State v. Edgerton ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1091
Filed: 6 August 2019
Rutherford County, Nos. 16CRS53635, 17CRS607
STATE OF NORTH CAROLINA
v.
LAMONT EDGERTON, Defendant.
Appeal by Defendant from judgment dated 26 April 2018 by Judge Mark E.
Powell in Rutherford County Superior Court. Heard in the Court of Appeals 25 April
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Erika N.
Jones, for the State.
W. Michael Spivey for Defendant-Appellant.
INMAN, Judge.
Felony habitual larceny, which elevates the crime of misdemeanor larceny if
the defendant has been convicted of four or more prior larcenies, does not include as
an essential element the requirement that the defendant was represented by counsel
or waived counsel in obtaining those prior larceny convictions.
Lamont Edgerton (“Defendant”) appeals following a jury verdict finding him
guilty of habitual larceny and attaining the status of an habitual felon. Defendant
argues that (1) the indictment was facially invalid and insufficient to charge him with
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Opinion of the Court
habitual larceny; (2) he was not properly arraigned for the charge of habitual larceny;
(3) his attorney was not authorized to stipulate to his prior larceny convictions; (4)
the State did not provide sufficient evidence to prove the charge of habitual larceny;
and (5) the use of an Automated Criminal/Infraction System printout to prove a prior
felony conviction violated the best evidence rule. After careful review of the record
and applicable law, we hold that Defendant has failed to demonstrate error.
I. Factual and Procedural History
The record and evidence introduced at trial reveal the following:
On 14 September 2016, employees at Ingles Markets, Incorporated (“Ingles”)
witnessed Defendant “sticking . . . meats inside of a bag he brought in the store for
himself.” Defendant then left the store without paying for the items. One employee
followed Defendant outside and planned to identify the license plate of Defendant’s
vehicle, but Defendant made eye contact with him and the employee returned inside
the store.
Defendant reentered the store and confronted the employees at the Ingles deli
counter. Defendant became “pretty rowdy,” asked the employees if there was a
problem, and said if there was he would “be back and take care of that problem.” Both
employees felt threatened by Defendant’s behavior and told Defendant to take the
meat. Once Defendant had left the store, they notified their management and called
the police.
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Sergeant Andy Greenway (“Sgt. Greenway”) of the Lake Lure Police
Department was dispatched to Ingles to investigate the call. He viewed surveillance
footage of the incident and recognized Defendant. Sgt. Greenway and another officer
found Defendant in front of his house with his father and sister and noticed two empty
Ingles bags in the driveway. He then arrested Defendant, who asked, “Can I not just
have my dad go back and pay for the pork chops?” Sgt. Greenway told Defendant
that it was too late for that. Defendant told Sgt. Greenway that he took the pork
chops because he had no money and wanted something nice to eat on his birthday.
Defendant was indicted for habitual larceny and as an habitual felon. The
habitual larceny charge came on for jury trial during the 23 April 2018 session of
Rutherford County Superior Court. At the close of the State’s evidence, after
conferring with Defendant, Defendant’s counsel informed the court “for the record,
we would stipulate to the sufficient prior larcenies to arrive at the level of habitual
larceny.” On 25 April 2018 the jury returned a verdict finding Defendant guilty of
larceny.
After the jury returned its verdict, Defendant became agitated, made
comments to the jury, and was removed from the courtroom when he got “more and
more out of control.” The court found that Defendant “was a physical threat to
everyone in the courtroom” and ruled that he had waived his right to be present.
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The habitual felon phase of the trial proceeded in Defendant’s absence.1
Defendant’s counsel declined to stipulate to Defendant’s felony record. Karla Tower,
an assistant clerk of the Rutherford County Superior Court, testified about
Defendant’s prior felony convictions and the jury found Defendant guilty of being an
habitual felon.
The next day, the court reconvened for sentencing with Defendant present.
The court found Defendant to have a level VI prior felony record level, and sentenced
Defendant to 103 to 136 months’ imprisonment. Defendant appeals.
