State v. Canady

392 S.E.2d 457 (1990)

STATE of North Carolina v. Ricky Lynn CANADY.

No. 8916SC884.

Court of Appeals of North Carolina.

June 19, 1990.

Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. J. Charles Waldrup, Chapel Hill, for the State.

Locklear, Jacobs & Sutton by Arnold Locklear, Pembroke, for the defendant.

LEWIS, Judge.

On 18 November 1988, defendant and two accomplices broke into an unoccupied home and stole several items of personal property.

Defendant assigns as error the admission into evidence of certain testimony that he had threatened his two accomplices about not testifying against him. This evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." N.C. *458 Rule of Evidence 403; State v. Smith, 19 N.C.App. 158, 159, 198 S.E.2d 52, 53, cert. denied, 284 N.C. 123, 199 S.E.2d 662 (1973). The decision to admit or exclude evidence under Rule 403 is a matter within the sound discretion of the trial court. State v. Jones, 89 N.C.App. 584, 594, 367 S.E.2d 139, 145 (1988). We do not find that the trial court abused its discretion by admitting this evidence.

Defendant next argues that the trial court erred by sentencing the defendant for a period greater than the presumptive sentence based upon the fact that the State did not offer any exhibits into evidence. The State presented information to the court that defendant had prior convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle and escape from the Department of Corrections. The defendant never objected to the nature of the evidence offered by the State to prove the prior convictions and further stated in the record that his record did not show transgressions against property and are "not consistent with what he's been involved in in the past." Appellate Rule 10(b)(2) requires a party to object to the failure of the trial court to make necessary findings and conclusions in order to advance those issues on appeal. "The purpose of this rule appears to be to provide the trial court an opportunity to correct any obvious defects and thereby eliminate the need for an appeal and a new proceeding." State v. Bradley, 91 N.C.App. 559, 564, 373 S.E.2d 130, 132-33, disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989). Because defendant failed to object to the State's statements at sentencing, he has waived his right to appeal.

Finally, defendant argues that the trial court erred in sentencing him to a prison term in excess of the presumptive sentence. The combined presumptive sentence is fifteen years for the two crimes. The judge found, in aggravation of the sentence, than the defendant was convicted of crimes punishable by more that sixty days confinement and found no mitigating factors. Defendant's conviction of second degree burglary alone subjected him to a maximum sentence of forty years. Defendant's sentence of twenty years imprisonment is well below the maximum sentence for his most serious felony and is therefore proper. State v. Phillips, 84 N.C.App. 302, 305, 352 S.E.2d 273, 275, disc. rev. denied, 319 N.C. 462, 356 S.E.2d 12 (1987). The trial court did not err in sentencing the defendant to a term greater than the presumptive sentence combined.

No Error.

ORR, J., concurs.

GREENE, J., concurs in part and dissents in part.

GREENE, Judge, concurring in part and dissenting in part.

I agree with the majority that there was no error in the defendant's trial. I disagree, however, with the majority's conclusion that the failure of the defendant to object to the district attorney's statements at the sentencing hearing amounted to a waiver of defendant's right to complain that the statements were insufficient to support findings in aggravation of the sentence. The only evidence presented at the sentencing hearing relating to the prior criminal conduct of the defendant was the following statement of the district attorney:

Your Honor, first of all, I would like to present to the Court facts of a prior criminal record of the Defendant. The Defendant does have prior criminal convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle, and also escape from a department of corrections conviction. All of these would be within the time limits which would entitle the Court to find them as aggravating circumstances in that they are within ten years and also involve sentences of more than sixty days.

Based on the statements of the district attorney, to which defendant did not object, the trial judge found as aggravating factors that the defendant had "a prior *459 conviction or convictions for criminal offenses punishable by more than 60 days confinement."

I believe the statements of the district attorney are inadequate as a matter of law to support the findings of the trial judge and that the defendant has not waived the right to argue that issue in this court. "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." N.C.G.S. § 15A-1340.4(e) (1988). Prior convictions may also be proven by defendant's testimony. Here we had only the unsupported statement of the district attorney. This statement is not competent to prove prior convictions. See State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986); accord State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983) (prosecutor's unsworn statements deemed insufficient to prove prior convictions); State v. Williams, 92 N.C.App. 752, 376 S.E.2d 21, disc. rev. denied, 324 N.C. 251, 377 S.E.2d 762 (1989). Pursuant to his active inquisitorial function during sentencing, the trial court had the duty to examine all the evidence presented to determine if it would support any of the statutory sentencing factors, even absent a request by counsel. See State v. Cameron, 314 N.C. 516, 520, 335 S.E.2d 9, 11 (1985). Furthermore, the defendant's failure to object to the statements of the district attorney is not a bar to the defendant raising the issue on appeal. See State v. Mack, 87 N.C.App. 24, 359 S.E.2d 485 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E.2d 663 (1988).

Therefore, since the remarks by the district attorney were not evidence according to the Swimm decision and since the defendant did not waive his right to argue this issue on appeal, I vote to remand to the trial court for resentencing.