{ "id": 4155039, "name": "STATE OF NORTH CAROLINA, Plaintiff v. RALPH DELANE CUNNINGHAM, JR., Defendant", "name_abbreviation": "State v. Cunningham", "decision_date": "2008-02-19", "docket_number": "No. COA07-520", "first_page": "832", "last_page": "837", "citations": [ { "type": "official", "cite": "188 N.C. App. 832" } ], "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": "647 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638976 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "686" }, { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0679-01" ] }, { "cite": "139 L. Ed. 2d 125", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11509379, 11509348, 11509315, 11509222, 11509447, 11509288, 11509255, 11509098, 11509067, 11509411, 11509166, 11509043, 11509141, 11509081, 11509116 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0871-13", "/us/522/0871-12", "/us/522/0871-11", "/us/522/0871-08", "/us/522/0871-15", "/us/522/0871-10", "/us/522/0871-09", "/us/522/0871-04", "/us/522/0871-02", "/us/522/0871-14", "/us/522/0871-07", "/us/522/0871-01", "/us/522/0871-06", "/us/522/0871-03", "/us/522/0871-05" ] }, { "cite": "345 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53918 ], "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0563-01" ] }, { "cite": "536 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "18" }, { "page": "18" } ], "opinion_index": 0 }, { "cite": "352 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685065 ], "year": 2000, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0227-01" ] }, { "cite": "463 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "181" }, { "page": "181" } ], "opinion_index": 0 }, { "cite": "342 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796093 ], "year": 1995, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0123-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "889", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "93-94", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "260 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "645", "parenthetical": "\"The 'test' of relevance is whether an item of evidence tends to shed any light on the inquiry or has as its only effect the exciting of prejudice or sympathy.\"" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "594", "parenthetical": "\"The 'test' of relevance is whether an item of evidence tends to shed any light on the inquiry or has as its only effect the exciting of prejudice or sympathy.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "345 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "368", "parenthetical": "\"[C]ommon law robbery is a felonyf.]\"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778022 ], "year": 1986, "pin_cites": [ { "page": "169", "parenthetical": "\"[C]ommon law robbery is a felonyf.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0164-01" ] }, { "cite": "185 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209211 ], "year": 2007, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0227-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)" } ], "opinion_index": 0 }, { "cite": "531 U.S. 1019", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679395, 9679139, 9679434, 9679470, 9679118, 9679312, 9679215, 9679186, 9679251, 9679283, 9679351, 9679101, 9679165, 9679069 ], "year": 2000, "pin_cites": [ { "parenthetical": "quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)" } ], "opinion_index": 0, "case_paths": [ "/us/531/1019-12", "/us/531/1019-04", "/us/531/1019-13", "/us/531/1019-14", "/us/531/1019-03", "/us/531/1019-10", "/us/531/1019-07", "/us/531/1019-06", "/us/531/1019-08", "/us/531/1019-09", "/us/531/1019-11", "/us/531/1019-02", "/us/531/1019-05", "/us/531/1019-01" ] }, { "cite": "528 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "351 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155711 ], "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0536-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "year": 1997, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] } ], "analysis": { "cardinality": 585, "char_count": 10421, "ocr_confidence": 0.749, "pagerank": { "raw": 1.5368537353434684e-07, "percentile": 0.6721328154653032 }, "sha256": "4beeaae2e01a65291e0a54df381b66bb0e3d3cfd4fcdd8e6506c842eabe55b6c", "simhash": "1:7f32081a396a8e18", "word_count": 1758 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. RALPH DELANE CUNNINGHAM, JR., Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of two counts of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a felon. Defendant appeals. The dispositive question before this Court is whether the trial court erred in not allowing defendant to stipulate to the existence of a prior unspecified felony conviction. For the following reasons, we find no error.