{ "id": 4347898, "name": "STATE OF NORTH CAROLINA v. TRAVIS LYNCH", "name_abbreviation": "State v. Lynch", "decision_date": "2011-12-20", "docket_number": "No. COA11-801", "first_page": "455", "last_page": "465", "citations": [ { "type": "official", "cite": "217 N.C. App. 455" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 80-11.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "432 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "715", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521747 ], "year": 1993, "pin_cites": [ { "page": "290", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0284-01" ] }, { "cite": "158 L.Ed. 2d 106", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "540 U.S. 1194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9055489, 9055459, 9055749, 9055557, 9055529, 9055610, 9055791, 9055642, 9055413, 9055509, 9055445, 9055673, 9055386, 9055709, 9055582 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/540/1194-05", "/us/540/1194-04", "/us/540/1194-14", "/us/540/1194-08", "/us/540/1194-07", "/us/540/1194-10", "/us/540/1194-15", "/us/540/1194-11", "/us/540/1194-02", "/us/540/1194-06", "/us/540/1194-03", "/us/540/1194-12", "/us/540/1194-01", "/us/540/1194-13", "/us/540/1194-09" ] }, { "cite": "584 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "283" }, { "page": "283" } ], "opinion_index": 0 }, { "cite": "357 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491394 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "390" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0382-01" ] }, { "cite": "132 L. 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Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563776, 1564168, 1564266, 1564141, 1564185, 1564207, 1564017, 1564339, 1564245, 1563670, 1563736, 1564153, 1564058, 1563837, 1563864 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1163-04", "/us/515/1163-08", "/us/515/1163-07", "/us/515/1163-02", "/us/515/1163-03", "/us/515/1163-11", "/us/515/1163-10", "/us/515/1163-13", "/us/515/1163-14", "/us/515/1163-05", "/us/515/1163-06", "/us/515/1163-12", "/us/515/1163-15", "/us/515/1163-09", "/us/515/1163-01" ] }, { "cite": "450 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "720" }, { "page": "720" }, { "page": "720-21" }, { "page": "721" } ], "opinion_index": 0 }, { "cite": "338 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518053 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0363-01" ] }, { "cite": "432 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "715", "parenthetical": "citations omitted" }, { "page": "710" } ], "opinion_index": 1 }, { "cite": "111 N.C. 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TRAVIS LYNCH" ], "opinions": [ { "text": "STROUD, Judge.\nTravis Lynch (\u201cdefendant\u201d) appeals from a conviction for robbery with a dangerous weapon and second-degree kidnapping. For the following reasons, we grant defendant a new trial.\nI. Background\nOn 16 November 2009, defendant was indicted on one count of robbery with a dangerous weapon and one count of second-degree kidnapping. Defendant was tried on these charges at the 31 January 2011 Criminal Session of Superior Court, Chatham County. The State\u2019s evidence presented at trial tended to show that on 18 June 2009, defendant was driving Michael Nicholas \u201cNick\u201d White, Rashad Farrar, and Rashad\u2019s sister, Tiffany Farrar, to Siler City, North Carolina when Nick and Rashad began talking about robbing James Tinnin, who owned a clothing store in Liberty, North Carolina and also sold clothes and shoes from his van. Defendant told Nick to get a gun and, after the robbery, they would go back to defendant\u2019s apartment.\nRashad called Mr. Tinnin to tell him that he wanted to buy some clothes from him. Defendant then dropped Rashad and Tiffany off at a barber shop in Siler City to meet Mr. Tinnin. Mr. Tinnin arrived at the barber shop in his van and Rashad purchased some shoes from him. Tiffany told Mr. Tinnin that a guy she knew wanted to buy some clothes from him, but Mr. Tinnin would have to drive them to his house, which was only five minutes away. Mr. Tinnin, following directions from Rashad and Tiffany, drove twenty minutes to a house located down a dirt driveway. Defendant was at the house sitting on the porch. Mr. Tinnin parked the van, went up to meet defendant, and asked defendant his clothing sizes. As Mr. Tinnin began searching in the back of his van for clothes, defendant grabbed Mr. Tinnin from behind and pulled him away from his van. Mr. Tinnin then noticed Nick coming around from the side of the house pointing a rifle at Mr. Tinnin\u2019s head. Defendant dragged Mr. Tinnin beside the house, while Nick continued pointing the rifle at Mr. Tinnin. Defendant then threw Mr. Tinnin on the ground and told him to stay down. Nick and Rashad then began taking clothes out of Mr. Tinnin\u2019s van and putting them in the trunk of defendant\u2019s car, which was parked at a neighboring house.