Opinion
No. COA11–1093.
2012-04-3
STATE of North Carolina v. Joshua Wray WALKER.
Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Appeal by defendant from judgment entered 13 April 2011 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 11 January 2012. Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
ERVIN, Judge.
Defendant Joshua Wray Walker appeals from a judgment sentencing him to a term of 96 to 125 months imprisonment based upon his convictions for second degree kidnapping and having attained habitual felon status. On appeal, Defendant contends that the trial court erred by (1) denying his motion to dismiss the second degree kidnapping charge for insufficiency of the evidence; (2) instructing the jury on a theory of guilt that lacked adequate evidentiary support; (3) failing to instruct the jury concerning the issue of Defendant's guilt of the lesser included offense of false imprisonment; (4) improperly expressing an opinion concerning the validity of the habitual felon allegation; and (5) admitting inadmissible and irrelevant evidence concerning Defendant's prior convictions for felonious breaking or entering and possession of a firearm by a felon during the habitual felon proceeding. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that none of Defendant's arguments have merit and that the trial court's judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
Defendant and the victim, Dela Crump, had been involved in a romantic relationship for approximately fifteen years before parting company in 2008. After their separation, Ms. Crump obtained a domestic violence protection order against Defendant.
On 13 July 2010, Ms. Crump was at her residence along with her three children and one of the children's friends. Between 10:00 and 11:00 p.m., Defendant telephoned Ms. Crump for the purpose of requesting to borrow ten dollars to utilize in purchasing cigarettes. Subsequently, Ms. Crump telephoned her sister, Crystal Crump, and asked her to come over. A while later, Crystal Crump and her boyfriend, Shannon White, arrived at Ms. Crump's residence with plans to spend the night.
Later that evening, while they were sitting on the front porch, Crystal Crump and Mr. White observed Defendant walking towards Ms. Crump's residence. Crystal Crump and Mr. White went back inside and told Ms. Crump what they had seen. Although Ms. Crump watched Defendant repeatedly ring the doorbell and knock on the door of her home, she did not answer the door or speak to Defendant. Instead, Ms. Crump telephoned the police and went to the magistrate's office for the purpose of reporting Defendant's violation of the domestic violence protection order.
Ms. Crump returned to her residence around 3:00 a.m. and fell asleep on the living room couch. At that point, Crystal Crump and Mr. White were asleep in Ms. Crump's bedroom. At approximately 5:20 a.m., Defendant broke into the residence. Ms. Crump became hysterical when she saw Defendant, jumped from the couch, and ran to her bedroom. Defendant followed Ms. Crump, grabbed her by the arms, and threw her onto the bed where Crystal Crump and Mr. White were sleeping. Defendant asked Ms. Crump, “[w]hy are you trying to get me locked up now?” and “[w]hy are you trying to take out papers on me now?” Defendant then attacked Mr. White.
At that point, Crystal Crump ran to the kitchen and called 911, while Ms. Crump exited the bedroom, grabbed her keys and cellphone, and attempted to unlock an exterior door. As Ms. Crump tried to leave the residence, Defendant placed her in a headlock and dragged her through the living room, dining room and kitchen into the bedroom, where he threw her onto the bed a second time, placed his hands around her neck, and asked her “who are you f––––g?” According to Ms. Crump, Defendant “had pressure with both hands on my neck shaking me back and forth” and, while she could still breathe, she could not speak.
Ms. Crump estimated that she was on the bed with Defendant for five to six seconds. As a result of the fact that Crystal Crump was screaming at Defendant to stop, Defendant told Crystal Crump that he “ought to jump on you, you stupid b–––h,” and that he would beat Crystal Crump if she did not shut up. Upon seeing his children, Defendant removed his hands from Ms. Crump's neck. Ms. Crump later testified that, when Defendant stopped, “it was like he had just raised up like he was raging through whoever [was] next.”
Although Defendant left the bedroom, he returned shortly thereafter and attempted to shut the door. Crystal Crump prevented Defendant from completely closing the door by wedging her foot into the doorway. At that point, Defendant stated that “[t]here's no one coming in this room. The f––––g police [are] not coming in this room until I talk to [Ms. Crump].”
