose on the same day. There is one conviction. So his prior level as stated by the State is inaccurate.\u201d Defendant also argued that his 10 August 2009 prior record level worksheet contained an additional error. The worksheet included a conviction for \u201cTrafficking Heroin\u201d occurring on \u201c11/8/09.\u201d This conviction date would have occurred approximately two months after defendant\u2019s sentencing in this case. The prior record level worksheet was the only evidence offered by the State to prove the prior convictions or dates of conviction. Based on the worksheet, the court ruled that defendant\u2019s prior record level was III. Defendant was sentenced to a minimum of 336 months and a maximum of 413 months in prison. Defendant timely appealed to this Court.\nDiscussion\nI. Motion To Suppress DNA Evidence\nDefendant first argues that the DNA sample taken from him while he was in custody in Ohio should have been suppressed because his consent to take the sample was not voluntary. More specifically, defendant argues that his consent to DNA sampling was obtained by \u201cdeceit and misrepresentation.\u201d Defendant claims that the detective who requested the sample never told him that he was under investigation for rape and other sexual assault charges. Defendant argues that the detective\u2019s failure to inform him of all the charges for which he was being investigated amounted to \u201cblatant deception of [defendant in] the key circumstance that led to [his] submission of the saliva sample.\u201d Defendant further claims that this deception prevented his consent from being voluntary, and, accordingly, the State was required to obtain a warrant to take the DNA sample. Defendant argues that because there was no warrant, the DNA sample was an illegal search and seizure under both the United States Constitution and the North Carolina Constitution.\nThe standard of review for a motion to suppress evidence is whether the trial court\u2019s \u201cfindings of fact are supported by competent evidence and whether the findings support the court\u2019s conclusions of law.\u201d State v. Barkley, 144 N.C. App. 514, 520, 551 S.E.2d 131, 135-36, appeal dismissed, 354 N.C. 221, 554 S.E.2d 646 (2001). \u201cThe court\u2019s conclusions of law are fully reviewable on appeal.\u201d Barkley, 144 N.C. App. at 520, 551 S.E.2d at 136 (citation and quotation marks omitted).\nHere, the trial court concluded as a matter of law that \u201cDefendant freely, knowingly, intelligently, and voluntarily agreed to provide a DNA sample.\u201d Defendant argues that this conclusion of law is erroneous; however defendant does not argue that any of the trial court\u2019s findings of fact were not supported by competent evidence, and, consequently, the findings are binding on appeal. State v. Carrouthers, \u2014 N.C. App. \u2014, \u2014, 683 S.E.2d 781, 784 (2009).\nThe taking of genetic material from a person constitutes a search under the North Carolina Constitution and the United States Constitution. State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988); Schmerber v. California, 86 S. Ct. 1826, 1835, 16 L. Ed. 2d 908, 919 (1966). While the genetic material taken was blood in Carter and Schmerber, we see no distinction between the taking of blood and the taking of saliva for the purpose of DNA testing. \u201c[U]nder our state constitution, a search warrant must be issued before [genetic material] can be obtained,\u201d absent an exception. Garter, 322 N.C. at 714, 370 S.E.2d at 556. Consent, when given voluntarily, is an exception to the warrant requirement. Barkley, 144 N.C. App. at 520, 551 S.E.2d at 135.\nIn order for consent to be valid it must be \u201cvoluntary]. To be voluntary the consent must be . . . \u2018freely and intelligently given,\u2019 . . . free from coercion, duress or fraud, and not given merely to avoid resistance.\u201d State v. Little, 270 N.C. 234, 239 154 S.E.2d 61, 65 (1967). \u201cWhen, as here, the State seeks to rely upon defendant\u2019s consent to support the validity of a search, it has the burden of proving that the consent was voluntary.\u201d State v. Morocco, 99 N.C. App. 421, 429, 393 S.E.2d 545, 549 (1990). \u201cVoluntariness is a question of fact to be determined from all of the surrounding circumstances.