{ "id": 8301198, "name": "STATE OF NORTH CAROLINA v. WILLIAM THOMAS BAUBERGER", "name_abbreviation": "State v. Bauberger", "decision_date": "2006-03-07", "docket_number": "No. COA04-1368", "first_page": "465", "last_page": "482", "citations": [ { "type": "official", "cite": "176 N.C. App. 465" } ], "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": "523 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11511617, 11511362, 11511587, 11511493, 11511686, 11511560, 11511754, 11511659, 11511469, 11511728, 11511441, 11511536, 11511413, 11511389, 11511806 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/1024-10", "/us/523/1024-01", "/us/523/1024-09", "/us/523/1024-06", "/us/523/1024-12", "/us/523/1024-08", "/us/523/1024-14", "/us/523/1024-11", "/us/523/1024-05", "/us/523/1024-13", "/us/523/1024-04", "/us/523/1024-07", "/us/523/1024-03", "/us/523/1024-02", "/us/523/1024-15" ] }, { "cite": "473 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "672", "parenthetical": "plain language of N.C. Gen. Stat. \u00a7 14-7.6 prohibits use of same conviction to establish both habitual felon status and prior record level" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914748 ], "year": 1996, "pin_cites": [ { "page": "642", "parenthetical": "plain language of N.C. Gen. Stat. \u00a7 14-7.6 prohibits use of same conviction to establish both habitual felon status and prior record level" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0639-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "\"In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used.\"" } ], "opinion_index": 0 }, { "cite": "573 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251951 ], "year": 2002, "pin_cites": [ { "page": "717-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0713-01" ] }, { "cite": "587 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956989 ], "year": 2003, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0288-01" ] }, { "cite": "508 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "defendant's right to confrontation violated where prosecutor's notes and typewritten list of statements defendant made, including hearsay statements, were mistakenly published to the jury without being admitted into evidence" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11201285 ], "year": 1998, "pin_cites": [ { "parenthetical": "defendant's right to confrontation violated where prosecutor's notes and typewritten list of statements defendant made, including hearsay statements, were mistakenly published to the jury without being admitted into evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0457-01" ] }, { "cite": "380 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "394-95" }, { "page": "392" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526974 ], "year": 1989, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0240-01" ] }, { "cite": "584 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "768", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491552 ], "year": 2003, "pin_cites": [ { "page": "435", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0433-01" ] }, { "cite": "555 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "147 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "381 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "688", "parenthetical": "no allegation that jurors received information about parole from outside source; affidavits stating that jurors believed the defendant would be released in ten years not admissible under Rule 606(b)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490179 ], "year": 1989, "pin_cites": [ { "page": "135-36", "parenthetical": "no allegation that jurors received information about parole from outside source; affidavits stating that jurors believed the defendant would be released in ten years not admissible under Rule 606(b)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0125-01" ] }, { "cite": "420 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "210" }, { "page": "210-12" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527586 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0356-01" ] }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "329" }, { "page": "329-30" }, { "page": "329" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "562 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "355 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220185 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0487-01" ] }, { "cite": "555 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "372" }, { "page": "375" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378777 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0166-01" ] }, { "cite": "140 L. Ed. 2d 473", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "481 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "68" } ], "opinion_index": 0 }, { "cite": "345 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53983 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0184-01" ] }, { "cite": "370 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "363" }, { "page": "363", "parenthetical": "extraneous information includes information about the case being tried" }, { "page": "362-63" } ], "opinion_index": 0 }, { "cite": "322 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518874 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "832" }, { "page": "832" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0826-01" ] }, { "cite": "340 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "year": 1986, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "347 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772132, 4775909, 4774380, 4773182, 4776511 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0709-03", "/nc/317/0709-01", "/nc/317/0709-04", "/nc/317/0709-02", "/nc/317/0709-05" ] }, { "cite": "343 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525425 ], "year": 1986, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0666-01" ] }, { "cite": "267 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549346 ], "year": 1980, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0316-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "158", "parenthetical": "quoting State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980)" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "pin_cites": [ { "page": "83", "parenthetical": "quoting State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "291 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "305 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573095 ], "year": 1982, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0712-01" ] }, { "cite": "469 U.S. 1193", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12099681, 12099491, 12099461, 12099755, 12099436, 12099790, 12099637, 12099574, 12099543, 12099606, 12099513, 12099708, 12099838, 12099870 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/us/469/1193-09", "/us/469/1193-03", "/us/469/1193-02", "/us/469/1193-11", "/us/469/1193-01", "/us/469/1193-12", "/us/469/1193-08", "/us/469/1193-06", "/us/469/1193-05", "/us/469/1193-07", "/us/469/1193-04", "/us/469/1193-10", "/us/469/1193-13", "/us/469/1193-14" ] }, { "cite": "470 U.S. 1050", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11315457, 11315397, 11315913, 11315339, 11315277, 11315629, 11315982, 11315856, 11315567, 11315698, 11315510, 11315193, 11315770 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/us/470/1050-05", "/us/470/1050-04", "/us/470/1050-12", "/us/470/1050-03", "/us/470/1050-02", "/us/470/1050-08", "/us/470/1050-13", "/us/470/1050-11", "/us/470/1050-07", "/us/470/1050-09", "/us/470/1050-06", "/us/470/1050-01", "/us/470/1050-10" ] }, { "cite": "410 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "836", "parenthetical": "observing that the defendant's right to be present throughout his trial arises out of the accused's Sixth Amendment right to confront witnesses and other evidence against him and his due process \"right to a 'fair and just' hearing\"" }, { "page": "841" }, { "page": "841", "parenthetical": "\"Under the state constitution, defendant's actual presence is required throughout his trial, not just at particularly important junctures.