{ "id": 8471651, "name": "STATE OF NORTH CAROLINA v. CHARLES LAMONT AYSCUE", "name_abbreviation": "State v. Ayscue", "decision_date": "2005-04-05", "docket_number": "No. COA04-203", "first_page": "548", "last_page": "556", "citations": [ { "type": "official", "cite": "169 N.C. App. 548" } ], "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": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "516 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "computerized printout with the heading \"DCI - Record\" and containing various identifying characteristics of the defendant held to be a copy of a Division of Criminal Information record and competent to prove prior convictions" } ], "opinion_index": 0 }, { "cite": "349 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571526, 571542, 571528, 571582 ], "year": 1998, "pin_cites": [ { "parenthetical": "computerized printout with the heading \"DCI - Record\" and containing various identifying characteristics of the defendant held to be a copy of a Division of Criminal Information record and competent to prove prior convictions" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0237-04", "/nc/349/0237-02", "/nc/349/0237-01", "/nc/349/0237-03" ] }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "51", "parenthetical": "computerized printout with the heading \"DCI - Record\" and containing various identifying characteristics of the defendant held to be a copy of a Division of Criminal Information record and competent to prove prior convictions" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465606 ], "year": 1998, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0113-01" ] }, { "cite": "565 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "742" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080945 ], "year": 2002, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0499-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "93 L. Ed. 2d 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6340738, 6341187, 6339651, 6340166, 6341416, 6339181, 6341774, 6340368, 6339954, 6340948, 6338904, 6339482, 6339803, 6341597, 6338527 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/479/0836-10", "/us/479/0836-12", "/us/479/0836-05", "/us/479/0836-08", "/us/479/0836-13", "/us/479/0836-03", "/us/479/0836-15", "/us/479/0836-09", "/us/479/0836-07", "/us/479/0836-11", "/us/479/0836-02", "/us/479/0836-04", "/us/479/0836-06", "/us/479/0836-14", "/us/479/0836-01" ] }, { "cite": "340 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "year": 1986, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "145 L. Ed. 2d 274", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9531459, 9532036, 9531683, 9531419, 9531977, 9531531, 9531499, 9531631, 9531926, 9531799, 9531384, 9531739, 9531868, 9531582 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0941-03", "/us/528/0941-14", "/us/528/0941-08", "/us/528/0941-02", "/us/528/0941-13", "/us/528/0941-05", "/us/528/0941-04", "/us/528/0941-07", "/us/528/0941-12", "/us/528/0941-10", "/us/528/0941-01", "/us/528/0941-09", "/us/528/0941-11", "/us/528/0941-06" ] }, { "cite": "512 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "350 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132015 ], "year": 1999, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0109-01" ] }, { "cite": "387 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305037 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0037-01" ] }, { "cite": "374 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "608-09", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526755 ], "year": 1988, "pin_cites": [ { "page": "254", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0246-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-97", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 838, "char_count": 21100, "ocr_confidence": 0.751, "pagerank": { "raw": 5.442398628504577e-08, "percentile": 0.34233656093463366 }, "sha256": "9c55f91cc6e0e915352dda5a5f113222e6651c7d12819d0015b67b69762d1d0a", "simhash": "1:c6ffa82a772e1e6f", "word_count": 3365 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES LAMONT AYSCUE" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nCharles Lamont Ayscue (\u201cdefendant\u201d) appeals his conviction of robbery with a firearm. For the reasons discussed herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for a new sentencing hearing.\nThe State\u2019s evidence presented at trial tends to show the following: On 13 April 2002, Regina Durham (\u201cDurham\u201d) and Leon Debnam (\u201cDebnam\u201d) were working at Currin\u2019s Mini Mart in Henderson when defendant entered the store and asked Durham for change for a fifty dollar bill. Durham had seen defendant \u201c[n]umerous times\u201d in the store, and the two had \u201cconversations\u201d on more than one occasion. Durham told defendant that she did not keep that much change that late at night, and defendant left the store. Defendant then returned to the store and told Durham, \u201cyou know you just made me miss a drug deal.