State v. Pickens ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-320
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 12 CRS 61206-07
12 CRS 61251
12 CRS 701
13 CRS 382
BRIAN MONTREAL PICKENS
Appeal by defendant from judgments entered 26 September
2013 by Judge Alan Z. Thornburg in Buncombe County Superior
Court.1 Heard in the Court of Appeals 25 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ann W. Matthews, for the State.
Don Willey, for defendant-appellant.
CALABRIA, Judge.
Brian Montreal Pickens (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of misdemeanor
breaking or entering; felonious larceny; assault on a law
enforcement officer; resisting, delaying or obstructing a public
1
An amended judgment correcting clerical errors was signed by
Judge J. Thomas Davis on 17 February 2014.
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officer; failure to appear on a felony charge; and attaining the
status of habitual felon. We find no error.
At approximately 7:00 a.m. on 28 September 2012, defendant,
Gregory Clinkscales (“Clinkscales”) and Melissa Balken
(“Balken”) entered an unoccupied home in Asheville, North
Carolina for the purpose of removing metal items that could be
sold to a scrap metal dealer. Defendant and Clinkscales were
loading an item from the house into Clinkscales’ vehicle when
Officers Rosa Perez-Schupp (“Officer Perez-Schupp”) and
Brenniman (collectively “the officers”) of the Asheville Police
Department (“APD”) separately arrived at the home. When
confronted by the officers, defendant, Clinkscales, and Balken
falsely stated that the home belonged to Clinkscales’ aunt and
that they had her permission to enter the residence. In
addition, defendant provided a false name to Officer Perez-
Schupp when she asked him to identify himself. The officers
were able to determine that the home belonged to Barbara Hunter
(“Mrs. Hunter”), whose grandson, Ervin Hunter (“Officer
Hunter”), was an APD officer.
Officer Hunter, who was off-duty, received a call from an
APD communicator alerting him to a possible breaking and
entering at his grandmother’s house. When he arrived at the
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scene, he saw the three intruders in handcuffs. Officer Hunter
recognized defendant and knew that defendant had several
outstanding arrest warrants issued against him. Officer Hunter
disputed that the individuals had permission to enter the home
and directed the other officers to arrest them. As Officer
Perez-Schupp attempted to secure handcuffs on defendant’s right
hand, defendant tugged away, swung his fist at her, and
attempted to flee on foot. Officer Hunter chased defendant and
subdued him.
Defendant was subsequently charged with felony breaking or
entering, felony larceny, assault on a law enforcement officer,
resisting, delaying or obstructing a public officer, and
attaining the status of habitual felon. Beginning 23 September
2013, defendant was tried by a jury in Buncombe County Superior
Court. Defendant failed to appear at the trial on 24 September
2013, and as a result, a warrant was issued for his arrest. The
trial continued in defendant’s absence. During trial, Officer
Hunter testified without objection that he knew that defendant
had several outstanding warrants for failure to appear and that
he knew that defendant had a reputation of “being violent and
running.”
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On 25 September 2013, the jury returned verdicts finding
defendant guilty of felonious larceny, the lesser included
offense of misdemeanor breaking or entering, assault on a law
enforcement officer, RDO, and attaining the status of an
habitual felon. Defendant was located, arrested, and brought
before the court for sentencing on 26 September 2013. Defendant
pled guilty to the charges of felony failure to appear and
attaining the status of an habitual felon. For the offenses
based upon jury verdicts, the trial court sentenced defendant to
a minimum of 97 months to a maximum of 129 months in the North
Carolina Division of Adult Correction (“DAC”). For the felony
failure to appear, the trial court sentenced defendant as an
habitual felon to a minimum of 38 months to a maximum of 58
months in the DAC, which was to be served concurrently with his
other sentences. Defendant appeals.
Defendant’s sole issue on appeal is that the trial court
committed plain error by admitting the testimony of Officer
Hunter regarding his knowledge of the outstanding warrants on
defendant and defendant’s history of violence and flight.
Defendant contends that this testimony was not relevant or
admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), and even
if relevant and admissible, it should have been excluded
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pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 because its
probative value was substantially outweighed by its potential
for unfair prejudice and confusion of the issues. We disagree.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury's finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal quotations and citations omitted).
In the instant case, there was significant evidence of
defendant’s guilt. Defendant did not deny removing materials
from Mrs. Hunter’s home, and the testimony of Balken and Officer
Hunter established that defendant did not have permission to
remove these materials. Additionally, the testimony of Officers
Hunter and Perez-Schupp clearly established that defendant
provided a false name to law enforcement and that he assaulted
Officer Perez-Schupp in an attempt to evade arrest. In light of
this evidence, defendant has failed to meet his burden of
establishing that the trial court’s alleged error had a probable
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impact upon the jury’s verdict. Accordingly, this argument is
overruled.
Defendant received a fair trial, free from prejudicial
error.
No error.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).