\"" } ], "opinion_index": 1 }, { "cite": "330 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509584 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "209", "parenthetical": "observing that the defendant's right to be present throughout his trial arises out of the accused's Sixth Amendment right to confront witnesses and other evidence against him and his due process \"right to a 'fair and just' hearing\"" }, { "page": "217" }, { "page": "850" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0202-01" ] }, { "cite": "412 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "654" } ], "opinion_index": 1 }, { "cite": "330 N.C. 846", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512731 ], "year": 1992, "pin_cites": [ { "page": "849" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0846-01" ] }, { "cite": "543 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "353 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135734 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/353/0364-01" ] }, { "cite": "531 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "272" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079953 ], "year": 2000, "pin_cites": [ { "page": "410" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0404-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "918" } ], "opinion_index": 1 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "582" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "105 S. Ct. 970", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 1 }, { "cite": "83 L. Ed. 2d 973", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 1 }, { "cite": "739 F.2d 945", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 654960 ], "year": 1984, "pin_cites": [ { "page": "948" } ], "opinion_index": 1, "case_paths": [ "/f2d/739/0945-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "393-94" }, { "page": "303" }, { "page": "304" }, { "page": "304" } ], "opinion_index": 1 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "396" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "546 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" }, { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "353 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135586, 135716, 135621, 135595, 135666 ], "year": 2000, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/353/0271-03", "/nc/353/0271-02", "/nc/353/0271-04", "/nc/353/0271-01", "/nc/353/0271-05" ] }, { "cite": "531 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "864", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080396 ], "year": 2000, "pin_cites": [ { "page": "484", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0481-01" ] }, { "cite": "812 F.2d 499", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1694712 ], "pin_cites": [ { "page": "505" } ], "opinion_index": 1, "case_paths": [ "/f2d/812/0499-01" ] }, { "cite": "35 A.L.R.4th 626", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 2005, "pin_cites": [ { "parenthetical": "collecting and analyzing state and federal cases discussing the prejudicial effect of the jury's procurement or use of a book, including a dictionary, during deliberations in a criminal case when the book consulted was not formally introduced into evidence at trial" } ], "opinion_index": 1 }, { "cite": "111 Wis. 2d 691", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8674211 ], "year": 1983, "pin_cites": [ { "page": "696", "parenthetical": "concluding that \"given the nature of the extraneous material [a dictionary definition] brought to the jury's deliberations, the probable effect upon a hypothetical average jury would be prejudicial\"" } ], "opinion_index": 1, "case_paths": [ "/wis-2d/111/0691-01" ] }, { "cite": "765 P.2d 1277", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "opinion_index": 1 }, { "cite": "740 P.2d 300", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10402492 ], "pin_cites": [ { "page": "305" } ], "opinion_index": 1, "case_paths": [ "/p2d/740/0300-01" ] }, { "cite": "102 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580132 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "123", "parenthetical": "holding that when one juror consulted a dictionary and related the definitions to other jurors, the jury was exposed to extraneous information, giving rise to a presumption of prejudice" }, { "page": "48", "parenthetical": "holding that when one juror consulted a dictionary and related the definitions to other jurors, the jury was exposed to extraneous information, giving rise to a presumption of prejudice" } ], "opinion_index": 1, "case_paths": [ "/nm/102/0120-01" ] }, { "cite": "363 N.W.2d 173", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 5816969, 5816452 ], "year": 1985, "pin_cites": [ { "page": "179", "parenthetical": "holding that a jury's use of dictionary definitions constitutes misconduct, but that a new trial is warranted only when a party demonstrates prejudice" } ], "opinion_index": 1, "case_paths": [ "/neb/219/0353-01", "/neb/219/0328-01" ] }, { "cite": "219 Neb. 328", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5816452 ], "year": 1985, "pin_cites": [ { "page": "337-38", "parenthetical": "holding that a jury's use of dictionary definitions constitutes misconduct, but that a new trial is warranted only when a party demonstrates prejudice" } ], "opinion_index": 1, "case_paths": [ "/neb/219/0328-01" ] }, { "cite": "273 Mont. 1", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4576838 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "8", "parenthetical": "\"probable prejudice and potential injury was apparent from the fact that the jury used extraneous materials - two dictionaries - to redefine a critical element of this negligence case\"" }, { "page": "605", "parenthetical": "\"probable prejudice and potential injury was apparent from the fact that the jury used extraneous materials - two dictionaries - to redefine a critical element of this negligence case\"" } ], "opinion_index": 1, "case_paths": [ "/mont/273/0001-01" ] }, { "cite": "577 N.W.2d 688", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1998, "opinion_index": 1 }, { "cite": "456 Mich. 955", "category": "reporters:state", "reporter": "Mich.", "year": 1998, "opinion_index": 1 }, { "cite": "561 N.W.2d 463", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1997, "pin_cites": [ { "page": "466", "parenthetical": "adopting the Sixth Circuit rule \"that a jury's use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se\"" } ], "opinion_index": 1 }, { "cite": "221 Mich. App. 171", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 484935 ], "year": 1997, "pin_cites": [ { "page": "176", "parenthetical": "adopting the Sixth Circuit rule \"that a jury's use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se\"" } ], "opinion_index": 1, "case_paths": [ "/mich-app/221/0171-01" ] }, { "cite": "577 N.E.2d 971", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "171 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "670 N.E.2d 1254", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1259", "parenthetical": "\"When the jury consults outside sources for definitions of words contained in jury instructions, the court must determine whether the definitions conflict or substantially differ from the instructions.\"" } ], "opinion_index": 1 }, { "cite": "284 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260390 ], "year": 1996, "pin_cites": [ { "page": "251", "parenthetical": "\"When the jury consults outside sources for definitions of words contained in jury instructions, the court must determine whether the definitions conflict or substantially differ from the instructions.\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/284/0244-01" ] }, { "cite": "732 P.2d 1139", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11314145 ], "year": 1987, "pin_cites": [ { "page": "1141-42", "parenthetical": "en banc" } ], "opinion_index": 1, "case_paths": [ "/p2d/732/1139-01" ] }, { "cite": "621 So. 2d 1235", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7484170 ], "year": 1993, "pin_cites": [ { "page": "1248", "parenthetical": "holding that definitions of legal terms and concepts from general reference books, such as dictionaries, are extraneous matters" } ], "opinion_index": 1, "case_paths": [ "/so2d/621/1235-01" ] }, { "cite": "969 F.2d 919", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10518523 ], "year": 1992, "pin_cites": [ { "page": "924", "parenthetical": "upholding district court's conclusion that the jury's unauthorized consultation of a dictionary was sufficiently prejudicial to warrant a new trial" } ], "opinion_index": 1, "case_paths": [ "/f2d/969/0919-01" ] }, { "cite": "61 F.3d 457", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11312409 ], "year": 1995, "pin_cites": [ { "page": "459", "parenthetical": "\"A jury's use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se.