\nAfter about five minutes, Mr. Tinnin noticed that the man holding the rifle had walked off so he walked back around the house and saw all four individuals \u201ctaking stuff out of the van.\u201d Mr. Tinnin yelled at them to stop and defendant, Tiffany, and Rashad ran away with items from the van in their arms. Nick then turned around and pointed the gun back at Mr. Tinnin. Mr. Tinnin ran back down the driveway towards the highway and called 911. As he was in the road talking to the 911 operator, he saw Tiffany and Rashad leave in a car from the neighboring house. Defendant, Rashad, Nick, and Tiffany then went back to defendant\u2019s apartment and later divided up the items taken from Mr. Tinnin\u2019s van. Mr. Tinnin testified that he did not have a gun on his person or in the van. Tiffany Farrar later gave a statement to the sheriffs office regarding the events that occurred, stating that defendant was a participant in the kidnapping and robbery of Mr. Tinnin.\nDefendant testified that when Mr. Tinnin, Rashad, and Tiffany arrived in Mr. Tinnin\u2019s van, he was sitting on the porch talking on his cell phone to his girlfriend. Mr. Tinnin, Rashad, and Tiffany exited the van and began arguing. When defendant approached the van to see what the argument was about, Mr. Tinnin reached in his van for a gun. Defendant grabbed Mr. Tinnin and pulled him away from the van to keep him from the weapon. Defendant testified that he then let Mr. Tinnin go and he, Rashad, Nick, and Tiffany ran through the woods to his car and left the scene, as he was afraid for his safety. Defendant denied having a conversation with Nick or Rashad about robbing Mr. Tinnin; trying to kidnap or rob Mr. Tinnin; seeing Nick point a gun at Mr. Tinnin; or taking anything from Mr. Tinnin\u2019s van.\nOn 3 February 2011, a jury found defendant guilty of both charges. The trial court sentenced defendant to a term of 51 to 71 months imprisonment for the robbery with a dangerous weapon conviction and a consecutive term of 20 to 33 months imprisonment for the second-degree kidnapping conviction. Defendant gave oral notice of appeal in open court and on 7 February 2011 filed written notice of appeal from the 3 February 2011 convictions. On appeal, defendant contends that he should get a new trial because (1) the trial court violated his constitutional rights to a unanimous jury verdict as to the second-degree kidnapping charge; (2) his trial counsel did not provide him with effective assistance of counsel; (3) the trial court erred by giving an instruction as to aiding and abetting; (4) the trial court erred in not giving an instruction as to self-defense with respect to the charge of second-degree kidnapping; (5) the trial court committed prejudicial error by refusing to admit certified copies of the victim/witness\u2019s criminal records for impeachment of credibility purposes; and (6) the trial court committed plain error and prejudicial error by admitting irrelevant and prejudicial images from a magazine into evidence. We find issue five dispositive.\nII. Mr. Tinnin\u2019s Criminal Record\nDefendant contends that \u201cthe trial court erred by refusing to admit certified true copies of Mr. Tinnin\u2019s criminal records, where the records were critical to impeach Mr. Tinnin\u2019s credibility and Rule 609(a) required the trial court to admit the records.\u201d Defendant argues that Rule 609(a) \u201cpermitted defense counsel to impeach Mr. Tinnin by admitting certified true public records of his prior convictions without calling any additional witnesses!)]\u201d the trial court \u201cerred by refusing to admit Defendant\u2019s Exhibit 1\u201d which contained copies of Mr. Tinnin\u2019s prior convictions; and this error was prejudicial to defendant as he was not permitted to show that Mr. Tinnin, the alleged victim and the State\u2019s \u201cmost important witness[,]\u201d \u201chad misrepresented his [prior criminal] record to the jury[;]\u201d and had this exhibit been admitted, \u201cthere is a reasonable possibility that the jury would have reached a different verdict.\u201d The State, citing State v. Bell, 338 N.C. 363, 383, 450 S.E.2d 710, 720 (1994), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995), counters that \u201c[i]t is not necessary for this Court to decide if there was any error in this case, because any error committed by the trial court in not allowing the introduction of a certified copy of Mr. Tinnin\u2019s criminal record at trial was not prejudicial[,]\u201d because Mr. Tinnin had testified as to his prior convictions and this evidence \u201callowed the jury to evaluate Mr. Tinnin\u2019s credibility and there was no reasonable possibility that a different result would have been reached.