At the time that the responding officers arrived at the residence, they went to the bedroom, where they found Defendant sitting on the bed and Ms. Crump standing on the far side of the bed. As the officers led Defendant away, he indicated that all he wanted to do was talk to Ms. Crump. In response, Ms. Crump stated, “you sure picked a fine time now[,] didn't you?” Although Defendant lunged at Ms. Crump, he was forcefully restrained by the officers. After the conclusion of this incident, Ms. Crump had bruises on her neck and arms. However, Ms. Crump did not seek medical treatment for her injuries.
B. Procedural History
On 15 July 2010, a warrant for arrest was issued charging Defendant with second degree kidnapping. On 9 August 2010 and 15 November 2010, the Cleveland County grand jury returned bills of indictment charging Defendant with first degree burglary, assault by strangulation, second degree kidnapping, and having attained habitual felon status. The charges against Defendant came on for trial before the trial court and a jury at the 11 April 2011 criminal session of the Cleveland County Superior Court. On 13 April 2011, the jury returned verdicts finding Defendant guilty of second degree kidnapping and not guilty of first degree burglary and assault by strangulation. After the jury convicted Defendant of second degree kidnapping, the habitual felon charge was heard before the trial court and a jury. At the conclusion of the habitual felon proceeding, the jury returned a verdict finding that Defendant had attained habitual felon status. Based upon the jury's verdicts, the trial court entered a judgment sentencing Defendant to a term of 96 to 125 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Motion to Dismiss
In his first challenge to the trial court's judgment, Defendant contends that the trial court should have granted his motion to dismiss the second degree kidnapping charge because the evidence was insufficient to show that his purpose in restraining or removing Ms. Crump was to facilitate the commission of an assault by strangulation or to terrorize her. Defendant's argument lacks merit.
When reviewing a challenge to the sufficiency of the evidence to support a conviction, this Court determines “whether [the State presented] substantial evidence (1) of each essential element of the offense charged and (2) that [the] defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980) (citations omitted). In reviewing a trial court's decision to deny a dismissal motion, we scrutinize the record “in the light most favorable to the State, giving the State the benefit of all reasonable inferences,” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied,546 U.S. 830, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005), and consider the defendant's evidence “insofar as it merely explains or clarifies or is not inconsistent with the [S]tate's evidence.” State v. McCoy, 303 N.C. 1, 23–24, 277 S.E.2d 515, 531 (1981) (citation omitted). “Intent is a condition of the mind ordinarily susceptible of proof only by circumstantial evidence. Evidence of a defendant's actions following restraint of the victim is some evidence of the reason for the restraint.” State v. Pigott, 331 N.C. 199, 211, 415 S.E.2d 555, 562 (1992). “If the evidence presented is circumstantial, ‘the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances.’ “ State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (quoting State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965)). We review a trial court's decision to deny a motion to dismiss for insufficient evidence de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
N.C. Gen.Stat. § 14–39 provides, in pertinent part, that:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person ... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
....
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.
....
(b) .... If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
As a result, in order to survive Defendant's dismissal motion, the State must have offered substantial evidence tending to show that (1) Defendant unlawfully confined, restrained, or removed Ms. Crump from one place to another; (2) without her consent; and (3) that such confinement, restraint, or removal was done for the purpose of terrorizing or facilitating the commission of a felonious assault by strangulation of Ms. Crump. N.C. Gen.Stat. § 14–39.
A felonious assault by strangulation occurs “when a person (1) assaults another person (2) and inflicts physical injury (3) by strangulation.” State v. Williams, 201 N.C.App. 161, 170, 689 S.E.2d 412, 416 (2009) (citing N.C. Gen.Stat. § 14–32.4(b)). Adequate evidence of strangulation exists in the event that the record tends to show that sufficient pressure was applied to the victim's throat to make it difficult for the victim to breathe. State v. Braxton, 183 N.C.App. 36, 43, 643 S.E.2d 637, 642,disc. review denied,361 N.C. 697, 653 S.E.2d 4 (2007). “It [is] not necessary for the [S]tate to prove the felonious assault in order to convict the defendant of kidnapping. It need only have proved that the purpose of the removal was a felonious assault.” State v. Dammons, 293 N.C. 263, 275, 237 S.E.2d 834, 842 (1977) (emphasis omitted).