II. Analysis
A. Indictment
Defendant argues the indictment charging him with habitual larceny was
facially invalid because it did not allege all the essential elements of the offense. We
disagree.
Our General Statues provide that larceny of property valued $1,000 or less is
a misdemeanor, and larceny of property valued more than $1,000 is a felony. N.C.
Gen. Stat. § 14-72(a) (2017). But our statutes also provide that a charge of larceny
ordinarily classified as a misdemeanor can be elevated to a felony charge when the
defendant has committed four or more prior larcenies. The larceny must have been:
[c]ommitted after the defendant has been convicted in this
State or in another jurisdiction for any offense of larceny
1 Defendant does not argue on appeal that the trial court erred in proceeding in his absence.
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under this section, or any offense deemed or punishable as
larceny under this section, or of any substantially similar
offense in any other jurisdiction, regardless of whether the
prior convictions were misdemeanors, felonies, or a
combination thereof, at least four times. A conviction shall
not be included in the four prior convictions required under
this subdivision unless the defendant was represented by
counsel or waived counsel at first appearance or otherwise
prior to trial or plea.
N.C. Gen. Stat. § 14-72(b)(6) (2017) (emphasis added). Defendant argues that the
felony indictment in this case is invalid because it did not specifically allege that he
was represented by counsel or had waived counsel in the proceedings underlying each
of his prior larceny convictions. For the reasons explained below, we hold that the
counsel requirement is not an essential element of the crime of habitual larceny and
that the indictment was therefore valid.
A constitutionally sufficient indictment “must allege lucidly and accurately all
the essential elements of the offense endeavored to be charged.” State v. Brice, 370
NC 244, 249, 806 S.E.2d 32, 36 (2017) (citations omitted). An indictment that fails to
allege an essential element of the offense is facially invalid, thereby depriving the
trial court of jurisdiction. Id. We review a challenge to the facial validity of an
indictment de novo, State v. Williams, 368 N.C. 620, 622, 781 S.E.2d 268, 270 (2016),
considering the matter anew and freely substituting our own judgment for that of the
trial court. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
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The indictment in this case alleges that Defendant did “steal, take, and carry
away 2 packs of pork products, the personal property of Ingles Markets, Inc.” and, in
a separate count, alleges that Defendant previously had been convicted of four
larceny offenses. The indictment lists the date of conviction, court, and file number
for each larceny offense. The indictment does not allege that Defendant obtained
those convictions while he was represented by counsel or had waived counsel.
We consider whether Section 14-72(b)(6)’s counsel requirement is an essential
element of the offense, and is therefore required to be alleged in an indictment for
habitual larceny, or whether the requirement provides for an exception to criminal
liability that is not an essential element of the offense. Each provision in a statute
defining criminal behavior is not necessarily an essential element. Such provisions
may instead constitute, for example, affirmative defenses or evidentiary issues to be
proven at trial. See, e.g., State v. Sturdivant, 304 N.C. 293, 309-10, 283 S.E.2d 719,
730-31 (1981) (holding that consent is an absolute defense to kidnapping, rather than
an essential element); State v. Leaks, 240 N.C. App. 573, 578, 771 S.E.2d 795, 799
(2015) (holding the manner used by a sex offender to notify the sheriff of a change in
address is an evidentiary issue to be proven at trial, rather than an essential element
of the crime). In some instances, we have held that exceptions to criminal statutes
are “hybrid” factors, which the State is not required to allege in an indictment and
for which it bears no initial burden of proof but must rebut evidence that a defendant’s
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conduct falls within the exception. See State v. Trimble, 44 N.C. App. 659, 666, 262
S.E.2d 299, 303-04 (1980).
Allegations beyond the essential elements of a crime need not be included in
an indictment. State v. Rankin, ___ NC ___, ___, 821 S.E.2d 787, 792 (2018).