\u201d\nN.C. Gen. Stat. \u00a7 8C-1, Rule 609(a) (2009) \u201cImpeachment by evidence of conviction of crime\u201d states that\n[ f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class Al, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.\nOur Supreme Court has held that the admission of evidence pursuant to Rule 609(a) is not in the discretion of the trial court as\n[ t]he language of Rule 609(a) (\u201cshall be admitted\u201d) is mandatory, leaving no room for the trial court\u2019s discretion. Moreover, while N.C. R. Evid. 609(b) requires a balancing test of the probative value and prejudicial effect of a conviction more than ten years old, this provision is explicitly absent from 609(a). Indeed, the official comments to Rule 609(a) reveal an unequivocal intention to diverge from the federal requirement of a balancing test. N.C.G.S. \u00a7 8C-1, Rule 609 official commentary, para. 4 (\u201cSubdivision (a) also deletes the requirement in Fed. R. Evid. 609(a) that the court determine that the probative value of admitting evidence of the prior conviction outweighs its prejudicial effect to the defendant.\u201d).\nState v. Brown, 357 N.C. 382, 390, 584 S.E.2d 278, 283 (2003), cert. denied, 540 U.S. 1194, 158 L.Ed. 2d 106 (2004).\nThe record shows that defense counsel asked Mr. Tinnin questions during cross examination regarding his prior criminal record. At the close of defendant\u2019s case, defense counsel requested to admit defendant\u2019s exhibit 1, which consisted of three prior judgments and a misdemeanor conviction record showing Mr. Tinnin\u2019s prior convictions in 2003, 2006, and 2010 in Guilford and Randolph Counties. Defense counsel stated that Mr. Tinnin\u2019s testimony regarding his prior convictions \u201cwas not quite accurate or candid . . . [and] the jury-should have a right to know the full \u2014 the full scope of those convictions.\u201d Without discussion, the trial court denied defense counsel\u2019s request. The record shows that all four documents contained in defendant\u2019s exhibit 1 were certified as true copies of the original documents by the Superior Court Clerks in Guilford and Randolph Counties. The judgments and misdemeanor conviction record contained in defendant\u2019s exhibit 1 show prior convictions for twelve felonies and two misdemeanors. As defense counsel was requesting the introduction of the certified \u201cpublic record[s]\u201d showing Mr. Tinnin\u2019s prior convictions \u201cfor the purpose of attacking the credibility of a witness,\u201d see N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a), and the language of Rule 609(a) \u201cis mandatory,\u201d see Brown, 357 N.C. at 390, 584 S.E.2d at 283, the trial court erred in denying defense counsel\u2019s request to allow defendant\u2019s exhibit 1 into evidence.\nWe have stated that \u201c[e]ven where the trial court improperly excludes certain evidence, ... a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error.\u201d State v. Black, 111 N.C. App. 284, 290, 432 S.E.2d 710, 715 (1993) (citation and quotation marks omitted). The test for prejudicial error is whether\nthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.\nN.C. Gen. Stat. \u00a7 15A 1443(a)(2009).\nDefendant testified that he did not participate in any kidnapping or robbery of Mr. Tinnin and, in fact, defendant grabbed Mr. Tinnin because Mr. Tinnin was reaching for a weapon. The only two witnesses who gave statements to the sheriff\u2019s office and testified that defendant was a participant in the kidnapping and robbery of Mr. Tinnin were Mr. Tinnin and Tiffany Farrar. However, Tiffany Farrar also admitted that on the morning of 18 June 2009 she had twice snorted at least a gram of cocaine; that she was under the influence of cocaine the whole day; that she could not remember exactly what was said that day because she was under the influence of cocaine; that she frequently used cocaine and was probably under the influence of cocaine when she gave her statement to the sheriff\u2019s office; that several parts of her trial testimony were not included in her statement to the sheriffs office; and that she was testifying in hopes of receiving probation or a lesser sentence for her own involvement in the events that occurred on 18 June 2009. Thus, Mr. Tinnin\u2019s testimony and his credibility were crucial to the State\u2019s argument that defendant participated in the kidnapping and robbery of Mr. Tinnin. But there are several discrepancies in Mr. Tinnin\u2019s testimony regard-' ing his prior convictions and his prior convictions shown in the certified documents contained in defendant\u2019s exhibit 1.