State v. Wilson-Angeles , 251 N.C. App. 886 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-677
Filed: 7 February 2017
Iredell County, No. 11 CRS 058387
STATE OF NORTH CAROLINA
v.
RACHEL SHERI WILSON-ANGELES
Appeal by Defendant from judgment entered 9 October 2014 by Judge Tanya
T. Wallace in Superior Court, Iredell County. Heard in the Court of Appeals 9
January 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General James
M. Stanley, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jon H.
Hunt, for Defendant.
McGEE, Chief Judge.
Rachel Sheri Wilson-Angeles (“Defendant”) appeals from judgment entered
after a jury found her guilty of attempted first-degree arson and being intoxicated
and disruptive in public.
I. Background
Defendant was casually talking to her neighbor, Sharon Houston (“Houston”),
outside Houston’s apartment in their apartment complex in Mooresville, North
Carolina, just before midnight on 20 December 2011. The two had been neighbors for
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Opinion of the Court
a few years, and were known to occasionally visit and talk with each other in the
evenings. That evening, Defendant had been drinking, and “flipped out.” Defendant
began cursing at Houston and accusing her of being responsible for Defendant’s
children being taken away from her. After a brief physical altercation, Houston
retreated into her apartment and locked the door. About five minutes later, Houston
heard a commotion just outside her door. Houston peered through the peephole, and
observed Defendant outside with a Mad Dog 20-20 bottle (a brand of fortified wine)
in her hand. A rag was protruding from the bottle, effectively making a “Molotov
cocktail,” that Defendant lit and threw against Houston’s door. Houston testified at
trial that she heard a “whoosh” sound as the flame “went up.” Houston also heard
Defendant “cussing” and “saying she was going to burn me out.” Houston called 911.
As Houston waited for law enforcement to arrive, she went outside her
apartment to assess the damage. The fire had gone out on its own, leaving behind
black soot, roughly three inches in diameter, on the brick wall near her front door.
Houston swept up the pieces of broken glass from the bottle and disposed of them in
the trash. When law enforcement arrived at the apartment complex, they
immediately observed a woman, later identified as Defendant, yelling obscenities and
loudly proclaiming she “was the victim.” As law enforcement approached Defendant,
she quickly handed a container she was holding to another person, who poured out
the liquid. Despite the liquid being poured out, the container had a strong odor of
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alcohol. Defendant claimed to law enforcement that she was bleeding, and repeatedly
attempted to remove her clothing to show the officers her injuries. One of the officers
who encountered Defendant, Officer Brian Plyler (“Officer Plyler”), noticed a strong
odor of alcohol emanating from Defendant’s mouth, and observed that she appeared
“extremely intoxicated.” Defendant was, according to Officer Plyler, screaming at a
large group of people who had assembled to witness the spectacle, and it seemed to
him that Defendant was attempting to “incite more violence.” Based on these
observations, Officer Plyler placed Defendant under arrest for being intoxicated and
disruptive in public. During the ride to the police station, and while at the station,
Defendant exhibited other signs of being intoxicated, including inexplicably singing
hymns, repeatedly claiming to be the victim, and later passing out at the police
station.
Subsequent to Defendant’s arrest, Officer Plyler’s superior, Captain Joseph
Cooke (“Captain Cooke”), talked with Houston. Houston described the physical
altercation between herself and Defendant, and told Captain Cooke about
Defendant’s attempt to start a fire at her front door. Captain Cooke explained at trial
what he observed at Houston’s front door:
I saw broken glass from what looked like a bottle had been
shattered on the door. There was liquid on the door. There
was also carbon mark or a charring -- not really charring,
but a mark about three inches in diameter on the concrete
in front of her door that I had could see that something had
just been recently burned. Basically it looked like, you
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know, bottle was thrown on the bottom of her door,
shattered, and liquid was all over the place, and something
had been tried to set on fire.1
Based on his observations and conversation with Houston, Captain Cooke instructed
the other officers to also charge Defendant with attempted first-degree arson.
Defendant’s trial began on 7 October 2014. During the course of the trial, the
State sought to introduce the testimony of three witnesses – Jason Workman, Chris
Jorgenson, and Gary Styers (“the 404(b) witnesses”) – who were to testify regarding
Defendant’s perpetration (or attempted perpetration) of two prior arsons, both
occurring at properties in Mooresville, North Carolina in August 2008: one at a
property on Main Street (the “Main Street Arson”), and another at a property on Mills
Street (the “Mills Street Arson”).