“Terrorizing is defined as ‘more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.’ “ State v. Davis, 340 N.C. 1, 24, 455 S.E.2d 627, 639 (quoting State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)), cert. denied,516 U.S. 846, 116 S.Ct. 136, 133 L.Ed.2d 83 (1995). “In determining the sufficiency of the evidence [to show that Defendant acted with the intent to terrorize Ms. Crump], ‘the test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize’ the victim.” Id. (quoting Moore, 315 N.C. at 745, 340 S.E.2d at 405). However, “the victim's subjective feelings of fear, while not determinative of the defendant's intent to terrorize, are relevant.” State v. Baldwin, 141 N.C.App. 596, 604, 540 S.E.2d 815, 821 (2000). “The presence or absence of the defendant's intent or purpose to terrorize ... may be inferred by the fact-finder from the circumstances surrounding the events constituting the alleged crime.” Id. at 605, 540 S.E.2d at 821 (citation omitted).
The evidence in the present record, when viewed in the light most favorable to the State, is more than sufficient to support a jury determination that Defendant restrained and removed Ms. Crump for the purpose of (1) committing a felonious assault by strangulation and (2) terrorizing Ms. Crump. According to the undisputed evidence, Ms. Crump had obtained a domestic violence protection order against Defendant. After having telephoned Ms. Crump, Defendant arrived at her residence, where he repeatedly rang the doorbell and knocked on the door. At that point, after calling the police, Ms. Crump left home to report Defendant's violation of the domestic violence protection order. Subsequently, Ms. Crump was awakened when Defendant broke into her house, as a result of which she became hysterical and ran to her bedroom. Defendant followed Ms. Crump into the bedroom, forced her onto the bed, and attacked Mr. White. As Ms. Crump attempted to flee, Defendant followed her, caught her, placed her in a headlock, and dragged her back into the bedroom, where he forced Ms. Crump onto the bed for a second time; placed his hands around her neck; applied pressure to Ms. Crump's neck to such an extent that, while she could still breathe, she could not speak; shook her back and forth; and asked her “who are you f––––g.” Ms. Crump testified that, while she could “breathe,” “it was constantly shaking ... I mean just panic.” After cursing at Crystal Crump, Defendant stated that he would beat her if she did not shut up. Defendant released Ms. Crump upon seeing his children. Ms. Crump testified that, when Defendant stopped throttling her, it appeared as if he “raised up like he was raging through whoever [was] next.” As he was being led away by the arresting officers, Defendant lunged at Ms. Crump. After the assault, Ms. Crump had bruises on her neck and arms.
Although the record does, as Defendant argues, tend to show that Defendant said that his purpose was to talk to Ms. Crump, that Defendant never stated he wanted to put Ms. Crump in fear, that the restraint or removal of Ms. Crump occurred during a relatively short period of time, and that Ms. Crump eventually talked to Defendant, the record contains other evidence tending to show that Defendant intended to place Ms. Crump in “a state of intense fright or apprehension.” Davis, 340 N.C. at 24, 455 S.E.2d at 639. Simply put, the circumstances surrounding Defendant's entry into Ms. Crump's home coupled with the fact that Defendant placed his hands around Ms. Crump's neck and applied pressure, used angry and threatening language in speaking to Ms. Crump and her sister, was “raging,” and acted in such a manner as to create “panic” all support a reasonable inference that Defendant intended to place Ms. Crump in a high degree of fear after restraining and removing her to the bedroom. See State v. Surrett, 109 N.C.App. 344, 347–50, 427 S.E.2d 124, 126–27 (1993).
