The defendant, Waller S. Duncan, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of aggravated robbery. We affirm.
Two drug stores in Wheat Ridge, Master Drug and Wadsworth Drug, were robbed three days apart, the first on March 8 and the second on March 11, 1985. On the same day as the robbery at Wadsworth Drug, the Aladdin Pharmacy in Denver was the subject of an attempted robbery. In each case, the robber wore a wig, carried a small pistol, and was described as tall and slender. In the Wadsworth Drug robbery, a witness saw the robber escape in a car that had a license plate starting with the letters “ZAB.” A witness at the Aladdin incident chased the robber to a car bearing the license plate “ZAB 686,” in which the robber then escaped.
At trial, an employee of a car rental agency testified that she had rented a 1984 Oldsmobile bearing Colorado license plate “ZAB 686” to a person who presented a Colorado driver’s license in the name of Waller Stone Duncan, Jr. Her records indicated that this occurred on March 1, 1985, and that the rental agreement indicated that the car was due back by March 8. She was unable to say when or by whom the car was returned.
I
Defendant contends that certain procedures used by investigating officers to establish the identity of the robber were im-permissibly suggestive. Two different photo arrays, each containing photos of six individuals, were shown to witnesses about two weeks apart. Defendant was the only person whose picture appeared in both arrays, and it was in the same position in both, although different photos of defendant were used in each array. Defendant asserts that evidence of these out-of-court identifications, as well as the in-court identification by one witness who had viewed both photo arrays, should have been excluded at trial. We disagree.
We do not view the fact that defendant’s photograph appeared in both arrays, in and of itself, to be impermissibly suggestive.
See People v. Nunez,
Further, our review of this record, including the two arrays, convinces us that there is substantial evidentiary support for the trial court’s conclusion that the identification procedure used was not unduly suggestive. Under such circumstances, that determination is binding.
See Goodwin v. District Court,
II
Defendant next argues that the trial court committed reversible error in admitting evidence concerning the attempted robbery at Aladdin Pharmacy. This evidence was offered to show common scheme, plan, or design, and modus operan-di in order to establish identity.
Although evidence of an accused’s prior criminal acts is generally inadmissible,
People v. Abbott,
Defendant contends that, because the witness from the Aladdin Pharmacy incident was not able to identify him at trial, his identity as the perpetrator in that incident was not established by the requisite standard. Again, we disagree.
The People produced evidence that the witness to the Aladdin incident, who was unable to identify defendant at
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trial, had, nevertheless, selected his photograph from an out-of-court array, and defendant does not suggest that this identification was tainted. Such extrajudicial identification of a defendant is admissible as an exception to the hearsay rule, and is substantive evidence of the defendant’s identity.
People v. Howard,
Ill
Defendant also claims the court erred by sentencing him in the aggravated range to a term of twenty-four years on each of the two convictions, to be served concurrently. He asserts that the People failed to prove by competent evidence that he was on parole at the time of the commission of these offenses, and thus, his claimed status could not be a mandatory sentence enhancer under § 18-l-105(9)(a)(II), C.R.S. (1986 Repl. Vol. 8A). He also argues that the court improperly considered elements of the offenses themselves as aggravating factors. We disagree with these assertions.
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Defendant does not claim that the People did not give him notice of their intention to have his sentence enhanced because of his status as a parolee. In the presentence report that was provided to him, detailed information respecting his parole status, including the date, location, and nature of the offenses charged, as well as the disposition and sentence imposed upon him, which resulted in his being placed on parole, was set forth. He does not challenge the accuracy of this information. However, he did object to the court’s consideration of that information because he claimed that, the presentence report being hearsay, its contents were not competent to establish his parolee status.
In
People v. Lacey,
Under Lacey, if a defendant is provided with notice of the specific facts relied upon to establish his status, there need be no further proof of that status adduced, unless the defendant raises an issue as to the accuracy of the supporting factual allegations. Here, while defendant objected to the court’s consideration of the information because it was hearsay, he made no objection to its accuracy. Under these circumstances, the court did not commit error by relying upon the information contained within the presentence report to conclude that defendant was a parolee at the time of the offense and in enhancing his sentence as a result of that status.
B
While an element of an offense may not in itself be relied upon to impose an extraordinary aggravated sentence,
see People v. Russell,
The record here indicates that the discretionary aspect of the sentencing decision was based not upon elements of the offenses themselves, but upon defendant’s lengthy criminal history and the threat to society presented by his long-term patterns of criminal and drug-related conduct. Thus, the sentence imposed was within the discretion of the court.
The judgment of conviction and the sentences imposed are affirmed.