{ "id": 4362636, "name": "STATE OF NORTH CAROLINA v. KINARD JULIUS OAKES", "name_abbreviation": "State v. Oakes", "decision_date": "2012-03-20", "docket_number": "No. COA11-418", "first_page": "490", "last_page": "498", "citations": [ { "type": "official", "cite": "219 N.C. App. 490" } ], "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": "623 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634569, 12634570 ], "year": 2005, "pin_cites": [ { "page": "29-30", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0011-01", "/se2d/623/0011-02" ] }, { "cite": "550 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "177", "parenthetical": "\"The Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence within a specified range.\"" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436939 ], "year": 2001, "pin_cites": [ { "page": "685-86", "parenthetical": "\"The Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence within a specified range.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0680-01" ] }, { "cite": "313 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526688 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0490-01" ] }, { "cite": "301 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "312 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2393317 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0418-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "553 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "708-09" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378012 ], "year": 2001, "pin_cites": [ { "page": "84-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0077-01" ] }, { "cite": "717 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "365 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "700 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2010, "pin_cites": [ { "page": "426" }, { "page": "425-26" }, { "page": "426" }, { "page": "425" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4178971 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0379-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "360 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788006 ], "year": 2005, "pin_cites": [ { "page": "138-39", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0110-01" ] }, { "cite": "319 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "588", "parenthetical": "\"[T]he defend-ant waived his right to raise on appeal his objection to the evidence. Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\"" } ], "opinion_index": 0 }, { "cite": "311 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681279 ], "year": 1984, "pin_cites": [ { "page": "661", "parenthetical": "\"[T]he defend-ant waived his right to raise on appeal his objection to the evidence. Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0656-01" ] } ], "analysis": { "cardinality": 794, "char_count": 18380, "ocr_confidence": 0.752, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3335727295297911 }, "sha256": "3090b6dc9f428a78e6ea8ed5a92b412831c117a8b8591d56832457b32b671127", "simhash": "1:8330d3abd33745f6", "word_count": 2965 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KINARD JULIUS OAKES" ], "opinions": [ { "text": "GEER, Judge.\nDefendant appeals from his convictions of assault with a deadly weapon inflicting serious injury (\u201cAWDWISI\u201d) and of attaining habitual felon status. Defendant primarily contends on appeal that the trial court committed plain error in admitting evidence that defendant had previously been in jail and that he associated with \u201cdrug boys.\u201d As defendant has not demonstrated that the jury probably would have reached a different verdict in the absence of that evidence, he has not established plain error.\nFacts\nThe State\u2019s evidence tended to show the following facts. Johnny Barnes was a resident of Eastgate Apartments, as was defendant. Barnes knew defendant by his nickname, which sounded something like \u201cDalp.\u201d On 5 October 2009, Barnes sold his coat to his friend Charlie to get money to do his laundry. After finishing his laundry, Barnes went to look for Charlie because he had received only part of the money for the coat. Barnes found Charlie at defendant\u2019s apartment and was talking to him when defendant came to the door in what Barnes described as a rage.\nDefendant told Barnes that he should not \u201cbe knocking on my door looking for nobody about no damn money.\u201d Barnes indicated to defendant that he did not want any trouble and then began walking back towards his apartment with Charlie. Barnes heard defendant \u201ccussing,\u201d and defendant continued \u201cin a rage.\u201d A moment later, someone told Barnes to turn around. As he turned, defendant stabbed him in the shoulder with a knife. Barnes collapsed about 30 feet from defendant\u2019s apartment and called an ambulance. He was taken to the hospital where he stayed for a week and a half.\nOfficer Kyle Wilson of the Winston-Salem Police Department was called out to investigate the incident. When Officer Wilson arrived on the scene, he found Barnes holding his side and bleeding from his chest. Although Barnes could only identify the person who stabbed him as \u201cDap,\u201d he identified defendant\u2019s apartment building as being where his assailant lived. Another officer who arrived later found blood in front of that building.