The language of Section 14-72(b)(6) provides for an exception to the crime of
habitual larceny, removing from consideration prior convictions obtained when a
defendant was not represented by counsel and had not waived counsel. “Whether an
exception to a statutorily defined crime is an essential element of that crime or an
affirmative defense to it depends on whether the statement of the offense is complete
and definite without inclusion of the language at issue.” Id. When the statute’s
statement of the offense is complete and a subsequent clause provides an exception
to criminal liability, the exception need not be negated by the language of the
indictment. State v. Mather, 221 N.C. App. 593, 598, 728 S.E.2d 430, 434 (2012)
(citing State v. Connor, 142 N.C. 700, 701, 55 S.E. 787, 788 (1906)). There are no
“magic words” that indicate an exception to a statutory offense is a defense: “[t]he
determinative factor is the nature of the language in question.” State v. Brown, 56
N.C. App. 228, 230, 287 S.E.2d 421, 423 (1982). The question is whether the language
is part of the definition of the crime or if it withdraws a class from an already complete
definition of the crime. Id.
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This Court has employed this analysis with respect to several criminal
statutes, but we have not always focused on the same factors in making this
determination. Prior decisions have identified as relevant the manner in which the
statute and exception are drafted, Brown, 56 N.C. App. at 228, 287 S.E.2d at 421,
prior decisions that enumerate the elements of the crime, Brice, 370 N.C. at 244, 806
S.E.2d at 32, and the essential fairness of assigning an exception as a defense or as
an element, Trimble, 44 N.C. App. at 659, 262 S.E.2d at 299.
In Brown, we examined Section 14-74 of our General Statutes, which defines
the crime of larceny by an employee. 56 N.C. App. at 230, 287 S.E.2d at 423. This
statute criminalizes the act of an employee who takes certain possessions of his
employer with the intent to steal or defraud “[p]rovided, that nothing in this section
shall extend to apprentices or servants within the age of 16 years.” N.C. Gen. Stat.
§ 14-74 (2017). We held that the exception withdrew a class of defendants—those
under sixteen years of age—from the crime of larceny by an employee, and that the
language of the statute preceding the clause completely defined the offense. Brown,
56 N.C. App. at 230-31, 287 S.E.2d at 423. Therefore, an indictment for the crime
was not required to allege the defendant’s age. Id. This Court further reasoned that
a defendant’s age “is a fact particularly within [the] defendant’s knowledge,” such
that placing the burden on the defendant to raise that exception is not an unfair
allocation of proof. Id.
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Opinion of the Court
Similarly, Section 14-72(b)(6) provides a complete statement of the crime of
habitual larceny without incorporating the exception at issue. We reach this
conclusion by determining the type of criminal conduct the legislature intended to
prohibit. See Rankin, ___ N.C. at ___, 821 S.E.2d at 792. In so defining a crime, we
look to decisions by our Supreme Court enumerating its elements. See, e.g., Leaks,
240 N.C. App. at 577, 771 S.E.2d at 799.
In Leaks, we addressed whether an indictment charging a sex offender with
failure to notify the sheriff of a change of address must allege failure to provide notice
in writing. Id. at 577-78, 771 S.E.2d at 798-99. We held that the writing requirement
is an evidentiary issue, rather than an essential element, based on a Supreme Court
decision enumerating the elements of that crime as part of its review of the sufficiency
of the evidence presented against a defendant. Id. (citing State v. Abshire, 363 N.C.
322, 328, 677 S.E.2d 444, 449, (2009)).
With respect to Section 14-72(b)(6), we take guidance from our Supreme
Court’s recent decision in Brice, which enumerated the elements of habitual larceny:
[A] criminal defendant is guilty of the felony of habitual
misdemeanor larceny in the event that he or she “took the
property of another” and “carried it away” “without the
owner’s consent” and “with the intent to deprive the owner
of his property permanently” after having been previously
convicted of an eligible count of larceny on four prior
occasions.