\u201d Id. at 429, 393 S.E.2d at 550 (citing State v. Williams, 314 N.C. 337, 344, 333 S.E.2d 708, 714 (1985)). In Florida v. Jimeno, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297, 302 (1991), the Supreme Court stated that \u201c[t]he standard for measuring the scope of a suspect\u2019s consent under the Fourth Amendment is that of \u2018objective\u2019 reasonableness- \u2014 what would the typical reasonable person have understood by the exchange between the officer and the suspect?\u201d\nDefendant\u2019s claim that his consent was involuntary because the detective failed to tell him that he was being investigated for rape and other sexual assault charges is without merit. The present case is analogous in most respects to Barkley where the defendant argued that the trial court erred in denying his motion to suppress DNA evidence obtained by consent. 144 N.C. App. at 518, 551 S.E.2d at 134. The defendant claimed \u201cthat [while] he consented to have his blood drawn to exonerate himself in [a] murder investigation . . . the use of his blood to implicate him in [a kidnapping and rape] case violated his constitutional right to be free from unreasonable searches.\u201d Id. This Court concluded that \u201ca reasonable person would have understood . . . that his blood analysis could be used generally for investigative purposes, and not exclusively for [one investigation].\u201d Id. at 521, 551 S.E.2d at 135. Since the issue was one of first impression, this Court relied on analogous cases from other jurisdictions. Id. at 519, 551 S.E.2d at 135. For example, in Bickley v. State, 227 Ga. App. 413, 415, 489 S.E.2d 167, 170 (1997), the Georgia appellate court stated that \u201cDNA results are like fingerprints which are maintained on file by law enforcement authorities for use in further investigations.\u201d In People v. King, 663 N.Y.S.2d 610, 614-15, 232 A.D.2d 111, 117-18 (1997), the New York appellate court reasoned that\nonce a person\u2019s blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body, and the scientific analysis of a sample does not involve any further search and seizure of a defendant\u2019s person.\nThe present case is arguably distinguishable from Barkley because the defendant in that case argued that \u201cthe use of the DNA analysis should have been limited by the scope of his consent,\u201d and the defendant in the present case argues that the detective\u2019s failure to inform him of all the crimes for which he was being investigated prevented his consent from being voluntary. Barkley, 144 N.C. App. at 520, 551 S.E.2d at 135 (emphasis added). We find this to be a distinction without a difference. Moreover, the Court in Barkley considered whether the defendant\u2019s consent was voluntarily given and held that it was voluntary, even though defendant was never informed that the DNA blood evidence might be used in other investigations. Id. at 520-21, 551 S.E.2d at 136. The trial court\u2019s conclusion of law, \u201c[t]hat the Defendant freely, voluntarily, understandingly, and knowingly consented to having his blood withdrawn for investigative purposes on June the 11th, 1996\u201d is almost identical to the conclusion of law made by the trial court in the present case. Id. at 520, 551 S.E.2d at 136. Here, the trial court\u2019s undisputed findings of fact establish that:\n11. Immediately upon his arrival, Detective Armstrong identified himself as a law-enforcement officer and informed Defendant that he was investigating some break-ins that had occurred in 1998 in Charlotte, North Carolina, during which women had been assaulted.\n12. Within five minutes of his arrival, Detective Armstrong had read Defendant his Miranda Rights, explained them to him and had him sign a form indicating he had been informed of his Miranda rights, understood them and was willing to talk with Armstrong and answer his questions.\n16. Armstrong did not specifically tell Defendant that the assaults were sexual in nature.\n17. Armstrong told Defendant that he needed Defendant\u2019s DNA sample to exclude him as a suspect in the break-ins.\n18. Defendant consented to providing a DNA sample, signing a written document indicating his assent.\n19. Defendant understood that he did not have to ass\u00e9nt to giving the DNA sample.\n20. Defendant understood that the results of any testing done on the DNA sample could be used against him in court.\nWe hold that these findings support the trial court\u2019s conclusion that defendant\u2019s consent was voluntary even though he was unaware that the assaults were of a sexual nature. \u201cOnce the [saliva] was lawfully [taken] from defendant\u2019s body, he no longer had a possessory interest in that [genetic material].