An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                               NO. COA13-1036
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Columbus County
                                              No. 11 CRS 50365-366,
                                              11 CRS 50392, 11 CRS 50425
LAWRENCE E. SMITH



      Appeal by defendant from judgments entered 22 February 2013

by Judge D. Jack Hooks, Jr. in Columbus County Superior Court.

Heard in the Court of Appeals 18 February 2014.


      Roy Cooper, Attorney General, by Creecy Johnson, Special
      Deputy Attorney General, for the State.

      Jennifer Harjo, Public Defender, New Hanover County, by
      Brendan   O’Donnell,  Assistant  Public  Defender,  for
      defendant-appellant.


      STEELMAN, Judge.


      The trial court did not commit plain error in admitting the

recording of defendant’s unredacted statement to law enforcement

officers into evidence.           Where the State presented substantial

evidence that defendant was the perpetrator of the Sam’s Pit

Stop robbery, the trial court did not err in denying defendant’s
                                                  -2-
motion       to    dismiss.            Where      the    State     presented       admissible

evidence of defendant’s prior felony status, the trial court did

not    err    in    denying         defendant’s         motion    to    dismiss    the    first

charge of possession of a firearm by a felon.                             Where the second

charge of possession of a firearm by a felon was not listed in a

separate indictment, the indictment was fatally defective, so

the trial court lacked jurisdiction to enter judgment based on

that charge.

                     I. Factual and Procedural Background

       In January of 2011, the Sam’s Pit Stop store, located in

Hallsboro,         was       robbed.         Employee      Alisa       Mitchell    (Mitchell)

testified          that,       at      roughly      10:00        p.m.,     a      black    man,

approximately 5’3” or 5’4”, wearing dark clothes and a bandana

covering his face, robbed the store with a revolver.                                    The man

also    demanded         a    pack     of    Newport      cigarettes.           There     was   a

surveillance video of this robbery, which was shown to the jury

at trial.

       On    6    January       2011,       the   Time    Saver    4    store     was   robbed.

Employees Elijah Kemp (Kemp) and Gloranda Stephens (Stephens)

testified that three people entered the store, one of whom was a

black man with a gun.                   Holding the employees at gunpoint, the

robbers took money and cigarettes.                          Some of the money stolen
                                        -3-
consisted of coins wrapped into rolls.               Stephens described the

gun as having a “little brown handle.”              There was a surveillance

video of this robbery, which was shown to the jury at trial.

       On 26 January 2011, the L&D Quick Mart near Whiteville was

robbed.      Tonia Irwin (Irwin), an employee, testified that a

black man with a bandana covering his face, armed with a black

gun,    entered   the   store    and    demanded    the   store’s   money   bag.

Irwin testified that the money bag usually contained wrapped

coins.

       On 28 January 2011, Lieutenant Blake Potter (Potter) of the

Columbus County Sheriff’s Department was notified to be on the

lookout for a dark-colored Chevy Impala “in reference to a local

string of armed robberies.”            Potter spotted a car matching that

description, followed it, and when it turned into a driveway,

Potter initiated a traffic stop.              When the driver emerged from

the vehicle, Potter ordered him back into the vehicle, but he

fled.      While the driver was not apprehended that day, Potter

identified him in court as Lawrence Edward Smith (defendant).

       A   passenger    in      defendant’s      vehicle,    Victoria   Baxley

(Baxley)    spoke   with     Columbus   County     Sheriff’s   Detective    Rene

Trevino (Trevino), and consented to a search of the car.                During

the search, police found a black .357 revolver with a brown
                                          -4-
handle, and an identification card for Lawrence Smith, as well

as a brown jacket and a bandana.                 A search of the vehicle after

it was impounded also revealed the presence of coin wrappers.

With Baxley’s consent, Trevino searched a hotel room in Loris,

South Carolina, and found a coin wrapper and a black bandana.

      Defendant was arrested in Boardman, and was questioned by

law   enforcement      officers.          A   portion      of   this   interview      was

recorded.        In   the    recorded         portion,     defendant      discussed     a

robbery at an unspecified location, followed by one in New Hope,

one in Hallsboro, and one at the L&D Quick Mart; defendant also

made statements suggesting that he participated in the L&D and

Time Saver 4 robberies, and that he participated in the robbery

in Hallsboro.         Defendant made no statements referring to Sam’s

Pit Stop by name.        Defendant also admitted to a robbery in South

Carolina    in   2005,      to    which   he    had   pled      guilty,    and   to   an

unspecified      criminal        charge   pending     in    Robeson     County.       At

trial, the recording of defendant’s interview was played for the

jury.

