State v. Weldon , 258 N.C. App. 150 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-748
Filed: 20 February 2018
Wake County, Nos. 15 CRS 207469, 15 CRS 3195
STATE OF NORTH CAROLINA,
v.
DOMINIQUE RASHEED WELDON, Defendant.
Appeal by defendant from judgment entered 24 March 2016 by Judge A.
Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 13
December 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Scott A.
Conklin, for the State.
Richard Croutharmel for defendant-appellant.
ZACHARY, Judge.
Dominique Rasheed Weldon (“defendant”) appeals from judgment entered on
his conviction for possession of a firearm by a felon. Defendant argues that the trial
court erred when it (1) admitted lay opinion testimony identifying defendant in a
surveillance video, (2) permitted testimony in violation of Rules 404(b) and 403 of the
North Carolina Rules of Evidence, and (3) determined that defendant’s prior federal
conviction of unlawful possession of a firearm was substantially similar to his current
North Carolina conviction. For the reasons explained herein, we find no error.
I. Background
STATE V. WELDON
Opinion of the Court
A Wake County grand jury indicted defendant for possession of a firearm by a
felon on 4 May 2015, for habitual felon status on 21 July 2015, and for assault with a
deadly weapon with intent to kill on 7 March 2016. The case was tried before a jury
beginning on 21 March 2016. The relevant facts are as follows.
On 23 March 2015, defendant was shot near Martin Street in Raleigh. The
Raleigh Police Department responded to the shooting and found a 9-millimeter shell
casing at the scene. Defendant was transported to the hospital where Detective Bill
Nordstrom attempted to interview him. Detective Nordstrom testified that defendant
“wasn’t too cooperative” and that “He gave a very brief statement and told us that he
didn’t really need the police assistance.” Defendant was released from the hospital
that same day.
Ten days later, on 2 April 2015, the Raleigh Police Department responded to
another shooting outside some storefronts on Martin Street. Officer K. A. Thompson
found six .40 caliber shell casings at the scene of the 2 April 2015 shooting. Officer
Thompson also found four 9-millimeter shell casings in the parking lot across the
street.
Officer Thompson contacted one of the storefront property owners in order to
obtain the owner’s video surveillance footage of the shooting. The surveillance video
shows an individual shooting a .40 caliber handgun at another individual across the
street, where the four 9-millimeter shell casings were found. State Crime Lab
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Technician Dana Quirindongo testified that the 9-millimeter shell casings from the
23 March 2015 shooting were fired from the same 9-millimeter firearm involved in
the 2 April 2015 shooting.
When Officer Thompson viewed the surveillance video of the 2 April 2015
shooting, he identified defendant as the shooter. Officer Thompson testified that he
had gotten to know defendant while patrolling his “beat” over the years. Officer
Thompson first met defendant in 2008, and continued to have occasional encounters
with him. In particular, Officer Thompson testified that he saw defendant just a few
days after he was shot on 23 March 2015, about seven or eight days before the 2 April
2015 shooting, and that defendant was limping at the time. When asked how he was
able to identify defendant in the 2 April 2015 surveillance video, Officer Thompson
responded that he “saw in the video, especially a side profile of, of [defendant’s] face
and hair and clothing that he’s wearing. I immediately recognized him by who he is,
and then also he was limping.” Officer Thompson testified that he was 100 percent
certain that the individual in the surveillance footage was defendant.
Officer R. S. Williams also viewed the video surveillance footage. Officer
Williams testified that, while he had never had any direct contact with defendant, he
knew who defendant was from his “reputation on the street[.]” Officer Williams
testified that he was 100 percent certain that defendant was the individual firing the
.40-caliber handgun in the surveillance video.
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Opinion of the Court
Quentin Singletary worked at the self-service laundry in the area of the
shooting. Mr. Singletary testified that he knew defendant because defendant would
come into the laundry and that they would talk nearly every day. Mr. Singletary saw
defendant when he came into the laundry on the morning of 2 April 2015. When Mr.
Singletary heard the shots being fired later that day, he locked himself inside the
laundry until police officers knocked on the door. Mr. Singletary let the officers in and
the officers showed him the surveillance footage. Mr. Singletary identified defendant
as the person shooting in the video and testified that defendant was wearing the same
clothing in the video as Mr. Singletary had seen him wearing earlier that morning.