\u201d Durham replied, \u201cwell, maybe I just kept you from getting in trouble[,]\u201d and she continued working with other customers.\nAs Durham was waiting on another customer, defendant \u201cpulled out [a] gun\u201d and demanded that Durham give him money. Durham initially \u201cdidn\u2019t pay him any attention,\u201d but after defendant \u201cclicked the gun,\u201d Durham opened the cash register and gave defendant approximately $580.00 in cash. After defendant fled the store, Durham \u201cpushed the panic button\u201d and locked up the store.\nDebnam did not notice defendant when he first entered the store, but while Debnam was mopping the floor in front of the cash register he noticed defendant \u201cwas real fidgety, and went from one\u2014 one end of the register to the other.\u201d Debnam saw what \u201c[ljooked like a nine millimeter\u201d hanging out of defendant\u2019s pants pocket, and he heard defendant say, \u201cgive it all here.\u201d Debnam initially believed defendant was talking to a customer in the store, but stated that \u201cwhen I heard the (makes sound and demonstrates chambering bullet), I looked back, he had the gun pointed at [Durham].\u201d Debnam then saw defendant flee the store after Durham gave him money from the cash register.\nWhen law enforcement officers arrived at the store, Durham described what had happened during the robbery and informed the officers that the store had a videotaping system. While watching the videotape with the officers, Durham told the officers that \u201cshe knew the guy, but she just couldn\u2019t kind of think of his name.\u201d She informed the officers that the assailant had twin sisters, one of whom worked at a local middle school. Vance County Sheriffs Department Deputy J.L. Goolsby (\u201cDeputy Goolsby\u201d), who was called to the scene to investigate the incident, had attended school with one of defendant\u2019s sisters, who worked at the middle school Durham had indicated. When Deputy Goolsby suggested that defendant was the assailant, Durham snapped her fingers and said, \u201cthat\u2019s his name.\u201d Durham also told the officers where she believed one of defendant\u2019s twin sisters lived, as well as which way defendant had fled.\nOn 8 July 2002, defendant was indicted for robbery with a dangerous weapon. A grand jury reindicted defendant for the same charge on 2 June 2003 and 7 July 2003. Defendant\u2019s trial began 19 August 2003. At trial, defendant objected to the State\u2019s introduction of the videotape into evidence. The trial court overruled defendant\u2019s objection and initially allowed the introduction of the videotape solely for illustrative purposes. However, following testimony related to the chain-of-custody of the videotape, the trial court allowed the State to introduce the videotape for substantive purposes as well.\nFollowing the State\u2019s presentation of its case, defendant requested that the trial court prohibit the State from introducing evidence related to defendant\u2019s prior out-of-state conviction for possession of stolen property in the fifth degree. The trial court denied defendant\u2019s request, and defendant subsequently testified on direct examination that he did not participate in the robbery of Currin\u2019s Mini Mart and that he was at another location on the night upon which the robbery occurred. Defendant also testified that the conviction for possession of stolen property in the fifth degree occurred in New York, and that he \u201cdidn\u2019t spend no time in jail for it, or nothing.\u201d Defendant testified that he \u201cthought they\u201d dismissed the charge.\nOn 20 August 2003, the jury found defendant guilty of robbery with a firearm. The trial court reviewed defendant\u2019s criminal record and determined that defendant had a prior felony record level II. The trial court thereafter sentenced defendant to seventy to ninety-three months incarceration. Defendant appeals.\nWe note initially that defendant\u2019s brief contains arguments supporting only ten of the original twenty-one assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those issues properly preserved by defendant for appeal.\nThe issues on appeal are whether the trial court erred by: (I) admitting the videotape into evidence; (II) admitting evidence of defendant\u2019s prior out-of-state conviction; and (III) determining defendant\u2019s prior record level.\nDefendant first argues that the trial court erred by admitting the videotape into evidence. Defendant asserts that a proper foundation was not laid prior to the introduction of the videotape into evidence. We disagree.\nUpon proper foundation, N.C. Gen. Stat. \u00a7 8-97 (2003) allows the introduction of videotapes into evidence for both illustrative and substantive purposes.