\nAfter speaking with Barnes, Officer Wilson went into defendant\u2019s apartment where he saw a steak knife by the kitchen sink that was wet. Officer Wilson subsequently spoke with Barnes at the hospital where he described his assailant as a black male with a heavy beard and mustache who had recently been in jail. Having canvassed the neighborhood and spoken with Barnes\u2019 friend Charlie, Officer Wilson obtained a warrant and arrested defendant.\nDefendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury (\u201cAWDWIKISI\u201d) and for being a habitual felon. The jury convicted him, however, of AWDWISI and of being a habitual felon. The trial court sentenced defendant to a presumptive-range term of 95 to 123 months imprisonment. Defendant timely appealed to this Court.\nI\nDefendant first argues that the trial court committed plain error in admitting testimony (1) that defendant had been incarcerated in the past and (2) that he associated with people involved with drugs. The testimony regarding defendant\u2019s prior incarceration came from both Barnes and Officer Wilson. During the cross-examination of Barnes, defendant\u2019s counsel elicited the following testimony:\nQ. Is that what you told the police officer?\nA. Told him what? I didn\u2019t know his real name. I went by the name as they called him.\nQ. Dop?\nA. Dalp [phonetic] or something. He\u2019ll tell you.\nQ. So it\u2019s Dalp?\nA. That\u2019s Kinard. But they called him something else down there. Because I was living down there, and he came like from just getting out of prison. I didn\u2019t know his full name.\nDefendant made no objection or motion to strike with respect to this testimony.\nSubsequently, during direct examination, Officer Wilson testified that Barnes \u201cadvised that he believed that the suspect had recently been in jail.\u201d At that point, defendant objected, but the trial court overruled the objection. Defendant concedes that his objection to Officer Wilson\u2019s answer was not sufficient to preserve the objection to the admission of the evidence that defendant had previously been in jail given his failure to object during Barnes\u2019 testimony. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (\u201c[T]he defend-ant waived his right to raise on appeal his objection to the evidence. Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d).\nConsequently, defendant argues that the admission of the testimony about his incarceration constituted plain error. It is well established that \u201c \u2018[t]he plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to \u201cplain error,\u201d the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question \u201ctilted the scales\u201d and caused the jury to reach its verdict convicting the defendant.\u2019 \u201d State v. Duke, 360 N.C. 110, 138-39, 623 S.E.2d 11, 29-30 (2005) (internal citation omitted) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).\nIn this case, even assuming without deciding, that the admission of the above testimony was error, defendant has failed to demonstrate that the admission of this evidence caused the jury to reach its verdict. \u201cThe elements of AWDWISI are: (1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death.\u201d State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000). The State presented ample evidence of each element and that defendant was the perpetrator.\nDefendant asserts that the evidence against defendant was \u201cweak\u201d because the State did not corroborate Barnes\u2019 testimony with the testimony of Charlie and did not present the knife defendant allegedly used. Based on our review of the record, we find it highly unlikely that the jury would have rejected Barnes\u2019 testimony that defendant stabbed him.\nImmediately after being stabbed and while awaiting transport to the hospital, Barnes identified defendant as his assailant by nickname and pointed to defendant\u2019s apartment building as where his assailant lived. Officer Wilson found blood on the front step of that building and a wet steak knife next to defendant\u2019s kitchen sink, suggesting it had just been washed. Barnes then specifically identified defendant at trial as the perpetrator. In the face of this evidence, defendant presents no explanation on appeal why a jury would find Barnes\u2019 identification of defendant less credible in the absence of the testimony about defendant\u2019s prior incarceration.\nDefendant also appears to argue that because the State did not present testimony from a health care provider regarding Barnes\u2019 injury, the evidence of the seriousness of that injury was sufficiently weak that evidence of defendant\u2019s prior incarceration must have tipped the scales towards conviction. Given that Barnes was stabbed, both Officer Wilson and Barnes testified that Barnes was bleeding profusely, Barnes was hospitalized for more than a week, and Barnes required a breathing tube, we do not believe that defendant has shown that in the absence of the challenged testimony, the jury would have concluded that the injury was not serious. Defendant has, therefore, failed to show plain error regarding the admission of Barnes\u2019 statement that defendant had previously been in prison.