\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/61/0457-01" ] }, { "cite": "298 Md. 406", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1983994 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "414-15", "parenthetical": "internal citations omitted" }, { "page": "806-07", "parenthetical": "internal citations omitted" } ], "opinion_index": 1, "case_paths": [ "/md/298/0406-01" ] }, { "cite": "105 S. Ct. 1749", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 1 }, { "cite": "84 L. Ed. 2d 814", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 1 }, { "cite": "478 A.2d 227", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "252" }, { "page": "252", "parenthetical": "internal citation omitted" } ], "opinion_index": 1 }, { "cite": "193 Conn. 695", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 557023 ], "year": 1984, "pin_cites": [ { "page": "737" } ], "opinion_index": 1, "case_paths": [ "/conn/193/0695-01" ] }, { "cite": "447 So. 2d 655", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7632079 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/so2d/447/0655-01" ] }, { "cite": "218 Ala. 493", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3626923 ], "weight": 2, "year": 1928, "pin_cites": [ { "page": "497" }, { "page": "25" } ], "opinion_index": 1, "case_paths": [ "/ala/218/0493-01" ] }, { "cite": "195 W. Va. 544", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 2388496 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "550", "parenthetical": "holding that in order to ensure a criminal defendant a fair trial, the trial court was required to determine what effect a juror's misconduct in referring to a dictionary had upon the jury's verdict" }, { "page": "401", "parenthetical": "holding that in order to ensure a criminal defendant a fair trial, the trial court was required to determine what effect a juror's misconduct in referring to a dictionary had upon the jury's verdict" } ], "opinion_index": 1, "case_paths": [ "/w-va/195/0544-01" ] }, { "cite": "340 S.C. 59", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 228027 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "62-63" }, { "page": "627" } ], "opinion_index": 1, "case_paths": [ "/sc/340/0059-01" ] }, { "cite": "807 P.2d 593", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "596", "parenthetical": "holding that the right to a \"fair trial by an impartial jury\" includes the requirement that \"the jury be free from outside influences\" such as a dictionary" }, { "page": "596", "parenthetical": "holding that \"a juror's obtaining of extraneous definitions or statement of law differing from that intended by the court is misconduct which may result in prejudice to the defendant's constitutional right to a fair trial\"" } ], "opinion_index": 1 }, { "cite": "72 Haw. 97", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 1956064 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "102", "parenthetical": "holding that the right to a \"fair trial by an impartial jury\" includes the requirement that \"the jury be free from outside influences\" such as a dictionary" }, { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/haw/72/0097-01" ] }, { "cite": "487 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "718" } ], "opinion_index": 1 }, { "cite": "346 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139438 ], "year": 1997, "pin_cites": [ { "page": "710" } ], "opinion_index": 1, "case_paths": [ "/nc/346/0704-01" ] }, { "cite": "357 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "612", "parenthetical": "emphasis added" }, { "page": "613" }, { "page": "613" } ], "opinion_index": 1 }, { "cite": "320 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728771 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "139", "parenthetical": "emphasis added" }, { "page": "140" }, { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0138-01" ] }, { "cite": "177 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "743" }, { "page": "743" } ], "opinion_index": 1 }, { "cite": "10 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551774 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "148" }, { "page": "148" } ], "opinion_index": 1, "case_paths": [ "/nc-app/10/0146-01" ] }, { "cite": "562 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "355 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220185 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/355/0487-01" ] }, { "cite": "555 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "378", "parenthetical": "Tyson, J., dissenting" } ], "opinion_index": 1 }, { "cite": "147 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378777 ], "year": 2001, "pin_cites": [ { "page": "179", "parenthetical": "Tyson, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/147/0166-01" ] } ], "analysis": { "cardinality": 1673, "char_count": 43500, "ocr_confidence": 0.744, "pagerank": { "raw": 2.3605481991104374e-07, "percentile": 0.7942463054795859 }, "sha256": "b5dd72401dc91941c5d3cf9cb69dd0b7a7ad3b99156ded00250d0b7993ce2d0f", "simhash": "1:872060ec76b6cd53", "word_count": 7103 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge GEER dissents by separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM THOMAS BAUBERGER" ], "opinions": [ { "text": "ELMORE, Judge.\nWilliam Bauberger (defendant) was indicted for second-degree murder and assault with a deadly weapon inflicting serious injury. At trial, the State\u2019s evidence 'tended to show that on 3 February 2002 a vehicle operated by defendant collided with a vehicle operated by William Foy. At approximately 8:15 p.m. on 3 February Mr. Foy was driving a Geo Metro on Highway 421 near the Lewisville/Clemmons exit with his wife, Carol Foy, in the passenger seat. Defendant was driving a Cadillac with a Flow Chevrolet dealer\u2019s tag. Defendant had attended a Super Bowl party where he consumed in excess of ten beers. While driving, defendant called Andrea True, a friend from work, and told her that he was coming over to her house. Defend-. ant began driving down the Lewisville/Clemmons exit ramp in the wrong direction. There were signs indicating \u201cDo Not Enter\u201d and \u201cWrong Way.\u201d\nAudrey Borger testified that she was driving up the Lewisville/Clemmons exit from Highway 421 and saw a car coming straight at her. She blew her horn and then swerved over to avoid a collision. Melissa Borger, Audrey Borger\u2019s daughter, testified that she was riding as a passenger in her mother\u2019s car when she saw a vehicle coming at them at a speed of over 45 miles per hour and that the driver was accelerating. Jeffrey Hinshaw testified that he was driving on Highway 421 and saw a vehicle\u2019s headlights coming down the exit ramp at him. Mr. Hinshaw stated that the vehicle appeared to be weaving and was traveling at over 55 miles per hour. Mr. Hinshaw testified that he slowed down and pulled his car into the breakdown lane and then heard a crash shortly thereafter.\nMr. Foy testified that he observed a vehicle coming the wrong way down the exit ramp and that he tried to brake and swerve onto the shoulder of the road. After the cars collided, Mr. Foy checked on his wife but could not find a pulse. Mr. Foy got out of the car after several attempts but was unable to walk because of a broken leg. Mr. Hinshaw, the chief physician\u2019s assistant in the emergency department at Baptist Hospital, testified that he heard the crash and went over to help. Mr. Hinshaw reached Mr. Foy first, who asked Mr. Hinshaw to check on his wife. Mr. Hinshaw found Mrs. Foy unresponsive and with no pulse. When he arrived at the second car, Mr. Hinshaw observed that defendant was slumped back in his seat and appeared sleepy. Defendant responded to Mr. Hinshaw\u2019s sternal rub confirming defendant was not unconscious. Mr. Hinshaw detected an odor of alcohol. Stanley Lee testified that he lives near the scene of the crash and that he arrived after hearing the crash. Mr. Lee noticed that defendant had a strong odor of alcohol. State Trooper Daniel Harmon testified that he spoke to defendant in the back of the ambulance and that defendant slurred his last name. Trooper Harmon stated that defendant\u2019s eyes were red and glassy and that defendant appeared to be impaired.