After voir dire of the 404(b) witnesses, the trial court ruled that evidence
regarding the Mills Street Arson was relevant, but its probative value was
outweighed by its unduly prejudicial effect, rendering it inadmissible pursuant to
N.C. Gen. Stat. § 8C-1, Rule 403. The trial court further ruled that the testimony
regarding the Main Street Arson was relevant and would be admitted pursuant to
N.C. Gen. Stat. § 8C-1, Rule 404(b) for the sole purpose of showing Defendant’s intent
to commit arson. In so ruling, the trial court also held that evidence of the Main
1 We note the discrepancy between Captain Cooke’s and Houston’s testimony: Captain Cooke
asserted he observed the broken glass, while Houston repeatedly maintained she cleaned up the glass
before law enforcement arrived.
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Street Arson was more probative than prejudicial, and admissible pursuant to
N.C.G.S. § 8C-1, Rule 403. Defendant was found guilty of attempted first-degree
arson and being intoxicated and disruptive in public. The trial court determined
Defendant to be a prior record level III offender for sentencing purposes, and
sentenced her to a prison term of thirty to forty-eight months. Defendant appeals.
II. Analysis
Defendant argues the trial court erred by: (1) admitting evidence, pursuant to
N.C. Gen. Stat. §§ 8C-1, Rules 401, 403 and 404(b), that she had previously committed
the Main Street Arson; and (2) by including Defendant’s probation, parole, or post-
release supervision in her prior record level calculation for sentencing purposes in
violation of N.C. Gen. Stat. § 15A-1340.16(a6)’s notice requirements. Defendant also
argues that she received ineffective assistance of counsel when her trial counsel failed
to request a jury instruction on voluntary intoxication.
A. Admission of Prior Bad Acts to Show Intent
Defendant argues the trial court erred in admitting evidence of the Main Street
Arson, and that the admission of this evidence violated N.C. Gen. Stat. §§ 8C-1, Rules
401, 403, and 404(b). We address these arguments together.
Rule 404(b) of the North Carolina Rules of Evidence provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
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opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2015). Rule 404(b) has been characterized as a
“clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by
a defendant.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)
(emphasis in original). This clear rule of inclusion is “subject to but one exception
requiring its exclusion if its only probative value is to show that the defendant has
the propensity or disposition to commit an offense of the nature of the crime charged.”
Id. (emphases in original). Despite these sweeping and inclusive statements, our
Supreme Court has also stated that Rule 404(b) is “consistent with North Carolina
practice prior to [the Rule’s] enactment.” State v. Carpenter, 361 N.C. 382, 386, 646
S.E.2d 105, 109 (2007) (citation and quotation marks omitted). “Before the enactment
of Rule 404(b), North Carolina courts followed the general rule that in a prosecution
for a particular crime, the State cannot offer evidence tending to show that the
accused has committed another distinct, independent, or separate offense.” Id.
(emphasis added) (citation, ellipsis, and brackets omitted). Attempting to reconcile
these seemingly disparate commands, our Supreme Court has stated that “while we
have interpreted Rule 404(b) broadly, we have also long acknowledged that evidence
of prior convictions must be carefully evaluated by the trial court.” Id. at 387, 646
S.E.2d at 109.
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When determining whether evidence of a prior crime or bad act is admissible
under Rule 404(b), two considerations are paramount:
Though it is a rule of inclusion, Rule 404(b) is still
constrained by the requirements of similarity and temporal
proximity. Prior acts are sufficiently similar if there are
some unusual facts present in both crimes that would
indicate that the same person committed them. We do not
require that the similarities rise to the level of the unique
and bizarre.
State v. Beckelheimer, 366 N.C. 127, 131, 726 S.E.2d 156, 159 (2012) (citation and
quotation marks omitted). While cases examining the admissibility of evidence under
Rule 404(b) often focus exclusively on similarity and temporal proximity, we remain
cognizant that Rule 404(b) “is, at bottom, one of relevancy.” State v. Jeter, 326 N.C.
457, 459, 389 S.E.2d 805, 807 (1990); accord Carpenter, 361 N.C. at 388, 646 S.E.2d
at 110 (“In light of the perils inherent in introducing prior crimes under Rule 404(b),
several constraints have been placed on the admission of such evidence. Our Rules
of Evidence require that in order for the prior crime to be admissible, it must be
relevant to the currently alleged crime.” (citing N.C.G.S. § 8C-1, Rule 401)).
