IN THE SUPREME COURT OF NORTH CAROLINA
No. 294A18
Filed 14 August 2020
STATE OF NORTH CAROLINA
v. JEFFERY DANIEL WAYCASTER
On discretionary review pursuant to N.C.G.S. § 7A-31 and on appeal of right
pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of
Appeals, 260 N.C. App. 684, 818 S.E.2d 189 (2018), affirming a judgment entered on
16 May 2017 by Judge Gary M. Gavenus in Superior Court, McDowell County. Heard
in the Supreme Court on 6 November 2019.
Joshua H. Stein, Attorney General, by Alexander Walton, Assistant Attorney General, for the State-appellee.
Dylan J.C. Buffum, for defendant-appellant.
DAVIS, Justice.
North Carolina’s Habitual Felons Act references three ways by which the State
may prove a defendant’s prior convictions for the purpose of establishing that he is a
habitual felon. The issue in this case is whether these methods of proof set out in the
Act are exclusive. Because we conclude that the General Assembly intended for the
means of proof mentioned in the Act to be nonexclusive, we affirm the decision of the STATE V. WAYCASTER
Opinion of the Court
Court of Appeals on that issue. Defendant also raised an additional issue relating to
whether the trial court committed plain error by allowing the introduction of hearsay
evidence during his trial. We now conclude that discretionary review of this
additional issue was improvidently allowed.
Factual and Procedural Background
On 22 July 2014, defendant was sentenced to 30 months of supervised
probation after pleading no contest to a charge of felony larceny. The terms of
defendant’s probation were modified on 3 September 2015, and pursuant to these
modifications, he submitted to electronic monitoring and was required to wear an
ankle monitor that tracked his location. In addition, although not under house arrest,
defendant was required to comply with the curfew set by his primary probation
officer, Matthew Plaster.
Defendant’s electronic monitoring involved three different pieces of equipment:
an ankle monitor worn by him, a Global Positioning System beacon that tracked the
monitor, and a charger for the ankle monitor. The beacon was kept at defendant’s
home, and his probation officer would receive text messages or email alerts if he was
not at home during his curfew. His probation officer would also receive notification if
defendant tampered with his ankle monitor strap by cutting it off or otherwise trying
to remove it. These alerts were sent from BI Total Monitoring (BI), a company with
which the North Carolina Department of Public Safety contracted to install and
maintain the monitoring equipment assigned to probationers such as defendant.
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On 24 September 2015, the probation officer on duty, David Ashe, received a
text message alert from BI notifying him that defendant had tampered with his ankle
monitor strap. Officer Ashe attempted to call defendant but received no answer. After
consulting the BI computer program to locate the ankle monitor, Officer Ashe went
to the last known location of the monitor and discovered that it had been cut off and
left in a ditch approximately eight feet from a road that was located a few miles away
from defendant’s home. Upon returning to his office, Officer Ashe verified that the
monitor he had found in the ditch was, in fact, the one that had been given to
defendant, and he submitted a report of the incident to Officer Plaster.
On 26 October 2015, defendant was indicted on charges of interfering with an
electronic monitoring device and attaining the status of a habitual felon. A trial was
held in Superior Court, McDowell County, beginning on 16 May 2017. The jury
returned a verdict of guilty on the charge of interfering with an electronic monitoring
device on that same day. On the following day, the habitual felon phase of the trial
began. The habitual felon indictment charged defendant with attaining habitual felon
status based upon three prior felony convictions in McDowell County: (1) a 4 June
2001 conviction for felonious breaking and entering; (2) a 18 February 2010 conviction
for felonious breaking and entering; and (3) a 22 July 2014 conviction for
safecracking. At trial, the State admitted into evidence certified copies of the
judgments for the latter two convictions in order to prove their existence.
With regard to the 4 June 2001 conviction, however, the prosecutor stated to
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the court that he had been informed by the Clerk of Court’s office “that they didn’t
have the original” judgment associated with that conviction. In an effort to prove the
existence of this conviction, the State called Melissa Adams, the Clerk of Court for
McDowell County, as a witness. The State then introduced as an exhibit a computer
printout from the Automated Criminal/Infraction System (ACIS). Adams testified
that ACIS is a statewide computer system relied upon by courts and law enforcement
agencies for accessing information regarding a defendant’s criminal judgments,
offense dates, and conviction dates. She further stated that the information contained
in ACIS is taken from court records such as criminal judgments and manually
entered into the database by an employee in the Clerk of Court’s office. The ACIS
printout offered by the State showed that defendant had been convicted of felonious
breaking and entering on 4 June 2001, and Adams testified that the printout was a
“certified true copy of the ACIS system.”
When the State formally moved to introduce the ACIS printout into evidence
as proof of defendant’s 4 June 2001 felony conviction, defense counsel objected,
arguing that the ACIS printout was not a true copy of the actual judgment but rather
“simply a computer printout of data entered at some time in the past by someone of
what purports to be a judgment.” Defense counsel contended that the ACIS printout
was therefore insufficient to prove defendant’s 2001 conviction. The trial court
overruled the objection, stating that “ACIS is a way in which the State can introduce
true copies of judgments entered in the system, and it's admissible under the rules of
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evidence.”
The jury found that defendant had attained the status of a habitual felon, and
the trial court sentenced him to a term of imprisonment of 38 to 58 months. Defendant
appealed to the Court of Appeals.