\nMrs. Foy suffered traumatic injuries to her head, chest, internal organs, and arms and legs. She died within minutes of the crash. Mr. Foy was transported to Baptist Hospital, where he was treated for a broken left hand, and a tibia fracture and bone fragments in his right leg that required reconstructive surgery and seven screws. Defendant was also treated at Baptist Hospital. While there, defendant told the mother of his child, \u201cI really f-up, they\u2019re going to give me the needle, I killed someone tonight, I\u2019m going away forever, I want to see my child[.]\u201d Defendant called his co-worker Andrea True and told her that he had killed someone and that he wished it had been him.\nDefendant testified at trial. He stated that he had consumed more than ten beers over the course of five or five and one-half hours on the day of the collision. Defendant admitted that he had been ordered by a court to surrender his license a few months prior to the crash. Defendant testified that he knew that he was impaired when he drove but did not remember going the wrong way on the exit ramp. Prior to trial, defendant had stipulated to the fact that his driver\u2019s license was revoked at the time of the crash for a driving while impaired conviction in Guilford County. Defendant had also stipulated that his blood/alcohol concentration was .20 grams per 100 milliliters of whole blood.\nThe jury returned verdicts of guilty on the charges of second-degree murder and assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant on 15 August 2003. Later that day, the State informed the trial court that one of the jurors may have consulted a dictionary about the meaning of the word \u201cmalice.\u201d On 18 August 2003 defendant filed a Motion for Appropriate Relief seeking a new trial. In its response to defendant\u2019s motion, the State attached affidavits of ten jurors. Juror Collins stated that he looked up the word \u201cmalice\u201d at home prior to the final jury charge and that he could not remember during the deliberations what the definition said and did not share it with anyone on the jury. The jury foreman stated that he checked out a copy of Webster\u2019s New Collegiate Dictionary during lunch break of the deliberations, brought it back to the jury room, and shared with the jury the definitions of \u201crecklessly,\u201d \u201cwantonly,\u201d \u201cmanifest,\u201d \u201cutterly,\u201d and \u201cregard.\u201d Following a hearing, the trial court denied defendant\u2019s motion. Defendant appeals his conviction and sentence for second-degree murder and also the denial of his Motion for Appropriate Relief.\nI.\nFirst, defendant contends that he is entitled to a new trial because jurors improperly considered dictionary definitions during deliberations. In the Motion for Appropriate Relief to the trial court, defendant raised the constitutional argument that the jury\u2019s conduct violated his Sixth Amendment rights to an impartial jury and to confront the witnesses against him. We review the trial court\u2019s order denying a motion for appropriate relief to determine whether the findings of fact are supported by the evidence, the findings support the conclusions of law, and the conclusions support the trial court\u2019s order. State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). \u201cThe determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.\u201d State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991) (quoting State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980)).\nThe trial court reviewed the affidavits submitted by the ten jurors and entered findings based upon this evidence. In pertinent part, the trial court found that the jury foreman went to the Forsyth County Public Library during lunch break of the jury deliberations and checked out Webster\u2019s New Collegiate Dictionary (1953 edition). The foreman, Mr. Kuley, brought the dictionary to the jury room and read the following definitions of words contained within the trial court\u2019s definition of \u201cmalice\u201d:\n\u201crecklessly\u201d \u201clack of due caution\u201d\n\u201cwantonly\u201d \u201carrogant recklessness of justice or the feelings of others\u201d\n\u201cmanifest\u201d \u201cshow\u201d\n\u201cutterly\u201d \u201cfully, totally\u201d\n\u201cregard\u201d \u201crespect or consideration for\u201d\nIn addition, the trial court found that Juror Collins looked up the word \u201cmalice\u201d in a pocket dictionary at.home prior to deliberations but did not bring a copy of the definition to the jury room. The trial court entered an order determining, inter alia, that although the jury\u2019s conduct was improper, the jury\u2019s use of the dictionary did not prejudice defendant and there is no reasonable possibility that the verdict would have been different absent the jury consulting the dictionary.\nIn general, a trial court may not receive juror testimony to impeach a verdict already rendered. See State v. Costner, 80 N.C. App. 666, 669, 343 S.E.2d 241, 243, disc. review denied, 317 N.C. 709, 347 S.E.2d 444 (1986). However, exceptions to this rule are found in N.C. Gen. Stat. \u00a7 15A-1240 and N.C. Gen. Stat. \u00a7 8C-1, Rule 606(b). Section 15A-1240 states that the testimony of a juror may be received to impeach the verdict when it concerns \u201c[m]atters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant\u2019s constitutional right to confront the witnesses against him[.]\u201d N.C. Gen. Stat. \u00a7 15A-1240 (2003). Section 15A-1240 is applicable to criminal cases only. See Smith v. Price, 315 N.C. 523, 534, 340 S.E.2d 408, 415 (1986). Rule 606(b) of the North Carolina Rules of Evidence provides:\nUpon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury\u2019s deliberations or to the effect of anything upon his or any other juror\u2019s mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury\u2019s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 606(b) (2003) (emphasis added). Our Supreme Court has interpreted extraneous information under Rule 606(b) as \u201cinformation dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence.\u201d State v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988).\nDefendant contends that the dictionary definitions read to the jury by the foreman were extraneous information within the meaning of Rule 606(b) because the definitions were directed toward the governing law of the case. Defendant cites to State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). In Barnes, our Supreme Court held that the trial court did not abuse its discretion in not inquiring into prejudice to the defendant where a juror read aloud from the Bible in the jury room prior to the trial court\u2019s instructions to the jury. Id. at 228, 481 S.E.2d at 68. The Court explained that the information from the Bible was not an extraneous influence upon the jiiry because there was no evidence that the reading was directed to \u201cthe facts or governing law at issue in the case[.]\u201d Id.\nIn arguing that the dictionary definitions were not extraneous information and thus the affidavits of the jurors were not admissible to impeach the verdict, the State relies upon the reasoning of the dissenting opinion in Lindsey v. Boddie-Noell Enters., Inc., 147 N.C. App. 166, 555 S.E.2d 369 (2001), reversed per curiam for the reasons stated in the dissenting opinion, 355 N.C. 487, 562 S.E.2d 420 (2002). In Lindsey, a juror consulted a dictionary for the definitions of \u201cwillful\u201d and \u201cwanton\u201d during deliberations in a case where the jury was deciding whether to award punitive damages against the defendant based upon willful and wanton conduct. Lindsey, 147 N.C. App. at 169, 555 S.E.2d at 372. The jury did not award punitive damages to the plaintiff, and the plaintiff made a motion for a new trial. Id. This Court held that the trial court erred in failing to grant a new trial because the plaintiff was prejudiced by the jury misconduct. Id. at 174, 555 S.E.2d at 375. In a dissenting opinion, Judge Tyson concluded that the contents of the juror affidavits submitted to the trial court were not extraneous information under Rule 606(b).