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370 N.C. at 248-49, 806 S.E.2d at 35-36 (internal citations omitted).2 Our Supreme
Court omitted the counsel requirement in its list of the essential elements of the
offense. Id. We view this as an accurate description of the behavior our legislature
intended to criminalize: larceny by a defendant who has been previously convicted of
larceny at least four times. The counsel exception is therefore not an essential
element of habitual larceny.
We follow the guiding principal that the elements of an offense cannot be so
defined as to place an unfair burden of proof upon the defendant. See Brown, 56 N.C.
App. at 231, 287 S.E.2d at 423. It is “substantively reasonable to ask what would be
a ‘fair’ allocation of the burden of proof, in light of due process and practical
considerations, and then assign as ‘elements’ and ‘defenses’ accordingly.” Trimble,
44 N.C. App. at 666, 262 S.E.2d at 303.
It is not unfair to require the defendant to bear the initial burden of producing
evidence regarding representation by counsel with respect to one or more prior
larceny convictions. Eligible prior larcenies for the purposes of Section 14-72(b)(6)
include those committed at any time prior to the larceny being elevated to habitual
status, in any jurisdiction. Even when a prior larceny was committed within the same
jurisdiction as the habitual larceny case, as the assistant superior court clerk
2 An “eligible count” refers to convictions of larceny as defined in the statute: “any offense of
larceny under this section, or any offense deemed or punishable as larceny under this section, or of
any substantially similar offense in any other jurisdiction.” N.C. Gen. Stat. § 14-72(b)(6).
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testified, court records are purged after a period of time. Defendants are likely the
best source of information as to whether or not they were represented in proceedings
resulting in a particular prior conviction.
Our Supreme Court’s analysis of an analogous provision in our Fair Sentencing
Act is instructive. In State v. Thompson, the Court examined the use of prior
convictions as aggravating factors during sentencing. 309 N.C. 421, 307 S.E.2d 156
(1983). Although the burden of proving the prior convictions rests on the State, the
Court held that “the initial burden of raising the issue of . . . lack of assistance of
counsel on a prior conviction is on the defendant.” Id. at 427, 307 S.E.2d at 161. The
Court allocated to the defendant the burden to object to, or move to suppress, the
admission of evidence of a prior conviction based on lack of representation because
“cases in which a defendant was convicted while indigent and unrepresented should
be the exception rather than the rule. A defendant generally will know, without
research, whether this occurred.” Id. at 426, 307 S.E.2d at 160 (quoting State v.
Green, 62 N.C. App. 1, 6 n.1, 301 S.E.2d 920, 923 n.1 (1983)). As it is not unfair to
require a defendant to raise the issue of lack of counsel when prior convictions are
being used for sentencing purposes, it is likewise not unfair to place that initial
burden on the defendant in the case of habitual larceny.
The legislature has also spoken on this question. Our Criminal Procedure Act
provides that a defendant moving to suppress the use of a prior conviction “has the
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burden of proving by the preponderance of the evidence that the conviction was
obtained in violation of his right to counsel.” N.C. Gen. Stat. § 15A-980(c) (2017).
This statute demonstrates a decision by our legislature that requiring a defendant to
raise the representation issue is not an unfair allocation of the burden of proof.
Because Defendant’s appeal challenges only the validity of the indictment, and
Defendant presented no evidence regarding whether he was represented by or waived
counsel in his prior larceny cases, our analysis concludes with determining that the
counsel requirement is not an essential element of habitual larceny. We do not
address whether the defendant bears any burden on this issue beyond that of
production.3
Based on the structure of Section 14-72(b)(6), our Supreme Court’s definition
of its elements in Brice, and the availability to defendants of information regarding
whether they had or waived counsel when they obtained prior convictions, we hold
that representation by or waiver of counsel in connection with prior larceny
3 While some defenses place the burdens of both production and proof upon the defendant,
some only require an initial showing that shifts the burden of proof to the State. In Trimble, for
example, we examined Section 14-401 of our General Statutes, which criminalizes putting poisonous
foodstuffs in certain public places and provides that it “shall not apply” to poisons used for protecting
crops and for rat extermination. 44 N.C. App. at 664, 262 S.E.2d at 302. We held that the exception
was neither an element of the crime nor an affirmative defense, but a hybrid factor for which “the
State has no initial burden of producing evidence to show that defendant’s actions do not fall within
the exception; however, once the defendant, in a non-frivolous manner, puts forth evidence to show
that his conduct is within the exception” the burden shifts to the State. Id. at 666, 262 S.E.2d at 303-
04. Similarly, in Thompson, our Supreme Court held that a prima facie showing by a defendant that
prior convictions being used as aggravating factors were obtained in violation of the right to counsel
shifts the burden to the State to show that they were not. 309 N.C. at 428, 307 S.E.2d at 161.