Before the Court of Appeals, defendant made two arguments. First, he asserted
that the trial court committed plain error by admitting hearsay evidence to establish
that the ankle monitor found in the ditch belonged to him. Second, he contended that
the trial court erred by allowing the ACIS printout to be introduced into evidence as
proof of his 2001 conviction for the purpose of establishing that he was a habitual
felon.
With regard to the first issue, defendant asserted that the trial court had
plainly erred in allowing Officer Ashe to testify that he had verified through BI that
the ankle monitor he found in the ditch belonged to defendant. Defendant contended
that Officer Ashe’s testimony constituted inadmissible hearsay because it was based
entirely upon communications from BI and the State had failed to provide an
adequate foundation to allow such information to be admitted pursuant to the
business records exception to the hearsay rule set out in N.C.G.S. § 8C-1, Rule 803(6).
Relying on its own precedent, the Court of Appeals rejected this argument and held
that “hearsay statements based on ‘GPS tracking evidence and simultaneously
prepared reports are admissible under the business records exception to the hearsay
rule.’ ” State v. Waycaster, 260 N.C. App. 684, 689, 818 S.E.2d 189, 193 (2018) (quoting
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State v. Gardner, 237 N.C. App. 496, 499, 769 S.E.2d 196, 198 (2014)).
As for the second issue, defendant argued that the trial court had improperly
allowed the ACIS printout to be used as proof of his 2001 conviction because N.C.G.S.
§ 14-7.4 contained the exclusive methods for proving prior convictions in a proceeding
to determine habitual felon status. The Court of Appeals likewise rejected this
argument based on its determination that the ACIS printout was “sufficient
evidentiary proof of defendant’s 4 June 2001 conviction under the Habitual Felon
Act.” Waycaster, 260 N.C. App. at 691, 818 S.E.2d at 195. The Court of Appeals stated
that “ACIS ‘duplicates the physical records maintained by each Clerk and constitutes
the collective compilation of all records individually entered by’ clerks of court.” Id.
(quoting LexisNexis Risk Data Mgmt. Inc. v. North Carolina Admin. Office of the
Courts, 368 N.C. 180, 181, 775 S.E.2d 651, 652 (2015)). The Court of Appeals
concluded that the use of the ACIS printout to prove defendant’s prior conviction did
not violate N.C.G.S. § 14-7.4 due to the fact that the statute “is permissive and does
not exclude methods of proof that are not specifically delineated in the Act.” Id. at
692, 818 S.E.2d at 195.
In a separate opinion concurring in part and dissenting in part, Judge Murphy
concurred in the majority’s decision with respect to the first issue but dissented from
the portion of the majority’s opinion relating to the issue of whether the admission of
the ACIS printout satisfied N.C.G.S. § 14-7.4. He expressed his belief that the State
was required by the statute to prove defendant’s prior convictions by stipulation or
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by introducing either the actual judgments of the convictions or certified copies
thereof. Waycaster, 260 N.C. App. at 693, 818 S.E.2d at 196 (Murphy, J., dissenting).
He further stated that, in his view, the State had failed to demonstrate the exercise
of reasonable diligence in seeking to obtain the actual judgment relating to the 4 June
2001 conviction. Id. at 695–96, 818 S.E.2d at 197–98. For this reason, he expressed
his belief that the ACIS printout did not qualify as admissible secondary evidence
pursuant to Rule 1005 of the North Carolina Rules of Evidence. Id. at 695, 818 S.E.2d
at 197 (citing N.C.G.S. § 8C-1, Rule 1005 (2019)).
On 11 September 2018, defendant appealed to this Court as of right on the
basis of the dissent. Defendant also filed a petition for discretionary review in which
he requested that this Court review the first issue decided by the Court of Appeals
regarding the use of hearsay evidence to establish that the ankle monitor located in
the ditch belonged to him. This Court allowed the petition for discretionary review on
30 January 2019.
Analysis
North Carolina’s Habitual Felons Act states, in pertinent part, that “[a]ny
person who has been convicted of or pled guilty to three felony offenses . . . is declared
to be a habitual felon and may be charged as a status offender . . . .” N.C.G.S. § 14-
7.1(a) (2019). In such cases, “[t]he trial for the substantive felony is held first, and
only after defendant is convicted of the substantive felony is the habitual felon
indictment revealed to and considered by the jury.” State v. Cheek, 339 N.C. 725, 729,
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453 S.E.2d 862, 864 (1995) (citing N.C.G.S. § 14-7.5). During the habitual felon phase
of the trial, “the proceedings shall be as if the issue of habitual felon were a principal
charge.” N.C.G.S. § 14-7.5. When a defendant is found to have attained the status of
a habitual felon, “the felon must . . . be sentenced at a felony class level that is four
classes higher than the principal felony for which the person was convicted; but under
no circumstances shall an habitual felon be sentenced at a level higher than a Class
C felony.” Id. § 14-7.6.
The Habitual Felons Act also references several specific methods of proof for
establishing the existence of a defendant’s prior felony convictions. Subsection 14-7.4
states as follows with regard to this subject:
In all cases where a person is charged under the provisions of this Article with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses. A 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. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
N.C.G.S. § 14-7.4.
