State v. Melton

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of

A p p e l l a t e P r o c e d u r e .

NO. COA13-940

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Wake County

No. 12 CRS 4725, 4726

KELVIN MELTON

Appeal by defendant from judgment entered 17 October 2012

by Judge G. Wayne Abernathy in Wake County Superior Court.

Heard in the Court of Appeals 21 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General David P. Brenskelle, for the State.

Paul F. Herzog for defendant.

HUNTER, Robert C., Judge.

Defendant appeals the judgment entered after a jury found

him guilty of assault with a deadly weapon with intent to kill

inflicting serious injury (“AWDWIKISI”) and attaining the status

of being a habitual felon. On appeal, defendant argues: (1) the

trial court committed prejudicial error in admitting a

-2-

handwritten letter into evidence and allowing it to be published

to the jury in violation of Rule 901; (2) the trial court erred

in admitting the testimony of Jamil Gressett with regard to a

conversation he had with an acquaintance of defendant’s; (3)

the trial court erred in denying defendant’s motion to dismiss

the charge of being a violent habitual felon; and (4) the trial

court violated N.C. Gen. Stat. § 15A-1442(5a) by finding that

defendant’s New York conviction for first degree manslaughter

was substantially similar to a violent felony in North Carolina.

After careful review, we find no prejudicial error.

Background

The evidence presented at trial tended to establish the

following: In 2002, Lechon Simpson (“Lechon”) met Crystal Evans

(“Crystal”) in New York City. In 2006, they moved to Raleigh

together and took up residence in an apartment at the back of a

house occupied by Crystal’s mom and her boyfriend Rayfield

Harper (“Mr. Harper”). Lechon and Crystal had a son in 2009.

Defendant, who is also known as “Dizzy,” was Crystal’s ex-

boyfriend. Lechon claimed that Crystal had told him that her

relationship with defendant was “not serious.” Although Lechon

had not met defendant, Crystal had shown Lechon pictures of him.

-3-

Crystal returned to New York for a visit in August 2011.

When she returned to Raleigh, Lechon claimed that she began

acting “weird.” Eventually, Crystal took some clothes and their

son and moved out of the residence. Lechon tried to contact

Crystal many times; their phone calls became increasingly

heated. After Crystal left the residence, Lechon found a

handwritten letter under their mattress dated “8-7-11,” but it

was not signed. The letter is addressed to Crystal and is, in

essence, a love letter, that includes such statements as:

“Crystal I never stopped loving you” and “I Love You.” Although

the letter is not signed, the trial court allowed Lechon to

testify at trial, over objection, that he recognized the

handwriting in the letter as defendant’s. Lechon based his

conclusion on the fact that he had seen other letters in the

past with similar handwriting signed “Dizzy.”

On 13 September 2011, Lechon was at home with his nephew.

He went to bed early, but awoke around 4:00 a.m. when the

burglar alarm went off. Thinking it was Crystal, Lechon jumped

out of bed. The kitchen light was on and Lechon saw Crystal

standing in the bedroom doorway; he grabbed her by the arm.

Crystal told him to “Get the F off my arm.” Lechon testified

that he then saw defendant standing there, rocking back and

-4-

forth. Lechon claimed at trial that although he was not

entirely sure it was defendant standing there, he just “had a

feeling” it was him and asked: “Dizzy?”. Lechon left the

bedroom by another door and ran into an eighteen- or nineteen-

year-old Hispanic male pointing a gun in his face. The teenager

was later identified as Jamil Gressert (“Jamil”). Defendant was

standing next to Jamil. Defendant told Lechon to “shut the fuck

up” and not to move. Defendant and Lechon got into a physical

altercation. During the fight, Lechon realized that Jamil was

shooting at him. Lechon claimed that Jamil shot at him four

times. Lechon was able to escape through the back door of the

apartment, and he ran to a store and called for an ambulance.