\nThe majority opinion states that it is \u201capparent\u201d that the definitions of \u201cwillful\u201d and \u201cwanton\u201d in a case involving a claim for punitive damages constitutes \u201cextraneous information\u201d because they pertain to the case being tried and the governing law at issue. I find the reading of the dictionary definitions by Juror Couch is analogous to a situation where one of the jurors informs the jury what \u201cwillful\u201d and \u201cwanton\u201d mean, according to his knowledge of the English language. The definition of words in our standard dictionaries has been considered a matter of common knowledge which the jury is supposed to possess.\nId. at 179, 555 S.E.2d at 378.\nThe dissenting opinion in Lindsey, as adopted by our Supreme Court, cites to State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), and Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206 (1992), in concluding that definitions in standard dictionaries are not within our Supreme Court\u2019s contemplation of extraneous information. Both Robinson and Berrier addressed the distinction between internal and external influences on the jury. In Robinson, one or more jurors stated in affidavits that they considered the possibility of parole in determining whether the defendant should receive a life sentence. Robinson, 336 N.C. at 124, 443 S.E.2d at 329. The trial court concluded, and our Supreme Court agreed, that discussions of parole eligibility are internal influences upon the jury coming from the jurors themselves. Id. at 124-25, 443 S.E.2d at 329-30. Accordingly, the Court held that the trial court correctly denied the defendant\u2019s motion for appropriate relief where the affidavits could not be used to impeach the verdict under Rule 606(b). Id. at 124-25, 443 S.E.2d at 329. In Berrier, juror affidavits revealed that the jury foreman incorrectly stated during deliberations that a punitive damages award is an award of symbolic value rather than a collectible money judgment. Berrier, 107 N.C. App. at 362, 420 S.E.2d at 210. This Court held that the trial court properly excluded the affidavits under Rule 606(b) because the information allegedly received by the jury was from an internal source, the jury foreman\u2019s impression of the effect of a punitive damages award. Id. at 365-66, 420 S.E.2d at 210-12.\nIn both Robinson and Berrier, the affidavits were inadmissible under Rule 606(b) where the jurors drew upon their own beliefs or ideas, not an outside source of information. See also State v. Quesinberry, 325 N.C. 125, 135-36, 381 S.E.2d 681, 688 (1989) (no allegation that jurors received information about parole from outside source; affidavits stating that jurors believed the defendant would be released in ten years not admissible under Rule 606(b)). Here, the information was from an outside source and not merely a belief or impression of the jury foreman. The information concerned the definitions of words within the court\u2019s instruction on malice, an element of the second-degree murder offense being tried. The information in the affidavits, therefore, appears to be within the exception for extraneous information stated in Rule 606(b). See Rosier, 322 N.C. at 832, 370 S.E.2d at 363 (extraneous information includes information about the case being tried). However, we are bound by the reasoning of Lindsey. As the affidavits attest to the reading of standard dictionary definitions, the matters in the affidavits are not extraneous information under Rule 606(b). See Lindsey, 355 N.C. at 487, 562 S.E.2d at 420 (adopting the dissent in Lindsey, 147 N.C. App. 179, 555 S.E.2d 378).\nDefendant next contends that the jury\u2019s consultation of dictionary definitions violated his Sixth Amendment right to confront witnesses against him and that the affidavits may be used to impeach the verdict pursuant to N.C. Gen. Stat. \u00a7 15A-1240. We agree with defendant that Lindsey, a civil case, is not controlling on this point because it does not discuss N.C. Gen. Stat. \u00a7 15A-1240, a provision of the Criminal Procedure Act.. Indeed, in State v. Rosier, a criminal case where the defendant submitted juror affidavits in support of his motion for appropriate relief, our Supreme Court independently analyzed whether the juror affidavits should have been considered pursuant to Section 15A-1240 and pursuant to Rule 606(b). See Rosier, 322 N.C. at 832, 370 S.E.2d at 362-63. Nonetheless, we do not agree with defendant that the reading of the dictionary definitions in the case sub judice violated his right to confrontation.\n\u201cThe central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.\u201d State v. Nobles, 357 N.C. 433, 435, 584 S.E.2d 765, 768 (2003) (internal quotations omitted). Thus, the Sixth Amendment provides the criminal defendant the right to confront witnesses and evidence against him. See, e.g., State v. Lyles, 94 N.C. App. 240, 247, 380 S.E.2d 390, 394-95 (1989). In Lyles, the jury improperly peeled back paper that was covering a notation on a photographic exhibit, revealing that the defendant had been present at the police station on a date when his alibi witnesses testified that the defendant lived in another state. Id. at 243, 380 S.E.2d at 392. This Court considered the circumstances under which the jury received this information and concluded that the defendant\u2019s right to confrontation was violated.\nIn this case, it is undisputed that information about the defendant, which had not been admitted into evidence, came to the attention of the jury and that this evidence directly contradicted defendant\u2019s alibi witnesses. Because this exposure occurred during the jury\u2019s deliberations, defendant had no opportunity to challenge the evidence by cross-examination or to minimize its impact in his closing argument or through a curative instruction by the trial judge. Moreover, the evidence implied that defendant had prior criminal involvement, and the jury was allowed to draw this inference notwithstanding that this is a subject intricately regulated by the rules of evidence.\nId. at 247, 380 S.E.2d at 395. Here, the information considered by the jury did not discredit defendant\u2019s testimony or witnesses; it concerned legal terminology, not evidence developed at trial. Under these circumstances, the juror misconduct did not violate defendant\u2019s right to confrontation. Cf. State v. Hines, 131 N.C. App. 457, 508 S.E.2d 310 (1998) (defendant\u2019s right to confrontation violated where prosecutor\u2019s notes and typewritten list of statements defendant made, including hearsay statements, were mistakenly published to the jury without being admitted into evidence). We hold that the trial court did not err in concluding that the affidavits did not contain extraneous information and that defendant\u2019s right to confrontation was not violated by the juror misconduct.\nII.\nDefendant also assigns error to the trial court\u2019s use of prior driving while impaired convictions in determining his prior record level and sentencing him as a Level II offender. Defendant concedes that he failed to object to the determination of prior record level at trial, but he correctly notes that the issue of the validity of his sentence is deemed preserved under N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2003). See, e.g., State v. Robertson, 161 N.C. App. 288, 292, 587 S.E.2d 902, 905 (2003).\nDefendant argues that his sentence as a Level II offender violates the prohibition against double jeopardy but cites no supporting case authority. We, therefore, do not address this argument. See N.C.R. App. P. 28(b)(6) (\u201cThe body of the argument shall contain citations of the authorities upon which the appellant relies.