“When the trial court has made findings of fact and conclusions of law to
support its 404(b) ruling, . . . we look to whether the evidence supports the findings
and whether the findings support the conclusions.” Beckelheimer, 366 N.C. at 159,
726 S.E.2d at 159. “We review de novo the legal conclusion that the evidence is, or is
not, within the coverage of Rule 404(b).” Id. The trial court made the following oral
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findings of fact regarding the admissibility of testimony related to the Main Street
Arson2:
The State’s 404(b) evidence would show the following. That
in August of 2008 the Defendant used gasoline to set fire to
a home at 600 -- on the 600 block of Main Street in
Mooresville during the nighttime hours. Actually earlier to
-- closer to morning. That this gas was purchased at a
nearby Pantry gas station. That the Defendant tried to set
the fire with [cigarettes] but ultimately succeeded with a
lighter. That she knew that the home was inhabited
because she saw a vehicle belonging to [the homeowner].
[The homeowner] had, according to the Defendant, beat her
while his father watched and done nothing at the time of
this beating. It’s unclear whether the beating -- when this
beating allegedly occurred. Sometime in the month to a
year before.
A K-9 trained in fires sniffed to locate possible incendiary
material. Two pieces of wood were retrieved by the Fire
Marshal and sent to a lab which turned out positive for
gasoline. [Defendant] did not report the assault by [the
homeowner] to the police at any time. [Defendant]
admitted to drinking [Peach] Mad Dog 20-20 Vodka[,
drinking several Bud Lights,] and also taking prescription
[Clonozapine] pills which were prescribed to her. This fire
was at the regular entrance way to the building -- to the
house or apartment. As in the instant case the fire was on
the outside which, according to the Fire Marshal, makes it
harder to detect by those inside. The damage in [the Main
Street Arson] was much more extensive as shown by
pictures introduced by the State.
2 At the time the trial court made these oral findings of fact and conclusions of law, it declared
the ruling to be a “very rough copy of the ruling,” and that it would “look at it and make [the ruling]
prettier as the week [went] on.” Despite this statement, no revised copy of the trial court’s ruling (oral
or written) appears in the transcript or record on appeal. Immediately following the trial court’s
ruling, several minor factual errors were brought to the court’s attention by the State and agreed to
by Defendant. For clarity and ease of reading, we have removed the erroneous information and placed
the correct information in brackets.
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Unlike the instant case, the Defendant in [the Main Street
Arson], her involvement, and also unlike the instant case,
there’s no real timeline between the beating and the fire.
In the 2008 August case with – on Main Street, there was
a Department of Social Services correlation in that
apparently the Defendant was upset because her two year
old had suffered a cut for which she believes the
Department of Social Services blames her. The cut was
treated on the Friday before the fire purportedly happened
on the following early hours of Sunday morning. Unlike the
instant case, the [Main Street Arson] appears planned, at
least to the extent of purchasing gasoline and also the
Defendant had another person with her.
....
In [both the Main Street Arson and the Mills Street Arson],
we find temporal closeness to the actual event for which we
are trying the Defendant. Both events occurred within four
years of this incident. In each of these cases -- in all three
cases there is evidence of use of incendiary materials and
attempted burning at night in Mooresville in retaliation for
a perceived wrong by the person or persons occupying a
home. And in each case the Defendant claims to have been
a victim but not follow through with police involvement or
government involvement in assisting her to lawfully
address the wrong but instead addresses it herself.
After making these findings of fact, the trial court made the following oral conclusion
of law regarding the admissibility of testimony related to the Main Street Arson:
The State has offered [evidence regarding the Main Street
Arson] as evidence of -- allowed by 404(b), identity, intent,
common scheme, plan, or motive. The Court will allow it to
show intent. Finding that in both cases the commonalities
are that they happened -- each happened in Mooresville in
the nighttime hours using an incendiary method; and the
Court notes that fire is an unusual incendiary -- unusual
attack . . . -- well, attack method. That they each occurred
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against -- at an entrance way which appears to be either
the only entrance way or most common entrance way to the
apartments against persons that the Defendant knew to be
within. That she knew the buildings to be occupied, and
that she had some grievance with or perceived harm from,
and which she believed to be the victim; and on each
occasion she was impaired by alcohol or some controlled
substances in addition to alcohol. And she never reported
such to the police. And in that occasion the probative value
outweighs any prejudice to the Defendant.
After review of the transcript of the proceedings and the trial court’s findings
and conclusions, we are convinced that the evidence presented during voir dire by the
three 404(b) witnesses supports the trial court’s findings of fact, which support the
conclusion that the evidence was probative of Defendant’s intent, rendering the
evidence admissible pursuant to Rule 404(b). As found by the trial court, the Main
Street Arson and the present case contained key similarities. Both arsons occurred
in Mooresville during the nighttime hours, and both were set on the exterior of a
building at a regular entranceway. In both cases, the perpetrator was intoxicated,
knew the buildings to be occupied, and was angry about a “perceived harm”
perpetrated against Defendant by the occupant of the residence. While Defendant,
in her brief to this Court, has pointed to various differences between the Main Street
Arson and the present case, we must not “focus[] on the differences between the [prior
and current] incidents,” but rather “review[] the[] similarities noted by the trial
court.” Beckelheimer, 366 N.C. at 160, 726 S.E.2d at 159 (citation omitted).