      On 7 April 2011, defendant was indicted for two counts of

possession of a firearm by a felon, and three counts of robbery

with a dangerous weapon relating to the L&D Quick Stop, the
                                     -5-
Sam’s Pit Stop, and the Time Saver 4 robberies.1                The jury found

defendant guilty of all charges.           On 22 February 2013, the trial

court entered judgment, imposing three consecutive active terms

of imprisonment of 80-105 months.

    Defendant appeals.

                 II. Defendant’s Statement to Police

    In his first argument, defendant contends that the trial

court committed plain error in admitting defendant’s unredacted

statement   to   law   enforcement   into     evidence,    or    alternatively

that counsel’s failure to object to this evidence constituted

ineffective assistance of counsel.          We disagree.

                         A. Standard of Review

    “In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C.R. App. P. 10(a)(4); see also State v. Goss,

361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555

U.S. 835, 172 L. Ed. 2d 58 (2008).



1
  Defendant was also charged with second-degree kidnapping. The
trial court dismissed this charge at the close of the State’s
evidence.
                              -6-
         [T]he plain error rule ... is always to be
         applied   cautiously   and    only   in  the
         exceptional case where, after reviewing the
         entire record, it can be said the claimed
         error is a “fundamental error, something so
         basic, so prejudicial, so lacking in its
         elements that justice cannot have been
         done,” or “where [the error] is grave error
         which amounts to a denial of a fundamental
         right of the accused,” or the error has
         “‘resulted in a miscarriage of justice or in
         the denial to appellant of a fair trial’” or
         where the error is such as to “seriously
         affect the fairness, integrity or public
         reputation of judicial proceedings” or where
         it can be fairly said “the instructional
         mistake had a probable impact on the jury's
         finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

         It is well established that ineffective
         assistance of counsel claims “brought on
         direct review will be decided on the merits
         when the cold record reveals that no further
         investigation is required, i.e., claims that
         may be developed and argued without such
         ancillary procedures as the appointment of
         investigators or an evidentiary hearing.”
         Thus, when this Court reviews ineffective
         assistance of counsel claims on direct
         appeal and determines that they have been
         brought prematurely, we dismiss those claims
         without prejudice, allowing defendant to
         bring them pursuant to a subsequent motion
         for appropriate relief in the trial court.

State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881

(2004) (citations omitted) (quoting State v. Fair, 354 N.C. 131,
                                      -7-
166, 557 S.E.2d 500, 524 (2001)), cert. denied, 546 U.S. 830,

163 L. Ed. 2d 80 (2005).




                                 B. Analysis

      Prior to trial, defendant did not make a motion to suppress

his statement to law enforcement officers.             At trial, defendant

made no objection to the admission of his statement or any part

thereof.      On appeal, we review the admission of this evidence

only for plain error.

      Defendant contends that the unredacted statement referred

to   crimes      “stemming     back   to    [defendant’s]     youth[;]”     the

statement mentions that “[defendant] was robbing when [he] was

younger,” that defendant committed a robbery in South Carolina

in   2005   to   which    he   pled   guilty   (although     the   charge   was

ultimately dismissed), and that defendant had a charge pending

against him in Robeson County.              Defendant contends that         the

evidence    of   this    other   criminal    conduct   was    irrelevant    and

inadmissible.       The entirety of defendant’s recorded interview,

including     these     references,   was   admitted   into    evidence     and

played before the jury.
                                       -8-
    Defendant      contends     that   “the    jury   was    overwhelmed      with

evidence of the defendant’s prior crimes and wrongs, his gang

participation, and hearsay statements that he was guilty of the

charged   crimes.”        By   contrast,     defendant   contends     that     the

State’s evidence in this case was not very strong.

    In the course of this interview, defendant made specific

reference to the robberies for which he was being tried, and

acknowledged his participation in them.               Lieutenant Potter was

able to identify defendant as the man who fled from him.                     Based

upon this and other evidence, a jury could reasonably have found

defendant guilty of the crimes charged, even in the absence of

his statements concerning other crimes contained in defendant’s

statement.

    On appeal, in order to demonstrate plain error, defendant

must show that absent the trial court’s alleged error, the jury

would   probably   have    reached     another    verdict.       We   hold    that

defendant has not met this burden, and that the trial court did

not commit plain error in admitting the recorded statement into

evidence.