In this appeal, defendant does not argue that the ACIS printout was
inadmissible on the grounds of hearsay or lack of authentication. Instead, defendant’s
sole contention is that the methods referenced in the statute for proving the existence
of a prior felony conviction—that is, by stipulation or by the introduction of either the
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original or a certified copy of the prior judgment—were intended by the General
Assembly to be exclusive. Defendant’s argument therefore raises an issue of statutory
interpretation.
It is well established that “[i]n matters of statutory construction, our primary
task is to ensure that the purpose of the legislature, the legislative intent, is
accomplished. Legislative purpose is first ascertained from the plain words of the
statute.” Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294
(1991) (citations omitted). Thus, “[w]hen the language of a statute is clear and
unambiguous, there is no room for judicial construction, and the courts must give it
its plain and definite meaning.” Smith Chapel Baptist Church v. City of Durham, 350
N.C. 805, 811, 517 S.E.2d 874, 878 (1999) (citation omitted). However, “where a
statute is ambiguous or unclear in its meaning, resort must be had to judicial
construction to ascertain the legislative will, and the courts will interpret the
language to give effect to the legislative intent.” In re Banks, 295 N.C. 236, 239, 244
S.E.2d 386, 389 (1978) (citations omitted).
Defendant argues that the language utilized by the General Assembly in
N.C.G.S. § 14-7.4 clearly expresses a legislative intent that the modes of proof set out
therein be exclusive, contending that no logical reason would have existed for the
legislature to identify certain methods of proof if it intended that the State be
permitted to prove defendant’s prior convictions by other means as well. The State,
conversely, asserts that N.C.G.S. § 14-7.4 is permissive—rather than mandatory—
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with respect to the issue of how a defendant’s prior convictions may be established
and that such convictions may be proven by means of any admissible evidence.
In construing the language utilized by the General Assembly in N.C.G.S. § 14-
7.4, we do not write on a clean slate. To the contrary, we construed identical statutory
language in State v. Graham, 309 N.C. 587, 308 S.E.2d 311 (1983). In that case, the
defendant pled guilty to four counts of felonious breaking and entering. During
sentencing, the trial court determined that the defendant had prior convictions
punishable by more than sixty days imprisonment and therefore found the existence
of an aggravating factor pursuant to N.C.G.S. § 15A-1340.4(e) of the Fair Sentencing
Act. The information concerning the defendant’s prior convictions was presented to
the court in the form of testimony from a sheriff’s deputy “who had been informed by
the law enforcement authorities in North Carolina and New York [and] advise[d] the
court as to the defendant’s conviction record.” Id. at 593, 308 S.E.2d at 316.
On appeal, the defendant asserted that the trial court had erred in finding the
aggravating factor based on his prior convictions because the State had failed to
introduce a certified copy of his criminal record. Id. at 592, 308 S.E.2d at 315. In
addressing his argument, we were required to interpret the following statutory
language in the Fair Sentencing Act:
A 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. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before
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the court, and shall be prima facie evidence of the facts set out therein.
Id. at 592, 308 S.E.2d at 315–16 (quoting N.C.G.S. § 15A-1340.4(e) (1983) (repealed
1994)).
Like defendant in the present case, the defendant in Graham asserted that
this statutory language allowed his prior convictions to be proven only by stipulation
or by the introduction of either the original or a certified copy of the court record of
the prior convictions. Id. at 592–93, 308 S.E.2d at 315–16. We rejected defendant’s
argument, stating the following:
We disagree that these are the exclusive methods by which prior convictions may be shown. As we emphasized in State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983), this Court and the Court of Appeals have repeatedly held that the enumerated methods of proof of N.C. Gen. Stat. § 15A-1340.4(e) are permissive rather than mandatory. We recognize that the more appropriate way to show the “prior conviction” aggravating circumstance would be to offer authenticated court records, for such records establish a prima facie case. However, the legislature did not intend to bind the State and the trial court by precluding other means of proof. Clearly the conviction could have been proven by the deputy’s testimony as to his own personal knowledge or by defendant’s admission. While here the deputy’s testimony was hearsay, the record indicates that the defendant took the stand and admitted the prior convictions. Not only do we find that the defendant’s testimony before the court constituted an acceptable form of proof of his prior convictions, but his admissions also cured any defect caused by the hearing of the deputy’s testimony.
Id. at 593, 308 S.E.2d at 316 (citations omitted); see also Thompson, 309 N.C. at 424,
307 S.E.2d at 159 (“We agree with that portion of the Court of Appeals’ opinion
holding that the language of G.S. § 15A-1340.4(e) is permissive rather than
mandatory respecting methods of proof. It provides that prior convictions ‘may’ be
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proved by stipulation or by original certified copy of the court record, not that they
must be. The statute does not preclude other methods of proof.”).
Given that the key language of N.C.G.S. § 14-7.4 is identical to the statutory
language this Court construed in Graham, we are unable to discern any valid basis
for adopting a different construction in the present case. See State v. Rose, 327 N.C.
599, 606, 398 S.E.2d 314, 317 (1990) (“We find no justifiable reason for giving a
different interpretation to the identical language found in the two statutes.”).
Moreover, we believe that such a reading of N.C.G.S. § 14-7.4 is logical. This
Court has repeatedly interpreted the General Assembly’s usage of the word “may” as
having a permissive—as opposed to a mandatory—effect. See, e.g., Campbell v. First
Baptist Church, 298 N.C. 476, 483, 259 S.E.2d 558, 563 (1979) (“We recognize that . . .
the use of ‘may’ generally connotes permissive or discretionary action and does not
mandate or compel a particular act.” (citation omitted)); Rector v. Rector, 186 N.C.