\nAs noted above, on cross-examination, Mr. Tinnin was questioned by defense counsel regarding his prior convictions in 2003, 2006, and 2010. Mr. Tinnin admitted that in 2003 he had been convicted of trafficking cocaine, but claimed that a 2003 conviction for maintaining a dwelling/vehicle for controlled substance in Guilford County was actually the same as his conviction for trafficking. Mr. Tinnin admitted to two 2006 convictions for trafficking in cocaine by possession and a 2006 conviction for PWISD marijuana; denied 2006 convictions for maintaining a dwelling place for controlled substances, felony possession of cocaine, and possession of marijuana; and stated that he did not remember if he had been convicted in 2006 for PWISD cocaine or two counts of felony counterfeit trademark. Mr. Tinnin admitted that he had been convicted in 2010 of misdemeanor use of a counterfeit trademark. In contrast, the certified copies of the judgments and misdemeanor conviction record contained in defendant\u2019s exhibit 1 showed that Mr. Tinnin had the following prior convictions: (1) in 2003, a conviction for trafficking by manufacture 200-400 grams of cocaine and maintaining a vehicle/dwelling place for controlled substance; (2) in 2006, in two separate judgments, convictions for two counts of felony criminal use of a counterfeit trademark, two counts of trafficking in cocaine by possession, two counts of maintaining a dwelling place to keep a controlled substance, two counts of PWISD marijuana, one count of PWISD of cocaine, one count of felony possession cocaine, and one count of misdemeanor possession of marijuana up to Vi oz; and (3) in 2010, one conviction for misdemeanor criminal use of a counterfeit trademark. Although Mr. Tinnin\u2019s testimony as to his 2010 conviction was accurate, his testimony did not accurately represent his 2006 and 2003 prior convictions. Mr. Tinnin only admitted to four of his twelve prior felony convictions and one of his two misdemeanor convictions. The trial court\u2019s denial of defense counsel\u2019s motion to allow into evidence defendant\u2019s exhibit 1 prevented defense counsel from drawing into question Mr. Tinnin\u2019s credibility by showing that he had misrepresented to the jury his prior criminal record by greatly minimizing the number and severity of his prior convictions. Although most of the prior convictions were drug related crimes, Mr. Tinnin testified that he could not remember if he had been convicted in 2006 of two counts of felony criminal use of a counterfeit trademark. But defendant\u2019s exhibit 1 shows that he was twice convicted of this crime in 2006 in Guilford County and again in 2010 he pled guilty to the misdemeanor criminal use of a counterfeit trademark in Randolph County. Unlike the drug offenses, the crimes involving the use of a counterfeit trademark show a pattern of deception and dishonesty which is especially relevant to defendant\u2019s attempt to attack Mr. Tinnin\u2019s credibility. Defendant\u2019s exhibit 1 further erodes Mr. Tinnin\u2019s credibility because it shows fourteen prior convictions, over twice as many as he acknowledged in his testimony. In contrast, defendant testified that he had never been convicted of anything more than a traffic offense and his prior record level worksheet shows no prior convictions. Given the impeachment of Tiffany Farrar\u2019s testimony and the critical nature of Mr. Tinnin\u2019s testimony, \u201cthere [was] a reasonable possibility that\u201d the jury would have reached a different result had defendant\u2019s exhibit 1 been admitted. See N.C. Gen. Stat. \u00a7 15A 1443(a).\nThe State cites State v. Bell in support of its argument that defendant was not prejudiced by the exclusion of Mr. Tinnin\u2019s prior convictions, but we find State v. Bell, 338 N.C. 363, 450 S.E.2d 710, distinguishable from the case before us. In response to the defendant\u2019s contention that the trial court erred in refusing \u201cto allow questioning of . . . the State\u2019s key witness, regarding his prior convictions and several prior acts of misconduct allegedly committed by him[,]\u201d the Court in Bell held as to the witness\u2019s prior convictions that \u201cthe trial court properly restricted defendant\u2019s questioning of [the State\u2019s key witness] on his prior convictions for breaking and entering and larceny to the time and place of the convictions and the penalties imposed thereon.\u201d Id. at 381-82, 450 S.E.2d at 720. The defendant in Bell was restricted as to the nature of his questioning regarding prior convictions, not whether he could impeach the witness regarding his prior convictions pursuant to Rule 609(a). Here, the defendant sought to present only evidence as to Mr. Tinnin\u2019s convictions and the time and place of these convictions, and not to inquire into the details of these crimes. The other incidents which the defendant sought to question the witness about in Bell were not prior convictions but some \u201cparticular alleged specific act[s] of misconduct[,]\u201d pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 608(b), which is not at issue in this case. Id. at 382-83, 450 S.E.2d at 720-21. In addition, although the Bell court found that the trial court erred by excluding evidence of one act of misconduct which was relevant to the \u201cveracity of the witness[,]\u201d the exclusion of this one incident of \u201cmisrepresentationQ\u201d was not prejudicial because the evidence of the State\u2019s key witness\u2019s prior convictions was \u201csufficient evidence to evaluate [the witness\u2019s] credibility, including proof of bias.