Similarly, the fact that Defendant was acquitted of felonious assault by strangulation and that Ms. Crump testified that she could still breathe does not mean that the record evidence, when taken in the light most favorable to the State, did not support a jury determination that Defendant intended to assault Ms. Crump and physically injure her by strangulation. Dammons, 293 N.C. at 275, 237 S.E.2d at 842. Simply put, evidence that Defendant forced Ms. Crump onto her bed, placed his hands around her neck, applied sufficient pressure that Ms. Crump could not speak, shook her back and forth, caused Ms. Crump to sustain bruises, and did not remove his hands from her neck until seeing his children permits a reasonable inference that Defendant intended to assault Ms. Crump by strangulation after he restrained and removed her to the bedroom. As a result, Defendant is not entitled to relief from his second degree kidnapping conviction based upon these contentions.
In his brief, Defendant argues that we are precluded from considering the evidence that Defendant put his hands around Ms. Crump's neck in the bedroom in determining whether Defendant acted for the purpose of strangling Ms. Crump on the grounds that this evidence tended to show the “means” of restraint and could not, for that reason, be considered in determining the intent with which Defendant acted. Moore, 315 N.C. at 748–49, 340 S.E.2d at 408. However, the restraint upon and removal of Ms. Crump occurred during the time that Defendant forced her back into the bedroom rather than at the time that Defendant strangled Ms. Crump. As a result, this aspect of Defendant's argument lacks merit.
B. Instructions on Purpose for Restraint or Removal
Secondly, Defendant contends that the trial court erroneously allowed the jury to convict him of second degree kidnapping on grounds that it instructed the jury on a theory of guilt that lacked adequate evidentiary support. We do not find Defendant's argument persuasive.
At the jury instruction conference, the State successfully urged the trial court to instruct the jury that it could convict Defendant of second degree kidnapping on the theory that Defendant restrained or removed Ms. Crump for the purpose of both terrorizing her and assaulting her by strangulation. The jury did not specify in its verdict the theory or theories upon which it based its decision to convict Defendant of second degree kidnapping. According to Defendant, the trial court erred by allowing the jury to consider both purposes in reaching its decision on the grounds that the record did not contain sufficient evidence to justify a finding of either purpose. Such challenges to a “trial court's decisions regarding jury instructions are reviewed de novo [.]” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).
According to Article I, Section 24 of the North Carolina Constitution, “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” A defendant is deprived of his right to a unanimous verdict “ ‘[w]here the trial court instructs on alternative theories, one of which is not supported by the evidence and the other which is, and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict.’ “ State v. Johnson, 183 N.C.App. 576, 583, 646 S.E.2d 123, 128 (2007) (quoting State v. Hughes, 114 N.C.App. 742, 746, 443 S.E.2d 76, 79,disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994)).
Although Defendant argues, as we have already noted, that neither of the purpose theories which the trial court allowed the jury to consider had adequate record support, we have already determined that the record contains substantial evidence tending to show that Defendant acted for both the purpose of assaulting Ms. Crump by strangulation and terrorizing her. As a result, the trial court's instructions did not violate Defendant's right to a unanimous verdict given that both theories that the trial court allowed the jury to consider had adequate evidentiary support. See Johnson, 183 N.C.App. at 582, 646 S.E.2d at 127 (stating that, “where the trial court instructs disjunctively in [regards to the underlying purposes for which a second degree kidnapping may have been committed], there must be evidence to support all of the alternative acts that will satisfy the element”). Thus, Defendant's argument lacks merit.
C. Failure to Instruct on False Imprisonment
Thirdly, Defendant contends that the trial court committed plain error by failing to instruct the jury concerning the issue of Defendant's guilt of the lesser included offense of false imprisonment. We do not believe that Defendant is entitled to relief on the basis of this argument.