\u201d). Defendant also argues that his sentence as a Level II offender violates N.C. Gen. Stat. \u00a7 15A-1340.16, which provides as follows:\nEvidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation.\nN.C. Gen. Stat. \u00a7 15A-1340.16(d) (2003). Interpreting this section of the Structured Sentencing Act, this Court has held that proof of an element of an offense may not be used to also prove an aggravating factor. See State v. Corbett, 154 N.C. App. 713, 717-18, 573 S.E.2d 210, 214 (2002). Here, defendant\u2019s prior convictions were not aggravating factors. Rather, the trial court added points to defendant\u2019s prior record level pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14.\nThe parties do not cite any provision of the Structured Sentencing Act, nor do we find any, that prohibits a trial court from using the same prior convictions introduced by the State as evidence of malice during trial to increase the defendant\u2019s prior record level at sentencing. In contrast, the General Assembly has specifically prohibited a trial court from using prior convictions to increase a defendant\u2019s prior record level where those prior convictions are also used to establish the offense of being an habitual felon. See N.C. Gen. Stat. \u00a7 14-7.6 (2003) (\u201cIn determining the prior record level, convictions used to establish a person\u2019s status as an habitual felon shall not be used.\u201d); State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996) (plain language of N.C. Gen. Stat. \u00a7 14-7.6 prohibits use of same conviction to establish both habitual felon status and prior record level). The trial court\u2019s determination of prior record level in the instant case did not violate the plain language of N.C. Gen. Stat. \u00a7 15A-1340, and any further argument by defendant should be addressed to the General Assembly.\nNo Error.\nJudge CALABRIA concurs.\nJudge GEER dissents by separate opinion.\n. The trial court instructed the jury that \u201c[m]alice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliber-atly bent on mischief.\u201d", "type": "majority", "author": "ELMORE, Judge." }, { "text": "GEER, Judge,\ndissenting.\nA lynchpin of our judicial system is the principle that the jury will only apply the law as described by the trial judge. A jury is not permitted to engage in a private investigation of the law or to consult outside sources to untangle what the trial judge meant in his instructions. Yet, that is precisely what the jury did in this criminal case. Because I believe defendant was prejudiced by the jury\u2019s consideration of extraneous material and, therefore, is entitled to a new trial, I respectfully dissent.\nI recognize that in Lindsey v. Boddie-Noell Enters., Inc., 355 N.C. 487, 562 S.E.2d 420 (2002), our Supreme Court, in a per curiam opinion, reversed this Court \u201cfor the reasons stated in the dissenting opinion\u201d and that Judge Tyson\u2019s dissent held that dictionary definitions do not constitute \u201cextraneous information\u201d for purposes of Rule 606 of the Rules of Evidence. Lindsey v. Boddie-Noell Enters., Inc., 147 N.C. App. 166, 179, 555 S.E.2d 369, 378 (2001) (Tyson, J., dissenting). I firmly disagree with this conclusion, as does the majority, and urge the Supreme Court to revisit it. In any event, I do not believe that this holding \u2014 in a civil case \u2014 should control in criminal cases.\nSignificantly, Judge Tyson!s dissent stressed the fact that the case before the Court was \u201ca civil action,\u201d requiring the trial court to apply a different standard than in criminal cases. Id., 555 S.E.2d at 377-78. The dissent even referenced favorably State v. McLain, 10 N.C. App. 146, 148, 177 S.E.2d 742, 743 (1970), and described its holding as follows: \u201cAlthough it was improper for the jury to obtain and read the [dictionary] definition [of uttering], we held that no reversible error had occurred\u201d when \u201c[t]he trial court instructed the jury to disregard the definition and defendant had not shown any 'prejudice by the jury conduct.\u201d Lindsey, 147 N.C. App. at 180, 555 S.E.2d at 378-79. See McLain, 10 N.C. App. at 148, 177 S.E.2d at 743 (\u201cIt was improper for the jury to obtain and read a dictionary definition of one of the offenses charged in the bill of indictment; however, the able trial judge properly instructed the jury to disregard the definition taken from the dictionary and the defendant has not shown that he was prejudiced in any way by the conduct of the jury.\u201d). Judge Tyson\u2019s dissent contains no indication that he believed McLain should be overruled. Nor am I willing to conclude that the Supreme Court intended to do so sub silentio.\nBoth the federal and state constitutions set forth various rights unique to criminal trials, including the right of the defendant to be present in person during the course of his trial. State v. Buchanan, 330 N.C. 202, 209, 410 S.E.2d 832, 836 (1991) (observing that the defendant\u2019s right to be present throughout his trial arises out of the accused\u2019s Sixth Amendment right to confront witnesses and other evidence against him and his due process \u201cright to a \u2018fair and just\u2019 hearing\u201d). Under the federal constitution, a defendant is guaranteed the right to be present at each critical stage of his trial. Id. at 217, 410 S.E.2d at 841. The North Carolina constitution, N.C. Const, art. I, \u00a7 23, is broader, assuring the accused \u201cthe right to be present in person at every stage of his trial.\u201d State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987) (emphasis added). See also Buchanan, 330 N.C. at 217, 410 S.E.2d at 841 (\u201cUnder the state constitution, defendant\u2019s actual presence is required throughout his trial, not just at particularly important junctures.\u201d).\nOur Supreme Court has held that the state constitutional right to be present was violated in a number of instances involving interactions with the jury. In Payne, the Court held that the right was violated when the trial judge gave admonitions to the jury in the jury room without the defendant being present. 320 N.C. at 140, 357 S.E.2d at 613. In Monroe, the Court ordered a new trial when the trial judge conducted unrecorded conferences at the bench with jurors. 330 N.C. at 850, 412 S.E.2d at 654. Likewise, the Court found error when the trial judge passed a note to an alternate juror without revealing its contents to defendant or its counsel, although the Court held the error to be harmless because the transcript reflected the benign nature of the note. State v. Jones, 346 N.C. 704, 710, 487 S.E.2d 714, 718 (1997).\nAs these cases reflect, a defendant is entitled to be present whenever the jury is instructed. When a jury engages in self-help and consults with sources other than the trial judge to clarify the governing the law, it is effectively instructing itself. I do not believe that the Lindsey holding, which appears to permit a jury to consult a dictionary, can be reconciled with a criminal defendant\u2019s constitutional right to be present when the jury is instructed. At the least, I believe that Lindsey\u2019s holding that a dictionary does not constitute extraneous material would deny a defendant the fair and just hearing mandated by the Due Process Clause of the federal constitution. See State v. Williamson, 72 Haw. 97, 102, 807 P.2d 593, 596 (1991) (holding that the right to a \u201cfair trial by an impartial jury\u201d includes the requirement that \u201cthe jury be free from outside influences\u201d such as a dictionary); State v. Harris, 340 S.C. 59, 62-63, 530 S.E.2d 626, 627 (2000) (\u201cThe Sixth and Fourteenth Amendments of the United States Constitution guarantee a defendant a fair trial by a panel of impartial and indifferent jurors. ... To safeguard these rights, the jury must render its verdict free from any outside influences,\u201d including dictionary definitions.); State v. Richards, 195 W. Va. 544, 550, 466 S.E.2d 395, 401 (1995) (holding that in order to ensure a criminal defendant a fair trial, the trial court was required to determine what effect a juror\u2019s misconduct in referring to a dictionary had upon the jury\u2019s verdict).