\nThe prerequisite that the offeror lay a proper foundation for the videotape can be met by: (1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purposes); (2) \u201cproper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape . . .\u201d; (3) testimony that \u201cthe photographs introduced at trial were the same as those [the witness] had inspected immediately after processing,\u201d (substantive purposes); or (4) \u201ctestimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area \u2018photographed[.]\u2019 \u201d\nState v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608-09 (1988) (citations omitted), rev\u2019d on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990).\nIn the instant case, Durham testified that the videotape was the one taken out of the camera on the night of the robbery and that the videotape accurately represented the incident she had described to the jury. Following this testimony, the trial court allowed the introduction of the videotape into evidence for illustrative purposes only. Durham then continued to testify, and on cross-examination, she explained the discrepancy between the date and time of the incident and the date and time contained on the screen when the videotape was played. Durham testified that the store had previously been robbed, but that the store had not yet \u201ctimed [the videotape system] back up.\u201d Durham further testified that \u201c[w]e change that tape every day.\u201d Deputy Goolsby testified that after viewing the tape, he \u201cwent back to the office and did the report on it.\u201d Deputy Goolsby testified that \u201c[t]he tape was put into evidence\u201d and that \u201cit went under Detective Almond\u2019s case load.\u201d Vance County Sheriff\u2019s Department Detective John Almond (\u201cDetective Almond\u201d) testified that he investigated the robbery and took the videotape into custody on 13 April 2002, and that the videotape had been in his custody, unaltered and unchanged, since that date. Following this testimony, the trial court admitted the videotape into evidence for substantive purposes. In light of the foregoing, we conclude that a proper foundation was laid for the introduction of the videotape into evidence for both substantive and illustrative purposes.\nDefendant asserts a second basis for contesting the admissibility of the videotape. While he concedes that he did not object to the introduction of the evidence for substantive purposes, defendant maintains that the trial court committed plain error by allowing the State to introduce the videotape into evidence for substantive purposes because the videotape was \u201chighly prejudicial\u201d to his case. We disagree.\n\u201cPlain error exists where, after reviewing the entire record, the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that justice could not have been done.\u201d State v. Fleming, 350 N.C. 109, 132, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). \u201cA prerequisite to our engaging in a \u2018plain error\u2019 analysis is the determination that the [trial court\u2019s action] constitutes \u2018error\u2019 at all.\u201d State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). Once we have determined that the trial court erred, \u201c \u2018[bjefore deciding that an error by the trial court amounts to \u201cplain error,\u201d [we] must be convinced that absent the error the jury probably would have reached a different verdict.\u2019 \u201d Id. (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).\n\u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2003). Our Supreme Court has previously concluded that \u201crelevant evidence is properly admissible . . . unless the judge determines that it must be excluded, for instance, because of the risk of \u2018unfair prejudice.\u2019 \u201d State v. Mercer, 317 N.C. 87, 94, 343 S.E.2d 885, 889 (1986). According to its official commentary, \u201cunfair prejudice\u201d within the context of Rule 403 \u201cmeans an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (Commentary).\nIn the instant case, the record does not reflect that the probative value of the videotape was outweighed by any undue prejudice. The videotape depicted the events of the robbery and corroborated the testimony of Durham and Debnam. We note that \u201c[e]vidence which is probative of the State\u2019s case necessarily will have a prejudicial effect upon the defendant; the question is one of degree.\u201d State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990). Here, there is no indication that the videotape was suggestive, confusing, or misleading, nor is there any indication that the videotape provided an improper basis for the jury\u2019s verdict. Therefore, we conclude that the trial court did not err in allowing the introduction of the videotape as substantive evidence, and, accordingly, we overrule defendant\u2019s first argument.