\u201d Id. at 520, 551 S.E.2d at 135. We further hold that a reasonable person in defendant\u2019s position would believe that the DNA could be used generally for investigative purposes. Consequently, we conclude that the trial court did not err in denying defendant\u2019s motion to suppress.\nII. Denial of Defendant\u2019s Motion to Replace Juror One\nDefendant next argues that juror number one should have been excused after she sent a letter to the trial judge requesting to see a DVD that had been played the previous day in court and stated that she thought defendant\u2019s accent was fabricated. Defendant argues that the court\u2019s decision to deny his motion to dismiss the juror was an abuse of discretion. This argument is without merit.\nThe challenged juror sent the following letter to the trial judge:\nThe DA yesterday had a DVD CD with some sort of interview for testimony of Mr. Boyd. Can we play that? The accent Mr. Boyd is using today is fabricated. I speak two other languages and I know the difference in accents. Therefore can we please play the CD that was shown yesterday afternoon?\nDefendant argues that the juror\u2019s actions constitute misconduct and that the court\u2019s failure to replace her deprived defendant of a fair and impartial jury.\nA trial court\u2019s decision regarding removal of a juror for misconduct \u201cwill be reversed only where an abuse of discretion has occurred.\u201d State v. Drake, 31 N.C. App. 187, 190, 229 S.E.2d 51, 54 (1976) (citing O\u2019Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965)). \u201cA trial court\u2019s actions constitute abuse of discretion \u2018upon a showing that the actions \u2018are manifestly unsupported by reason\u2019 and \u2018so arbitrary that they could not have been the result of a reasoned decision.\u2019 \u201d State v. Williams, 361 N.C. 78, 81, 637 S.E.2d 523, 525 (2006) (quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)). Determining whether juror misconduct has occurred \u201cis primarily for the trial court whose decision will be given great weight on appeal.\u201d State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991). Deference is given because \u201c[mjisconduct is determined by the facts and circumstances in each case. The trial judge is in a better position to investigate any allegations of misconduct, question the witnesses and observe their demeanor, and make appropriate findings.\u201d State v. Harris, 145 N.C. App. 570, 576, 551 S.E.2d 499, 503 (2001). \u201cAn inquiry into possible misconduct is generally required only where there are reports indicating that some prejudicial conduct has taken place.\u201d State v. Murillo, 349 N.C. 573, 599, 509 S.E.2d 752, 767 (1998). Where there is a mere suspicion of misconduct, any subsequent investigation is within the discretion of the trial court. Id. Failure to \u201cinvestigate and determine the alleged juror misconduct\u201d may constitute error. Drake, 31 N.C. App. at 193, 229 S.E.2d at 55.\nHere, while the letter sent from the juror questioned the authenticity of defendant\u2019s accent, it said nothing about her opinion concerning his involvement in the alleged rapes. Accordingly, this was not a report that prejudicial conduct had occurred. In fact, reading the note in its entirety supports the possibility that juror one requested the DVD in order to continue weighing defendant\u2019s testimony by comparing what she had heard in court to other statements made by defendant.\nDespite only being presented with a note that provided a suspicion of potential misconduct, the court made an inquiry into the note \u201cout of an abundance of caution.\u201d The court questioned the juror in order to determine whether she had \u201cmade up [her] mind as to the guilt or innocence [of defendant],\u201d and whether she was \u201cwilling to listen to the remainder of the evidence . . . before [she] start[ed] thinking about the guilt or innocence of [defendant].\u201d The juror responded that she had \u201c[n]ot yet\u201d decided on defendant\u2019s guilt or innocence, and could \u201cwait\u201d until she had heard the remainder of the evidence before she considered defendant\u2019s guilt or innocence. The juror did not indicate that she was unable to: accept a \u201cparticular defense or penalty\u201d as occurred in State v. Leonard, 296 N.C. 58, 62, 248 S.E.2d 853, 855 (1978), or abide by the \u201cpresumption of innocence\u201d as seen in State v. Cunningham, 333 N.C. 744, 754, 429 S.E.2d 718, 723 (1993). In fact, nothing suggested that the juror had spoken with other jurors about her thoughts, shared the note addressed to the judge with anyone else, or participated in any kind of misconduct.