Lechon was taken to Wake Med for treatment. Emergency room

personnel determined that he had been shot through the hand and

in the teeth. Bullet fragments were scattered through his oral

cavity and in his neck near his voice box.

At trial, Jamil testified on behalf of the State. He

claimed that he was a member of the “Bloods” gang in Syracuse

and had been an official member since he was sixteen. In

describing the structure of the gang, Jamil alleged that his

immediate boss was “Jamar” who reported to “Donna G.” At the

-5-

top of the hierarchy was defendant, whom Jamil knew as “Dizzy.”

Jamil stated that he had met defendant in 2009.

Around 13 September 2011, Jamil received a call from “Donna

G.” telling Jamil that “Dizzy” wanted him to come to North

Carolina. Jamil took the train to Raleigh that same day.

Defendant picked him up from the train station in a van with

Crystal, Crystal’s son, and another female. They went to

Walmart to buy Jamil black clothing. Then, they went to a hotel

in Raleigh. Defendant told Jamil that it was his “mission” to

shoot Lechon. Crystal showed Jamil a picture of Lechon from

Facebook. Defendant then told Jamil that the plan was to go to

Lechon’s house about four in the morning because that was the

time Lechon and his nephew were planning to do some drug runs.

Defendant gave Jamil a .25 semi-automatic handgun for the

shooting.

That evening, Crystal called her mother several times to

see if Lechon was still at home. Following these calls, Crystal

called Mr. Harper to pick them up and take them to Lechon’s

home. Crystal told Mr. Harper that she needed to pick up a

change of clothes for her son. Mr. Harper picked them up and

drove them to Lechon’s residence. Crystal, Jamil, and defendant

went inside the house. After defendant and Lechon began

-6-

fighting, Jamil claimed that defendant told him to “Do it. Bust

it.” Lechon eventually knocked the gun out of Jamil’s hand

after Jamil fired four or five shots.

Defendant, Jamil, and Crystal all left the house to find

Lechon after he ran out the back door. When they could not find

him, Mr. Harper drove them back to the hotel where Jamil and

defendant wiped down the room in an effort to remove any

fingerprints. They called a taxi to pick them up, and they

checked into another hotel in Johnston County. Defendant called

a man named “Tony” to pick them up; however, after “Tony” picked

them up, the police pulled them over and arrested them.

On 30 April 2012, defendant was indicted by superseding

indictment for the felony offenses of attempted first degree

murder and conspiracy to commit first degree murder. That same

day, defendant was also indicted for AWDWIKISI and conspiracy to

commit AWDWIKISI (“assault conspiracy”). Defendant was later

indicted for the offense of being a violent habitual felon.

Defendant’s trial began 8 October 2012. At the close of

evidence, the trial court dismissed the assault conspiracy

charge. On 12 October 2012, the jury found defendant guilty of

AWDWIKISI and for being a violent habitual felon. The jury

-7-

found defendant not guilty of attempted first degree murder and

conspiracy to commit first degree murder.

At sentencing, the trial court determined that defendant

was a level V offender and sentenced him to life without parole.

Defendant gave notice of appeal in open court.

Arguments

Defendant first argues that the trial court committed

prejudicial error by admitting the handwritten letter Lechon

found under his mattress into evidence. Specifically, defendant

contends that the letter was not properly authenticated pursuant

to Rule 901. We disagree.

“A trial court’s determination as to whether a document has

been sufficiently authenticated is reviewed de novo on appeal as

a question of law.” State v. Crawley, __ N.C. App. __, __, 719

S.E.2d 632, 637 (2011).

N.C. Gen. Stat. § 8C-1, Rule 901 (2012) provides:

(a) General provision.--The requirement of

authentication or identification as a

condition precedent to admissibility is

satisfied by evidence sufficient to support

a finding that the matter in question is

what its proponent claims.

(b) Illustrations.--By way of illustration

only, and not by way of limitation, the

following are examples of authentication or

identification conforming with the

requirements of this rule:

-8-

(1) Testimony of Witness with Knowledge.--

Testimony that a matter is what it is

claimed to be.