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Reviewing those similarities here, we conclude the unusual facts of the two incidents
are sufficiently similar to be admissible pursuant to Rule 404(b).
We also find the evidence of the Main Street Arson to be logically relevant to
Defendant’s intent to commit the present crime. Defendant admitted to perpetrating
the Main Street Arson, and both crimes displayed the similarities discussed above.
The fact that Defendant attempted to commit arson at night, in the same town, and
against a person from whom she had experienced a “perceived harm” logically bears
on Defendant’s intent to commit arson in similar circumstances in the present case.
On the issue of temporal proximity, the Main Street Arson occurred
approximately four years before the present incident. Cases from our Supreme Court
have upheld the admissibility of 404(b) evidence with significantly longer periods
between the past and present incidents. E.g., State v. Carter, 338 N.C. 569, 588-89,
451 S.E.2d 157, 167-68 (1994) (affirming admissibility of 404(b) evidence of prior
crime despite an eight-year lapse between assaults), cert. denied, 515 U.S. 1107, 132
L. Ed. 2d 263 (1995). Considering that temporal proximity “is less significant when
the prior conduct is used to show intent,” we hold that the four-year gap between
incidents does not affect the admissibility of the Main Street Arson evidence. State
v. Locklear, 363 N.C. 438, 448, 681 S.E.2d 293, 302 (2009) (holding that “remoteness
in time generally affects only the weight to be given such evidence, not its
admissibility”).
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Having determined that the 404(b) evidence was sufficiently similar, logically
relevant, and not too remote in time, we now review the trial court’s Rule 403
determination. As relevant to this case, a trial court may exclude relevant evidence
under Rule 403 “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury[.]” N.C. Gen. Stat. §
8C-1, Rule 403 (2015). A trial court’s Rule 403 determination is reviewed for abuse
of discretion. Beckelheimer, ___ N.C. at ___, 726 S.E.2d at 160. A review of the record
in the present case reveals that the trial court was aware of the potential danger of
unfair prejudice to Defendant, and excluded evidence of the Mills Street Arson under
Rule 403.
The trial court heard the testimony of the 404(b) witnesses outside the
presence of the jury, considered the arguments of counsel, ruled on the admissibility
of the evidence, and gave a proper limiting instruction to the jury for the Main Street
Arson evidence admitted under Rule 404(b). Given the similarities between the Main
Street Arson and the present case, and the trial court’s deliberate determination of
the admissibility of the 404(b) witnesses’ testimony, we conclude that it was not an
abuse of discretion for the trial court to determine that the danger of unfair prejudice
did not substantially outweigh the probative value of the evidence. See id.; see also
State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d 625, 642 (1998).
B. Ineffective Assistance of Counsel
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Opinion of the Court
Defendant argues that she received ineffective assistance of counsel when her
trial counsel declined to request a jury instruction on voluntary intoxication based
upon counsel’s misapprehension of the law. Generally, “claims of ineffective
assistance of counsel should be considered through motions for appropriate relief and
not on direct appeal.” State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547
(2001). However, an ineffective assistance of counsel claim brought on direct review
“will be decided on the merits when the cold record reveals that no further
investigation is required[.]” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524
(2001). “[O]n direct appeal, the reviewing court ordinarily limits its review to
material included in the record on appeal and the verbatim transcript of proceedings,
if one is designated.” Id. at 167, 557 S.E.2d at 524-25 (citation and quotation marks
omitted). Here, the record on appeal and transcript of the proceedings suffice to show
that Defendant’s ineffective assistance of counsel claim is without merit; we therefore
decide the claim on the merits on direct review.
In order to show ineffective assistance of counsel, a defendant must satisfy the
two-prong test announced by the Supreme Court of the United States in Strickland
v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, (1984). This test for
ineffective assistance of counsel has been explicitly adopted by our Supreme Court
for state constitutional purposes in State v. Braswell, 312 N.C. 553, 562-63, 324
S.E.2d 241, 248 (1985). Pursuant to Strickland:
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First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.
466 U.S. at 687, 80 L. Ed. 2d at 693; accord Braswell, 312 N.C. at 561-62, 324 S.E.2d
at 248. “The fact that counsel made an error, even an unreasonable error, does not
warrant reversal of a conviction unless there is a reasonable probability that, but for
counsel’s errors, there would have been a different result in the proceedings.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 248 (citation omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. Therefore, “if a reviewing court can
determine at the outset that there is no reasonable probability that in the absence of
counsel’s alleged errors the result of the proceeding would have been different, then
the court need not determine whether counsel’s performance was actually deficient.”