\nFinally, defendant\u2019s argument that the trial court erred because it refused to allow him to examine the juror is without merit. In Drake, this Court was faced with a similar situation where the trial court refused to allow defense counsel to examine a juror who was accused of misconduct. 31 N.C. App. at 189, 229 S.E.2d at 53. However, unlike the present case, the trial court in Drake also refused to do its own investigation of the allegations despite uncontradicted evidence that jurors had discussed the case with each other before deliberations. The Drake Court held that \u201cthe denial of the defendant\u2019s motion[] . . . to call the juror as a witness, or to otherwise investigate and determine the alleged juror misconduct, was error . . . .\u201d Id. at 193, 229 S.E.2d at 55. The Court further held that a trial court\u2019s investigation of alleged misconduct can be sufficient when \u201cthe trial court conduces] a careful, thorough investigation, including an examination of the juror involved when warranted and conclude [s] that the conduct ha[s] not prejudiced the jury on any key issue.\u201d Id. at 191, 229 S.E.2d at 54. In the present case, the trial court properly investigated the allegation of juror misconduct raised by the defendant. The investigation included an examination of the juror, and a conclusion that the alleged conduct had not prejudiced the jury. The law does not support defendant\u2019s claim that the trial court committed reversible error when it denied his request to examine the juror. We find no abuse of discretion in the trial court\u2019s actions with regard to defendant\u2019s motion to replace the juror.\nIII. Prior Record Level Calculation\nA.\nDefendant also argues that his prior record level was improperly calculated because it included a conviction that occurred approximately three months after defendant\u2019s sentencing in this case. Defendant argues that the inclusion of this conviction in his prior record level calculation entitles him to a new sentencing hearing. We agree.\nAfter defendant was convicted by the jury, the State presented a prior record level worksheet that assigned defendant a prior record level of III. Defendant argues that the State\u2019s calculation of his prior record level included a conviction for \u201cTrafficking Heroin,\u201d that occurred on \u201c11/8/09.\u201d This conviction would have occurred three months after his sentencing in the case at bar on 10 August 2009. Defendant contends that the State\u2019s calculation of his prior record was in violation of N.C. Gen. Stat. \u00a7 15A-1340.13(b) (2009) and N.C. Gen. Stat. \u00a7 15A-1340.14(f) (2009).\nThis Court reviews the calculation of a prior record level de novo. State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007). This Court may review a \u201csentence imposed [that] was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.\u201d N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2009). This review is appropriate \u201ceven though no objection, exception, or motion has been made in the trial division.\u201d N.C. Gen. Stat. \u00a7 15A-1446(d). \u201c[T]he court shall determine the prior record level of the offender pursuant to G.S. \u00a7 15A-1340.14.\u201d N.C. Gen. Stat. \u00a7 15A-1340.13(b). \u201cThe prior record level... is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions ....\u2019\u2019 N.C. Gen. Stat. \u00a7 15A-1340.14(a). \u201cUnder N.C.G.S. \u00a7 15A-1340.11(7), a person has a prior conviction if the person has that conviction,... on the date a judgment is entered.\u201d State v. Pritchard, 186 N.C. App. 128, 130, 649 S.E.2d 917, 919 (2007). \u201cThe State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f). Prior convictions must be proved by one of the following methods:\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.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f)(l)-(4). \u201cA statement by the State asserting that an offender has a certain number of points, corresponding to a specified record level, is not sufficient to meet the requirements of the catchall provision found in N.C. Gen. Stat. \u00a7 15A-1340.14, even if the statement is uncontested by the defendant.