\nI would also note that Lindsey appears to stand alone with respect to its \u201cextraneous information\u201d holding. I have located no other decision in any jurisdiction, state or federal, holding that a dictionary does not constitute extraneous material. Although the Lindsey dissent adopted by our Supreme Court cites two cases, neither one reaches that conclusion. In Dulaney v. Burns, 218 Ala. 493, 497, 119 So. 21, 25 (1928), overruled on other grounds by Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala. 1984), the Alabama Supreme Court specifically concluded that a dictionary considered during a jury\u2019s deliberations was extraneous matter, but held \u201cthe question is whether such extraneous matter, in this instance a Webster\u2019s School Dictionary, was prejudicial to appellant.\u201d The second case, State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227, 252 (1984), cert. denied, 470 U.S. 1050, 84 L. Ed. 2d 814, 105 S. Ct. 1749 (1985), only held that use by a jury of a dictionary does not give rise to a presumption of prejudice; a defendant must still demonstrate actual prejudice. The Connecticut Supreme Court continued:\nWe hasten to add that the fact that we have found no error in this case does not mean that a trial judge is authorized to furnish a dictionary to a jury upon their request. There may be situations where furnishing a dictionary to \u00bfjury may create a presumption of prejudice arising out of injecting unauthorized informational and definitional material into the jury instructions; but that is not this case.\nId. at 738, 478 A.2d at 252 (internal citation omitted).\nIndeed, with the exception of Lindsey, the universal rule appears to be that a dictionary constitutes extraneous material that may not be consulted by a jury. As the Maryland Court of Appeals has explained, the only debate elsewhere revolves around whether prejudice must be shown and, if so, how.\nThe problem of the effect on proceedings where one or'more jurors have consulted a dictionary during deliberations has been presented in a number of decisions in other states. It appears to be the near universal consensus that a new trial is not awarded, simply because a dictionary was before the jury. The court must conclude that there was prejudice to the complaining party. Analysis by other courts, however, diverges in the approach taken to determine whether use of a dictionary was prejudicial. . . .\nSome decisions require that the movant for a new trial essentially prove prejudice in fact. In the absence of such a showing, the new trial is denied. . . .\nOther courts have presumed prejudice based solely on use of a dictionary during jury deliberations, with the burden on the adversary to rebut. Under these cases the court may conclude that there is prejudice without proof of the purpose for which the book was consulted.\nWernsing v. Gen. Motors Corp., 298 Md. 406, 414-15, 470 A.2d 802, 806-07 (1984) (internal citations omitted). See also United States v. Gillespie, 61 F.3d 457, 459 (6th Cir. 1995) (\u201cA jury\u2019s use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se.\u201d); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 924 (10th Cir. 1992) (upholding district court\u2019s conclusion that the jury\u2019s unauthorized consultation of a dictionary was sufficiently prejudicial to warrant a new trial); Fulton v. Callahan, 621 So. 2d 1235, 1248 (Ala. 1993) (holding that definitions of legal terms and concepts from general reference books, such as dictionaries, are extraneous matters); Wiser v. People, 732 P.2d 1139, 1141-42 (Colo. 1987) (en banc) (holding that \u201c[t]he court of appeals correctly determined that the resort of one of the jurors to a dictionary for a definition of the crime with which the defendant was charged was improper,\u201d but that the court should have applied an objective test to determine whether there was a \u201creasonable possibility\u201d that the dictionary affected the verdict (internal quotation marks omitted)); Williamson, 72 Haw. at 103, 807 P.2d at 596 (holding that \u201ca juror\u2019s obtaining of extraneous definitions or statement of law differing from that intended by the court is misconduct which may result in prejudice to the defendant\u2019s constitutional right to a fair trial\u201d); Pietrzak v. Rush-Presbyterian-St. Luke\u2019s Med. Ctr., 284 Ill. App. 3d 244, 251, 670 N.E.2d 1254, 1259 (1996) (\u201cWhen the jury consults outside sources for definitions of words contained in jury instructions, the court must determine whether the definitions conflict or substantially differ from the instructions.\u201d), leave to appeal denied, 171 Ill. 2d 585, 577 N.E.2d 971 (1997); People v. Messenger, 221 Mich. App. 171, 176, 561 N.W.2d 463, 466 (1997) (adopting the Sixth Circuit rule \u201cthat a jury\u2019s use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se\u201d), leave to appeal denied, 456 Mich. 955, 577 N.W.2d 688 (1998); Allers v. Riley, 273 Mont. 1, 8, 901 P.2d 600, 605 (1995) (\u201cprobable prejudice and potential injury was apparent from the fact that the jury used extraneous materials \u2014 two dictionaries \u2014 to redefine a critical element of this negligence case\u201d); Priest v. McConnell, 219 Neb. 328, 337-38, 363 N.W.2d 173, 179 (1985) (holding that a jury\u2019s use of dictionary definitions constitutes misconduct, but that a new trial is warranted only when a party demonstrates prejudice); State v. Melton, 102 N.M. 120, 123, 692 P.2d 45, 48 (N.M. Ct. App. 1984) (holding that when one juror consulted a dictionary and related the definitions to other jurors, the jury was exposed to extraneous information, giving rise to a presumption of prejudice); Hillier v. Lamborn, 740 P.2d 300, 305 (Utah Ct. App.) (\u201cthe dictionary was \u2018extraneous information\u2019 \u201d under Utah\u2019s Rule 606(b), requiring a determination whether use of the dictionary was prejudicial), cert. denied, 765 P.2d 1277 (Utah 1987); State v. Ott, 111 Wis. 2d 691, 696, 331 N.W.3d 629, 632 (Wis. Ct. App. 1983) (concluding that \u201cgiven the nature of the extraneous material [a dictionary definition] brought to the jury\u2019s deliberations, the probable effect upon a hypothetical average jury would be prejudicial\u201d). See generally Jean E. Maess, Annotation, Prejudicial Effect of Jury\u2019s Procurement or Use of Book During Deliberations in Criminal Cases, 35 A.L.R.4th 626 (1985 & Supp. 2005) (collecting and analyzing state and federal cases discussing the prejudicial effect of the jury\u2019s procurement or use of a book, including a dictionary, during deliberations in a criminal case when the book consulted was not formally introduced into evidence at trial).\nIn sum, if I were writing on a blank slate, I would hold in accordance with the rest of the country that a jury\u2019s unauthorized consultation of a dictionary constitutes consideration of extraneous information under Rule 606. Nevertheless, in criminal cases, I believe that such consultation necessarily constitutes a violation of a defendant\u2019s constitutional rights.\nAs such, the State should have been required to demonstrate that the jury\u2019s conduct was harmless beyond a reasonable doubt. See Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir.1987) (\u201c[U]nauthorized reference to dictionary definitions constitutes reversible error which the State must prove harmless beyond a reasonable doubt.\u201d). I do not believe that the State has met its burden.\nThe critical issue in this case was whether the State had proven malice. This Court set out the various methods of proving malice in State v. Fuller, 138 N.C. App. 481, 484, 531 S.E.2d 861, 864, disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000) (internal quotation marks omitted):\nThe element of malice may be established by at least three different types of proof: (1) express hatred, ill-will or spite; (2) commission of inherently dangerous acts in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; or (3) a condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.\nThe State, in this case, relied upon the second type of malice, also called \u201cdepraved-heart malice.\u201d Id. (internal quotation marks omitted). The trial court instructed the jury consistent with that definition.