An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-123


Filed: 2 December 2003

                                          &nb sp; 
                                          &nb sp;     


         v.                        Buncombe County
                                No. 98 CRS 63978

    Appeal by defendant from judgment entered 23 September 1999 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 10 November 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

    James N. Freeman, Jr., for defendant-appellant.

    LEVINSON, Judge.

    Defendant was indicted for solicitation to commit the felony of first degree murder. This matter was tried before a jury during the 20 September 1999 criminal session of Buncombe County Superior Court. Defendant was found guilty as charged, and sentenced to a minimum of 120 months and a maximum of 153 months on 23 September 1999. On 22 April 2002, defendant filed a petition for writ of certiorari, said petition being allowed on 14 May 2002.
    Sean Lambert was seeking a place to set up his mobile home, and defendant allowed Lambert to place his mobile home on defendant's land. Approximately three or four months thereafter, defendant and Lambert discussed killing their ex-wives. Lambert thought defendant was not serious until several months later whendefendant made Lambert an offer in exchange for Lambert to kill defendant's ex-wife.
    Lambert contacted Detective John Cabe of the Buncombe County Sheriff's Department concerning the offer. On 24, 25 and 29 September 1998, arranged meetings or phone calls between Lambert and defendant occurred with Detective Cabe either recording or monitoring the conversations.
    At trial, defendant's ex-wife, Mitzi Farlow Fisher, testified that defendant told her if she ever tried to leave him, he would kill her. Fisher testified defendant shot into the vehicle she was driving on 16 August 1996 and was convicted of discharging a firearm into an occupied vehicle in April, 1997. Fisher also testified she had filed several charges against defendant resulting in his convictions for communicating threats and assault on a female in 1997.
    Cynthia Delametter, defendant's girlfriend from 1996 until 1999, testified on behalf of the defendant. Delametter testified that during September 1998, defendant was being treated for clinical depression and was taking prescription medication for his depression. In addition, Delametter testified that defendant did not appear to be upset, frustrated or angry on the evening of 29 September 1998.
    First, defendant argues that he received ineffective assistance of counsel because his trial counsel failed to object to Fisher's testimony concerning the judgment for his conviction of discharging a firearm into a vehicle Fisher occupied. We disagree.    Claims for ineffective assistance of counsel must ordinarily be presented in a motion for appropriate relief. State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). However, such claims may be addressed on direct appeal “when the cold record reveals that no further investigation is required, i.e., claims . . . may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” Id. In the instant case, the record is sufficient from which defendant's claim may be addressed on direct appeal.
    North Carolina follows a two prong test to determine whether a defendant has received ineffective assistance of counsel. Defendant must first “show that counsel's performance fell below an objective standard of reasonableness as defined by professional norms.” State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Second, defendant “must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.” Id.
    Defendant asserts that the first prong is satisfied because his trial counsel failed to object to testimony made inadmissible by operation of the North Carolina Rules of Evidence. Rule 404(b) makes evidence of “other crimes, wrongs, or acts” inadmissible “to prove the character of a person in order the show that he acted in conformity therewith,” but admissible for other purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C.G.S.§ 8C-1, Rule 404(b) (2001). “The State may not introduce prior crimes evidence under Rule 404(b) by introducing the bare fact that defendant was previously convicted of a crime, even if defendant's previous conviction was for the same crime for which he or she is currently charged.” State v. Wilkerson, 148 N.C. App 310, 327, 559 S.E.2d 5, 16 (Wynn, J., dissenting) (emphasis added), dissent adopted per curiam, 356 N.C. 418, 571 S.E.2d 583 (2002). However, “evidence eliciting details of acts that formed the basis of prior convictions may be elicited under Rule 404(b) even though such evidence may be barred under Rule 609 [to impeach defendant].” Id. at 323, 559 S.E.2d at 13 (Wynn, J., dissenting), dissent adopted per curiam, 356 N.C. 418, 571 S.E.2d 583.
    In the instant case, the State did not merely offer “the bare fact” of defendant's prior conviction. Defendant's ex-wife, Mitzi Farlow Fisher, testified that defendant told her that he would kill her if she tried to leave him, and she testified about the incident where defendant shot into a vehicle she was occupying. In addition to this testimony, Fisher testified that defendant had been found guilty of discharging a gun into a vehicle she was occupying. Given that Fisher's testimony provided far more information to the jury than merely “the bare fact” of defendant's conviction, it was not clearly objectionable. Accordingly, the failure to object does not rise to the level of unreasonableness required for a showing of ineffective assistance of counsel.
    Even assuming arguendo that defendant's attorney was remiss in failing to object to Fisher's testimony about the prior conviction,we conclude that defendant has not met his burden with respect to the second prong of the ineffective assistance of counsel test because there is not a reasonable probability that the trial result would have been different absent the alleged error. The testimony about defendant's prior conviction was a small part of the State's case against the defendant. Moreover, the trial court provided a limiting instruction, contemporaneous with the testimony, instructing the jury to only consider the evidence about the shooting at the vehicle occupied by Fisher for the purpose of determining defendant's motive, intent, absence of mistake, or entrapment.
    Therefore, defendant has not demonstrated that his attorney's failure to object to the testimony about defendant's prior conviction rises to the level of ineffective assistance of counsel.     Second, defendant argues that the trial court erred in failing to find a mitigating factor - clinical depression - pursuant to N.C.G.S. § 15A-1340.16(e)(3) (2001). We disagree.
    N.C.G.S. § 15A-1340.16(e)(3) allows the court to consider as a mitigating factor that “[t]he defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense.” Evidence that the condition exists, standing alone, is insufficient to mandate consideration. See State v. Jackson, 119 N.C. App. 285, 291, 458 S.E.2d 235, 240 (1995). The burden of proving the existence of a mitigating factor, by the preponderance of the evidence, rests with the defendant. N.C.G.S. § 15A-1340.16(a) (2001).
    In the instant case, defendant relies upon the testimony of his former girlfriend, Delametter, to evidence the existence of depression during the relevant time period. Delametter's testimony -that defendant was depressed and was taking a lot of prescription medicine - was insufficient to establish proof of significantly reduced culpability. Delametter testified that on the night of the last arranged meeting between Lambert and defendant, defendant did not seem angry or upset. Furthermore, during the sentencing hearing, defendant did not request that the trial court consider evidence of his depression as a mitigating factor.
    Defendant failed to meet his burden of showing that the existence of the condition significantly reduced his culpability.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***