\u201d State v. Mack, 188 N.C. App. 365, 378, 656 S.E.2d 1, 11 (2008). \u201cThe State does not satisfy its burden of proving defendant\u2019s prior record level merely by submitting a prior record level worksheet to the trial court. \u2018[T]he law requires more than the State\u2019s unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet.\u2019 \u201d State v. Jeffery, 167 N.C. App. 575, 579, 605 S.E.2d 672, 675 (2004) (internal citations omitted) (quoting State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 205 (2002), rev\u2019d on other grounds per curiam, 357 N.C. 43, 577 S.E.2d 619 (2003)).\nIn the present case, defendant\u2019s prior record level calculation was only supported by an in-court statement made by the State, and a prior record level worksheet. No original or copied court records of prior convictions were entered into evidence or submitted to the court. There also were no records submitted from the Division of Criminal Information, the Division of Motor Vehicles, or the Administrative Office of the Courts. The State argues that the information provided to the court should be sufficient under the \u201c[a]ny other method found by the court to be reliable,\u201d clause of N.C. Gen. Stat. 15A-1340.14(f). However, this contention runs contrary to both Mack, 188 N.C. App. at 378, 656 S.E.2d at 11, and Riley, 159 N.C. App. at 557, 583 S.E.2d at 387 where, like the case at bar, the State only provided a prior record level worksheet to prove the defendant\u2019s prior record level. Accordingly, the State\u2019s evidence was insufficient to meet its burden.\nThe State\u2019s alternative argument that the prior record level calculation was agreed to by stipulation is equally unpersuasive. The case at bar is quite different from the facts in Alexander, where this Court found a stipulation had occurred when \u201c[djefense counsel [said] . . . \u2018up until this particular case [my client] ha[s] no felony convictions, as you can see from his worksheet.\u2019 \u201d 359 N.C. at 830, 616 S.E.2d at 918. The Court in Alexander found that defense counsel\u2019s statement \u201cindicate [d] not only that defense counsel was cognizant of the contents of the worksheet, but also that he had no objections to it.\u201d Id. However, in the present case, defense counsel objected to the prior record level worksheet as a whole, and specifically to the errors assigned by defendant. Defense counsel stated: \u201cWe\u2019re not stipulating to the record because the record is inaccurate. ... I believe that two charges from Ohio arose on the same day. There is one conviction.\u201d Even though defense counsel failed to explicitly object to the inclusion of the trafficking charge at sentencing, \u201cno objection is required to preserve the [sentencing] issue for appellate review.\u201d Jeffery, 167 N.C. App. at 579, 605 S.E.2d at 674.\nBy failing to meet the requirements of N.C. Gen. Stat. \u00a715A-1340.14(f)(l)-(4), the State failed to meet its burden in proving that the convictions listed on defendant\u2019s prior record level worksheet existed at the time of sentencing. Accordingly, defendant is entitled to a new sentencing hearing in order to determine his prior record level.\nB.\nFinally, defendant argues that his prior record level calculation improperly included points from two felony assault convictions that occurred during the same week of trial in another state. Defendant argues that under N.C. Gen. Stat. \u00a7 15A-1340.14(d) only one of the felonies should have been used in the calculation.\nGenerally, \u201c[t]he prior record level... is determined by calculating the sum of the points assigned to each of the offenders prior convictions .. ..\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(a). \u201c[A] conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony . . ..\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(e). Per statute, two points axe assigned for \u201ceach prior felony Class H or I conviction.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(b)(4). However, \u201cif an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(d). Prior convictions must be proven according to the methods outlined in N.C. Gen. Stat. \u00a7 15A-1340.14(f)(l)-(4).