    In the alternative, defendant contends that trial counsel’s

failure to object to the admission of the recorded interview

constituted   ineffective        assistance      of   counsel.        We     hold,
                                           -9-
however,      that     such   a    claim   is    premature,   and    dismiss    this

portion of defendant’s appeal without prejudice to defendant’s

right    to   file     a   motion    for   appropriate     relief    in   the   trial

court.

    This argument is without merit.



                 III. Identity of Robber at Sam’s Pit Stop

    In his second argument, defendant contends that the trial

court    erred    in    denying     his    motion   to   dismiss    the   charge   of

robbery with a dangerous weapon at Sam’s Pit Stop, arguing that

the State failed to present sufficient evidence that defendant

committed this crime.             We disagree.

                              A. Standard of Review

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

    “‘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. If so, the motion is properly denied.’” State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting
                                       -10-
State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

                                 B. Analysis

    Defendant contends that no evidence was presented to the

jury to suggest that Sam’s Pit Stop was located in Hallsboro,

and that his admission in his statement, that he was involved in

a robbery in Hallsboro, was insufficient to connect him with the

Sam’s Pit Stop robbery.

    Defendant notes that Mitchell, the only eyewitness to the

Sam’s   Pit    Stop   robbery,    did    not   identify    defendant   as    the

perpetrator.      Nor did Mitchell identify the revolver found in

defendant’s     car   as   the   one    used   in   the   robbery.     Nor   was

evidence presented that the items found in the car or hotel room

were taken from Sam’s Pit Stop.           Defendant further contends that

the Time Saver and L&D robberies were not sufficiently similar

to tie defendant to the Sam’s Pit Stop robbery.

    We acknowledge that the evidence in the record concerning

the Sam’s Pit Stop robbery was circumstantial.                  However, our

Supreme Court has held that:

              Circumstantial evidence may withstand a
              motion to dismiss and support a conviction
              even when the evidence does not rule out
              every   hypothesis of  innocence. If   the
              evidence presented is circumstantial, the
              court must consider whether a reasonable
                                          -11-
              inference of defendant’s guilt may be drawn
              from the circumstances. Once the court
              decides that a reasonable inference of
              defendant’s guilt may be drawn from the
              circumstances, then it is for the jury to
              decide whether the facts, taken singly or in
              combination,    satisfy   [it]    beyond   a
              reasonable doubt that the defendant is
              actually guilty.

Fritsch,    351   N.C.    at    379,   526       S.E.2d      at   455    (citations     and

quotation     marks     omitted).         In     the    instant     case,      the    State

presented evidence of the surveillance videos from the robberies

at Sam’s Pit Stop and the Time Saver 4, allowing the jury to see

the robbers.         In both videos, the jury saw a black man in a

black hooded sweater, of average height, with his face covered,

in one instance by the hood and in the other by a hood and a

bandana.       The    video    of   the     Sam’s      Pit   Stop   robbery      was    not

clearly admitted for solely illustrative purposes.                              State v.

Kuplen, 316 N.C. 387, 417, 343 S.E.2d 793, 810 (1986) (stating

that    “[f]or    the    trial      court      to    give     a   proper      instruction

limiting the State’s exhibits to illustrative use would have

required that the defendant specifically identify those exhibits

which he contended were subject only to illustrative use” and

“[h]e did not do so”).              After the robbery, the clerk reported

what had happened, and could be heard on the video stating that

Sam’s   Pit    Stop     was    located      in      Hallsboro.          The   State    also
                                             -12-
presented    evidence          of    the    revolver,          defendant’s        bandana     and

clothing, and the coin wrappers found in the car and hotel room.

Based    upon      this       evidence,      taken       together        with     defendant’s

admissions       in     the    recorded       interview,            there   was    sufficient

evidence    for        the    jury    to    draw     a    reasonable        inference        that

defendant was the perpetrator of the Sam’s Pit Stop robbery.                                  We

hold that there was substantial evidence in the                                   record that

defendant was the perpetrator of the Sam’s Pit Stop robbery.

The trial court did not err in denying defendant’s motion to

dismiss.

    This argument is without merit.

                             IV. Evidence of Prior Felony

    In his third argument, defendant contends that the trial

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

of possession of a firearm by a felon.                        We disagree.

                                A. Standard of Review

    We      have       previously          discussed          the    standard      of    review

relating    to     a    motion       to    dismiss       in    Section      III    A    of   this

opinion.