\nI. Background\nThe State\u2019s evidence tended to show the following: On 31 December 2003, William Keith Falls (\u201cKeith\u201d) and his brother Paul Kirk Falls, Jr. (\u201cKirk\u201d) were working at Linwood Produce on 805 Cleveland Avenue in Kings Mountain. At approximately 8:30 p.m. defendant and another man entered the store. Keith and Kirk recognized one of the men, Larry Bernard Smith, Jr. (\u201cSmith\u201d) because he had been coming to the store for years. Keith also recognized defendant because he had been outside the store earlier in the week. Smith and defendant got a beer, paid for it, and then remained at the store.\nAfter about ten minutes, defendant pulled out a gun, waved it around and said, \u201cWe\u2019re not kidding boys\u201d. Smith was telling defendant to shoot Keith and Kirk saying, \u201cWe needing money\u201d. Keith told defendant and Smith \u201cto get the money out of the register. Smith took approximately one hundred dollars from the register. Smith and defendant forced Keith and Kirk to the back of the store and took their billfolds, then Smith and defendant ran out of the store.\nOn 5 January 2004, Detective Doug Shockley of the Criminal Investigative Division of the Kings Mountain Police Department showed Keith and Kirk two photographic lineups. Both Keith and Kirk identified Smith and defendant as the assailants. On 5 January 2004, a warrant was issued for defendant\u2019s arrest. On or about 15 March 2004, defendant was indicted for two counts of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a felon. Trial was held on 19 October 2004.\nBefore trial began, after much discussion as to stipulations, the trial judge specifically asked defendant, \u201cWell, the question is, do you want to stipulate to anything?\u201d. Defendant\u2019s attorney responded, \u201cNo, sir.\u201d Later during the trial, outside of the presence of the jury, defendant\u2019s attorney requested that a stipulation be read to the jury that defendant had a prior conviction for a felony, but that the stipulation not specify that the felony was for common law robbery. After some further discussion as to the stipulation the following dialogue took place:\nTHE COURT: The only question here is, is whether or not you want to stipulate to the prior conviction and you can or cannot. Any way you want to do it.\nMR. GRIFFIN: Yes, sir, we are going to stipulate to the prior conviction.\nTHE COURT: All right, I want your client to stand up and make sure he\u2019s been fully advised about that and that he\u2019s in agreement to do that.\n(The defendant stood.)\nTHE COURT: Mr. Cunningham, your attorney says that you wish to stipulate to that prior conviction in Cleveland County of common law robbery on 11-16-1995, is that correct?\nTHE DEFENDANT: Can I see him for a second?\n(The defendant and Mr. Griffin appeared to speak off the record.)\nTHE DEFENDANT: Yeah. Yes, sir.\nMR. GRIFFIN: He understands.\nTHE COURT: Do you agree to that, sir?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: You heard the stipulation. You\u2019re in full agreement to stipulate to that, is that correct?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: And you\u2019ve consulted with your attorney and you\u2019re satisfied with his\u2014\nTHE DEFENDANT: Yes, sir.\nTHE COURT: \u2014advice in that regard, is that correct?\n(The defendant appeared to nod his head affirmatively.)\nTHE COURT: Is that correct?\nTHE DEFENDANT: Yes, sir.\nLater in the proceedings the prosecutor read into evidence,\nThe stipulation would be that on November 16th, 1995, in Cleveland County, in case number 95 CRS 5144, the defendant, Ralph Cunningham, was convicted of a felony, common law robbery.\nTHE COURT: All right, and you fully stipulate and agree with that, is that correct, sir?\nMR. GRIFFIN: Yes, Your Honor, we do.\nThe jury convicted defendant on all four counts. Defendant appeals.\nII. Stipulation of Prior Conviction\nDefendant claims the trial court committed plain error \u201cby refusing to allow defendant to stipulate to the existence of a prior conviction for purposes of the possession of firearm by felon charge, with the result that the jury improperly heard that defendant had a prior robbery conviction.\u201d Specifically, defendant argues that the introduction of the prior robbery conviction was irrelevant, and in the alternative, that even if this Court finds the prior robbery conviction to be relevant the evidence still should not have been admitted pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403 because the prejudicial effect of the evidence substantially outweighed its probative value.\nPlain error is an error that is \u201cso fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997); see generally N.C.R. App. P. 9(4) (\u201cIn criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d). A defendant must demonstrate \u201c \u2018not only that there was error, but that absent the error, the jury probably would have reached a different result.