Braswell, 312 N.C. at 563, 324 S.E.2d at 249. “[T]o establish prejudice, a ‘defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State
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v. Poindexter, 359 N.C. 287, 291, 608 S.E.2d 761, 764 (2005) (quoting Wiggins v.
Smith, 539 U.S. 510, 534, 156 L. Ed. 2d 471, 493 (2003)).
Defendant claims her trial counsel rendered ineffective assistance when
counsel declined to request a jury instruction on voluntary intoxication because
counsel believed the defense was required to present evidence before being entitled
to request such an instruction. Presuming counsel’s performance was deficient for
incorrectly asserting that Defendant was not entitled to ask for a voluntary
intoxication instruction without presenting some evidence, Defendant cannot show
there to be a “reasonable probability” that the result of the trial would have been
different, because Defendant was not entitled to a voluntary intoxication instruction,
had one been requested.
Voluntary intoxication in and of itself is not a legal excuse for a criminal act.
State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312, 318 (1981). It is only a viable
defense “if the degree of intoxication is such that a defendant could not form the
specific intent required for the underlying offense.” State v. Golden, 143 N.C. App.
426, 430, 546 S.E.2d 163, 166 (2001). Before the trial court will be required to instruct
on voluntary intoxication, a defendant must “produce substantial evidence which
would support a conclusion by the trial court that at the time of the crime for which
he is being tried defendant’s mind and reason were so completely intoxicated and
overthrown as to render him utterly incapable of forming the requisite specific
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intent.” State v. Ash, 193 N.C. App. 569, 576, 668 S.E.2d 65, 70-71 (2008) (emphasis
added) (citation and quotation marks omitted). “In the absence of some evidence of
intoxication to such degree, the court is not required to charge the jury thereon.” Id.
at 576, 668 S.E.2d at 71. The evidence must be viewed in the light most favorable to
the defendant, e.g. State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988), and
a defendant is entitled to rely exclusively on the evidence produced by the State. See,
e.g., State v. Herring, 338 N.C. 271, 275, 449 S.E.2d 183, 186 (1994) (“A defendant
who wants to raise the issue of whether he was so intoxicated by the voluntary
consumption of alcohol or other drugs that he did not form a deliberate and
premeditated intent to kill has the burden of producing evidence, or relying on the
evidence produced by the state, of his intoxication.” (emphasis added) (citation and
quotation marks omitted)).
In the present case, Defendant argues that the evidence produced by the State
was sufficient to entitle her to a voluntary intoxication instruction. To support her
argument, Defendant points to various behaviors exhibited by Defendant on the night
in question, including, inter alia, yelling profanities, inexplicably singing hymns,
claiming to be the victim, attempting to take her shirt off to show law enforcement
an injury, and passing out at the police department. While the evidence shows
Defendant was intoxicated to some degree on 20 December 2011, we believe the
evidence was insufficient to entitle her to a voluntary intoxication instruction.
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The evidence presented by the State did not establish how much alcohol
Defendant had consumed prior to committing the crime at issue, which case law
suggests is information of significant consequence to the determination of whether a
defendant is entitled to a voluntary intoxication instruction. See Ash, 193 N.C. App.
at 576, 668 S.E.2d at 71-72 (concluding that a defendant was not entitled to a
voluntary intoxication instruction when “there was no evidence as to exactly how
much [intoxicating substance] he consumed prior to the commission of the crime at
issue”). Nor did the State’s evidence tend to show the length of time over which
Defendant had consumed alcohol before committing the attempted arson in this case,
a showing which must be made before a defendant is entitled to the instruction. See
State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996), cert. denied, 522 U.S.
825, 139 L. Ed. 2d 43 (1997) (concluding that “[e]vidence tending to show only that
defendant drank some unknown quantity of alcohol over an indefinite period of time
before the [crime] does not satisfy the defendant’s burden of production” necessitating
a voluntary intoxication instruction). The evidence presented in the present case
revealed only that Defendant had consumed some amount of some type of alcohol over
some unknown period of time prior to attempting arson. While Defendant’s level of
consumption before committing the crime is unknown, the evidence did establish that
Defendant consumed some amount of alcohol after committing the attempted arson
but before encountering law enforcement: at the time law enforcement approached
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Defendant, she had in her possession a “sports drink container” which had a “strong
odor of alcoholic beverage.”