Mr. Singletary also testified that defendant was limping when he saw him the
morning of the 2 April 2015 shooting, and that he observed the same limp in the
surveillance footage.
On 24 March 2016, the jury found defendant guilty of possession of a firearm
by a convicted felon and assault with a deadly weapon with intent to kill. However,
at defendant’s sentencing, after having already denied defendant’s motion to dismiss
the charge of assault with a deadly weapon with intent to kill, the trial court
reopened the issue and dismissed that conviction on the grounds that the indictment
was fatally defective for failing to name a victim. Defendant’s conviction of possession
of a firearm by a felon remained. Defendant stipulated to being a habitual felon.
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Opinion of the Court
Defendant was designated as a prior record Level II for sentencing. Defendant
had a prior federal conviction in 2010 for unlawful possession of a firearm. On the
prior record level worksheet, defendant was given one point because all of the
elements in the present charge of possession of a firearm by a convicted felon were
present in a prior conviction. This point elevated defendant’s sentencing level from a
Level I to a Level II for purposes of sentencing as a habitual felon. Defendant was
sentenced to 83 to 112 months’ imprisonment. Defendant gave oral notice of appeal
in open court.
On appeal, defendant argues (1) that the trial court abused its discretion in
allowing Officer Williams to testify as to defendant’s identity in the surveillance
video, (2) that the trial court committed plain error when it allowed Officer Williams
to testify as to the reputation and prior bad acts of defendant, and (3) that the trial
court committed reversible error when it determined that defendant’s current offense
of possession of a firearm by a felon was substantially similar to his prior federal
conviction. After careful review, we find no error.
II. Officer Williams’s Identification Testimony
Defendant first argues that the trial court abused its discretion by allowing
Officer Williams to testify as to defendant’s identity in the surveillance video.
Defendant maintains that, because Officer Williams’s familiarity with defendant was
based solely on what others had told him, he was in no better position than the jury
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Opinion of the Court
to identify defendant in the surveillance footage. We do not find this argument
persuasive.
A. Standard of Review
A trial court’s ruling on the admissibility of lay opinion testimony is reviewed
for abuse of discretion. State v. Belk, 201 N.C. App. 412, 417, 689 S.E.2d 439, 442
(2009) (citation omitted). A trial court abuses its discretion if the “ruling is manifestly
unsupported by reason or is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Williams, 363 N.C. 689, 701, 686 S.E.2d 493, 501 (2009),
cert. denied, 562 U.S. 864, 178 L. Ed. 2d 90 (2010) (citation and quotation marks
omitted). Where the testimony at issue is the identification of a defendant as the
individual depicted in surveillance footage, “we must uphold the admission of [the]
lay opinion testimony if there was a rational basis for concluding that [the witness]
was more likely than the jury to correctly identify [the] [d]efendant as the individual
in the surveillance footage.” Belk, 201 N.C. App. at 417, 689 S.E.2d at 442 (citation
omitted).
B. Lay Opinion Identification Testimony
Admissible lay opinion testimony “is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to . . .
the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2016).
“Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends
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Opinion of the Court
to invade the province of the jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d
608, 610 (1980). “The essential question in determining the admissibility of opinion
evidence is whether the witness, through study and experience, has acquired such
skill that he is better qualified than the jury to form an opinion as to the subject
matter to which his testimony applies.” State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d
786, 793 (1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573 (1977), (citing State v.
Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973)) (other citations omitted).
These same principles apply in the context of lay opinion testimony regarding
the identification of a defendant as the person depicted in a surveillance video. See
e.g., Belk, 201 N.C. App. at 414-15, 689 S.E.2d at 441. Opinion testimony identifying
a criminal defendant in a videotape is admissible “ ‘where such testimony is based on
the perceptions and knowledge of the witness, the testimony would be helpful to the
jury in the jury’s fact-finding function rather than invasive of that function, and the
helpfulness outweighs the possible prejudice to the defendant from admission of the
testimony.’ ” Id. at 415, 689 S.E.2d at 441 (quoting State v. Buie, 194 N.C. App. 725,
730, 671 S.E.2d 351, 354-55, disc. review denied, 363 N.C. 375, 679 S.E.2d 135-36
(2009) (internal quotation marks and citation omitted)). However, the testimony is
inadmissible if the jury is “as well qualified as the witness to draw the inference[] and
conclusion[]” that the person shown in the surveillance footage is the defendant.