As Defendant candidly concedes in his brief, his failure to request at trial that the jury be allowed to consider the issue of his guilt of false imprisonment means that we are required to review this claim utilizing a plain error standard of review. Plain error consists of error that is “so fundamental that it undermines the fairness of the trial, or [has] a probable impact on the guilty verdict.” State v. Floyd, 148 N.C.App. 290, 295, 558 S.E.2d 237, 240 (2002). In order to obtain relief on plain error grounds, an appealing party must show “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or a denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
As a general proposition, a judge is required to instruct a jury concerning the issue of a defendant's guilt of a lesser included offense “where there is evidence from which the jury could reasonably conclude that the defendant committed the lesser included offense.” State v. McConnaughey, 66 N.C.App. 92, 95, 311 S.E.2d 26, 28 (1984) (citations omitted). In making this determination, “ ‘courts must consider the evidence in the light most favorable to [the] defendant.’ “ State v. Clegg, 142 N.C.App. 35, 46, 542 S.E.2d 269, 277 (quoting State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988)), disc. review denied, 353 N.C. 453, 548 S.E.2d 529 (2001). “The mere contention that the jury might accept the State's evidence in part and might reject it in part is not sufficient to require submission to the jury of a lesser offense.” State v. Black, 21 N.C.App. 640, 643–44, 205 S.E.2d 154, 156,aff'd,286 N.C. 191, 209 S.E.2d 458 (1974).
“False imprisonment is a lesser included offense of kidnapping.” State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993).
The distinguishing factor between kidnapping and false imprisonment is the purpose of the confinement, restraint or removal of another person. “So, whether a defendant who confines, restrains, or removes another is guilty of kidnapping or false imprisonment, depends upon whether the act was committed to accomplish one of the purposes enumerated in our kidnapping statute.”
State v. Boozer, ––– N.C.App. ––––, ––––, 707 S.E.2d 756, 762 (2011) (internal citation omitted) (quoting State v. Lang, 58 N.C.App. 117, 118–19, 293 S.E.2d 255, 256,disc. review denied, 306 N.C. 747, 295 S.E.2d 761 (1982)), disc. review denied, ––– N .C. ––––, ––– S.E.2d –––– (Jan. 26, 2012) (No.157P11). “[T]he trial court does not have to instruct on false imprisonment if there is sufficient evidence that the defendant acted with a purpose enumerated in N.C. Gen.Stat. § 14–39.” State v. Rodriguez, 192 N.C.App. 178, 189, 664 S.E.2d 654, 661 (2008). Thus,
[under a plain error standard of review,][t]o prevail, Defendant[ ] would have to show that the State did not present sufficient evidence that [he] [restrained and] removed [Ms. Crump] for the purpose of [committing a felony assault by strangulation] or terrorizing [her], and “that the jury probably would have convicted [him] of false imprisonment rather than kidnapping if the judge had given an instruction on false imprisonment.”
Boozer, ––– N.C.App. at ––––, 707 S.E.2d at 763 (emphasis in original) (quoting Rodriguez, 192 N.C.App. at 190, 664 S.E.2d at 662) (holding that the trial court did not commit error, much less plain error, in failing to instruct the jury sua sponte on the issue of the defendants' guilt of false imprisonment where the State presented sufficient evidence that the defendants had removed the victim for the purpose of doing him serious bodily harm or terrorizing him). As a result of the fact that we have already determined that the State presented sufficient evidence that Defendant restrained or removed Ms. Crump for the purpose of assaulting her by strangulation and terrorizing her, we are compelled to reject Defendant's challenge to the trial court's instructions and hold that the trial court's failure to instruct the jury concerning the issue of Defendant's guilt of false imprisonment did not constitute plain error.
D. Expression of Opinion During Habitual Felon Proceeding
Fourth, Defendant contends that the trial court's statement to the effect that “[t]he second phase of this trial is for the purpose of determining whether or not the [D]efendant is an habitual felon which the State has proved beyond a reasonable doubt” constituted an improper expression of opinion which entitles him to a new habitual felon proceeding. We do not find Defendant's argument persuasive.
As an initial matter, we note that Defendant has failed to provide specific support in his brief for his contention that the trial court's comment violated his federal and state constitutional rights. As a result, Defendant has abandoned his constitutional challenge to the trial court's comment. N.C. R.App. P. 28(b)(6) (stating that “[i]ssues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned”).