618, 620, 120 S.E. 195 (1923) (“The word ‘may,’ as used in statutes, in its ordinary
sense, is permissive and not mandatory.” (citation omitted)).
Furthermore, we recognize that there are a number of different ways in which
a defendant’s prior convictions may be proven in a given case. It would make little
sense for the legislature to have limited the universe of available methods of proof to
merely those few expressly referenced in the statute.
We also reject defendant’s contention that the State’s interpretation of
N.C.G.S. § 14-7.4 would render superfluous the statutory language utilized by the
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General Assembly that expressly mentions certain discrete methods of proof. This
argument ignores the fact that the statute gives the State the benefit of a rebuttable
presumption if the defendant’s prior convictions are, in fact, proven by the admission
of original or certified copies of the judgments evidencing those convictions. The
statute makes clear that if the State elects to utilize these modes of proof, there will
exist “prima facie evidence that the defendant named therein is the same as the
defendant before the court, and . . . prima facie evidence of the facts set out therein.”
N.C.G.S. § 14-7.4. This presumption does not apply if alternative methods are utilized
by the State to prove the defendant’s prior convictions. Thus, while the admission of
either the actual judgment or a certified copy may be the preferred methods of proof,
they are not the only permissible means of establishing the defendant’s prior
convictions.
Based on its apparent inability to obtain the actual judgment of defendant’s
4 June 2001 conviction, the State opted to prove the existence of that conviction by
introducing an ACIS printout. This Court recently explained the nature and purpose
of the ACIS database as follows:
The Automated Criminal/Infraction System (ACIS) is an electronic compilation of all criminal records in North Carolina. While the North Carolina Administrative Office of the Courts (AOC) administers and maintains ACIS, the information contained in ACIS is entered on a continuing, real-time basis by the individual Clerks of Superior Court, or by an employee in that Clerk’s office, from the physical records maintained by that Clerk. Any subsequent modifications to that information are under the exclusive control of the office of the Clerk that initially entered the information, so that
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personnel in one Clerk’s office cannot change records entered into ACIS by personnel in a different Clerk’s office. In other words, the information in ACIS both duplicates the physical records maintained by each Clerk and constitutes the collective compilation of all records individually entered by the one hundred Clerks of Court.
LexisNexis, 368 N.C. at 181, 775 S.E.2d at 652.
During the habitual felon phase of defendant’s trial, the Clerk of Court,
Melissa Adams, testified as to the process used for entering information derived from
criminal records into ACIS. She stated that the ACIS database contains information
that includes the name, judgment, offense date, and conviction date for a defendant
and that this information is manually entered into the ACIS system by herself or
other employees of the Clerk’s office. Adams further testified that the ACIS database
is accessible statewide and that the information contained therein is relied upon by
courts and law enforcement agencies in the discharge of their duties. She stated that
her recordkeeping duties included ensuring that information from court records was
accurately entered into the ACIS database. Upon being presented with the ACIS
printout showing defendant’s 4 June 2001 conviction for felonious breaking and
entering, Adams testified that the printout was “a certified true copy of the ACIS
system . . . that shows the conviction.”
As noted above, defendant does not contend that the ACIS printout constituted
inadmissible hearsay or that it was not properly authenticated. He does argue,
however, that the State failed to comply with the best evidence rule contained in Rule
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1005 of the North Carolina Rules of Evidence before seeking the admission of the
printout into evidence. Rule 1005 states as follows:
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
N.C.G.S. § 8C-1, Rule 1005.
Defendant argues that in the present case the State sought to prove the
contents of the original judgment of his 4 June 2001 conviction, which is an “official
record” for purposes of Rule 1005, and the ACIS printout constituted “secondary
evidence” of those contents. Based on this reasoning, defendant asserts that such
secondary evidence in lieu of the original judgment or a certified copy would have
been admissible only if the State had first demonstrated the exercise of “reasonable
diligence” as required by Rule 1005. Only then, defendant asserts, could “other
evidence of the contents” of the judgment be offered in its place. N.C.G.S. § 8C-1, Rule
1005.
But defendant’s argument collapses given our determination that the methods
of proof listed in N.C.G.S. § 14-7.4 are not exclusive. Although defendant is correct
that the ACIS printout was not the original judgment of his prior conviction or a
certified copy of the judgment, neither was required to be produced. Rather, the State
was permitted to prove the fact of defendant’s 4 June 2001 conviction by other means.
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The State was not using the ACIS printout to prove the contents of the original
judgment of defendant’s prior conviction. Instead, the printout was utilized simply to
show that the conviction had occurred. Thus, the State was not required to comply
with the reasonable diligence provision contained in Rule 1005 for the simple reason
that Rule 1005 has no application here.
The dissent reaches a different conclusion in an analysis that can only be
described as self-contradictory. While initially claiming to accept the proposition that
the methods of proof set out in N.C.G.S. § 14-7.4 are not exclusive, the dissent then
proceeds to repeatedly express a preference for the use of original judgments, or
certified copies thereof, to the exclusion of other ways of proving a defendant’s prior
The dissent’s analysis reflects a misunderstanding of the best evidence rule.
While not actually saying so, the dissent appears to be operating under the
misconception that the best evidence rule limits the State’s proof to the “best”
available evidence bearing upon the fact at issue. But such an interpretation of the
rule is incorrect.