(2) Nonexpert Opinion on Handwriting.--

Nonexpert opinion as to the genuineness of

handwriting, based upon familiarity not

acquired for purposes of the litigation.

“Rule 901 does not require the proponent of evidence to

conclusively prove that tendered documents or electronic

evidence is definitively a record, only that the evidence is

relevant for the jury to conclude that it is authentic.”

Crawley, __ N.C. App. at __, 719 S.E.2d at 637. Our Supreme

Court has concluded that a trial court does not err by admitting

evidence pursuant to Rule 901 “if it could reasonably determine

that there was sufficient evidence to support a finding that the

matter in question is what its proponent claims.” State v.

Wiggins, 334 N.C. 18, 34, 431 S.E.2d 755, 764 (1993).

During voir dire and again before the jury, Lechon

testified that he was familiar with defendant’s handwriting

because, between 2002 and 2006, he had seen at least ten letters

handwritten by defendant addressed to Crystal. Specifically,

Lechon claimed that Crystal had shown him letters from defendant

in the past because defendant had made threats against him in

those letters. Lechon stated that the handwriting in the letter

-9-

found under the mattress looked “exactly the same” as that of

the other letters written by defendant. Over objection by

defendant, the trial court admitted the letter and allowed it to

be published to the jury.

Based on Lechon’s testimony concerning his familiarity with

defendant’s handwriting, there was sufficient evidence to

support a finding that the letter was written by defendant. He

testified that he had not only seen at least ten letters

handwritten by defendant, but he also provided an explanation as

to why Crystal had shown these letters to him. Any question as

to the credibility or reliability of the handwritten letter was

a matter for the jury. Thus, the trial court did not err in

admitting the handwritten letter pursuant to Rule 901 and

publishing it to the jury.

Next, defendant argues that the trial court erred in

allowing Jamil to testify about his conversation with Donna G.

where she told Jamil that defendant wanted him to come to North

Carolina. Specifically, defendant contends that this testimony

was inadmissible hearsay and its admission violated the

Confrontation Clause under Crawford v. Washington. We disagree.

“The trial court’s determination as to whether an out-of-

court statement constitutes hearsay is reviewed de novo on

-10-

appeal.” State v. Castaneda, __ N.C. App. __, __, 715 S.E.2d

290, 293 (2011).

“‘Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C–1, Rule 801(c) (2013). “[O]ut-of-court statements

offered for purposes other than to prove the truth of the matter

asserted are not considered hearsay.” State v. Call, 349 N.C.

382, 409, 508 S.E.2d 496, 513 (1998). This Court has noted

that:

statements of one person to another to

explain subsequent actions taken by the

person to whom the statements were made are

admissible as non-hearsay evidence. The

reason such statements are admissible is not

that they fall under an exception to the

hearsay rule, but that they simply are not

hearsay—they do not come within the . . .

legal definition of the term.

Castaneda, __ N.C. App. at __, 715 S.E.2d at 293 (internal

citations and quotation marks omitted); see also State v. Call,

349 N.C. 382, 409, 508 S.E.2d 496, 513 (1998).

Here, when the State asked Jamil how and why he came to

North Carolina in September 2011, he stated: “I got a call. I

got a call from Donna G.” and she told him that “Dizzy said to

come down to North Carolina.” This testimony simply explains

-11-

why Jamil came to North Carolina. Accordingly, his testimony

does not constitute hearsay because it is not being offered for

the truth of the matter asserted; instead, it is being offered

to explain his subsequent actions. Therefore, the trial court

did not err in admitting this evidence.

Furthermore, with regard to defendant’s argument that this

testimony violated the Confrontation Clause, it is without

merit. “The Confrontation Clause does not bar the use of

testimonial statements for purposes other than establishing the

truth of the matter asserted.” State v. Miller, 197 N.C. App.

