{ "id": 11911740, "name": "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK", "name_abbreviation": "State v. Kirkpatrick", "decision_date": "1996-07-02", "docket_number": "No. COA94-1322", "first_page": "86", "last_page": "90", "citations": [ { "type": "official", "cite": "123 N.C. App. 86" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "96 ALR2d 768", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "116 L. Ed. 2d 232", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "502 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6473607, 6473902, 6474097, 6474001, 6473811, 6473366, 6473719, 6473530, 6473468 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/502/0902-04", "/us/502/0902-07", "/us/502/0902-09", "/us/502/0902-08", "/us/502/0902-06", "/us/502/0902-01", "/us/502/0902-05", "/us/502/0902-03", "/us/502/0902-02" ] }, { "cite": "402 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "328 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539893 ], "year": 1991, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0337-01" ] }, { "cite": "296 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "446", "parenthetical": "no prejudice from erroneous exclusion where same or substantially same testimony is admitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560498 ], "year": 1982, "pin_cites": [ { "page": "23-24", "parenthetical": "no prejudice from erroneous exclusion where same or substantially same testimony is admitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-120", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "436 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "162" } ], "opinion_index": 1 }, { "cite": "112 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522347 ], "year": 1993, "pin_cites": [ { "page": "517" } ], "opinion_index": 1, "case_paths": [ "/nc-app/112/0512-01" ] } ], "analysis": { "cardinality": 522, "char_count": 10842, "ocr_confidence": 0.741, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3906254766204516 }, "sha256": "4557c3be0d98605fd025af5774aedd9a2d77c4b63de32f6a3862d23775608793", "simhash": "1:a7a3bfc772b249f4", "word_count": 1747 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judges WYNN dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK" ], "opinions": [ { "text": "GREENE, Judge.\nCoye Haven Kirkpatrick (defendant) appeals from a judgment and commitment, entered after a jury verdict, sentencing him to forty-six years in prison for uttering an instrument bearing a forged endorsement, a Class I felony, in violation of N.C. Gen. Stat. \u00a7 14-120, enhanced by the finding that defendant is an habitual felon, pursuant to N.C. Gen. Stat. \u00a7 14-7.1.\nThe record reveals that defendant worked at a restaurant in Burlington, N.C. during the year of 1993. In the fall of 1993, Sherri Mann (Mann) worked at the restaurant for approximately three weeks. After leaving her employment there, Mann did not receive her last pay check in the amount of $24.05. On 7 November 1993, defendant was arrested after he attempted to have a convenience store clerk cash Mann\u2019s check, in the amount of $24.05.\nAt trial defendant testified that he obtained the check from Gloria Foster (Foster), an .assistant manager at the restaurant where defendant works, with whom defendant testified he had a \u201cromantic relationship.\u201d Defendant further testified that two other managers advanced him money on one occasion each and that Foster advanced money to defendant \u201cprobably over ten times.\u201d Defendant knew that the employees\u2019 paychecks were kept in a safe at the restaurant, and that only three people, including the two managers Michael Fields and Foster, had keys to the room which contained the safe. Although defendant worked in close proximity to this room, it was locked at all times and \u201csomebody would have seen\u201d him if he tried to enter the room. Defendant stated also that although Foster gave him some preferential treatment, \u201c[s]he didn\u2019t give [him] access to nobody else\u2019s check.\u201d On 7 November 1993, defendant asked for an advance and Foster gave him Mann\u2019s check, which defendant stated was endorsed when he received it from Foster. Defendant further testified that he did not forge the endorsement himself, nor did he know that the endorsement was forged. When discussing his receipt of the check from Foster, defendant wanted to testify regarding Foster\u2019s statement to defendant when she gave him the check. On voir dire, outside of the jury\u2019s presence, defendant testified that Foster told him to \u201cget it cashed and they\u2019ll reimburse it\u201d and that it was his understanding that \u201cSherri Mann signed the check and they paid her in cash.