\nFollowing those instructions, it is undisputed that the jury foreman read to the rest of the jury a series of dictionary definitions regarding key words contained in the trial judge\u2019s definition of the word \u201cmalice,\u201d including \u201crecklessly\u201d and \u201cwantonly.\u201d Using the dictionary, the jury foreman told the other jurors that \u201crecklessly\u201d means \u201clack of due caution,\u201d while \u201cwantonly\u201d means \u201carrogant recklessness of justice or the feelings of others.\u201d Because the definition of \u201cwantonly\u201d refers back to \u201crecklessness,\u201d it thus incorporates the concept of a \u201clack of due caution.\u201d In other words, based on the dictionary, the jury could believe that both the \u201creckless\u201d and \u201cwanton\u201d components of the trial court\u2019s definition of \u201cmalice\u201d could be met if the jurors concluded that there had been a \u201clack of due caution.\u201d\nI believe that the dictionary diluted the degree of recklessness necessary for a finding of \u201cmalice.\u201d Both this Court and the Supreme Court have recognized that \u201crecklessness\u201d encompasses a range of conduct of various degrees of severity. The Supreme Court stated in State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000), that \u201c[t]he distinction between \u2018recklessness\u2019 indicative of murder and \u2018recklessness\u2019 associated with manslaughter \u2018is one of degree rather than kind\u2019 \u201d and that instructions must ensure that the jury does not confuse the \u201chigh degree of recklessness\u201d required for second degree murder with \u201cmere culpable negligence.\u201d Id. at 393-94, 527 S.E.2d at 303 (quoting United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984), cert. denied, 469 U.S. 1193, 83 L. Ed. 2d 973, 105 S. Ct. 970 (1985)). The Court has emphasized that, standing alone, culpable negligence supports only a verdict of involuntary manslaughter. See id. at 395, 527 S.E.2d at 304; State v. Wilkerson, 295 N.C. 559, 582, 247 S.E.2d 905, 918 (1978). The Court found no error in Rich because the trial court \u201cnever mentioned culpable negligence\u201d and, in light of the instructions, the Court could not \u201cconclude that the jury could have confused malice with culpable negligence.\u201d 351 N.C. at 396, 527 S.E.2d at 304.\nI believe that the juror\u2019s reference to the dictionary created the potential for just such confusion. The focus on \u201clack of due caution\u201d risks blurring the distinction between involuntary manslaughter and second degree murder. As this Court has explained, the recklessness referred to in second degree murder instructions \u201ccontinues to require a high degree of recklessness to prove malice\u201d and the instructions to the jury must ensure that the jurors understand \u201cthe high degree of recklessness required for murder as opposed to the lesser degree required for manslaughter.\u201d State v. Blue, 138 N.C. App. 404, 410, 531 S.E.2d 267, 272, aff\u2019d in part, rev\u2019d in part on other grounds, per curiam, 353 N.C. 364, 543 S.E.2d 478 (2000).\nAlthough I recognize that the trial judge\u2019s instructions included terms and phrases that ordinarily would be sufficient to ensure that the jury found the requisite high degree of recklessness, the incorporation of the milder concept of \u201clack of due caution\u201d into both recklessness and wantonness risks allowing a verdict based on the lesser standard of \u201cculpable negligence.\u201d \u201cCulpable negligence\u201d is \u201c[negligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one\u2019s actions.\u201d Black\u2019s Law Dictionary 1062 (8th ed. 2004).\nBecause I do not believe that the State can demonstrate that the jury\u2019s reference to the dictionary definitions of \u201crecklessly\u201d and \u201cwantonly\u201d was harmless beyond a reasonable doubt, I would remand for a new trial. Based on the record in this case, I simply cannot conclude that the jury would have convicted defendant of second degree murder no matter what.\nI know of no words that would sufficiently condemn defendant\u2019s conduct, and he should be severely punished. He is, however, entitled to be convicted of second degree murder based on a trial judge\u2019s instructions rather than on a dictionary definition.\n. The North Carolina Supreme Court has distinguished between capital and non-capital cases by providing that this right may be waived only in non-capital cases. State v. Monroe, 330 N.C. 846, 849, 412 S.E.2d 652, 654 (1992). In all cases, however, the State may show that any violation of this right was harmless beyond a reasonable doubt. Payne, 320 N.C. at 140, 357 S.E.2d at 613.\n. I recognize that, in McLain, this Court did not apply the harmless beyond a reasonable doubt standard. In that case, however, the jury\u2019s consultation of the dictionary was discovered prior to the conclusion of the trial and the trial court instructed the jury to disregard the dictionary definition. Since we presume that a jury follows the trial court\u2019s instructions, the constitutional concerns existing in this case were not present in McLain.", "type": "dissent", "author": "GEER, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy and Special Counsel Isaac T. Avery, III, for the State.", "Kathryn L. VandenBerg for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM THOMAS BAUBERGER\nNo. COA04-1368\n(Filed 7 March 2006)\n1. Jury\u2014 juror misconduct \u2014 motion for appropriate relief\u2014 improper consideration of dictionary definitions \u2014 extraneous information under Rule 606(b) \u2014 right to confrontation\nThe trial court did not err in a second-degree murder and assault with a deadly weapon inflicting serious injury case by denying defendant\u2019s motion for appropriate relief seeking a new trial based on juror misconduct arising from the fact that jurors considered dictionary definitions during deliberations, even though defendant contends the juror affidavits contain extraneous information and that his Sixth Amendment right to confrontation was violated, because: (1) although the jury\u2019s conduct was improper, the jury\u2019s use of the dictionary did not prejudice defendant when there was no reasonable possibility that the ver- \u25a0 diet would have been different absent the jury consulting the dictionary; (2) definitions in standard dictionaries are not within our Supreme Court\u2019s contemplation of extraneous information under N.C.G.S. \u00a7 8C-1, Rule 606(b); and (3) the reading of the dictionary definitions did not violate defendant\u2019s right to confrontation when the information considered by the jury did not discredit defendant\u2019s testimony or witnesses, and it concerned legal terminology rather than evidence developed at trial.\n2. Sentencing\u2014 prior record level \u2014 prior driving while impaired convictions\nThe trial court did not err in a second-degree murder and assault with a deadly weapon inflicting serious injury case by using defendant\u2019s prior driving while impaired convictions in determining his prior record level and sentencing him as a Level II offender, because: (1) although defendant contends his sentence as a Level II offender violates the prohibition against double jeopardy, he failed to cite any supporting case authority; (2) defendant\u2019s prior convictions were not aggravating factors, but instead the trial court added points to defendant\u2019s prior record level under N.C.G.S. \u00a7 15A-1340.14; and (3) the parties do not cite any provisions of the Structured Sentencing Act, nor did the Court of Appeals find any, that prohibited a trial court from using the same prior convictions introduced by the State as evidence of malice during trial to increase defendant\u2019s prior record level at sentencing.\nJudge Geer dissenting.\nAppeal by defendant from judgment entered 15 August 2003 by Judge John O. Craig, III in Forsyth County Superior Court. Heard in the Court of Appeals 17 August 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy and Special Counsel Isaac T. Avery, III, for the State.\nKathryn L. VandenBerg for defendant-appellant." }, "file_name": "0465-01", "first_page_order": 497, "last_page_order": 514 }