\u201d Id. at 383, 450 S.E.2d at 721. Here, the jury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin\u2019s prior convictions. Instead of supporting the State\u2019s argument that defendant was not prejudiced by the exclusion of Mr. Tinnin\u2019s prior criminal record, Bell tends to support defendant\u2019s argument that he was prejudiced.\nBecause defendant was prejudiced by the trial court\u2019s error in denying the introduction of defendant\u2019s exhibit 1 into evidence, we grant defendant a new trial. As we have granted defendant the relief he requested, we need not address the other issues raised in his appeal.\nNEW TRIAL.\nJudge CALABRIA concurs.\nJudge BYRANT dissents in a separate opinion.\n. The ten year time limit in N.C. Gen. Stat. \u00a7 8C-1, Rule 609(b) is not applicable because the oldest prior conviction in defendant\u2019s exhibit 1 was from 2003.\n. A conviction for misdemeanor criminal use of a counterfeit trademark pursuant to N.C. Gen. Stat. \u00a7 80-11.1(b)(1) (2009) is a class 2 misdemeanor and would be admissible pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a).", "type": "majority", "author": "STROUD, Judge." }, { "text": "Judge Bryant,\ndissenting.\nThe majority grants defendant a new trial by finding prejudice in the trial court\u2019s denial of a defense exhibit containing a witness\u2019s record of convictions. Because the record does not contain evidence that would establish prejudicial error, I respectfully dissent.\nFirst, assuming it was error for the trial court to deny, pursuant to N.C.G.S. \u00a7 8C-1, Rule 609(a), defendant\u2019s request to admit certified public records of Mr. Tinnin\u2019s prior convictions, that error was not prejudicial.\nIt is well established that\n[ e]ven where the trial court improperly excludes certain evidence, moreover, a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error. The test for prejudicial error is whether a different result would have been reached if the error had not been committed.\nState v. Black, 111 N.C. App. 284, 290, 432 S.E.2d 710, 715 (1993) (citations omitted).\nThe majority contends that \u201cthe jury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin\u2019s prior convictions,\u201d and therefore, defendant was prejudiced such that defendant should be granted a new trial. I disagree with the majority\u2019s reasoning and the result they reach.\nDefendant was charged and convicted by a jury of robbery with a dangerous weapon and second-degree kidnapping. Mr. Tinnin was the prosecuting witness for the state and the victim of the crimes for which defendant was charged. On the witness stand under cross-examination by defendant, Mr. Tinnin admitted to his prior convictions of maintaining a dwelling/vehicle for the use of controlled substances; trafficking in cocaine by manufacturing; trafficking in cocaine by possession; possession with intent to sell or deliver marijuana; and, misdemeanor use of a counterfeit trademark. However, defendant did not attempt to impeach Mr. Tinnin directly during his cross examination. Instead, after defendant had rested his case, defendant was allowed to mark the exhibit for identification, then attempted to have it admitted.\nDefendant\u2019s Exhibit 1 includes four documents certified as true copies of Mr. Tinnin\u2019s criminal record. These four documents represent four judgments dated 20 May 2003, 11 September 2006, 12 September 2006, and 11 March 2010. These four judgments represent twelve to thirteen felonies and two misdemeanors. Mr. Tinnin plead guilty to all of the offenses, including guilty pleas to a total of ten felonies and one misdemeanor on two consecutive days. All of these offenses can be placed in three basic categories: possession of drugs (cocaine and marijuana); maintaining a car or dwelling for use of controlled substances; and use of a counterfeit trademark. The majority opinion strongly emphasizes what it sees as prejudice because the \u201cjury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin\u2019s prior convictions.\u201d However, on the witness stand, under cross examination, Mr. Tinnin admitted to three types of convictions represented by the four judgments; he simply did not admit to each of the fourteen or fifteen individual convictions. Further, based on Mr. Tinnin\u2019s responses to questions on cross examination, it is likely that, had defendant attempted to use the exhibit to impeach Mr. Tinnin\u2019s credibility during cross examination rather than simply attempting to admit it later, Mr. Tinnin might have admitted all the convictions. At the very least Mr. Tinnin would have had an opportunity to see that the record in Exhibit 1 contained not only the fact that four judgments were entered on four different dates, but that each judgment contained multiple convictions.