Defendant also took deliberate actions that suggest a clear purpose in carrying
out the attempted arson. After engaging in a physical altercation with Houston,
Defendant: (1) obtained a Mad Dog 20-20 bottle, a rag, and a lighter; (2) placed the
rag partially into the bottle to form a “Molotov cocktail;” (3) lit the rag and threw the
bottle at Houston’s door; (4) exclaimed her desire to “burn [Houston] out,” and (5)
subsequently left the scene. These actions were not instantaneous and required
Defendant to leave the scene, gather supplies, and return to Houston’s door to carry
out the crime. In addition to actions directly related to the attempted arson, when
law enforcement approached Defendant, she quickly handed a container containing
an alcoholic beverage to another person, indicating at least some level of awareness
of her surroundings. See State v. Long, 354 N.C. 534, 538-39, 557 S.E.2d 89, 93 (2001)
(stating that steps “designed to hide the defendant’s participation” in the crime
demonstrates the ability to “plan and think rationally” and shows that the defendant
was not so intoxicated that intent could not be formed); see also State v. Lemons, 225
N.C. App. 266, 736 S.E.2d 647, 2013 N.C. App. LEXIS 41, *12-13 (2013) (unpublished)
(noting that a voluntary intoxication instruction was not warranted when the
defendant “acted with a clear purpose and intent in carrying out” the crime).
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While the behavior exhibited by Defendant, and cited by her appellate counsel
to highlight her level of intoxication, was indeed bizarre, our courts have held that “a
person may be excited, intoxicated and emotionally upset, and still have the
capability to formulate the necessary plan, design, or intention.” Mash, 323 N.C. at
347, 372 S.E.2d at 537 (citation and quotation marks omitted). While the evidence
presented was sufficient to show Defendant was intoxicated to some degree,
“[e]vidence of mere intoxication . . . is not enough.” Id. at 346, 372 S.E.2d at 536.
Given the lack of any evidence regarding Defendant’s level of alcohol consumption on
20 December 2011 before committing the attempted arson, the uncertainty
surrounding how quickly Defendant consumed that alcohol, the evidence establishing
that Defendant was consuming alcohol after committing the attempted arson but
before encountering law enforcement, evidence of a purposeful manner of carrying
out the attempted arson, and evidence showing Defendant quickly handed off a
container of alcohol as law enforcement approached her, indicating some level of
awareness of her surroundings, we conclude that the evidence did not support a
conclusion that Defendant was “so completely intoxicated and overthrown as to
render [her] utterly incapable of forming the requisite specific intent.” Ash, 193 N.C.
App. at 576, 668 S.E.2d at 70-71. Defendant was, therefore, not entitled to a
voluntary intoxication instruction.
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Opinion of the Court
While a claim of ineffective assistance of counsel will be dismissed without
prejudice when the claim has been “prematurely asserted on direct appeal,” State v.
Warren, ___ N.C. App. ___, ___, 780 S.E.2d 835, 841-42 (2015), dismissal without
prejudice is not appropriate when the “cold record reveals that no further
investigation is required[.]” Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). In
the present case, no further investigation into Defendant’s ineffective assistance of
counsel claim is required; the cold record reveals all of the evidence and testimony
that was presented at trial regarding Defendant’s level of intoxication, and shows
that the evidence presented by the State fell short of the exacting standard our case
law requires before entitling a defendant to a jury instruction on voluntary
intoxication. E.g. Mash, 323 N.C. at 347, 372 S.E.2d at 536-37; Geddie, 345 N.C. at
95, 478 S.E.2d at 157; Ash, 193 N.C. App. at 576, 668 S.E.2d at 71-72. As Defendant
was not entitled to a voluntary intoxication instruction, she has failed to show “that
in the absence of counsel’s alleged errors the result of the proceeding would have been
different[.]” Braswell, 312 N.C. at 563, 324 S.E.2d at 249. We therefore reject
Defendant’s claim of ineffective assistance of counsel.
C. Prior Record Level Calculation
Defendant contends the trial court erred in adding a prior record level point to
her prior record level calculation for sentencing purposes attributable to the time she
spent on probation, parole, or post supervision. She argues the State failed to give
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Opinion of the Court
proper notice of its intention to use the probation point in the calculation of her
sentence, as required by N.C. Gen. Stat. § 15A-1340.16(a6). We agree.
“The determination of an offender’s prior record level is a conclusion of law that
is subject to de novo review on appeal.” State v. Bohler, 198 N.C. App. 631, 633, 681
S.E.2d 801, 804 (2009) (citing State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39,
44 (2007)). Pursuant to North Carolina’s felony sentencing system, the prior record
level of a felony offender is determined by assessing points for prior crimes using the
method delineated in N.C. Gen. Stat. § 15A-1340.14(b)(1)-(7). See generally N.C. Gen.