\u2019 \u201d State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000), cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498 (2000) (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)). Accordingly, defendant must show that absent the erroneous admission of the challenged evidence, the jury probably would not have reached its verdict of guilty. See id.\nAmong defendant\u2019s four indictments in this case was a charge for possession of a firearm by a felon pursuant to N.C. Gen. Stat. \u00a7 14-415.1. N.C. Gen. Stat. \u00a7 14415.1(b) states that\n[w]hen a person is charged under this section, records of prior convictions of any offense, whether in the courts of this State, or in the courts of any other state or of the United States, shall be admissible in evidence for the purpose of proving a violation of this section.\nN.C. Gen. Stat. \u00a7 14-415.1(b) (2003). \u201c[T]he State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.\u201d State v. Wood, 185 N.C. App. 227, 235, 647 S.E.2d 679, 686 (2007). Though defendant is correct that conviction for possession of a firearm by a felon \u201cdoes not require proof of any specific felony\u201d it does require proof of a felony. See id. Therefore, the introduction of defendant\u2019s past conviction for common law robbery, a felony, is relevant. State v. Mann, 317 N.C. 164, 169, 345 S.E.2d 365, 368 (1986) (\u201c[C]ommon law robbery is a felonyf.]\u201d); see Wood at 235, 647 S.E.2d at 686; State v. Nelson, 298 N.C. 573, 594, 260 S.E.2d 629, 645 (1979) (\u201cThe \u2018test\u2019 of relevance is whether an item of evidence tends to shed any light on the inquiry or has as its only effect the exciting of prejudice or sympathy.\u201d).\nHowever, even relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by unfair prejudice. N.C. Gen. Stat. \u00a7 8C-1, Rule 403.\nRule 403 calls for a balancing of the proffered evidence\u2019s probative value against its prejudicial effect. Necessarily, evidence which is probative in the State\u2019s case will have a prejudicial effect on the defendant; the question, then, is one of degree. The relevant evidence is properly admissible under Rule 402 unless the judge determines that it must be excluded, for instance, because of the risk of unfair prejudice. See N.C.G.S. \u00a7 8C-1, Rule 403 (Commentary) (Unfair prejudice\u2019 within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.)\nState v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986) (internal quotations omitted). \u201cWhether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion.\u201d State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995). The North Carolina Supreme Court has specifically refused to apply the plain error standard of review \u201cto issues which fall within the realm of the trial court\u2019s discretion[.]\u201d State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000).\nAs defendant has already conceded, without any objection to the evidence this Court is limited to plain error review. See N.C.R. App. P. 9(c)(4); see also State v. Moody, 345 N.C. 563, 574, 481 S.E.2d at 629, 634 (\u201cAbsent an objection or motion at trial, our review of this argument on appeal is limited to that for plain error[.]\u201d), cert. denied, 522 U.S. 871, 139 L. Ed. 2d 125 (1997). The balancing test of Rule 403 is reviewed by this court for abuse of discretion, and we do not apply plain error \u201cto issues which fall within the realm of the trial court\u2019s discretion.\u201d Steen at 256, 536 S.E.2d at 18; McCray at 131, 463 S.E.2d at 181. Accordingly, this assignment of error is overruled.\nIII. Conclusion\nFor the foregoing reasons, we find no error.\nNO ERROR.\nJudges TYSON and JACKSON concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Special Deputy Attorney General Robert C. Montgomery for the State.", "J. Clark Fischer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. RALPH DELANE CUNNINGHAM, JR., Defendant\nNo. COA07-520\n(Filed 19 February 2008)\nAppeal and Error\u2014 plain error review \u2014 matters within court\u2019s discretion\nThe issue of whether to exclude evidence under Rule of Evidence 403 on the ground that its probative value is substantially outweighed by unfair prejudice involved a discretionary determination by the trial court that was not subject to plain error review. N.C.G.S. \u00a7 8C-1, Rule 403.\nAppeal by defendant from judgments entered on or about 20 October 2004 by Judge Richard L. Doughton from Superior Court, Cleveland County. Heard in the Court of Appeals 1 November 2007.\nAttorney General Roy A. Cooper, III by Special Deputy Attorney General Robert C. Montgomery for the State.\nJ. Clark Fischer for defendant-appellant." }, "file_name": "0832-01", "first_page_order": 862, "last_page_order": 867 }