78, 87, 676 S.E.2d 546, 552 (2009) (internal quotation marks

omitted). In other words, non-hearsay statements do not come

within the purview of the Confrontation Clause. Here, as

discussed, since Jamil’s statements were not admitted to

establish the truth of the assertions—that defendant ordered him

to North Carolina—but were instead used to provide an

explanation of why Jamil came to North Carolina, they were

offered for a purpose other than establishing the truth of the

matter asserted. Therefore, the Confrontation Clause was not

implicated. Defendant’s argument is without merit.

-12-

Next, defendant argues that the trial court erred by

denying his motion to dismiss the charge of being a violent

habitual felon. We disagree.

In determining whether a trial court erred in failing to

grant a defendant’s motion to dismiss based on the insufficiency

of the evidence, this Court’s review is well-established: “Upon

defendant’s motion for dismissal, the question for the Court is

whether there is substantial evidence (1) of each essential

element of the offense charged, or of a lesser offense included

therein, and (2) of defendant’s being the perpetrator of such

offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000). The trial court must review the evidence in the

light most favorable to the State. State v. Barnes, 334 N.C.

67, 75, 430 S.E.2d 914, 918 (1993).

Pursuant to N.C. Gen. Stat. § 14-7.7, a violent habitual

offender is defined as “[a]ny person who has been convicted of

two violent felonies in any federal court, in a court of this or

any other state of the United States, or in a combination of

these courts.” Violent felonies include any Class A through E

felonies under North Carolina law and any substantially similar

offenses in other jurisdictions. Id. N.C. Gen. Stat. § 14–7.10

-13-

explains how the State may prove that a defendant has prior

convictions of violent felonies in other jurisdictions:

A prior conviction may be proved by

stipulation of the parties or by the

original or a certified copy of the court

record of the prior conviction. The original

or certified copy of the court record,

bearing the same name as that by which the

defendant is charged, shall be prima facie

evidence that the defendant named therein is

the same as the defendant before the court,

and shall be prima facie evidence of the

facts set out therein.

“In creating this statutory prima facie case, the General

Assembly has dictated what amount of evidence is sufficient for

the judge to submit an habitual felon case to the jury.” State

v. Hairston, 137 N.C. App. 352, 354-55, 528 S.E.2d 29, 31

(2000).

Here, the State presented a “Certificate of Disposition”

from the Supreme Court of New York stating that defendant had

been convicted of manslaughter in the first degree (“first

degree manslaughter”) and robbery in the first degree. This

evidence established a prima facie habitual felon case under

N.C. Gen. Stat. § 14–7.7 and was sufficient to submit it to the

jury. “[B]ecause the State has met the prima facie requirement,

any discrepancies in other details contained in the judgments

are for the jury to consider in weighing the evidence.” State

-14-

v. Wolfe, 157 N.C. App. 22, 36, 577 S.E.2d 655, 665 (2003).

Therefore, the trial court did not err in denying defendant’s

motion to dismiss the charge of being a violent habitual felon

and submitting it to the jury.

Relatedly, defendant also contends that New York’s crime of

first degree manslaughter is not substantially similar to a

Class A through E North Carolina felony. However, this argument

is without merit. Defendant’s argument is premised on the fact

that, under New York law, a person may be convicted of first

degree manslaughter four ways. Specifically, pursuant to NY

Penal Law § 125.20, a person is guilty of manslaughter in the

first degree when:

1. With intent to cause serious physical

injury to another person, he causes the

death of such person or of a third person;

or

2. With intent to cause the death of another

person, he causes the death of such person

or of a third person under circumstances

which do not constitute murder because he

acts under the influence of extreme

emotional disturbance, as defined in

paragraph (a) of subdivision one of section

125.25. The fact that homicide was committed

under the influence of extreme emotional

disturbance constitutes a mitigating

circumstance reducing murder to manslaughter

in the first degree and need not be proved

in any prosecution initiated under this

subdivision; or

-15-

3. He commits upon a female pregnant for

more than twenty-four weeks an abortional

act which causes her death, unless such

abortional act is justifiable pursuant to

subdivision three of section 125.05; or

4. Being eighteen years old or more and with

intent to cause physical injury to a person

less than eleven years old, the defendant

recklessly engages in conduct which creates

a grave risk of serious physical injury to

such person and thereby causes the death of

such person.