\nDefendant next argues that the trial court erred by allowing the State to cross-examine him regarding his prior out-of-state conviction for possession of stolen property in the fifth degree. Defendant asserts that the State failed to present sufficient evidence that the conviction met the requirements of N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a). However, assuming arguendo that the trial court erred by ruling that the State would be allowed to present this evidence, defendant has failed to demonstrate that he was unfairly prejudiced by this error.\nWe note initially that defendant did not object to the State\u2019s questions during his testimony regarding the prior conviction. In order to preserve a question for appellate review, N.C.R. App. P. 10(b)(1) (2004) requires that \u201cthe complaining party . . . obtain a ruling upon the party\u2019s request, objection or motion.\u201d When the party\u2019s complaint involves the admissibility of evidence, the complaining party must present an objection when the evidence is introduced at trial, even where, as here, the objection was previously considered in a motion in limine. State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999); but see N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2003) (effective October 1, 2003) (\u201cOnce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d). Nevertheless, a party may preserve an evidentiary issue where the party assigns plain error to the issue on appeal. See N.C.R. App. P. 10(c) (2004).\nIn the instant case, defendant concedes that he did not object to the introduction of this evidence during his testimony, and thus on appeal he assigns plain error to the trial court\u2019s ruling. As discussed above, \u201c[b]efore deciding that an error by the trial court amounts to \u2018plain error,\u2019 [we] must be convinced that absent the error the jury probably would have reached a different verdict.\u201d Walker, 316 N.C. at 39, 340 S.E.2d at 83. In the instant case, during the initial investigation of the robbery, Durham identified defendant as the individual who had allegedly robbed the store. At trial, both Durham and Debnam identified defendant as the individual who had robbed the store, and Durham and Debnam also provided versions of the incident consistent with that displayed on the videotape and played before the jury. Defendant testified that the prior charge for possession of stolen property in the fifth degree had occurred in New York in 1999, and that he believed the charges had been dismissed. After reviewing the record of the instant case, including the foregoing evidence, we are not convinced that the jury would have reached a different result absent the introduction of evidence regarding defendant\u2019s prior conviction for possession of stolen property in the fifth degree. Therefore, we conclude that the trial court did not commit plain error by allowing the State to introduce evidence regarding the prior conviction. Accordingly, defendant\u2019s second argument is overruled.\nDefendant\u2019s final argument is that the trial court erred in determining his prior record level. Defendant asserts that the State produced insufficient evidence to support the trial court\u2019s conclusion that he possessed a prior felony record level II. We agree.\nN.C. Gen. Stat. \u00a7 15A-1340.14(e) (2003) provides as follows:\nExcept as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. ... If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 or Class 1 misdemeanor in North Carolina, the conviction is treated as a Class A1 or Class 1 misdemeanor for assigning prior record level points.\nWhile \u201c[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant\u2019s prior convictions is, without more, insufficient to satisfy the State\u2019s burden in establishing proof of prior convictions[,]\u201d State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002), the State is permitted to provide a computerized worksheet to the trial court in order to prove a prior out-of-state conviction. State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51, disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998) (computerized printout with the heading \u201cDCI \u2014 Record\u201d and containing various identifying characteristics of the defendant held to be a copy of a Division of Criminal Information record and competent to prove prior convictions).\nIn the instant case, prior to defendant\u2019s trial testimony, the trial court conducted a voir dire hearing in which the parties discussed the introduction of evidence regarding defendant\u2019s prior conviction for possession of stolen property in the fifth degree. The State informed the trial court that it was \u201cpulling the DCI records[,]\u201d and that \u201ca copy of [defendant\u2019s] record from New York indicates that it\u2019s a Class B felony in New York.