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convictions is not an essential element of felony habitual larceny as defined by N.C.
Gen. Stat. § 14-72(b)(6). The indictment in this case was not required to allege facts
regarding representation by or waiver of counsel and was sufficient to charge
Defendant with the crime of felony larceny and grant the trial court subject matter
jurisdiction.
B. Authority to Stipulate
Defendant additionally argues that his attorney was without authority to
stipulate to the prior convictions used to elevate his charge to habitual larceny.
Defendant analogizes this stipulation to counsel’s entry of a guilty plea or admission
of a defendant’s guilt to a jury, decisions which “must be made exclusively by the
defendant.” State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). “[A]
decision to plead guilty must be made knowingly and voluntarily by the defendant
after full appraisal of the consequences.” Id. (citing Boykin v. Alabama, 395 U.S. 238,
23 L. Ed. 274 (1969)).
We have expressly rejected this analogy in prior decisions. In State v.
Jernigan, the defendant, charged with habitual impaired driving, argued that the
same procedural protections that apply to guilty pleas applied when his counsel
stipulated to his previous convictions. 118 N.C. App. 240, 243-45, 455 S.E.2d 163,
165-66 (1995). We held in that case that a defendant’s attorney may stipulate to an
element of a charged crime, including previous convictions, and there is no
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requirement that the record show the defendant personally stipulated to the element
or knowingly and voluntarily consented to the stipulation. Id. (citing State v.
Morrison, 85 N.C. App. 511, 514-15, 355 S.E.2d 182, 185 (1987)). An attorney is
presumed to have the authority to act on behalf of his client during trial, including
while stipulating to elements of a crime, and “the burden is upon the client to prove
the lack of authority to the satisfaction of the court.” Id. at 245, 455 S.E.2d at 167
(citing State v. Watson, 303 N.C. 533, 538, 279 S.E.2d 580, 583 (1981)).
Defendant cites our Supreme Court’s decision in State v. Mason for the
proposition that “an attorney has no right, in the absence of express authority, to
waive or surrender by agreement or otherwise the substantial rights of his client.”
268 N.C. 423, 426, 150 S.E.2d 753, 755 (1966) (citation omitted). However, that same
decision makes clear that its holding is based on the fact that the waiver made by
defendant’s counsel was not a “stipulation of guilt to an essential element of the crime
charged.” Id. at 425, 150 S.E.2d at 755.
In this case, the record does not show that Defendant’s attorney acted without
authority. The trial transcript does not support Defendant’s assertion on appeal that
he “immediately, clearly, and vigorously rejected any stipulation.” Once the State’s
evidence had concluded and the jury was allowed to leave, Defendant’s attorney
informed the trial court “for the record, we would stipulate to the sufficient prior
larcenies to arrive at the level of habitual larceny.” Defendant then interjected, “It
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ain’t nothing but a misdemeanor larceny charge.” He explained, “It’s not no felony
larceny. Habitual larceny came out December 1, 2012. I did my time on all them
other charges.”
Defendant’s statements immediately following his counsel’s stipulation do not
reflect a denial of the existence of those convictions or of his attorney’s authority to
stipulate to them. Instead, they reflect his legal disagreement with the use of
convictions obtained prior to the enactment of our habitual larceny statute as prior
convictions for the statute’s purposes. Defendant has not satisfied the burden of
showing his trial counsel did not have authority to stipulate to his prior larceny
convictions.