Here, it is unclear from the record under which subsection

defendant was convicted of under New York law. The Certificate

of Disposition indicated that defendant was convicted of statute

“125.20 01”; however, the State did not present an indictment in

order to clarify under which subsection of the New York law

defendant was convicted. It appears from the transcript that

the trial court believed that the “01” indicated that he was

convicted under subsection 1 of the statute. However, according

to defendant, because subsections 3 and 4 are not substantially

similar to North Carolina felonies and it is unclear which

subsection defendant was convicted under, defendant is entitled

to a new sentencing hearing. The State disagrees, noting that

because all subsections constitute violent felonies for purposes

of the habitual felon charge, any error the trial court made in

-16-

assuming that defendant was convicted under subsection 1 was

harmless.

“Determining whether an out-of-state conviction is

substantially similar to a North Carolina offense is a question

of law involving the comparison of the elements of the out-of-

state offense to those of the North Carolina offense.” State v.

Wright, 210 N.C. App. 52, 71, 708 S.E.2d 112, 126 (2011); see

also State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600,

604 (2006). Questions of law are reviewed de novo. Hanton, 175

N.C. App. at 255, 623 S.E.2d at 604. Alleged errors at

sentencing with regard to whether an out of state conviction is

substantially similar to a North Carolina felony or misdemeanor

are subject to harmless error review. State v. Bohler, 198 N.C.

App. 631, 638, 681 S.E.2d 801, 807 (2009).

Defendant concedes that subsections 1 and 2 are

substantially similar to the North Carolina crimes of second

degree murder, a class B2 felony, and voluntary manslaughter, a

class D felony, respectively—both of which constitute violent

felonies pursuant to N.C. Gen. Stat. § 14-7.7. Furthermore, our

review establishes that both subsections 3 and 4 are

substantially similar to offenses in North Carolina that would

constitute violent felonies. A violation of subsection 3

-17-

requires that the woman upon whom the abortional act is

committed die. This offense is substantially similar to

voluntary manslaughter, a Class D felony, at a minimum, or first

or second degree murder, depending on the circumstances

surrounding her death. Defendant contends that subsection 3 is

substantially similar to N.C. Gen. Stat. § 4-45, a Class H

felony. However, the North Carolina offense does not require

that the female die as a result of the act; if she does, a

defendant could be charged with manslaughter or murder, see

State v. Mitchner, 256 N.C. 620, 630, 124 S.E.2d 831, 838 (1962)

(noting that “[w]hether the death of a woman resulting from a

criminal abortion performed upon her in violation of G.S. [§]

14-45 is murder and not manslaughter is not presented on this

appeal, for the simple reason that defendant was convicted of

manslaughter”).

Similarly, a violation under subsection 4 requires a person

who is at least 18 years old intentionally engage in conduct

which creates a grave risk of physical injury to someone less

than 11 years old and cause his death. Again, at a minimum, the

most substantially similar North Carolina crime would be

voluntary manslaughter, a Class D felony, since subsection 4

requires the element of intent. See generally, State v. Brown,

-18-

64 N.C. App. 578, 579-80, 307 S.E.2d 831, 832 (1983) (“The

difference between voluntary and involuntary manslaughter is a

question of intent. As it relates to involuntary manslaughter,

intent is not an issue.”).

Thus, any error the trial court may have committed in

assuming that defendant was convicted under subsection 1 would

be harmless since all four subsections constitute violent

felonies for purposes of being a habitual felon pursuant to N.C.

Gen. Stat. § 14-47.

Conclusion

Based on the foregoing reasons, defendant’s trial was free

from prejudicial error.

NO PREJUDICIAL ERROR.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).