\nEven if one views Mr. Tinnin\u2019s testimony as the only critical testimony at trial, the record cannot support a determination that Mr. Tinnin\u2019s credibility would have been impeached to the point of total erosion by admission of the exhibit. There is no reasonable possibility that the jury, which apparently believed Mr. Tinnin notwithstanding his criminal record of drug possession, drug trafficking, maintaining a vehicle/residence for drugs, and use of a counterfeit trademark, would not have believed him had they known that he had plead guilty to additional crimes of the same type as he admitted at trial.\nHowever, Mr. Tinnin\u2019s testimony was not the only critical testimony. While Mr. Tinnin was the chief prosecuting witness and the victim of the crimes charged against defendant, Mr. Tinnin\u2019s testimony was only a portion of the evidence before the jury. Prior to Mr. Tinnin\u2019s testimony the jury heard from two law enforcement officers from the Chatham County Sheriff\u2019s Office \u2014 -Patrol Sergeant Brian Phillips and Detective Sergeant David Green, who responded to Mr. Tinnin\u2019s 911 call for assistance, reporting he had been robbed. Those officers testified at trial to Mr. Tinnin\u2019s demeanor as Mr. Tinnin described what he had just experienced \u2014 very nervous, agitated, incredulous (like he couldn\u2019t believe this had happened to him). They also testified to their observations at the crime scene: Mr. Tinnin\u2019s van facing the front of the house; rear hatch door open; sliding door open; lots of boxes, clothes, DVDs, CDs, etc. visible through the open doors. In addition to the officers\u2019 testimony of their observations of Mr. Tinnin shortly after the crime occurred, the jury also heard the statement Mr. Tinnin gave to Patrol Sergeant Phillips while at the scene, a statement consistent with Mr. Tinnin\u2019s trial testimony.\nFor these reasons I believe the majority\u2019s opinion that the trial court erred and prejudice occurred in the denial of the introduction of Defendant\u2019s Exhibit 1 is not supported by this record. Further, the majority holds that the instant case is distinguishable from State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), because Bell held that the trial court properly restricted the defendant\u2019s impeachment of a witness by prior convictions under 608(a) but erred in restricting defendant\u2019s impeachment by specific instances of conduct under 608(b). However, where the error is not constitutional, the test for improper exclusion of evidence is the prejudicial error test: whether \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. . .\u201d Bell, 338 N.C. at 383, 450 S.E.2d at 721 (citing N.C.G.S. \u00a7 15A-1443(a)). See also Black, 111 N.C. App. at 293, 432 S.E.2d at 710.\nFor the foregoing reasons, I respectfully dissent.\n. The criminal records in Defendant\u2019s Exhibit 1 are confusing. In addition to the four judgments noted by the majority and in this dissent, a separate page of the exhibit indicates a felony trafficking in cocaine offense, which offense may or may not represent a conviction. Therefore, it is difficult to tell whether defendant was convicted of twelve or thirteen felonies; perhaps that was the reason defendant did not impeach Mr. Tinnin with the record during Mr. Tinnin\u2019s testimony on cross examination.", "type": "dissent", "author": "Judge Bryant," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberley A. D Arruda, for the State.", "Robert H. Hale, Jr. & Associates, by Daniel M. Blau, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TRAVIS LYNCH\nNo. COA11-801\n(Filed 20 December 2011)\nEvidence \u2014 victim\u2019s prior convictions \u2014 admissible\nThe trial court erred in a prosecution for robbery and kidnapping by denying the introduction of a defense exhibit consisting of the victim\u2019s criminal records where the victim\u2019s testimony was critical, he had minimized the number and severity of his past convictions, and defendant sought to present only evidence of the victim\u2019s convictions and did not inquire into the details of the crimes.\nJudge BRYANT dissenting.\nAppeal by defendant from judgments entered 3 February 2011 by Judge Allen Baddour in Superior Court, Chatham County. Heard in the Court of Appeals 30 November 2011.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Kimberley A. D Arruda, for the State.\nRobert H. Hale, Jr. & Associates, by Daniel M. Blau, for defendant-appellant." }, "file_name": "0455-01", "first_page_order": 465, "last_page_order": 475 }