                                          B. Analysis

    At trial, the State presented evidence of defendant’s prior

felony convictions in connection with the charge of possession
                                         -13-
of   a   firearm   by     a    felon.      The    evidence     of      prior   felony

convictions presented by the State was a print-out from the

statewide    computer     system     (ACIS)      stating   that     defendant     was

convicted in 2006 of a felony in Scotland County.                       This print-

out was authenticated by the testimony of an assistant clerk

from Columbus County, and admitted into evidence.                         Defendant

contends    that   this       evidence   was    insufficient      to    support   the

charge of possession of a firearm by a felon.                          Specifically,

Defendant contends that the ACIS print-out is not a judgment of

a conviction or evidence of a plea of guilty, and thus does not

establish the fact of his prior conviction.

            When a person is charged under this section,
            records of prior convictions of any offense,
            whether in the courts of this State, or in
            the courts of any other state or of the
            United   States,  shall   be  admissible   in
            evidence for the purpose of proving a
            violation   of   this   section.   The   term
            “conviction” is defined as a final judgment
            in any case in which felony punishment, or
            imprisonment for a term exceeding one year,
            as the case may be, is authorized, without
            regard to the plea entered or to the
            sentence imposed. A judgment of a conviction
            of the defendant or a plea of guilty by the
            defendant to such an offense certified to a
            superior court of this State from the
            custodian of records of any state or federal
            court shall be prima facie evidence of the
            facts so certified.
                                      -14-
N.C. Gen. Stat. § 14-415.1(b) (2013).               N.C. Gen. Stat. § 14-

415.1 states that “records of prior convictions . . . shall be

admissible[,]” and then in a separate sentence that judgments or

pleas of guilty shall be prima facie evidence of the conviction.

This does not mean, however, that a certified copy of a judgment

or   a    plea   of   guilty   is   the   only   manner   in   which   a   prior

conviction may be established.

         The statute pertaining to proof of prior convictions to

support a charge of habitual felon in N.C. Gen. Stat. § 14-7.4

provides that:

             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.

N.C. Gen. Stat. § 14-7.4 (2013).             We have held, however, that

this statute

             clearly indicates that the provision is
             permissive,  not   mandatory,  in   that  it
             provides a prior conviction “may” be proven
             by stipulation or a certified copy of a
             record. See Campbell v. Church, 298 N.C.
             476, 483, 259 S.E.2d 558, 563 (1979) (“the
             use of ‘may’ generally connotes permissive
             or discretionary action and does not mandate
                                     -15-
           or compel a particular act”). Thus, although
           section   14–7.4   contemplates   the   most
           appropriate means to prove prior convictions
           for the purpose of establishing habitual
           felon status, it does not exclude other
           methods of proof.

State v. Wall, 141 N.C. App. 529, 533, 539 S.E.2d 692, 695

(2000)   (holding   that     facsimile   copies    of    certified   judgments

were admissible as evidence of prior felony convictions).                     In

the   instant   case,   we   hold   that,   as    with   the   habitual    felon

statute, while a copy of a judgment of a conviction or a plea of

guilty   constitutes       prima    facie   evidence      of    prior     felony

convictions for purposes of N.C. Gen. Stat. § 14-415.1, it is

not the exclusive form of evidence of prior felony convictions.

      In the instant case, the State presented as evidence the

ACIS print-out of defendant’s alleged prior felonies.                     In its

charge to the jury, the trial court stated:

           Mr. Smith has been charged with two counts
           of possession of a firearm by a convicted
           felon.

           . . .

           For you to find the defendant guilty of
           either counts [sic] of this offense, the
           State of North Carolina must prove to you
           beyond a reasonable doubt two things:

           First, that on or about September 21, 2006
           in the Superior Court of Scotland County the
           defendant was convicted of a felony that was
           committed on November 1, 2005 in violation
                                                 -16-
              of the laws of the State of North Carolina.

              And, second, that thereafter the defendant
              did possess a firearm.

       The jury was permitted to consider the ACIS print-out as

evidence.         The jury did so, and found defendant guilty.                          We hold

that    it    was       not    error     for      the     trial       court   to      allow     the

submission         of    this    evidence          to    the     jury.        This     evidence

constituted substantial evidence of an element of the offense of

possession of a firearm by a felon, and accordingly the trial

court did not err in denying defendant’s motion to dismiss.