”Fulton, 299 N.C. at 494, 263 S.E.2d at 610 (citation omitted). In determining the
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Opinion of the Court
admissibility of lay opinion identification testimony, we have held that the following
factors are relevant:
“(1) the witness’s general level of familiarity with the
defendant’s appearance; (2) the witness’s familiarity with
the defendant’s appearance at the time the surveillance
[video] was taken or when the defendant was dressed in a
manner similar to the individual depicted in the [video]; (3)
whether the defendant had disguised his appearance at the
time of the offense; and (4) whether the defendant had
altered his appearance prior to trial.”
Belk, 201 N.C. App. at 415, 689 S.E.2d at 441 (quoting United States v. Dixon, 413
F.3d 540, 545 (6th Cir. 2005) (internal citation omitted)) (other citations omitted). We
have also noted that “ ‘[l]ay opinion identification testimony is more likely to be
admissible where the surveillance [video] . . . shows only a partial view of the subject.’
” Id. at 416, 689 S.E.2d at 442 (quoting Dixon, 413 F.3d at 545 (internal citations
omitted)) (alteration omitted).
C. Analysis
Defendant argues that the trial court abused its discretion in allowing Officer
Williams to identify defendant as the shooter in the surveillance footage because
“Officer Williams had never had any actual encounters with [defendant]; he had only
seen him in the community and heard from others who he was.” Accordingly,
defendant asserts that Officer Williams “was in no better position than the jury to”
identify defendant in the video.
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STATE V. WELDON
Opinion of the Court
At trial, Officer Williams testified that when he viewed the 2 April 2015
surveillance footage, he recognized the shooter in the video as defendant with “a
hundred percent” certainty. While Officer Williams never “had a one-on-one
discussion” with defendant, he testified that he “had seen him in the area and . . .
knew who he was.” Officer Williams testified that he was familiar with defendant’s
identity because defendant had been pointed out to him on numerous occasions due
to defendant’s “reputation” in the area, and that he had observed defendant “very
frequently” in the area for “at least a good two months” before defendant was shot on
23 March 2015. The day after defendant was shot, Officer Williams saw defendant
coming out of a house that he was surveilling. Officer Williams stated that he was
able to identify that individual as defendant because he “recognized his face,” and
because he had a brace on his leg and “was limping pretty bad.” We conclude that
these encounters would have sufficiently allowed Officer Williams to acquire the
requisite familiarity with defendant’s appearance so as to qualify him to testify on
the subject matter of defendant’s identity. The trial court did not abuse its discretion
in so concluding.
Moreover, defendant had altered his appearance significantly between 2 April
2015 and the date of trial. At trial, the evidence established that the length and style
of defendant’s hair was distinctive during the period that Officer Williams became
familiar with defendant, matching that of the individual shown in the 2 April 2015
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Opinion of the Court
surveillance footage. However, defendant had a shaved head at trial. Thus, by the
time of trial, the jury was unable to perceive the distinguishing nature of defendant’s
hair at the time of the shooting. Cf. Belk, 201 N.C. App. at 417, 689 S.E.2d at 442
(lay witness identification inadmissible where there was “no evidence that [the]
[d]efendant altered his appearance between the time of the incident and the trial”).
Accordingly, in that defendant had changed his appearance since the 2 April 2015
surveillance video, not only was Officer Williams qualified to identity defendant in
the video, but he was “better qualified than the jury” to do so. Phifer, 290 N.C. at 213,
225 S.E.2d at 793 (emphasis added).
Because Officer Williams was familiar with defendant’s appearance, and
because defendant had altered that appearance by the time of his trial, we conclude
that the trial court did not abuse its discretion when it allowed Officer Williams to
testify that, in his opinion, defendant was the individual depicted shooting a weapon
in the 2 April 2015 surveillance video.
