An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1468


Filed: 15 February 2005


         v.                        Wake County
                                Nos. 02 CRS 14382
MAURICE BYRD                            02 CRS 37819

    Appeal by defendant from judgment entered 21 August 2002 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 October 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar, for the State.

    D. Tucker Charns for defendant-appellant.


    Defendant was charged with possession of a firearm by a convicted felon. By a separate bill of indictment, defendant was charged with attaining the status of habitual felon. Prior to trial, defendant offered to stipulate “that [defendant] was convicted on June 2, 2000 in Wake County District Court to meet [an] element” of the crime of possession of a firearm by a convicted felon. Defendant offered the limited stipulation to “avoid the jury hearing anything about him being a convicted felon during the State's case in chief.” The trial court heard arguments from the State and defendant's attorney and then denied the request.     The State's evidence tended to show that on the night of 7 May 2002, the Raleigh Police Department conducted a driver's license check at the corner of Bragg and East Streets. Defendant was driving his vehicle toward the checkpoint when he made a sudden turn onto Mangum Street. Police officer W.E. Nordstrom, who had positioned himself in his patrol vehicle on Mangum Street to interdict those who attempted to evade the check point, immediately pulled behind defendant and followed him.
    During the pursuit, defendant threw an object out of the driver's side window. When the object hit the ground, it let off a “bang.” After Officer Nordstrom pulled defendant over, police retrieved a hand gun from the grass in front of apartments on Mangum Street. The hand gun was warm to the touch, which indicated the gun had recently been fired. At the conclusion of the State's case, the State read into the record a stipulation that at the time defendant possessed the firearm, defendant had previously been convicted of possession with intent to sell or deliver cocaine on 23 November 1999, which is punishable as a Class H felony.
    Defendant did not present any evidence. The trial court instructed the jury that in order to find defendant guilty of the offense of possession of a firearm by a felon the jury would have to find beyond a reasonable doubt that defendant had been convicted of a felony in Wake County and defendant was in possession of a handgun not within his own home or lawful place of business. A jury found defendant guilty of possession of a firearm by a convicted felon. Defendant admitted his status of habitual felon. The trial court found one mitigating factor and no aggravating factors. The trial court sentenced defendant to a minimum of seventy months to a maximum of ninety-three months imprisonment. Defendant appeals.
    Defendant contends the trial court erred in allowing the State to introduce into evidence the specifics of his prior felony conviction when he had offered to stipulate to the element that he had a prior felony conviction. Defendant, however, subsequently stipulated to the specifics of his felony conviction and allowed the stipulation to be read to the jury. Defendant's stipulation essentially waives this assignment of error. Because defendant stipulated to the specifics of his felony conviction, defendant cannot show any prejudice resulting from the trial court allowing the prior felony conviction into evidence. See generally, State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984)(When 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). Accordingly, this assignment of error is overruled.
    No error.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).

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