C. Habitual Larceny Arraignment
Defendant also argues that the trial court’s failure to arraign him as mandated
by Section 15A-928(c) of our General Statutes constitutes prejudicial error. We
disagree.
When a defendant’s prior convictions are used to raise an offense from a lower
grade to a higher grade, thereby becoming an element of the offense, the State must
obtain a special indictment alleging the previous convictions. N.C. Gen. Stat. § 15A-
928(b) (2017). After the trial commences, and before the close of the State’s case, the
trial judge must arraign the defendant upon the special indictment and advise him
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that he may admit the alleged convictions, deny them, or remain silent. N.C. Gen.
Stat. § 15A-928(c) (2017).
Defendant did not object at trial to the court’s failure to arraign him. Although
this would generally preclude Defendant from raising this issue on appeal, “when a
trial court acts contrary to a statutory mandate and a defendant is prejudiced
thereby, the right to appeal the court’s action is preserved, notwithstanding
defendant’s failure to object at trial.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d
65, 67 (2010) (citations and quotations omitted). A statutory mandate automatically
preserves an issue for appellate review when it (1) requires a specific act by the trial
judge or (2) requires specific proceedings the trial judge has authority to direct. In
re E.D., ___ N.C. ___, ___, 827 S.E.2d 450, 457 (2019) (citations omitted). Because the
arraignment proceeding in question is mandated by Section 15A-928(c) of our General
Statutes, the trial court’s error is preserved for appeal if it prejudiced Defendant.
The State does not contest that the trial court failed to formally arraign
Defendant upon the charge of habitual larceny. A trial court’s failure to arraign
defendant under Section 15A-928(c) is not per se reversible error but is analyzed for
prejudice. “If there is no doubt that defendant was fully aware of the charges against
him and was in no way prejudiced by the omission of the arraignment required by
Section 15A-928(c), the trial court’s failure to arraign defendant is not reversible
error.” Jernigan, 118 N.C. App. at 244, 455 S.E.2d at 166. The question before us,
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both in determining if this issue was preserved for appeal and if the error is
reversible, is whether Defendant was prejudiced by the failure of the trial court to
arraign him.
In Jernigan, the trial court failed to arraign a defendant who was charged with
habitual impaired driving. 118 N.C. App. at 243, 455 S.E.2d at 165. Because the
defendant’s attorney informed the court that he had discussed the case with the
defendant and the defendant was willing to stipulate to the charges, and the
defendant made no argument on appeal that he was not aware of the charges against
him or did not understand his rights or the effect of the stipulation, we held that he
was not prejudiced by the lack of arraignment. Id. at 245, 455 S.E.2d at 167.
In this case, as in Jernigan, Defendant stipulated through counsel to the prior
convictions. Unlike in Jernigan, Defendant argues on appeal that he did not
understand the charges of the special indictment and was confused about the impact
of the stipulation. The record does not support this argument.
The two purposes of the statute, informing Defendant of the prior convictions
that would be used against him and allowing him an opportunity to admit or deny
those convictions, were fulfilled in this case. As in Jernigan, the prior convictions
being used to elevate Defendant’s charge were identified with specificity in a valid
indictment, providing him with notice. 118 N.C. App. at 243, 455 S.E.2d at 166.
When the trial court addressed the question of whether Defendant wished to stipulate
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to the prior convictions, Defendant was allowed the opportunity to admit or deny the
convictions. Defendant’s attorney requested a moment to speak with his client, they
conferred and then, through counsel, Defendant stipulated to the prior larcenies.
While Defendant protested at that time, as discussed supra, his disagreement
concerned the eligibility of convictions he had obtained prior to the enactment of the
habitual larceny statute. Defendant did not before the trial court and does not on
appeal deny the convictions. Accordingly, we find that the purposes of Section 15A-
928(c) were satisfied and Defendant was not prejudiced by the trial court’s failure to
arraign him on his prior convictions.