\u201d Defendant then testified before the jury that on occasion the restaurant had cashed defendant\u2019s checks, thus indicating that the restaurant may have cashed Mann\u2019s check.\nAfter the jury returned its guilty verdict on the charge of uttering an instrument bearing a forged endorsement, the trial court conducted a separate proceeding on the charge of habitual felon. The jury, based upon evidence that defendant pled guilty to felony larceny in 1984, felony larceny in 1982 and breaking and entering and larceny in 1972, determined that defendant met the habitual felon requirements, pursuant to N.C. Gen. Stat. \u00a7 14-7.1, thus elevating defendant\u2019s sentence to that of a Class C felon. The record also shows that defendant was previously adjudicated as an habitual felon in 1987, after his conviction for possession of stolen property. The 1987 adjudication was based on the same three guilty pleas as the 1993 habitual felon adjudication. Not included in either determination of defendant\u2019s status as an habitual felon is defendant\u2019s guilty plea to a 1976 breaking and entering a motor vehicle and larceny from an auto, a 1977 guilty plea of breaking and entering, and his 1986 guilty plea of possession of stolen property. After the jury\u2019s determination in the 1993 habitual felon proceeding, the trial court found two aggravating factors; that defendant \u201chas prior convictions for criminal offenses punishable by more than 60 days confinement\u201d and that \u201cthe defendant has previously been adjudicated as an habitual offender on April 27, 1987.\u201d The prior convictions used by the trial court are the 1976, 1977 and 1986 guilty pleas which did not serve as a basis for either habitual felon adjudication. The court then found three mitigating factors; \u201cdefendant exercised caution to avoid serious bodily harm or fear to other persons\u201d and that defendant cooperated with police when he was stopped on 7 November 1993, and that \u201c[defendant was a good employee and hard worker.\u201d The trial court then determined that the aggravating factors outweigh the mitigating factors and entered a sentence for forty-six years, which is greater than the presumptive term of fifteen years for a Class C felon.\nThe issues are whether (I) defendant was prejudiced by the trial court\u2019s exclusion of testimony regarding Foster\u2019s statement to defendant when he received the check; and (II) the trial court erred in its finding that the adjudication of defendant as an habitual felon in 1987 is a factor in aggravation of his sentence.\nI\nDefendant argues that the trial court erred by excluding his testimony regarding statements made by Foster to defendant, which would negate defendant\u2019s knowledge that the endorsement was forged. Even assuming, however, that this exclusion was erroneous, defendant has failed to show that he was prejudiced. N.C.G.S. \u00a7 15A-1443(a) (1988). In fact defendant was allowed to advance his theory that he did not possess the requisite knowledge for the crime by defendant\u2019s testimony that he did not put the endorsement on the check, that the check was endorsed when he received it from Foster and that he did not know that the endorsement was false. Furthermore, defendant was allowed the opportunity to advance his theory of how Foster could have had the endorsed check without Mann\u2019s endorsement being forged. Accordingly, defendant was allowed to present substantially the same evidence as that excluded by the trial court and any error was harmless. See State v. Hageman, 307 N.C. 1, 23-24, 296 S.E.2d 433, 446 (1982) (no prejudice from erroneous exclusion where same or substantially same testimony is admitted).\nII\nThe defendant argues that the trial court erred in its consideration of defendant\u2019s 1987 adjudication as an habitual felon as a non-statutory aggravating factor. We disagree.