III. Character Evidence
Defendant argues next that the trial court erred when it allowed Officer
Williams to testify (1) that he saw defendant coming out of a house that he was
investigating for illicit drugs, and (2) that defendant had a reputation for causing
problems in the area. This testimony, defendant maintains, served no purpose other
than to show defendant’s propensity for committing the crimes of which he was
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Opinion of the Court
accused, and therefore was inadmissible character evidence under Rule 404(b) of the
North Carolina Rules of Evidence. Although defendant did not object to the admission
of this testimony at trial, he contends that the trial court’s admission of the testimony
amounted to plain error. We disagree.
A. Standard of Review
“We review de novo the legal conclusion that . . . evidence is, or is not, within
the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d
156, 159 (2012). Whether evidence admissible under Rule 404(b) should nevertheless
be excluded under Rule 403 “is a matter within the sound discretion of the trial court
and [the court’s] ruling may be reversed for an abuse of discretion only upon a
showing that it was so arbitrary that it could not have been the result of a reasoned
decision.” State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989) (citation
and quotation marks omitted). A defendant alleging plain error has the additional
burden of establishing “not only that there was error, but that absent the error, the
jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993) (citing State v. Faison, 330 N.C. 347, 411 S.E.2d 143
(1991)).
B. Rule 404(b)
Rule 404(b) of the North Carolina Rules of Evidence provides, in pertinent part,
that:
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Opinion of the Court
[e]vidence 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,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment, or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2016). Stated differently, “Rule 404(b) is a rule
of inclusion of relevant evidence with but one exception, that is, the evidence must be
excluded 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.” State v.
Moore, 335 N.C. 567, 595, 440 S.E.2d 797, 813 (1994) (citation omitted) (emphasis
added).
When asked whether he had seen defendant after the 23 March 2015 shooting,
Officer Williams testified:
I saw him, I believe it was the day after he was shot. I was
dealing with a complaint about [a] house on Blatent Court.
It was a drug complaint that I got from the citizens. While
investigating that I saw the defendant come out of the
house and get into the vehicle.
On cross-examination, in an attempt to discredit Officer Williams’s familiarity
with defendant, the following exchange took place:
Q. So you had never sort of had a face-to-face talk or
encounter [with defendant], is that safe to say?
A. Not that I can recall. There might have been an
instant here and there but I can’t recall.
Q. Can you recall how long you even knew of
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Opinion of the Court
[defendant] prior to this April 2nd, 2015 date?
A. The reputation on the street is how I first beg[a]n
associating with the defendant. I had heard his name being
talked about on [the] street with people on the street.
[Defendant] had got a reputation for causing a lot of issues
in the area so I knew who he was. People had already told
me who he was. I’d never had any actual direct encounters
with him, but knowing who he was I’d seen him in the area.
Defendant maintains that this testimony had no purpose other than to show
that defendant had a propensity for committing the crimes with which he was
charged, and was not relevant to prove defendant’s identity, motive, opportunity,
intent, preparation, plan, or knowledge. However, the Rule 404(b) list “of other
purposes is nonexclusive, and thus evidence not falling within these categories may
be admissible.” Everhardt, 96 N.C. App. at 17, 384 S.E.2d at 572 (citing State v.
Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986)). “Rule 404(b) permits admission of
extrinsic conduct evidence so long as the evidence is relevant for some purpose other
than to prove the defendant has the propensity to commit the act for which he is being
tried.” Id. at 17-18, 384 S.E.2d at 572.
The transcript in the instant case reflects that the challenged portions of
Officer Williams’s testimony were relevant in that they established Officer Williams’s
familiarity with defendant’s appearance. This provided the basis for Officer
Williams’s ability to identify the defendant as the individual depicted in the
surveillance footage. The fact that defendant had a notorious reputation in the
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Opinion of the Court
community explained why he had been pointed out to Officer Williams on numerous
occasions, why Officer Williams would have paid particular attention to him, and why
he was memorable to Officer Williams. In addition, the fact that Officer Williams
observed defendant during an unrelated investigation showed that Officer Williams
had a particular incentive to observe defendant in detail. Accordingly, as Officer
Williams’s testimony explained the circumstances under which he had become
familiar with defendant over the course of two months, his testimony was relevant
for a purpose other than to establish defendant’s character. Thus, Officer Williams’s
testimony was not impermissible character evidence under Rule 404(b), and the trial
court did not err by failing to exclude it.
