State v. Boykin

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 13-1367
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1367 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Sampson County No. 10 CRS 50722 JONATHAN CONLANGES BOYKIN

Appeal by defendant from judgment entered 23 July 2013 by

Judge Arnold Jones in Sampson County Superior Court. Heard in

the Court of Appeals 17 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General Erin O. Scott, for the State.

James F. Hedgpeth, Jr., for defendant-appellant.

CALABRIA, Judge.

Jonathan Conlanges Boykin (“defendant”) appeals from a

judgment entered upon jury verdicts finding him guilty of felony

speeding to elude arrest; resisting, delaying and obstructing a

public officer (“RDO”); driving while license revoked (“DWLR”);

possession of an open container of alcohol in the passenger area

of a vehicle; careless and reckless driving; failure to heed

light or siren; and improper passing and speeding in excess of -2- fifty-five miles per hour outside corporate limits. We find no

error.

I. Background

Around midnight on 12 April 2010, Master Deputy Patrick

Dunn (“Master Deputy Dunn”) of the Sampson County Sheriff’s

Office was on patrol in Roseboro, North Carolina when he

observed a Jeep Cherokee (“the vehicle”) drive into the parking

lot of a Scotchman Gas Station on Highway 24. Defendant exited

the driver’s side, pumped gas, and entered the convenience store

while a passenger remained in the vehicle.

Master Deputy Dunn recognized defendant because the area

was well lit and he was familiar with defendant from previous

encounters. He checked defendant’s driver’s license to see if

it was suspended. According to the Department of Motor Vehicles

(“DMV”), the vehicle was registered to defendant’s mother at the

same residential address listed on defendant’s suspended

license.

After defendant re-entered the driver’s side of the

vehicle, he proceeded north on Highway 242. Master Deputy Dunn

drove behind the vehicle, then activated his lights and siren to

initiate a traffic stop. Defendant accelerated the vehicle,

reaching speeds over 105 miles per hour. Defendant pulled over -3- on two separate occasions. When Master Deputy Dunn asked

defendant to exit the vehicle, defendant continued to flee.

Defendant eventually stopped the vehicle, fled on foot, and

eluded Master Deputy Dunn by climbing over a barbed wire fence.

Defendant was subsequently arrested and charged with felony

speeding to elude arrest and RDO. At trial, the court admitted

defendant’s driving record into evidence and published it to the

jury without objection. The jury returned a verdict finding

defendant guilty of all offenses. At sentencing, the State

provided both the court and defendant with copies of defendant’s

prior record level worksheet, records maintained by the Division

of Criminal Information (“DCI”), and defendant’s local record.

Defendant did not object to the admission of these documents.

The trial court sentenced defendant to a minimum of

thirteen months and a maximum of sixteen months in the custody

of the North Carolina Division of Adult Correction for the

felony speeding to elude arrest offense. The trial court

arrested judgment for all other offenses. Defendant appeals.

II. Defendant’s Driving Record

Defendant argues that the trial court erred in admitting

his partially redacted driving record into evidence because

defendant did not testify and evidence of his prior convictions -4- was not admissible under either Rule 404(b) or Rule 609 of the

North Carolina Rules of Evidence. However, since defendant

failed to object to the admission and publication of his driving

record, he did not properly preserve this issue for appeal.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013) permits evidence

of another offense to be admitted as long as it is relevant to

any fact or issue other than the character of the accused. State

v. Scott, 343 N.C. 313, 330, 471 S.E.2d 605, 615 (1996).

Evidentiary errors that are not objected to at trial are

reviewed for plain error. Id. at 332, 471 S.E.2d at 616. If a

defendant does not object at trial or allege plain error, then

he has failed to properly preserve the issue for appeal. Id.

In the instant case, although defendant argued in his brief

that the standard of review for this issue is de novo, he failed

to allege plain error. Therefore, defendant has failed to

properly preserve this issue for appeal. Id.

III. Evidence of Prior Convictions

Defendant also argues that the trial court erred in

sentencing him as a Prior Record Level V offender without first

requiring the State to carry its burden of proof as to his

criminal history. We disagree. -5- At a sentencing hearing, the State must prove a felony

offender’s prior convictions by a preponderance of the evidence.

State v. McIlwaine, 169 N.C. App. 397, 400, 610 S.E.2d 399, 401

(2005). N.C. Gen. Stat. § 15A-1340.14(f) (2013) provides that a

prior conviction shall be proved either by stipulation of the

parties; an original copy of the court record for the prior

conviction; a copy of records maintained by DCI, the DMV, or the

Administrative Office of the Courts; or any other method the

court finds reliable. “This court reviews the calculation of a

prior record level de novo.” State v. Boyd, 207 N.C. App. 632,

642, 701 S.E.2d 255, 261 (2010) (citation omitted).

Defendant cites State v. McIlwaine to support his

contention that the State presented insufficient proof of his

prior record. In McIlwaine, the State presented no evidence to

support the defendant’s prior record level worksheet, and the

defendant failed to object. 169 N.C. App. at 402-03, 610 S.E.2d

at 403. The trial court sentenced the defendant based solely on

the prior record level worksheet that was presented by the

State. Id. This Court held that the defendant was entitled to a

new sentencing hearing because the defendant’s failure to object

did not constitute a stipulation to his prior convictions, and -6- the State provided no other proof of the defendant’s prior

convictions. Id.

In the instant case, defendant is correct that his own

failure to object does not constitute a stipulation to the prior

record level worksheet. However, the State presented copies of

local records and records maintained by DCI as well as

defendant’s prior record level worksheet. Because the State

presented additional evidence of defendant’s prior convictions

pursuant to N.C. Gen. Stat. § 15A-1340.14(f), the State carried

its burden of proof as to defendant’s criminal history.

Therefore, the trial court properly sentenced defendant as a

Prior Record Level V offender.

IV. Conclusion

Defendant failed to properly preserve his ability to appeal

the admission of his driving record at trial and failed to

allege plain error. In addition, the State proved defendant’s

prior record by a preponderance of the evidence by presenting

both DCI and local records to support defendant’s prior record

level worksheet. Therefore, the defendant was properly

sentenced. We find no error.

No error.

Chief Judge MARTIN and Judge MCGEE concur. -7- Report per Rule 30(e).