\nThe State argues that proof of conviction was not necessary in this case because defendant stipulated to the assault convictions while under oath. Inadvertent stipulation to the existence of prior convictions can occur when defense counsel makes statements about the prior record level worksheet. See State v. Hanton, 140 N.C. App. 679, 690, 540, S.E.2d 376, 383 (2000) (stating that while defendant may have stipulated to the existence of his prior convictions he did not stipulate to them being substantially similar to corresponding North Carolina felony offenses that carried higher prior record points values). However, the record does not show that defendant or defense counsel made any such stipulation. Defendant admitted on cross-examination that he had been convicted of \u201ctwo felonies of assault.\u201d However, when asked in an immediate follow-up question whether the assault was in 2005, defendant responded: \u201cYes.\u201d Defendant\u2019s dating of the assault to 2005 prevents his testimony from stipulating to the felony assault dated \u201c04/05/2006.\u201d In fact, defendant\u2019s admission that the assault took place in 2005 is consistent with defense counsel\u2019s argument at sentencing that \u201cthe two charges from Ohio arose on the same day.\u201d Additionally, defense counsel stated at sentencing: \u201cWe\u2019re not stipulating to the record because the record is inaccurate . . . . [H]is prior level as stated by the State is incorrect.\u201d Neither defendant\u2019s or defense counsel\u2019s statements constituted a stipulation.\nWithout a stipulation, the court was left with the prosecutor\u2019s in-court statement and accompanying prior record level worksheet to prove defendant\u2019s prior convictions. This Court has held that both of those methods, without more, are insufficient to meet the State\u2019s burden. Jeffery, 167 N.C. App. at 579, 605 S.E.2d at 675. While the State may have proved the felony assault dated \u201c12/21/2005\u201d through stipulation on the part of the defendant, they failed to meet their burden to prove the existence of the felony assault dated \u201c4/05/2006.\u201d Due to the errors that occurred at the sentencing hearing, we vacate the judgment and remand for a newsentencing hearing.\nConclusion\nBecause the State failed to prove the existence of defendant\u2019s drug trafficking and felony assault convictions by a preponderance of the evidence we must remand the case for a new sentencing hearing. We find no error in the trial court\u2019s denial of defendant\u2019s motion to suppress and motion to excuse juror number one.\nNo error in part; remand for resentencing.\nJudges CALABRIA and ARNOLD concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State.", "Geoffrey W. Hosford for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARRELL BOYD, Defendant\nNo. COA10-25\n(Filed 2 November 2010)\n1. Search and Seizure\u2014 motion to suppress \u2014 DNA sample\nThe trial court did not err by denying defendant\u2019s motion to suppress a DNA sample taken from him while he was in custody in Ohio. Defendant\u2019s consent was voluntary even though he was unaware that the crimes for which he was being investigated were of a sexual nature. A reasonable person in defendant\u2019s position would have believed that the DNA could be used generally for investigative purposes.\n2. Jury\u2014 alleged juror misconduct \u2014 motion to replace juror denied\nThe trial court did not err by denying defendant\u2019s motion to replace a juror. Nothing suggested that the juror had spoken with other jurors about her thoughts, shared a note addressed to the judge with anyone else, or participated in any kind of misconduct.\n3. Sentencing \u2014 prior record level \u2014 calculation error \u2014 new sentencing hearing\nThe trial court erred in calculating defendant\u2019s prior record level and the matter was remanded for a new sentencing hearing. By failing to meet the requirements of N.C.G.S. \u00a7 15A-1340.14(f)(l)-(4), the State failed to meet its burden in proving that the convictions listed on defendant\u2019s prior record level worksheet existed at the time of sentencing. Further, the prosecutor\u2019s in-court statement and accompanying prior record level worksheet were insufficient to prove defendant\u2019s prior convictions without a stipulation.\nAppeal by defendant from judgment entered 10 August 2009 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 August 2010.\nAttorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State.\nGeoffrey W. Hosford for defendant-appellant." }, "file_name": "0632-01", "first_page_order": 656, "last_page_order": 669 }