State v. Duffy

109 N.C. App. 595 | N.C. Ct. App. | 1993

MARTIN, Judge.

Defendant assigns error only with respect to the sentence imposed by the trial court. The dispositive issue on appeal is whether the trial court erred in its finding, as a factor in aggravation of punishment, that defendant had a prior conviction of a criminal offense punishable by more than sixty days confinement. Although defendant asserts that there was no competent evidence to support the finding, we discern no error in the judgment of the trial court.

Before defendant’s trial began, his counsel filed a motion in limine to prohibit the State from offering, during the presentation of its case, evidence of other crimes committed by defendant. The motion included the following statement:

6. That on October 22, 1985, the defendant was convicted of Sexual Penetration with a Foreign Object With Force, a felony, in the State of California. The offense occurred after the defendant entered the victim’s residence through an unlocked door. The defendant cooperated with police and made a full confession of his crime.

When the motion was considered by the trial court, the prosecutor advised the court that he did not intend to offer evidence of the California conviction during the presentation of the State’s evidence, and the following exchange took place between the court and defendant’s counsel:

The Court: I suppose the motion is moot then?

Mr. Murphy: If they don’t intend to do it, that’s correct.

The Court: All right.

Mr. Murphy: Well, of course, the motion is allowed to the extent that they have made that announcement.

The Court: All right.

At defendant’s sentencing hearing, the prosecutor offered defendant’s motion in limine into evidence as proof of defendant’s previous conviction. Over defendant’s objection, the court considered the statement contained in the motion in limine and found as a factor in aggravation of punishment that defendant had been convicted of an offense punishable by more than 60 days confinement. Defendant argues that the finding was erroneous because (1) the trial court relied on an unverified statement of defendant’s counsel, (2) the evidence upon which the trial court based its finding was the very evidence which it had excluded by allowing the motion in limine, and (3) the State did not prove the prior conviction in accordance with the provisions of G.S. § 15A-1340.4(e). We find no merit in any of these contentions.

The motion in limine sought only to prevent the State from presenting evidence of defendant’s prior California conviction to the jury, on the grounds that its probative value would be substantially outweighed by its potential for unfair prejudice or for misleading the jury. The court’s ruling with respect to the motion did not preclude it from considering the conviction in determining an appropriate sentence after the jury had found the defendant guilty. Moreover, even though the trial court may have incorrectly referred to counsel’s written statement as a stipulation, it was at the very least admissible against the defendant as an evidential admission. See 2 H. Brandis, North Carolina Evidence §§ 171 & 177 (1988). Finally, though G.S. § 15A-1340.4(e) permits proof of a prior conviction by “stipulation of the parties or by the original or a certified copy of the court record of the prior conviction,” the statute does not preclude other methods of proof, State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983), and we have held that a defendant’s prior record may be proved by the statements of his counsel. State v. Brewer, 89 N.C. App. 431, 366 S.E.2d 580 (1988); State v. Cook, 65 N.C. App. 703, 309 S.E.2d 737 (1983). In this case, we hold that the admission, contained in defendant’s motion in limine, of his previous conviction in California, was sufficient evidence to support the trial court’s finding of the aggravating factor.

No error.

Judges WELLS and ORR concur.