As this Court has made clear, “[t]he best evidence rule applies only when the
contents of a writing are in question.” State v. Clark, 324 N.C. 146, 156, 377 S.E.2d
54, 60 (1989) (emphasis added). As a leading commentator has noted, “[i]t is
sometimes stated, as if it were a general rule of evidence, that when a fact is to be
proved the best evidence must be produced which the nature of the case admits. There
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is, however, no such general rule[.]” 2 Kenneth S. Broun, Brandis & Broun on North
Carolina Evidence § 253, at 997 (7th ed. 2011) (footnotes omitted).
The dissent ignores the distinction between a conviction and a judgment. The
issue here was not what was contained in the 4 June 2001 written judgment. Rather,
the question was whether defendant had been convicted of the offense memorialized
in the judgment. As a result, the State was not required to prove the contents of the
written judgment. Instead, the State used the ACIS printout as an alternative
method of proving the conviction itself. Thus, the best evidence rule does not apply
here.
While the use of the original judgment may well be—as the dissent asserts—
the preferred method of proving a prior conviction, it is by no means the only
permissible way of doing so. Therefore, given that § 14-7.4 is nonexclusive, any other
type of admissible evidence may be used to establish a defendant’s prior conviction.
As discussed above, this Court explained the nature and purpose of the ACIS
database in LexisNexis. In our opinion, we made clear that this database serves as
“an electronic compilation of all criminal records in North Carolina” and “duplicates
the physical records maintained by each Clerk[.]” LexisNexis, 368 N.C. at 181, 775
S.E.2d at 652. As such, the ACIS database serves as a court record—albeit an
electronic one. As a court record in and of itself, the ACIS printout was not merely
“other evidence” of the contents of defendant’s original judgment regarding his 4 June
2001 conviction so as to invoke the best evidence rule contained in Rule 1005. It
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simply makes no sense to suggest that the best evidence rule should operate to
preclude the admission into evidence of one court record under the misguided belief
that the record in question is nothing more than evidence of the contents of a separate
court record.
The dissent fails to offer a persuasive reason why a printout from this database
is not admissible pursuant to N.C.G.S. § 14-7.4. Instead, the dissent merely notes
that an original judgment is more reliable because it is reviewed not only by the Clerk
of Court but also by the trial judge and by counsel. But even assuming that the
original judgment is, in fact, the most reliable way of proving a prior conviction,
N.C.G.S. § 14-7.4 does not require that the most reliable method be utilized. Instead,
it permits the use of any admissible evidence on this issue. If the most reliable method
of proof (i.e., the original judgment or a certified copy) was required, then the modes
of proof set out in the statute would be exclusive.
In short, the dissent cannot have it both ways. Either the methods of proof
contained in N.C.G.S. § 14-7.4 are exclusive or they are not. Our decision today makes
clear that they are not exclusive—a ruling with which the dissent purports to agree.
Because the State used a valid alternative method of proving defendant’s prior
conviction by introducing a printout of a court record that contained this information,
the best evidence rule never became applicable.
Furthermore, the dissent’s assertion that based on our decision the State will
have no reason to ever offer the original judgment or a certified copy ignores the
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rebuttable presumption expressly stated in N.C.G.S. § 14-7.4. As noted above, in
order for the State to obtain the benefit of that presumption, it must use these
specified methods of proof, which serves as an incentive for it to do so.
While the dissent speculates about the possibility of error in the ACIS database
as the result of a mistake in data entry,1 nothing prohibits a defendant from making
a similar argument to the jury during a habitual felon proceeding and expressly
noting the prosecutor’s failure to introduce the original judgment of the defendant’s
prior conviction. If the State wishes to use a less persuasive method of proof, it
certainly has the right to do so subject to the risk that the jury will find that the
evidence upon which it chose to rely is not credible. In other words, the State’s choice
of a less optimal method of proof goes to the weight—rather than the admissibility—
of the evidence.
Finally, we note that in the event the General Assembly wishes to limit the
methods that are available to the State for proving a defendant’s prior convictions, it
is, of course, free to do so by amending N.C.G.S. § 14-7.4. Based on the current
language of the statute, however, we are satisfied that the admission of the ACIS
printout for this purpose under the circumstances set out in the record before us was
1We observe that neither at trial nor on appeal has defendant asserted that the information contained in the ACIS database regarding his 4 June 2001 conviction was inaccurate. Moreover, while the dissent claims that the database contains little to no information about the underlying offense for which a defendant was convicted, no such additional information is necessary under N.C.G.S. § 14-7.4. Instead, all that is required is a showing that the conviction occurred.
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permissible.
Conclusion
For the reasons set out above, we affirm the decision of the Court of Appeals
with respect to the issue of whether the admission of the ACIS printout for the
purpose of establishing defendant’s habitual felon status was proper. As for the issue
raised in defendant’s petition for discretionary review regarding whether the
admission of Officer Ashe’s testimony constituted plain error, we conclude that
discretionary review was improvidently allowed. Therefore, the decision of the Court
of Appeals on that issue remains undisturbed.
AFFIRMED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.
-20- Chief Justice BEASLEY, concurring.
Although I agree with the majority’s conclusion that the State may prove the
existence of a defendant’s prior felony convictions by methods other than those
expressly set out in the Habitual Felons Act, I write separately to note that as the
State introduced the ACIS printout to prove the contents of the ACIS report, the State
was required to comply with Rule 1005 of the North Carolina Rules of Evidence.