We note, however, that while Officer Williams’s observation of defendant
during a surveillance assignment was relevant in order to demonstrate the basis of
his familiarity with defendant’s appearance, the same cannot be said for the fact that
the surveillance operation was in response to “a drug complaint.” The inclusion of this
detail did not add to the reliability of Officer Williams’s ability to identify defendant.
Nonetheless, in absence of defendant’s objection at trial to this testimony, we are
limited to a plain error review of the issue.
A showing of plain error requires that the error be “ ‘a fundamental error,
something so basic, so prejudicial, so lacking in its elements that justice cannot have
been done,’ ” or one that “ ‘had a probable impact on the jury’s finding that the
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Opinion of the Court
defendant was guilty.’ ” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (internal
quotation marks omitted)). “ ‘The plain error rule is always to be applied cautiously
and only in the exceptional case[.]’ ” Id. (alterations omitted).
In the present case, a review of the evidence reveals that the inclusion of this
phrase did not amount to plain error. Notwithstanding the character implications of
the admission of testimony that defendant was seen exiting a house that was being
investigated in response to “a drug complaint,” the State presented the testimony of
three witnesses familiar with defendant who identified him as the individual shooting
a weapon in the surveillance video. This testimony was strong enough to have
supported the jury’s verdict on its own. The jury was also shown defendant’s
distinctive hair style and told about his limp, which were both clearly visible in the
surveillance footage. Moreover, the jury was presented with the circumstantial
evidence of the 23 March 2015 shooting, in which defendant was shot with the same
firearm that was found across the street after the 2 April 2015 shooting. Thus, the
trial court’s failure to exclude from the jury’s consideration the fact that Officer
Williams’s surveillance was for “a drug complaint” did not have a probable impact on
the jury’s finding that defendant was guilty. Accordingly, defendant cannot establish
plain error.
C. Rule 403
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Opinion of the Court
As to the remaining relevant portions of Officer Williams’s testimony, while
not in violation of Rule 404(b), the testimony must nevertheless be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice[.]” N.C.
Gen. Stat. § 8C-1, Rule 403 (2016). Rule 403 is a balancing test that falls within the
sound discretion of the trial court. Everhardt, 96 N.C. App. at 18, 384 S.E.2d at 572.
Here, the probative value of the testimony that Officer Williams observed
defendant closely during a surveillance assignment, and that he knew who defendant
was because of defendant’s reputation in the community, was significant. While this
testimony certainly would have had some prejudicial impact on the jury, we conclude
that, as the identity of the individual in the surveillance video was the crucial issue
in the case, the probative value of this information was significant, and was not
substantially outweighed by any undue prejudice. Accordingly, the trial court did not
abuse its discretion by permitting this testimony.
IV. “Substantial Similarity” of Out-of-State Offense
Lastly, defendant argues that the trial court erred when it found that his prior
federal conviction of unlawful possession of a firearm was substantially similar to his
current North Carolina conviction of possession of a firearm by a felon because the
State failed to present any evidence of substantial similarity between the two
offenses. However, because the trial court’s finding was, in fact, correct, we conclude
that any such error was harmless.
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Opinion of the Court
A. Standard of Review
“The trial court’s determination of a defendant’s prior record level is a
conclusion of law, which this Court reviews de novo on appeal.” State v. Threadgill,
227 N.C. App. 175, 178, 741 S.E.2d 677, 679-80, disc. review denied, 367 N.C. 223,
747 S.E.2d 539 (2013) (citations omitted). However, whether a particular out-of-state
conviction is substantially similar to a particular North Carolina offense is subject to
harmless error review. State v. Riley, ___ N.C. App. ___, ___, 802 S.E.2d 494, 498
(2017); State v. Bohler, 198 N.C. App. 631, 637-38, 681 S.E.2d 801, 806-07 (2009),
disc. review denied, ___ N.C. ___, 691 S.E.2d 414 (2010).