Stat. §§ 15A-1340.14(a)-(b) (2015). As relevant to the present case, a trial court
sentencing a felony offender may assess one prior record level point “[i]f the offense
was committed while the offender was on supervised or unsupervised probation,
parole, or post-release supervision[.]” N.C. Gen. Stat. § 15A-1340.14(b)(7) (2015).
Prior to being assessed a prior record level point pursuant to N.C.G.S. § 15A-
1340.14(b)(7), however, our General Statutes require the State to provide written
notice of its intent to do so:
The State must provide a defendant with written notice of
its intent to prove the existence of . . . a prior record level
point under G.S. 15A-1340.14(b)(7) at least 30 days before
trial or the entry of a guilty or no contest plea. A defendant
may waive the right to receive such notice. The notice shall
list all the aggravating factors the State seeks to establish.
N.C. Gen. Stat. § 15A-1340.16(a6) (2015).
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Opinion of the Court
In the present case, the parties agreed, in a stipulation in the record on appeal,
to the following:
[The assistant district attorney] informed appellate
counsel for [Defendant] that she gave notice of the State’s
intent to seek an extra point in the determination of
[Defendant’s] prior record level by including a copy of an
AOC-CR-600 form . . . with the discovery materials [the
assistant district attorney] provided to the attorneys who
represented [Defendant] in Iredell County Superior Court.
The form . . . contain[ed] contain[ed] a handwritten ‘+1’ in
the space beside the cell captioned “if the offense was
committed: (a) while on supervised or unsupervised
probation, parole, or post-release supervision.” . . . The
[assistant district attorney] stated this is the standard
manner the Iredell County District Attorney’s Office
provides notice of the State’s intent to seek an additional
prior record level point when an offense has been
committed during a period in which the defendant was on
probation.
In addition to this stipulation, the following exchange occurred between the trial
court and the prosecutor regarding whether Defendant had received notice of the
State’s intent to seek an extra prior record level point:
THE COURT: And the extra point was noticed?
[Prosecutor]: Yes, Ma’am. I gave them notice of that. I
mean I provided that to [Defendant’s counsel] in discovery.
THE COURT: All right.
This Court recently held in a factual situation similar to the present case, that
the State’s notice of its intent to prove a prior record level point authorized by N.C.
Gen. Stat. § 15A-1340.14(b)(7) by including a prior record level worksheet in discovery
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Opinion of the Court
materials is insufficient to meet N.C.G.S. § 15A-1340.16(a6)’s notice requirement.
See State v. Crook, ___ N.C. App. ___, 785 S.E.2d 771 (2016). In Crook, the defendant
argued the trial court erred by including the probation, parole, or post-release
supervision point and sentencing him as a prior record level II offender because the
State did not provide him with notice of intent under N.C.G.S. § 15A-1340.16(a6).
Crook, ___ N.C. App. at ___, 785 S.E.2d at 780.
In response, the State contended that the “defendant’s prior record level
worksheet was made available to [him] in discovery . . . more than 30 days prior to
the trial” and that, as such, “the defendant was provided notice of his prior record
level calculation of a prior record level II with two prior record level points[.]” Id. In
rejecting this argument, this Court held that including a prior record level worksheet
during discovery “[a]t most . . . constituted a possible calculation of [the d]efendant’s
prior record level and did not provide affirmative notice that the State intended to
prove the existence of the prior record point authorized by N.C. Gen. Stat. § 15A-
1340.14(b)(7) as required by N.C. Gen. Stat. § 15A-1340.16(a6).” Crook, ___ N.C. App.
at ___, 785 S.E.2d at 780 (citation omitted). This court noted that “the State had the
ability to comply with the statute using regular forms promulgated for this specific
purpose by the Administrative Office of the Courts.” Id. (citation and quotation
marks omitted).
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Opinion of the Court
Pursuant to this Court’s recent holding in Crook, the State must provide a
defendant with notice of intent to prove the existence of a prior record level point
authorized by N.C.G.S. § 15A-1340.14(b)(7) at least thirty days prior to trial, and
must provide notice of its intent in some manner other than including a prior record
level worksheet in the discovery documents made available to a defendant. In the
present case, notice to Defendant was lacking, as the State only communicated its
intent to prove the aggravating factor by including a handwritten notation on a form
provided through discovery. This notation “[a]t most. . . constituted a possible
calculation of Defendant’s prior record level and did not provide affirmative notice
that the State intended to prove the existence of the prior record point[.]” Crook, ___
N.C. App. at ___, 785 S.E.2d at 780 (citation omitted). The fact that there was a short
exchange between the prosecutor and the trial court in no way changes this calculus,
because no separate notice was provided to Defendant as required by Crook.