The majority mischaracterizes the purpose for introducing the ACIS printout,
attempting to distinguish between the contents of the ACIS printout and its
introduction solely to show that a prior conviction had occurred. The Habitual Felon
Statute provides that “[a]ny person who has been convicted of or pled guilty to three
felony offenses in any federal court or state court in the United States or combination
thereof is declared to be an habitual felon.” N.C.G.S. § 14-7.1(a) (2019). Thus, the
State must prove that the defendant did, in fact, commit three prior felony offenses.
To do so requires the court to consider the contents of the record to be introduced for
the purpose of confirming “that said person has been convicted of former felony
offenses.” N.C.G.S. § 14-7.4.
ACIS is “an electronic compilation of all criminal records in North Carolina”
that “both duplicates the physical records maintained by each [Superior Court] Clerk
and constitutes the collective compilation of all records individually entered by the
one hundred Clerks of Court.” LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of
the Courts, 368 N.C. 180, 181, 775 S.E.2d 651, 652 (2015) (emphasis added). Thus, STATE V. WAYCASTER
Beasley, J., concurring
the State introduced the ACIS printout to prove the contents of the ACIS report.
As the dissent correctly states, quoting N.C.G.S. § 8C-1, Rule 1101, “[t]he rules
of evidence apply at a trial on a habitual felon indictment in the same way that they
apply to ‘all actions and proceedings in the courts of this State.’ ” Here, because the
State introduced the ACIS printout as evidence of defendant’s prior convictions, it
must comply with the rules of evidence. The dissent, however, misconstruing the
intended purpose of the ACIS printout, fails to properly apply Rule 1005.
Rule 1005 provides that the contents of “a document authorized to be recorded
or filed and actually recorded or filed, including data compilations in any form . . .
may be proved by copy, certified as correct in accordance with Rule 902 or testified to
be correct by a witness who has compared it with the original.” N.C.G.S. § 8C-1, Rule
1005 (emphasis added). “If a copy which complies with the foregoing cannot be
obtained by the exercise of reasonable diligence, then other evidence of the contents
may be given.” Id.
The dissent treats the ACIS printout as a document introduced to prove the
contents of the original judgment. Instead, the State introduced the ACIS printout to
prove that a judgment had occurred—information that is contained in the ACIS
report itself. This is an important distinction because Rule 1005 is self-referential.
The certified copy contemplated by the Rule is of the document offered for admission
itself—here, that is the ACIS report. Thus, the second sentence of Rule 1005, which
allows for the introduction of “other evidence” only if neither a certified copy nor a
copy testified to be correct by a person who has compared it to the original can be
obtained by reasonable diligence, has no applicability here.
During trial, the State called the Clerk of the McDowell County Superior Court
as a witness. The Clerk identified the ACIS printout as “a certified true copy of the
ACIS system” and explained that the information in the ACIS printout was consistent
with the actual judgment. The State, however, admitted that the original judgment
could not be located. As the information in ACIS is entered by the Clerk or “an
employee in that Clerk’s office,” LexisNexis, 368 N.C. at 181, 775 S.E.2d at 652, the
Clerk could not testify to the accuracy of the ACIS printout without confirming that
she (1) entered that exact information into the system or (2) compared the printout
to the judgment. She did not claim to have taken either action.
Although the Clerk could not testify to the accuracy of the ACIS printout
introduced at trial, the copy could be authenticated pursuant to Rule 1005 by
certification in compliance with Rule 902. The Rule provides that “[e]xtrinsic evidence
of authenticity as a condition precedent to admissibility is not required with respect
to” certified copies of public records. N.C.G.S. § 8C-1, Rule 902(4). An unsealed public
record is considered certified when it bears the signature of the custodian or other
person authorized to make the certification, who certifies that the data compilation
is correct. Id. Here, the custodian of ACIS, the Clerk of Court for McDowell County,
certified that the ACIS printout was a true copy. Thus, the ACIS printout is a self-
authenticating document properly introduced pursuant to Rule 1005.
I respectfully concur.
Justice MORGAN joins in this concurring opinion.
-4- Justice EARLS concurring in part and dissenting in part.
Identical language in two statutes about how a prior conviction may be proved
should be interpreted the same way even if one statute has been repealed and even if
the language in the repealed statute applies to sentencing proceedings while in the
statute at issue here, the language applies to trials on the charge of having obtained
the status of a habitual felon. Compare N.C.G.S. § 15A-3040.4(e) (Supp. 1993)
(repealed 1994) (“A 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.”), with
N.C.G.S. § 14-7.4 (2019) (“A 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.”). I can even accept that this Court should follow its precedents in State
v. Graham, 309 N.C. 587, 308 S.E.2d 311 (1983), and State v. Thompson, 309 N.C.
421, 307 S.E.2d 156 (1983), on the question of how that statutory language should be
interpreted, despite the fact that neither party cited nor discussed these precedents
in their briefs in this Court. What I cannot accept is the proposition that the North
Carolina Rules of Evidence, and in particular, Rules 1002 through 1005, do not apply
to the State’s use of the ACIS printout to prove Mr. Waycaster’s prior convictions
beyond a reasonable doubt in this case.
The rules of evidence apply at a trial on a habitual felon indictment in the same
way that they apply to “all actions and proceedings in the courts of this State.”