B. Discussion
Before sentencing a criminal defendant, the trial court must first determine
the defendant’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b) (2016). “The
prior record level of a felony offender is determined by calculating the sum of the
points assigned to each of the offender’s prior convictions[.]” N.C. Gen. Stat. § 15A-
1340.14(a) (2016). For example, a prior offense that is classified as a Class G felony
is assigned four prior record level points. N.C. Gen. Stat. § 15A-1340.14(3) (2016). A
defendant with four prior record level points is considered a Prior Record Level II for
sentencing. N.C. Gen. Stat. § 15A-1340.14(c)(2) (2016). The defendant’s prior record
level determines the applicable sentencing range. N.C. Gen. Stat. § 15A-1340.13(b)
(2016). In addition to assigning points to each of the defendant’s prior convictions
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based on the classification of that conviction, the trial court must assign an extra
point “[i]f all the elements of the present offense are included in any prior offense for
which the offender was convicted, whether or not the prior offense or offenses were
used in determining prior record level[.]” N.C. Gen. Stat. § 15A-1340.14(b)(6) (2016).
In the instant case, defendant has not presented, and we are unable to find,
any statutory or case law describing the standard for determining whether “all the
elements of the present offense are included in any prior offense” under Section
1340.14(b)(6) where the prior conviction is an out-of-state offense. However, under
Section 1340.14(e), “a conviction occurring in a jurisdiction other than North Carolina
is classified” according to the North Carolina offense to which it is “substantially
similar.” N.C. Gen. Stat. § 15A-1340.14(e) (2016). Section 1340.14(e) does not
explicitly provide that the “substantially similar” analysis is applicable to an out-of-
state offense for purposes of assigning one extra prior record level point under Section
1340.14(b)(6). Nonetheless, the determination of whether an out-of-state offense is
“substantially similar” to a North Carolina offense pursuant to Section 1340.14(e)
“requires a comparison of [the] respective elements” of the two offenses. Riley, ___
N.C. App. at ___, 802 S.E.2d at 498 (citing State v. Burgess, 216 N.C. App. 54, 57, 715
S.E.2d 867, 870 (2011)). Accordingly, we conclude that a finding that an out-of-state
offense is substantially similar to a North Carolina offense is sufficient for a finding
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that the elements of the present offense are included in any prior conviction under
Section 1340.14(b)(6) where the pertinent prior conviction is an out-of-state offense.
The burden is on the State to establish by a preponderance of the evidence
that the elements of a defendant’s prior out-of-state offense are substantially similar
to those of his present North Carolina offense. See Burgess, 216 N.C. App. at 57-58,
715 S.E.2d at 870; N.C. Gen. Stat. § 15A-1340.14(e) (2016). The State “may establish
the elements of the out-of-state offense by producing evidence of the applicable
statute, including printed copies thereof.” Riley, ___ N.C. App. at ___, 802 S.E.2d at
498 (citing State v. Rich, 130 N.C. App. 113, 117, 502 S.E.2d 49, 52 (1998)).
Here, defendant was assigned one additional record point because all of the
elements of his conviction of possession of a firearm by a felon were present in a prior
conviction. [R p 28] That point elevated defendant’s sentencing level from Level I to
Level II for purposes of sentencing as a habitual felon. While defendant stipulated
that he had a prior federal conviction in 2010 for unlawful possession of a firearm
pursuant to 18 U.S.C. § 922(g)(1), there is no indication that the State presented
copies of the relevant 2010 federal statute to the trial court in order to establish that
the 2010 federal offense was substantially similar to defendant’s current North
Carolina conviction of possession of a firearm by a felon under N.C. Gen. Stat. § 14-
415.1(a). There is also no evidence in the record that the trial court did in fact review
copies of the applicable 2010 federal statute to determine whether it was
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substantially similar to the North Carolina statute. However, to the extent that the
State fails to meet its burden of proof at sentencing, if “[t]he record contains sufficient
information for this Court to determine that the federal offense of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), is substantially similar to the North
Carolina offense of possession of a firearm by a felon, N.C. Gen. Stat. § 14-415.1,” the
resulting error is harmless, and the defendant is not entitled to a new sentencing
hearing. Riley, ___ N.C. App. at ___, 802 S.E.2d at 495.
In State v. Riley, the defendant argued that the State failed to establish that
his prior federal conviction of unlawful possession of a firearm pursuant to 18 U.S.C.