       Defendant         further       contends         that,    if     his   trial         counsel

failed to properly preserve his challenge to the denial of the

motion       to     dismiss,          such       conduct        constitutes         ineffective

assistance         of   counsel.            As    we    have    held,     the      trial      court

properly      admitted         the    ACIS       print-out.        Thus,      any     motion     to

dismiss would have              been denied.              Because there was evidence

sufficient         to    support       submitting        this     charge      to      the    jury,

defendant         cannot      show    the    prejudice         necessary      to    maintain     a

claim    of       ineffective         assistance        of     counsel.         See    State     v.

Braswell, State v. Braswell, 312 N.C. 553, 566, 324 S.E.2d 241,

250    (1985)      (holding          that,   where       ”counsel's       conduct       did    not

affect the outcome of the trial[,]” defendant could not show
                                        -17-
prejudice,     and     “was    not      denied       effective        assistance   of

counsel”).

      This argument is without merit.

  V. Separate Indictment for Possession of Firearm by a Felon

      In his fourth argument, defendant contends that the trial

court lacked jurisdiction over the charge of possession of a

firearm by a felon in case 11 CRS 50366, since that charge was

not listed in a separate indictment.                 We agree.

                            A. Standard of Review

      “An attack on an indictment is waived when its validity is

not challenged in the trial court.” State v. Wallace, 351 N.C.

481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148

L. Ed. 2d 498 (2000). “However, where an indictment is alleged

to be invalid on its face, thereby depriving the trial court of

its jurisdiction, a challenge to that indictment may be made at

any time, even if it was not contested in the trial court.” Id.

                                 B. Analysis

      Defendant      was   charged     with    two    counts     of   possession   of

firearm by a felon.           One of these counts was set forth in a

separate indictment, but the other was shown as a count in the

indictment for robbery with a dangerous weapon pertaining to the

L&D   Quick   Mart.        Defendant    contends       that    this    rendered    the
                                             -18-
indictment for the second possession of a firearm by a felon

charge fatally flawed.

      N.C. Gen. Stat. § 14-415.1 provides that “The indictment

charging the defendant under the terms of this section shall be

separate from any indictment charging him with other offenses

related to or giving rise to a charge under this section.”                               N.C.

Gen. Stat. § 14-415.1(c) (2013).                       We recently held in State v.

Wilkins, ___ N.C. App. ___, 737 S.E.2d 791 (2013), that this

statutory provision requires that “a charge of Possession of a

Firearm by a Felon be brought in a separate indictment from

charges related to it[.]”                    Wilkins, ___ N.C. App. at ___, 737

S.E.2d at 794.             In Wilkins, defendant was charged with both

assault with a deadly weapon and possession of a firearm by a

felon   in    the     same       bill   of    indictment.          We    held    that    this

rendered     the     possession         of   a    firearm     by   a    felon    indictment

fatally defective.           Id.

      In     the    instant       case,      we    hold     that   including      both    the

possession of a firearm by a felon and robbery with a dangerous

weapon charges in the same bill of indictment renders the charge

of   possession       of     a    firearm         by   a   felon    fatally      defective.

Because    of      this    fatal    defect,        the     trial   court   did    not    have

subject matter jurisdiction over the second charge of possession
                                       -19-
of a firearm by a felon, and erred in entering judgment with

respect to that charge.            We vacate defendant’s conviction for

possession of a firearm by a felon in case 11 CRS 50366, and

remand the consolidated judgment in cases 11 CRS 50365 and 11

CRS   50366    to    the    Superior    Court     of        Columbus   County     for

resentencing.        See State v. Wortham, 318 N.C. 669, 674, 351

S.E.2d 294, 297 (1987) (remanding a consolidated judgment for

resentencing where one of the charges was vacated).

                                  V. Conclusion

      The trial court did not commit plain error in admitting the

recording     of    defendant’s    unredacted     statement       into    evidence.

The trial court did not err in denying defendant’s motion to

dismiss the charge of robbery with a dangerous weapon at Sam’s

Pit Stop, since the State presented substantial evidence that

defendant     was    the   perpetrator.       Defendant’s        first    claim    of

ineffective        assistance     of   counsel         is     dismissed     without

prejudice; his second is without merit.                We hold that the trial

court did not err with regard to the possession of a firearm by

a felon charge shown on a separate bill of indictment.                            The

trial court lacked jurisdiction over the possession of a firearm

by a felon charge that was combined with the charge relating to
                               -20-
the robbery at the L&D Quick Mart, so we vacate that conviction

and remand for resentencing.

    NO ERROR IN PART, DISMISSED IN PART, VACATED IN PART.

    Judges McGEE and ERVIN concur.

    Report per Rule 30(e).