N.C.G.S. § 8C-1, Rule 1101(a) (2019). A trial on a habitual felon indictment is not a STATE V. WAYCASTER
Earls, J., concurring in part and dissenting in part
sentencing proceeding. It is a trial in front of a jury in which the rules of evidence
apply. Ironically, the trial court applied other rules of evidence to exclude other
documents the State offered at trial to prove Mr. Waycaster’s prior convictions. When
the State offered to admit into evidence a copy of a certified original “Order on
Violation of Probation” to prove the same conviction alleged to be shown by the ACIS
printout, the trial court excluded the evidence under Rule 403. The trial court
therefore recognized that N.C.G.S. § 14-7.4 does not expressly or implicitly repeal the
rules of evidence in this context. Nevertheless, in one citation-free paragraph, the
majority holds that the State was not required to comply with the requirements of
Rule 1005 because it is not applicable here. That holding is incorrect.
Rule 1005 states:
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
N.C.G.S. § 8C-1, Rule 1005. The majority reasons that this rule does not apply
because the State was not using the ACIS printout to prove the contents of the
original judgment but rather to prove that a conviction had occurred. But such sleight
of hand, purporting to meaningfully distinguish between the contents of a court
record and the fact of a conviction, should have no place in our jurisprudence.
First, as the dissenting opinion in the Court of Appeals pointed out,1 the State
certainly thought it was offering the ACIS printout to prove the contents of the
original judgment of conviction:
The best evidence rule applies here because the ACIS printout was admitted to prove the contents of a judicial record (i.e. a “writing”) that the State indicated was unavailable. In response to Defendant’s objection, the State admitted that they had originally intended to use Defendant’s judgment and commitment record to prove his conviction, but were using the ACIS printout (submitted as State’s Exhibit 4) because the original could not be found.
The State: I’ll tell you Your Honor that when we were gathering these documents, 4A had come from microfilming and they said that they didn’t have the original of 4. So 4 is the record of the original judgment.
State v. Waycaster, 260 N.C. App. 684, 694–95, 818 S.E.2d 189, 197 (2018) (Murphy,
J., concurring in part and dissenting in part). Moreover, the ACIS printout has no
source of information independent of the court file. In other words, without “the
contents” of the original judgment of conviction, there would be no ACIS printout
showing the fact of the conviction. LexisNexis Risk Data Mgmt. Inc., 368 N.C. 180,
181, 775 S.E.2d 651, 652 (2015) (“[T]he information contained in ACIS is entered on
a continuing, real-time basis by the individual Clerks of Superior Court, or by an
employee in that Clerk’s office, from the physical records maintained by that Clerk.”).
Finally, the testimony in this case is further proof that this is an illusory
1 I agree with and incorporate by reference the arguments made and positions taken in the dissenting opinion below. I have generally limited this opinion to the few remaining points worth adding.
distinction. The Court of Appeals summarized that testimony as follows:
The Clerk of McDowell County Superior Court, the individual tasked with maintaining the physical court records in McDowell County, testified that the printout was a certified true copy of the information in ACIS regarding this judgment. She also explained the information was ‘the same as the judgment’ and affirmed it ‘is a different way of recording what’s on a judgment[.]’ The Clerk’s certification of the ACIS printout as a true copy of the original information is significant due to her responsibility and control over the physical court records, copies, and ACIS entries, as described in LexisNexis Risk Data Mgmt. Inc.
State v. Waycaster, 260 N.C. App. at 691, 818 S.E.2d at 195. The truth is that, in this
case, the State is attempting to prove the fact of a prior judgment of conviction against
defendant, and when the original court file was not available, the State reasonably
looked to other sources of information to prove that a judgment convicting the
defendant of crimes in the past existed. Rule 1005 is applicable here. The burden
under that rule is not extreme, the party offering the evidence simply must make a
showing that a copy of the official record “cannot be obtained by the exercise of
reasonable diligence.” N.C.G.S. § 8C-1, Rule 1005.
The majority states that “[a]s a court record in and of itself, the ACIS printout
was not merely ‘other evidence’ of the contents of defendant’s original judgment
regarding his 4 June 2001 conviction so as to invoke the best evidence rule contained
in Rule 1005.” To the contrary, based on the testimony in this case and our prior
decisions, that is exactly what an ACIS printout is: a court employee takes the
original judgment and enters its information into a computer. Pretending that this
is somehow separate, substantive evidence of defendant’s conviction, rather than
merely a secondary rendition of the contents of an official judgment, abrogates the
best evidence rule in the absence of any legislative intent to do so.2
We have long held that introducing an original judgment into evidence is the
“preferred method for proving a prior conviction.” State v. Maynard, 311 N.C. 1, 26,
316 S.E.2d 197, 211 (1984) (citing State v. Silhan, 302 N.C. 223, 275 S.E.2d 450
(1981)). By holding that the best evidence rule does not apply here, that principle is
severely undermined, making it a function of the State’s discretion whether to offer
the ACIS printout or a certified copy of the original judgment as proof of the prior
conviction.