§ 922(g)(1) was substantially similar to his present North Carolina conviction of
possession of a firearm by a felon. In Riley, “there [was] no evidence that the version
of § 922(g)(1) relied upon by the trial court was the same version under which [the]
defendant was convicted, or if it was the most recent version, that the statute
remained unchanged since [the] defendant’s conviction.” Riley, ___ N.C. App. at ___,
802 S.E.2d at 498. Nevertheless, upon examining the elements of the two offenses,
this Court was able “to determine that [the] defendant’s prior conviction in federal
court was substantially similar” to the North Carolina crime of possession of a firearm
by a felon. Id. Holding that the error was not harmless, we explained:
Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful “for any
person . . . who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year
. . . to . . . possess in or affecting commerce, any firearm.”
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STATE V. WELDON
Opinion of the Court
18 U.S.C. § 922(g)(1) (2015). The federal offense of being a
felon in possession of a firearm requires proof that (1) the
defendant had been convicted of a crime punishable by
more than one year in prison, (2) the defendant possessed
(3) a firearm, and (4) the possession was in or affecting
commerce.
Pursuant to N.C. Gen. Stat. § 14-415.1(a), it is unlawful in
North Carolina “for any person who has been convicted of
a felony to . . . possess . . . any firearm.” N.C. Gen. Stat. §
14-415.1(a) (2015). The state offense of possession of a
firearm by a felon requires proof that (1) the defendant
had been convicted of a felony and (2) thereafter possessed
(3) a firearm. . . .
There are two notable differences between the offenses, the
first being the “interstate commerce” element. This
“jurisdictional element” requires “the government to show
that a nexus exists between the firearm and the interstate
commerce to obtain a conviction under § 922(g)” United
States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996). It “is
typically satisfied by proof that the firearm . . . , or parts of
the firearm, were manufactured in another state or
country.” . . . A conviction under 18 U.S.C. § 922(g)(1)
necessarily includes conduct which would violate N.C. Gen.
Stat. § 14-415.1(a), but not vice versa. If, for example, the
firearm was manufactured within the state, possessed by a
felon within the same, and was not transported by any
vehicle of interstate commerce, then possession would
presumably fall short of conduct prohibited by § 922(g)(1).
Such a situation seems unlikely, however, based upon the
federal courts’ broad interpretation of “in or affecting
commerce.” . . .
The second difference concerns the persons subject to
punishment. The federal offense requires that the person
have been previously convicted of a crime “punishable by
imprisonment for a term exceeding one year,” while the
North Carolina offense requires that the person have been
previously “convicted of a felony.” A felony conviction in
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STATE V. WELDON
Opinion of the Court
North Carolina is not necessarily punishable by more than
one year in prison. . . . If convicted of a Class I felony, a
defendant with a prior record level IV or higher may be
imprisoned for a term exceeding one year, but a defendant
with a prior record level III or lower faces only community
or intermediate punishment. . . . Apart from this limited
example, however, every other class of felony in North
Carolina is punishable by imprisonment for a term
exceeding one year and thus comports with the element of
the federal offense.
There may be other hypothetical scenarios which highlight
the more nuanced differences between the two offenses.
But the subtle distinctions do not override the almost
inescapable conclusion that both offenses criminalize
essentially the same conduct—the possession of firearms by
disqualified felons.
Id. at ___, 802 S.E.2d at 498-500 (some citations omitted) (emphasis added). This
Court in Riley likewise noted that both 18 U.S.C. § 922(g)(1) and N.C. Gen. Stat. §
14-415.1 had remained unchanged between the 2012 and 2015 time period in
question.
Indeed, the federal offense of unlawful possession of a firearm and the North
Carolina offense of possession of a firearm by a felon have remained unchanged since
defendant’s federal conviction in 2010. Compare 18 U.S.C. § 922(g)(1) (2010) with 18
U.S.C. § 922(g)(1) (2016), and N.C. Gen. Stat. § 14-415.1 (2010) with N.C. Gen. Stat.
§ 14-415.1 (2016). Because this Court has already determined that defendant’s
present offense is substantially similar to his federal offense, we necessarily conclude
that the trial court’s prior record level determination was correct. See State v. Jones,
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STATE V. WELDON
Opinion of the Court
358 N.C. 473, 487, 598 S.E.2d 125, 133 (2004) (“ ‘Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been overturned by a higher
court.’ ”) (quoting In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)).
Accordingly, any such error asserted by defendant is harmless error.
V. Conclusion
For the aforementioned reasons, we conclude that defendant received a fair
trial free from prejudicial error.
NO ERROR.
Judges STROUD and ARROWOOD concur.
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