N.C. Gen.Stat. § 15A–1222 provides that a “judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.” In addition, N.C. Gen.Stat. § 15A–1232 prohibits the trial court from expressing “an opinion as to whether or not a fact has been proved” while instructing the jury. “In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.” State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995). Although “it is error for the trial judge to express or imply, in the presence of the jury, any opinion as to the guilt or innocence of the defendant [,]” State v. Freeman, 280 N.C. 622, 626, 187 S.E .2d 59, 62 (1972), a “mere slip of the tongue [or lapsus linguae ] by the trial judge in his charge to the jury which is not called to the court's attention at the time it is made will not constitute prejudicial error when it is apparent from the record that the jury was not misled thereby.” State v. Simpson, 303 N.C. 439, 450, 279 S.E.2d 542, 549 (1981). Similarly, a statement made by the trial court in the course of delivering introductory remarks “should be considered within the context of all the introductory remarks. This is the method for reviewing jury charges, and should be applicable to opening remarks.” State v. Craig, 308 N.C. 446, 452, 302 S.E.2d 740, 744 (internal citation omitted), cert. denied,464 U.S. 908, 104 S.Ct. 263, 78 L.Ed.2d 247 (1983).
After carefully reviewing the challenged comment, we conclude that it constituted a lapsus linguae which could not have prejudiced Defendant. Shortly after making the statement about which Defendant complains, the trial court correctly informed the jury that “[t]he burden of proof in this second phase remains upon the [State] to prove to you beyond a reasonable doubt that the [D]efendant has attained the status of an habitual felon.” Following the close of all the evidence, the trial court told the jury that, “if the State has [proved that Defendant was convicted of the three prior felony convictions alleged in the indictment] to you beyond a reasonable doubt, then it would be your duty to return a verdict of guilty of being an habitual felon.” The trial court did not repeat the challenged comment, which appears to have been completely inadvertent. As a result, given the isolated nature of the challenged comment and the fact that the trial court correctly instructed the jury that it was required to find beyond a reasonable doubt that Defendant had attained habitual felon status, we conclude that Defendant suffered no prejudice as a result of the trial court's comment. See State v. Baker, 338 N.C. 526, 564–65, 451 S .E.2d 574, 597 (1994) (holding that the trial court's statement that the jury should find the defendant guilty if it had reasonable doubt as to his commission of the crime with which he had been charged did not constitute prejudicial error given that the entire jury charge, taken in context, made it apparent that the State had the burden of proving defendant guilty beyond a reasonable doubt).
E. Admission of Prior Convictions during Habitual Felon Proceeding
Finally, Defendant contends that he is entitled to a new habitual felon proceeding because the trial court erroneously admitted evidence that Defendant had previously been convicted of felonious breaking or entering and felonious possession of a firearm. We are not persuaded by Defendant's argument.
The habitual felon indictment lodged against Defendant alleged that Defendant had (1) a 6 December 1996 common law robbery conviction; (2) a 14 June 2002 attempted common law robbery conviction; and (3) an 18 May 2009 felonious larceny conviction. At Defendant's habitual felon proceeding, the State was permitted to introduce, over Defendant's objection, certified copies of the judgments entered against Defendant in each of the three cases specified in the indictment. However, the 14 June 2002 attempted common law robbery and the 18 May 2009 felonious larceny judgments indicated that Defendant also had been convicted of possession of a firearm by a convicted felon and felonious breaking and entering. In his brief, Defendant contends that the trial court's decision to allow the admission of these judgments into evidence was erroneous because it resulted in the receipt of irrelevant and highly prejudicial evidence.