D. Sufficiency of Evidence
Defendant additionally argues that the trial court erred in denying his motion
to dismiss because the State failed to present sufficient evidence that Defendant was
represented by or had waived counsel for his previous larceny convictions.
We review a trial court’s denial of a motion to dismiss de novo, considering the
matter anew and freely substituting our own judgment for that of the trial court.
State v. Moore, 240 N.C. App. 465, 470, 770 S.E.2d 131, 136 (2015). In reviewing a
motion to dismiss based on insufficiency of the evidence, our inquiry is “whether there
is substantial evidence (1) of each essential element of the offense charged, . . . and
(2) of defendant’s being the perpetrator of such offense.” Id. at 470-71, 770 S.E.2d at
136.
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In this case, the only essential element that Defendant contends the State
failed to prove was that Defendant was represented by or had waived counsel in his
prior larceny convictions. However, as discussed supra, because we hold that the
counsel requirement is not an essential element under Section 14-72(b)(6), the State
was not required to provide evidence of Defendant’s representation. Furthermore,
Defendant’s counsel stipulated to Defendant’s convictions for “sufficient prior
larcenies to arrive at the level of habitual larceny.” We therefore hold that the trial
court did not err in denying Defendant’s motion to dismiss.
E. Best Evidence Rule
Finally, Defendant challenges the use of an Automated Criminal/Infraction
System (“ACIS”) printout to prove one of Defendant’s prior convictions during the
habitual felon phase of Defendant’s trial. Defendant argues that the use of the
printout violates the best evidence rule, which excludes secondary evidence used to
prove the contents of a recording when the original recording is available. See N.C.
Gen. Stat. § 8C-1, Rules 1002-1004 (2017).
When a defendant is charged with attaining the status of habitual felon, the
trial proceeds in two phases. N.C. Gen. Stat. § 14-7.5 (2017). First the defendant is
tried for the underlying felony and then, if the defendant is found guilty, the
indictment charging the defendant as an habitual felon is revealed to the jury and
the trial proceeds to the second phase. Id. The State must then prove that the
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defendant “has been convicted of or pled guilty to three felony offenses in any federal
court or state court in the United States.” N.C. Gen. Stat. § 14-7.1 (2017). The prior
convictions “may be proved by stipulation of the parties or by the original or a certified
copy of the court record of the prior conviction.” N.C. Gen. Stat. § 14-7.4(a) (2017).
Defendant argues that Section 14-7.4 requires that a copy of judgment record
be used to prove prior convictions, and that an ACIS printout is therefore secondary
evidence that must comply with the foundational requirements of the best evidence
rule—meaning the State must establish that a copy of the judgment record could not
be “obtained by the exercise of reasonable diligence.” N.C. Gen. Stat. § 8C-1, Rule
1005 (2017). We disagree.
This Court has previously held that a certified copy of an ACIS printout is
sufficient evidentiary proof of prior convictions under our habitual felon statute.
State v. Waycaster, ___ N.C. App. ___, ___, 818 S.E.2d 189, 195 (2018). We concluded
in Waycaster that Section 14-7.4 is permissive and allows, rather than requires, that
the proof tendered be a certified copy of the court record of the prior conviction. Id.
Accordingly, an ACIS printout, certified by the Clerk of McDowell County Superior
Court as containing information accurately reflecting the judgment, was sufficient
proof of the defendant’s prior conviction. Id. Because the evidence tendered was not
proof of the contents of another document, the best evidence rule did not bar the
admission of the printout. Id.
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STATE V. EDGERTON
Opinion of the Court
In this case, the State similarly provided an ACIS printout evidencing
Defendant’s prior conviction. An assistant clerk testified as to its accuracy, and the
printout was a certified copy. Following Waycaster, this is competent evidence of
Defendant’s prior conviction, and was properly admitted by the trial court.
NO ERROR.
Judges ARROWOOD and BROOK concur.
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