Although Defendant failed to object at trial to the State’s failure to provide notice,
"[i]t is not necessary that an objection be lodged at the sentencing hearing in order
for a claim that the record evidence does not support the trial court’s determination
of a defendant’s prior record level to be preserved for appellate review.” Bohler, 198
N.C. App. at 633, 681 S.E.2d at 804.
The State’s argument that State v. Snelling, 231 N.C. App. 676, 752 S.E.2d 739
(2014) controls the present case and requires an opposite conclusion is unavailing. In
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Opinion of the Court
Snelling, the defendant argued, inter alia, that the trial court erred by sentencing
him as a higher prior record level offender because it failed to comply with the
sentencing procedure mandated by N.C. Gen. Stat. § 15A-1022.1. Snelling, 231 N.C.
App. at 680-81, 752 S.E.2d at 743. N.C.G.S. § 15A-1022.1 requires a trial court to
inform a defendant of his or her right to have a jury determine the existence of an
aggravating factor, and the right to prove the existence of any mitigating factor.
Snelling, 231 N.C. App. at 680, 752 S.E.2d at 743; N.C. Gen. Stat. § 15A-1022.1
(2015). After examining the statute and the facts of the case, the Snelling Court held
that because the defendant stipulated to his prior record level status, such status was
a “non-issue.” Snelling, 231 N.C. App. at 681-82, 752 S.E.2d at 744. “Within the
context of defendant’s sentencing hearing,” the Court reasoned, “the procedures
specified by N.C. Gen. Stat. § 15A-1022.1 would have been inappropriate.” Snelling,
231 N.C. App. at 682, 752 S.E.2d at 744 (citation omitted).
The State argues that, like in Snelling, Defendant’s prior record level status
was a non-issue, and she “waived any requirement for notice pursuant to N.C. Gen.
Stat. § 15A-1340.16(a6) by failing to respond to the trial court’s direct inquiry as to
whether the extra point was noticed.” This argument fails for several reasons.
First, the “trial court’s direct inquiry” regarding notice was not directed at
Defendant or her counsel; rather, it was a conversation between the trial court and
the prosecutor. Second, to hold that Defendant’s argument was waived would
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Opinion of the Court
contravene this Court’s longstanding precedent that an objection is not necessary in
order to preserve a “claim that the record evidence does not support the trial court’s
determination of a defendant’s prior record level[.]” Bohler, 198 N.C. App. at 633, 681
S.E.2d at 804. Third, the portion of Snelling on which the State relies was discussing
N.C.G.S. § 15A-1022.1, a separate statute from the one at issue in the present case,
N.C.G.S. § 15A-1340.16(a6). The purposes of these two statutes are very different:
N.C.G.S. § 15A-1022.1 deals with sentencing procedure to be followed by the
sentencing judge, while N.C.G.S. § 15A-1340.16(a6) deals with notice the State must
provide to a defendant of its intent to prove a fact which will increase his or her
sentence. Finally, after the Snelling Court addressed, and dismissed, the defendant’s
argument related to N.C.G.S. § 15A-1022.1, the Court agreed with the defendant that
N.C.G.S. § 15A-1340.16(a6)’s notice requirements had been violated, and that
violation required a new sentencing hearing. See Snelling, 231 N.C. App. at 682, 752
S.E.2d at 744 (“Here, the trial court never determined whether the statutory
requirements of N.C. Gen. Stat. § 15A-1340.16(a6) were met. Additionally, there is
no evidence in the record to show that the State provided sufficient notice of its intent
to prove the probation point. Moreover, the record does not indicate that defendant
waived his right to receive such notice.”).
Under this Court’s holding in Crook, the notice provided to Defendant in the
present case was insufficient to meet the notice requirements of N.C.G.S. § 15A-
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Opinion of the Court
1340.16(a6), and the record does not indicate Defendant waived her right to such
notice. Accordingly, the trial court erred in sentencing Defendant as a prior record
level III offender. We therefore vacate Defendant’s sentence and remand this case
for Defendant to be resentenced as a prior record level II offender. As Defendant has
noted in briefing to this Court, there is at least some possibility that, upon
resentencing, Defendant may be entitled to her immediate release because she would
have served her entire sentence. We express no opinion on resentencing or on
Defendant’s proper sentence. However, due to this possibility and to hasten
Defendant’s resentencing, we direct, pursuant to N.C. R. App. P. 32(b), that the
mandate issue immediately upon the filing of this opinion.
NO ERROR IN PART; JUDGMENT VACATED; REMANDED FOR
RESENTENCING.
Judges STROUD and TYSON concur.
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