An unpublished opinion of the North Carolina Court of Appeals does not constitute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