\nSecond, defendant argues Barnes\u2019 testimony suggesting that defendant consorted with people involved with drugs constituted plain error. During Barnes\u2019 cross-examination, the following exchange took place:\nQ. [Charlie] wasn\u2019t at his uncle ... in Apartment B?\nA. Not at the time. That\u2019s where he lives. That\u2019s where he was living at. . . one time. But at the house where I went to, that\u2019s where all the drug boys hung out at because\u2014\n[DEFENSE COUNSEL]: Objection, Judge. No question\u2019s before the witness.\nA. That\u2019s what they did.\nTHE COURT: Overruled*\nQ. You\u2019re saying you did drugs over there?\nA. No. I\u2019m saying that\u2019s where they did their drugs at.\nWe do not believe, given the State\u2019s evidence, that this testimony was any more likely to tip the scales for conviction than the testimony regarding defendant\u2019s prior incarceration. Consequently, defendant has also failed to establish that the admission of this testimony amounted to plain error.\nII\nDefendant next contends that the trial court committed plain error during the habitual felon phase of his trial in admitting evidence not only of the judgment and charging documents for defendant\u2019s prior felony convictions, but also the plea transcripts for those convictions. Defendant points out that those plea transcripts showed (1) that defendant had been given lenient sentences under prior plea agreements, (2) that he was ordered to undergo mental health counseling, and (3) that he had been intoxicated in the past\u2014information irrelevant to whether he was convicted of the offenses set out in the habitual felon indictment.\nDefendant contends that admission of his plea transcripts violated N.C. Gen. Stat. \u00a7 15A-1025 (2011), which provides that \u201c[t]he fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings.\u201d Because defendant did not object to the admission of the plea transcripts, he is limited to plain error review.\nWe agree with defendant that, at a minimum, this Court\u2019s opinion in State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), disc. review denied, 365 N.C. 346, 717 S.E.2d 377 (2011), establishes that it was error to admit plea transcripts that had not been redacted to remove information not relevant to the habitual felon proceeding, such as defendant\u2019s prior drug use, mental health counseling, and lenient sentencing. Nevertheless, this Court in Ross concluded that even though the defendant had preserved the issue for review, he did not show sufficient prejudice to warrant a new habitual felon hearing. Id. at 400, 700 S.E.2d at 426.\nThe Court pointed out that the defendant did not dispute that he had been previously convicted of the three felonies required for the jury to find he had attained habitual felon status. Id. 700 S.E.2d at 425-26. As a result, the Court held that \u201c[g]iven the overwhelming and uncontradicted evidence of the three felony convictions, there [was] essentially no likelihood\u201d that the jury would have reached a different result. Id. 700 S.E.2d at 426. See also State v. Stitt, 147 N.C. App. 77, 84-85, 553 S.E.2d 703, 708-09 (2001) (holding defend- ant had failed to prove prejudice as to admission of transcripts of plea to prove habitual felon status, particularly given their admission only during the habitual sentencing phase of defendant\u2019s trial where the only issue was whether he had been convicted of the underlying felonies).\nIn this case, although defendant did argue below that the exhibits were not self-authenticating, he did not dispute the fact that he had been convicted of the necessary predicate felonies. In addition, the State presented evidence of those convictions in the form of the information, warrant, transcript of plea, and judgment for each of the three felonies. Since the only issue in a habitual felon proceeding is whether the defendant has been convicted of or pled guilty to three felony offenses, Ross, 207 N.C. App. at 399, 700 S.E.2d at 425, we believe, just as this Court did in Ross, that there is essentially no likelihood that the jury would have reached any other verdict had the plea transcripts been excluded.\nIII\nFinally, defendant contends that he was denied a \u201cfair sentencing hearing because the trial court improperly considered the seriousness of the assault offense and gave too much weight to his criminal record before sentencing him.\u201d During the sentencing hearing, the parties argued regarding the sufficiency of the State\u2019s evidence of defendant\u2019s prior convictions. Defendant was willing to stipulate only to two convictions of possession of drug paraphernalia and contended that he was a prior record level two.\nThe trial court then determined that seven misdemeanor convictions should be included in calculating defendant\u2019s prior record level. After hearing further argument by counsel, the trial court announced:\nTHE COURT: I\u2019ll try to take into account all the things argued by counsel, by the state, the seriousness of the current offense, his voluminous criminal history and record of a lot of misdemeanors. I\u2019ll also try to take into account what you said, the nature of the prior felonies that got him to this status of habitual felon, and the passage of time since his previous felony, and the things about Disability.