State v. CanadyState v. Canady
- Reporters:
- , ,
- Before:
- Orr
Lead Opinion
On 18 November 1988, defendant and two accomplices broke into an unoccupied home and stole sevеral 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. 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 еliininate 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 arguеs 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, that the defendant was convicted of crimes punishable by more than sixty *191days 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 mоst 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 grеater than the presumptive sentence combined.
No error.
Judge ORR concurs. Judge GREENE concurs in part and dissents in part.
Concurrence Opinion
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 priоr criminal record of the Defendant. The Defendant does have prior criminal convictions for feloniоus possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motоr vehicle, and also escape from a department of corrections conviction. All of thesе 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 аlso involve sentences of more than sixty days.
Based on the statements of the district attorney, to which defendаnt did not object, the trial judge found as aggravating factors that the defendant had “a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.”
*192I believe the statements of the distriсt attorney are inadequate as a matter of law to support the findings of the trial judge and that the defendаnt has not waived the right to argue that issue in this court. “A prior conviction may be proved by stipulation of the pаrties or by the original or a certified copy of the court record of the prior conviction.”
Thеrefore, 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.