The danger of the majority’s reasoning is two-fold. First, the fallacious logic
employed to reach this result would apply to every instance in which a party seeks to
prove a prior conviction for any purpose whatsoever. If the fact that a conviction has
occurred is different from the contents of a court judgment for the purposes of the
applicability of Rule 1005, then there never needs to be a showing that due diligence
was pursued to find the original court records.3 Any evidence, not the best evidence,
2 The concurring opinion’s attempt to create a distinction between the “contents of the original judgment” and information “to prove that a judgment has occurred” fares no better. They are the same thing. The status offense of being a habitual felon requires proof of prior convictions. Here, the ACIS printout is being offered as evidence of a prior judgment of conviction, but it is not the official record. It does not matter whether you call it “information proving that a judgment has occurred” or proof of “the contents of the original judgment.” 3 It is important to remember, as noted above, that Rule 1005 does not completely
is admissible. The majority effectively rewrites Rule 1005 to say “the contents of an
official record, or of a document authorized to be recorded or filed and actually
recorded or filed, including data compilations in any form, if otherwise admissible,
may be proved by copy, certified as correct in accordance with Rule 902 or testified to
be correct by a witness who has compared it with the original, unless the official
record is a judgment of conviction, in which case the official record is not needed.” The
General Assembly in its wisdom may wish to rewrite the statute that way, but this
Court should not.
Second, the ACIS printout is not as reliable as the official record. Though this
Court has stated that ACIS “duplicates” the physical records maintained by the
clerk’s office, LexisNexis Risk Data Mgmt. Inc., 368 N.C. at 181, 775 S.E.2d at 652,
that is only true when the records are completely and accurately entered into the
database. It is undeniable that there is a potential for a data entry error. A criminal
judgment is prepared by a clerk, reviewed, signed by a judge, and scrutinized by
counsel for each party. However, similar procedural safeguards do not exist to
guarantee the accuracy and completeness of the data entered into ACIS. That data
is not verified by a third party after the staff member of the clerk’s office has entered
it into the system. An ACIS printout is not the judicial record of the criminal trial
prohibit a party from offering into evidence an ACIS printout to prove the contents of a court record; it simply requires that the party make a showing that the original or a certified copy of the original record is unavailable after the “exercise of reasonable diligence.” N.C.G.S. § 8C-1, Rule 1005.
but rather a new record generated by the clerk’s office independent of the criminal
proceeding.
If there was to be a data entry error, proving a negative, for example, that a
particular individual was not convicted of a particular crime on a certain date in the
past, would be extremely difficult, depending on the circumstances. Even with a
defendant’s testimony that he was not convicted of a particular offense, the ACIS
printout provides precious few details to allow an effective rebuttal of the truth or
falsity of the information contained therein. This is the ACIS printout introduced
into evidence in this case:
This particular printout contained a case number, the complainant’s name, an offense
date and disposition date, and the fine and restitution ordered, but very little
information about the underlying offense. The ACIS printout was not signed by a
judge. No judge, prosecutor, or court reporter was identified in the printout.
An official court record has significantly greater indicia of reliability and hence,
the best evidence rule is a part of our law. Secondary evidence of the content of the
original is only admissible if the State establishes that the original or a copy thereof
is unavailable. See N.C.G.S. § 8C-1, Rule 1005. In this case, the State failed to show
that the original judgment, or a copy of the original judgment, could not be obtained
through reasonable diligence. See State v. York, 347 N.C. 79, 91, 489 S.E.2d 380, 387
(1997) (“The best evidence rule requires that secondary evidence offered to prove the
contents of a recording be excluded whenever the original recording is available”).
Rule 1005 exists for a reason, and this Court exceeds its authority by unilaterally
declaring that the rule will not apply for this purpose in these proceedings.
Having concluded that the Rule 1005 applies to this trial and to the evidence
of Mr. Waycaster’s prior conviction, I agree with the dissent below that the evidence
in this case failed to establish that the State engaged in due diligence to find the
official record of the original court judgment. Waycaster, 260 N.C. App. at 695, 818
S.E.2d at 197 (“Here, there was an inadequate foundation regarding the State’s
exercise of ‘reasonable diligence’ to obtain a copy of the 4 June 2001 judgment
record.”) (Murphy, J., concurring in part and dissenting in part). Moreover, because
this was the only evidence of Waycaster’s prior conviction, the erroneous admission
of this evidence without the required findings was prejudicial. See N.C.G.S. § 15A-
1443(a) (2019) (stating that to establish reversible error a defendant must show that
“there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached at the trial”).
I would reverse the decision of the Court of Appeals on the question of whether
the trial court properly admitted the ACIS printout in this case without the
foundation required by Rule 1005 of the North Carolina Rules of Evidence. We should
vacate the judgment and habitual felon verdict and remand for a new trial on that
charge. Accordingly, I concur with that portion of the majority opinion which holds
that N.C.G.S. § 14-7.4 (2019) must be interpreted as permissive and not exclusive
with regard to the methods of proof of prior convictions. I agree that an ACIS printout
is admissible as evidence of prior convictions under that statute.
However, I do not read N.C.G.S. § 14-7.4 as evincing any intent to abrogate the
requirements of Rules 1002 to 1005 of the North Carolina Rules of Evidence. Reading
these statutes in pari materia, N.C.G.S. § 14-7.4 is not exclusive and permits use of
the ACIS printout as evidence of prior convictions, but because the ACIS printout is
wholly derivative of the contents of a judgment, it must also comply with the best
evidence rule. Therefore, I respectfully dissent from that part of the majority opinion
which holds that the best evidence rule does not apply to an ACIS printout when
offered as evidence of a prior conviction.
Justice HUDSON joins in this opinion concurring in part and dissenting in
part.
-9-