\u201d The trial court thereafter determined that the charge \u201cwould be a grade of felony\u201d and it admitted into evidence the record provided by the State. Following defendant\u2019s conviction for robbery with a firearm, the State submitted a judgment and commitment worksheet to the trial court. The judgment and commitment sheet indicated that, by virtue of the one point assigned to the prior possession of stolen property in the fifth degree conviction, defendant possessed a prior felony record level II. Defendant objected to the submission of the worksheet, arguing that \u201cthe State has not proven that [possession of stolen property in the fifth degree] is a Class [1] misdemeanor under the law.\u201d The trial court readmitted the record provided by the State, and, after being informed that the record was provided by \u201cNCIC,\u201d the trial court found that the record \u201chas reasonable guarantees of trustworthiness.\u201d Without other evidence, the trial court thereafter concluded that the prior conviction \u201cwould be at least\u201d a Class 1 misdemeanor in North Carolina, and therefore the trial court determined that defendant had a prior felony record level II. On appeal, defendant does not challenge the State\u2019s proof of his prior conviction for possession of stolen property in New York. Instead, defendant contends that the State failed to demonstrate that the offense \u201cis substantially similar\u201d to a Class 1 misdemeanor in North Carolina.\nWe note that NY CLS Penal \u00a7 165.40 (2003) provides that \u201c[criminal possession of stolen property in the fifth degree is a class A misdemeanor.\u201d Although the State presents an argument in its brief comparing the elements of NY CLS Penal \u00a7 165.40 with the elements of N.C. Gen. Stat. \u00a7 14-72(a) (2003), no such argument was presented to the trial court during defendant\u2019s trial. Instead, the trial court considered only the State\u2019s judgment and commitment sheet and a copy of defendant\u2019s record, which the State incorrectly asserted \u201cindicates that [the crime is] a Class B felony in New York.\u201d In light of the foregoing, we conclude that the State failed to produce sufficient evidence tending to show that defendant\u2019s prior conviction for possession of stolen property in the fifth degree was substantially similar to a Class 1 misdemeanor in North Carolina. Therefore, defendant is entitled to a new sentencing hearing, during which both parties may present that evidence necessary to determine whether the offense is substantially similar to a Class 1 misdemeanor in North Carolina.\nIn light of the foregoing conclusions, we hold that defendant received a trial free of prejudicial error, but we remand the case for a new sentencing hearing.\nNo error at trial; remand for new sentencing hearing.\nJudges BRYANT and LEVINSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.", "Anne Bleymanfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES LAMONT AYSCUE\nNo. COA04-203\n(Filed 5 April 2005)\n1. Evidence\u2014 convenience store videotape \u2014 proper foundation\nThe trial court did not err by admitting a convenience store videotape for illustrative purposes in an armed robbery prosecution. A person working at the store during the robbery testified that the tape was taken out of the camera on the night of the robbery, that the tape accurately represented the incident, explained a discrepancy in the date and time, and deputies testified about the chain of custody. A proper foundation was laid. N.C.G.S. \u00a7 8-97.\n2. Evidence\u2014 convenience store videotape \u2014 substantive evidence \u2014 no plain error\nThere was no plain error in an armed robbery prosecution in the introduction as substantive evidence of a convenience store videotape. The tape depicted the events of the robbery, corroborated the testimony of workers in the store, and there is no indication that the videotape was suggestive, confusing, or misleading, or that it provided an improper basis for the jury\u2019s verdict. The record does not reflect that the probative value of the videotape was outweighed by undue prejudice.\n3. Evidence\u2014 prior convictions \u2014 not prejudicial\nIn light of the entire record in an armed robbery prosecution, including identification testimony, there was no prejudice from the State cross-examining defendant about his prior out-of-state conviction for possession of stolen property.\n4. Sentencing\u2014 prior record level \u2014 New York conviction\nThe trial court erred in determining defendant\u2019s prior record level when sentencing him for armed robbery. The State failed to produce sufficient evidence that defendant\u2019s prior New York conviction for possession of stolen property in the fifth degree was substantially similar to a Class 1 misdemeanor in North Carolina.\nAppeal by defendant from judgment entered 20 August 2003 by Judge Robert H. Hobgood in Vance County Superior Court. Heard in the Court of Appeals 17 February 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.\nAnne Bleymanfor defendant-appellant." }, "file_name": "0548-01", "first_page_order": 578, "last_page_order": 586 }