{
  "id": 8521677,
  "name": "STATE OF NORTH CAROLINA v. RICKY LYNN CANADY",
  "name_abbreviation": "State v. Canady",
  "decision_date": "1990-06-19",
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    "judges": [
      "Judge ORR concurs.",
      "Judge GREENE concurs in part and dissents in part."
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    "parties": [
      "STATE OF NORTH CAROLINA v. RICKY LYNN CANADY"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nOn 18 November 1988, defendant and two accomplices broke into an unoccupied home and stole several items of personal property.\nDefendant assigns as error the admission into evidence of certain testimony that he had threatened his two accomplices about not testifying against him. This evidence is admissible unless \u201cits probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .\u201d N.C. Rule of Evidence 403; State v. Smith, 19 N.C. App. 158, 159, 198 S.E.2d 52, 53, cert. denied, 284 N.C. 123, 199 S.E.2d 662 (1973). The decision to admit or exclude evidence under Rule 403 is a matter within the sound discretion of the trial court. State v. Jones, 89 N.C. App. 584, 594, 367 S.E.2d 139, 145 (1988). We do not find that the trial court abused its discretion by admitting this evidence.\nDefendant next argues that the trial court erred by sentencing the defendant for a period greater than the presumptive sentence based upon the fact that the State did not offer any exhibits into evidence. The State presented information to the court that defendant had prior convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle and escape from the Department of Corrections. The defendant never objected to the nature of the evidence offered by the State to prove the prior convictions and further stated in the record that his record did not show transgressions against property and are \u201cnot consistent with what he\u2019s been involved in in the past.\u201d Appellate Rule 10(b)(2) requires a party to object to the failure of the trial court to make necessary findings and conclusions in order to advance those issues on appeal. \u201cThe purpose of this rule appears to be to provide the trial court an opportunity to correct any obvious defects and thereby eliininate the need for an appeal and a new proceeding.\u201d State v. Bradley, 91 N.C. App. 559, 564, 373 S.E.2d 130, 132-33, disc. rev. denied, 324 N.C. 114, 377 S.E.2d 238 (1989). Because defendant failed to object to the State\u2019s statements at sentencing, he has waived his right to appeal.\nFinally, defendant argues that the trial court erred in sentencing him to a prison term in excess of the presumptive sentence. The combined presumptive sentence is fifteen years for the two crimes. The judge found, in aggravation of the sentence, that the defendant was convicted of crimes punishable by more than sixty days confinement and found no mitigating factors. Defendant\u2019s conviction of second degree burglary alone subjected him to a maximum sentence of forty years. Defendant\u2019s sentence of twenty years imprisonment is well below the maximum sentence for his most serious felony and is therefore proper. State v. Phillips, 84 N.C. App. 302, 305, 352 S.E.2d 273, 275, disc. rev. denied, 319 N.C. 462, 356 S.E.2d 12 (1987). The trial court did not err in sentencing the defendant to a term greater than the presumptive sentence combined.\nNo error.\nJudge ORR concurs.\nJudge GREENE concurs in part and dissents in part.",
        "type": "majority",
        "author": "LEWIS, Judge."
      },
      {
        "text": "Judge GREENE\nconcurring in part and dissenting in part.\nI agree with the majority that there was no error in the defendant\u2019s trial. I disagree, however, with the majority\u2019s conclusion that the failure of the defendant to object to the district attorney\u2019s statements at the sentencing hearing amounted to a waiver of defendant\u2019s right to complain that the statements were insufficient to support findings in aggravation of the sentence. The only evidence presented at the sentencing hearing relating to the prior criminal conduct of the defendant was the following statement of the district attorney:\nYour Honor, first of all, I would like to present to the Court facts of a prior criminal record of the Defendant. The Defendant does have prior criminal convictions for felonious possession of marijuana, felonious possession of LSD, discharging a firearm into an occupied motor vehicle, and also escape from a department of corrections conviction. All of these would be within the time limits which would entitle the Court to find them as aggravating circumstances in that they are within ten years and also involve sentences of more than sixty days.\nBased on the statements of the district attorney, to which defendant did not object, the trial judge found as aggravating factors that the defendant had \u201ca prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.\u201d\nI believe the statements of the district attorney are inadequate as a matter of law to support the findings of the trial judge and that the defendant has not waived the right to argue that issue in this court. \u201cA prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.\u201d N.C.G.S. \u00a7 15A-1340.4(e) (1988). Prior convictions may also be proven by defendant\u2019s testimony. Here we had only the unsupported statement of the district attorney. This statement is not competent to prove prior convictions. See State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986); accord State v. Thompson, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983) (prosecutor\u2019s unsworn statements deemed insufficient to prove prior convictions); State v. Williams, 92 N.C. App. 752, 376 S.E.2d 21, disc. rev. denied, 324 N.C. 251, 377 S.E.2d 762 (1989). Pursuant to his active inquisitorial function during sentencing, the trial court had the duty to examine all the evidence presented to determine if it would support any of the statutory sentencing factors, even absent a request by counsel. See State v. Cameron, 314 N.C. 516, 520, 335 S.E.2d 9, 11 (1985). Furthermore, the defendant\u2019s failure to object to the statements of the district attorney is not a bar to the defendant raising the issue on appeal. See State v. Mack, 87 N.C. App. 24, 359 S.E.2d 485 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E.2d 663 (1988).\nTherefore, since the remarks by the district attorney were not evidence according to the Swimm decision and since the defendant did not waive his right to argue this issue on appeal, I vote to remand to the trial court for resentencing.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "Judge GREENE"
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General J. Charles Waldrup, for the State.",
      "Locklear, Jacobs & Sutton, by Arnold Locklear, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RICKY LYNN CANADY\nNo. 8916SC884\n(Filed 19 June 1990)\n1. Criminal Law \u00a7 1064 (NCI4th)\u2014 sentencing hearing \u2014 method of proving aggravating circumstance \u2014 failure to object \u2014 appeal waived\nFailure of defendant to object to the nature of evidence offered by the State to prove prior convictions during the sentencing phase amounted to a waiver of his right to appeal the sufficiency of the evidence to support the finding of the prior convictions aggravating factor. Appellate Rule 10(b)(2).\nAm Jur 2d, Criminal \u00a7\u00a7 598, 599.\n2. Criminal Law \u00a7 1082 (NCI4th) \u2014 sentence greater than presumptive term \u2014no error\nThe trial court did not err in sentencing defendant to a term greater than the combined presumptive sentence for two crimes, since the judge found in aggravation of the sentence that defendant had been convicted of crimes punishable by more than 60 days\u2019 confinement and found no mitigating factors, and defendant\u2019s was well below the maximum sentence for his most serious felony.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nJudge GREENE concurring in part and dissenting in part.\nAPPEAL by defendant from a judgment entered 6 April 1989 by Judge George R. Greene in Superior Court, ROBESON County. Heard in the Court of Appeals 9 May 1990.\nOn 17 January 1989, defendant was indicted for second degree burglary and felonious larceny. Defendant entered a plea of not guilty and waived arraignment. Defendant was tried and found guilty on both charges. On 6 April 1989, Judge Greene sentenced the defendant to a twenty-year active sentence. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General J. Charles Waldrup, for the State.\nLocklear, Jacobs & Sutton, by Arnold Locklear, for the defendant."
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  "file_name": "0189-01",
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