Although Defendant did not state the specific basis for his objection at trial, the record clearly reflects, as Defendant candidly admits, that his trial objection rested on authentication-related concerns. N.C. R.App. P. 10(b)(1). On appeal, however, Defendant contends that the judgments contained inadmissible and irrelevant material and should have been excluded from evidence for that reason. The Supreme Court and this Court have “long held that, where a theory argued on appeal was not raised before the trial court, ‘the law does not permit parties to swap horses between courts in order to get a better mount’ “ in the appellate courts. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). However, “[i]n criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law ... nevertheless may be made the basis of an issue presented on appeal when the [alleged error] is specifically and distinctly contended to amount to plain error.” N .C. R.App. P. 10(a)(4); State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000) (stating that “plain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence”), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001). As a result of Defendant's failure to object to the admission of the challenged evidence on relevant and impermissible prejudice grounds and his contention on appeal that the admission of such evidence constituted plain error, we review the trial court's rulings utilizing a plain error standard of review under which Defendant must show that the admission of the challenged evidence probably led to the jury's finding that Defendant had attained habitual felon status or resulted in a miscarriage of justice or the denial of a fair habitual felon hearing. Bishop, 346 N.C. at 385, 488 S.E.2d at 779.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401. Although all relevant evidence is admissible, N.C. Gen.Stat. § 8C–1, Rule 402, evidence that has “not been connected to the crime charged and which [has] no logical tendency to prove any fact in issue [is] irrelevant and inadmissible.” State v. Wallace, 104 N.C.App. 498, 502, 410 S.E.2d 226, 228–29 (1991), disc. review denied, 331 N.C. 290, 416 S.E.2d 398,cert. denied,506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 241 (1992).
“A person may be charged as a[n] habitual felon if he has been convicted of or pled guilty to three felony offenses.” State v. Ross, –––N.C.App. ––––, ––––, 700 S.E.2d 412, 425 (2010) (citing N.C. Gen.Stat. § 14–7.1), disc. review denied,––– N.C. ––––, 717 S.E.2d 377 (2011). A defendant's prior felony convictions “ ‘may be prove[n] by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.’ “ State v. Gant, 153 N.C.App. 136, 143, 568 S.E.2d 909, 913 (quoting N.C. Gen.Stat. § 14–7.4 (emphasis omitted)), disc. review denied,356 N.C. 440, 572 S.E.2d 792 (2002). “[T]he preferred method for proving a prior conviction includes the introduction of the judgment itself into evidence.” State v. Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211,cert. denied,469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984). However, evidence of convictions upon which the State does not rely in attempting to prove that Defendant has attained habitual felon status is irrelevant, so that information concerning such convictions should be redacted from any judgment which the State seeks to have admitted into evidence at an habitual felon proceeding. State v. Lotharp, 148 N.C.App. 435, 444–45, 559 S.E.2d 807, 812,rev'd on other grounds,356 N.C. 420, 571 S.E.2d 583 (2002). Thus, the trial court erred by failing to redact the “irrelevant [convictions] to ensure that the jury would not improperly consider them.” Lotharp, 148 N.C.App. at 445, 559 S.E.2d at 812.
Having made this determination, however, we note that the record contains no evidence tending to show that Defendant had not been convicted of the three felonies enumerated in the habitual felon indictment. In addition, the trial court only allowed the jury to consider the three convictions delineated in the habitual felon indictment in determining whether Defendant had attained habitual felon status. As a result, Defendant has failed to show that the admission of the challenged evidence probably resulted in the jury's decision that Defendant had attained habitual felon status. Id. (holding that, although the trial court erred by failing to redact evidence of irrelevant convictions from records relating to the defendant's convictions that were admitted into evidence at an habitual felon proceeding, that error was not prejudicial given the fact that the trial court properly instructed the jury concerning the manner in which it should make the required habitual felon determination and the fact that that Defendant had failed to show how the admission of the irrelevant convictions resulted in unfair prejudice). As a result, the trial court did not commit plain error by admitting evidence concerning Defendant's unrelated possession of a firearm by a convicted felon and felonious breaking or entering convictions.
III. Conclusion
Thus, for the reasons set forth above, all of Defendant's challenges to the trial court's judgment lack merit. As a result, we conclude that the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Judges BRYANT and ELMORE concur.
Report per Rule 30(e).