\nAnd the Court considering all these things, Madam Clerk, again will find that he was convicted by the Jury of the Class E assault with a deadly weapon inflicting serious injury. The Court will enhance it to a Class C pursuant to the habitual felon status, prior record level 3; the Court having found seven prior record level points due to seven prior A-l or 1 misdemeanors.\nThe trial court then sentenced defendant to a presumptive-range term of 95 to 123 months imprisonment.\nAlthough a sentence within the statutory limits will be presumed regular and valid, such a presumption is not conclusive. State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). \u201cIf the record discloses that the [trial] court considered irrelevant and improper matter in determining the severity of the sentence, the presumption of regularity is overcome, and the sentence is in violation of [the] defendant\u2019s rights.\u201d Id. In Boone, our Supreme Court ordered a new sentencing hearing when the trial court improperly considered in sentencing the defendant\u2019s decision to reject a plea offer because the defendant \u201chad the right to plead not guilty, and he should not and cannot be punished for exercising that right.\u201d Id. at 712-13, 239 S.E.2d at 465.\nHere, defendant cites no authority\u2014and we know of none\u2014suggesting that a trial court may not take into account the seriousness of a crime and the defendant\u2019s criminal record in deciding where within a presumptive range a defendant\u2019s sentence should fall. The cases cited by defendant\u2014State v. Higson, 310 N.C. 418, 312 S.E.2d 437 (1984); State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983); State v. Chatman, 308 N.C. 169, 301 S.E.2d 71 (1983); and State v. Benfield, 67 N.C. App. 490, 313 S.E.2d 198 (1984)\u2014all address the finding of an aggravating factor to increase the sentence beyond the presumptive range. They do not address what is at issue in this case: whether a trial court may consider the seriousness of the crime and the defendant\u2019s record in deciding where, within the presumptive range, a defendant\u2019s sentence should fall.\nThe imposition of the minimum sentence under the sentencing guidelines is within the discretion of the trial court. N.C. Gen. Stat. \u00a7 15A-1340.17(c)(2) (2011) (emphasis added) provides that for the presumptive range, when \u201cthe sentence of imprisonment is neither aggravated or mitigated,\u201d then \u201cany minimum term of imprisonment in that range is permitted ....\u201d See also State v. Parker, 143 N.C. App. 680, 685-86, 550 S.E.2d 174, 177 (2001) (\u201cThe Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence within a specified range.\u201d). If a trial court is free to choose \u201cany\u201d minimum term, we fail to see why a trial court should not be able to take into account the seriousness of the particular offense when exercising its discretion to decide which minimum term within the presumptive range for that class of offense and prior record level to impose.\nNo error.\nChief Judge MARTIN and Judge STROUD concur.\n. Ross does not specifically address whether the plea transcripts should have been excluded under N.C. Gen. Stat. \u00a7 15A-1025, and we do not address that issue here.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KINARD JULIUS OAKES\nNo. COA11-418\n(Filed 20 March 2012)\n1. Evidence\u2014 prior crimes or bad acts\u2014incarceration\u2014prejudice not demonstrated\u2014no plain error\nThe trial court did not commit plain error in an assault with a deadly weapon inflicting serious injury case by admitting testimony that defendant had been incarcerated in the past and was associated with people involved with drugs. Even assuming, without deciding, that the admission of the testimony was erroneous, defendant failed to demonstrate that the error caused the jury to reach its verdict.\n2. Sentencing\u2014 plea transcripts\u2014habitual felon phase\u2014prejudice not demonstrated\u2014no plain error\nThe trial court did not commit plain error during the habitual felon phase of defendant\u2019s trial by admitting evidence of the plea transcripts for defendant\u2019s prior felony convictions. Since the only issue in a habitual felon proceeding is whether the defendant has been convicted of or pled guilty to three felony offenses, there was essentially no likelihood that the jury would have reached any other verdict had the plea transcripts been excluded.\n3. Sentencing\u2014 assault with deadly weapon inflicting serious injury\u2014presumptive range\u2014seriousness of offense considered\u2014criminal record considered\u2014no error\nDefendant\u2019s argument that he was denied a fair sentencing hearing in an assault with a deadly weapon inflicting serious injury case because the trial court improperly considered the seriousness of the assault offense and gave too much weight to his criminal record was without merit. Defendant cited no authority, and the Court of Appeals found none, suggesting that a trial court may not take into account the seriousness of a crime and the defendant\u2019s criminal record in deciding where within a presumptive range a defendant\u2019s sentence should fall.\nAppeal by defendant from judgment entered 28 September 2010 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 10 October 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant." }, "file_name": "0490-01", "first_page_order": 500, "last_page_order": 508 }