\nIn this case the 1987 habitual felony adjudication represents three separate felony convictions. Because the trial court could have considered, as aggravating factors, these three felony convictions, State v. Roper, 328 N.C. 337, 363, 402 S.E.2d 600, 615, cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232 (1991), it follows that there is no error in considering the habitual felony adjudication as an aggravating factor, as long as the underlying felonies are not also considered as aggravating factors. This record does not reveal that the trial court considered, as aggravating factors, both the 1987 habitual felony adjudication and the felonies on which that adjudication was based. Therefore, the use of the 1987 habitual felony adjudication to aggravate the sentence and the use of the 1993 habitual felony adjudication to enhance the sentence was not error. Id.; N.C.G.S. \u00a7 14-7.6 (1993) (habitual felony adjudication enhances sentence).\nNo error.\nJudge SMITH concurs.\nJudges WYNN dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\ndissenting.\nThe majority acknowledges that the same three convictions used to establish defendant\u2019s status as a habitual felon in 1987 were used to establish defendant\u2019s status as a habitual felon in the case at hand. Since the supporting three convictions are the same, the 1993 habitual felon status in this case is identical to the 1987 habitual felon status. Thus, by using the 1987 habitual felon status to also aggravate the present sentence, the majority, in effect holds that the 1993 habitual felony status may be used to both enhance and aggravate its underlying felony. That is a patently unfair result; accordingly, I dissent.\nMoreover, while in Roper our Supreme Court sanctioned the double use of prior convictions to both establish the status of habitual felon and aggravate the sentence, it did not provide for the use of the defendant\u2019s status as a habitual felon to be used for both enhancement and aggravation.\nI further disagree with the State\u2019s use of the same prior convictions, some five years later, in support of a subsequent indictment to obtain the same \u201cstatus\u201d of being a habitual felon. In essence, the three underlying convictions that are used to establish the defendant\u2019s status as a habitual felon in 1987 are used again in 1993 to establish the same status. Indeed, this Court has stated that \u201c[t]his implies that being an habitual felon is a status, that once attained is never lost.\u201d State v. Smith, 112 N.C. App. 512, 517, 436 S.E.2d 160, 162 (1993). Thus, once an individual is marked as a habitual felon, she is branded for life. The logical extension of this result would be to require such individuals to wear a \u201cscarlet letter\u201d for life, with no means of removing it.\n. In the factual section of this opinion, the majority states: \u201cThe 1987 adjudication was based on the same three guilty pleas as the 1993 habitual felon adjudication.\u201d", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General J. Mark Payne, for the State.", "Robert H. Hood III for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK\nNo. COA94-1322\n(Filed 2 July 1996)\n1. Evidence and Witnesses \u00a7 785 (NCI4th)\u2014 testimony excluded \u2014 similar evidence admitted \u2014 exclusion as harmless error\nEven if the trial court erred by excluding defendant\u2019s testimony regarding statements made by a fellow employee to defendant which would negate defendant\u2019s knowledge that the endorsement on a check which he tried to cash was forged, defendant failed to show that he was prejudiced by such exclusion since he was allowed to present substantially the same evidence as that excluded by the trial court, and any error was harmless.\nAm Jur 2d, Appellate Review \u00a7 759.\n2. Criminal Law \u00a7 1110 (NCI4th)\u2014 habitual felony adjudication as aggravating factor \u2014 no error\nBecause the trial court could have considered as aggravating factors three felony convictions which supported defendant\u2019s 1987 habitual felony adjudication, there was no error in considering the habitual felony adjudication as a nonstatutory aggravating factor for defendant\u2019s present sentence as long as the underlying felonies were not also considered as aggravating factors.\nAm Jur 2d, Habitual Criminals and Subsequent Offenders \u00a7 15.\nCourt\u2019s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.\nJudge Wynn dissenting.\nAppeal by defendant from judgment entered 21 April 1994 in Alamance County Superior Court by Judge J.B. Allen, Jr. Heard in the Court of Appeals 12 September 1995. Remanded to the Court of Appeals from the North Carolina Supreme Court to address defendant-appellant\u2019s assignments of error on 10 May 1996.\nAttorney General Michael F. Easley, by Assistant Attorney General J. Mark Payne, for the State.\nRobert H. Hood III for defendant-appellant." }, "file_name": "0086-01", "first_page_order": 120, "last_page_order": 124 }