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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
STATE OF NORTH CAROLINA
No. 05 CRS 50457-58
KENNETH LEROY TERRY,
Appeal by defendant from conviction entered 12 September 2005
by Judge Kenneth C. Titus in Vance County Superior Court. Heard in
the Court of Appeals 1 November 2006.
Attorney General Roy Cooper, by Alvin W. Keller, Jr., for the
C. Scott Holmes, for defendant-appellant.
On 12 September 2005, a jury found Kenneth Leroy Terry
(defendant) guilty of second-degree kidnaping and common law
robbery. The trial court then conducted a sentencing hearing and
sentenced defendant in the presumptive range to consecutive
sentences of 37 months minimum to 54 months maximum for second-
degree kidnaping, followed by a sentence of 16 months minimum to 20
months maximum for common law robbery. It is from these
convictions and sentences that defendant appeals.
Mrs. Gina Terry, defendant's wife, testified that she arrived
at work on 9 February 2005, and defendant forced her into her car
at knife point. He then threatened that she was the last b----that was going to leave him, and made her drive to a cemetery.
Mrs. Terry plead for her life and for him to let her go. After 20-
25 minutes in the cemetery, defendant told Mrs. Terry to drive him
to Party Pickup. At Party Pickup, defendant exited the vehicle and
took approximately $25.00 from a cup in the car.
Mrs. Terry testified to a number of abusive instances during
her tumultuous marriage with defendant, which began in 2001. Over
objection of defense counsel, she testified that defendant
threatened her in 2002 that he would kill her if she left him. She
testified that she took out a domestic violence protective order in
2002 as a result of these threats and because defendant cut the
brake lines in her automobile. Mrs. Terry testified that defendant
violated these protective orders by contacting her at work, at
home, and by cell phone in various attempts to reconcile.
Reconcile they did in 2004. After a few months, defendant again
became violent and Mrs. Terry left him for good after defendant
came at her and her daughter with a bat. She took out another
restraining order, which defendant also violated.
Mrs. Terry and other witnesses testified to at least two prior
incidents in which defendant threatened Mrs. Terry with a knife.
Mrs. Terry stated that she believed that defendant might hurt her
during the kidnaping because he had pulled a knife out on [her]
several times before.
Defendant testified that he and Mrs. Terry maintained a
friendly relationship until 9 February 2005. He stated that Mrs.
Terry often called him on the telephone, visited him at his hometwo or three times per week, went out to eat with him, exchanged
Christmas gifts with him, and had sexual intercourse with him. He
testified that on 9 February 2005, he met Mrs. Terry at Party
Pickup so that she could repay $100.00 she had borrowed from him.
He further testified that she arrived without the money, gave him
$5.00 for cigarettes, and asked him for a kiss. He stated that he
did not have a knife and did not force her to drive to the
Defendant's sister, Mary Allen (Ms. Allen), testified that
between September 2004 and 9 February 2005, Mrs. Terry visited
defendant at his home two to three times per week and defendant
often gave money to Mrs. Terry. Another of defendant's sisters,
Queen Terry, testified that Mrs. Terry visited defendant daily and
that they often went out together and exchanged Christmas gifts.
Although defendant does not specify a prayer for relief in his
brief, we assume defendant requests that this Court reverse his
conviction based on the following three arguments: (I) the trial
court erroneously admitted details of a prior conviction beyond the
name and date of the charge during the impeachment of the
defendant; (II) the trial court erroneously allowed the State to
impeach defendant with a conviction more than ten years old without
making the necessary findings of fact; and (III) the trial court
erroneously allowed the impeachment of defense witnesses with
specific incidents and prior convictions of defendant. In
addition, defendant contends that this Court should reverse and
remand this case for resentencing because (IV) the trial courterroneously used prior convictions to enhance his punishment.
After careful review, we affirm the order of the trial court.
Defendant first argues that the State exceeded the realm of
permissible impeachment when it presented evidence of defendant's
prior convictions. The prior conviction in question appears to be
defendant's violation of the 2002 domestic violence protective
order obtained by Mrs. Terry. After confirming that defendant was
convicted of violating the order, the State inquired further into
the manner in which that order was violated and the resulting
punishment. The State presented evidence that defendant violated
the protective order by calling [Mrs. Terry] at her job, and
threatening her safety, coming to her house four times, calling her
house from 11:30 to 6:00 in the morning, threatening to burn [her]
house and stealing her house keys. The State also presented
evidence that defendant was ordered not to assault, harass, or
threaten Mrs. Terry for a period of five years, and not to go upon
any premises owned or operated by Mrs. Terry for a period of five
Admissibility of prior convictions to impeach the credibility
of a witness is governed by Rule 609(a) of the North Carolina Rules
of Evidence, which provides that evidence that the witness has
been convicted of a felony, or of a Class A1, Class 1 or Class 2
misdemeanor, shall be admitted if elicited from the witness or
established by public record during cross-examination or
thereafter. N.C. Gen. Stat. § 8C-1, Rule 609(a) (2005). Strongpolicy reasons support the principle that ordinarily one may not go
into the details of the crime by which the witness is being
impeached. . . . Nevertheless, where a conviction has been
established, a limited inquiry into the time and place of
conviction and the punishment imposed is proper. State v. Finch,
293 N.C. 132, 141, 235 S.E.2d 819, 824 (1977). Although Finch is
a pre-Rules case, its limitations on inquiries concerning prior
convictions are consistent with Rule 609(a). State v. Garner, 330
N.C. 273, 288-89, 410 S.E.2d 861, 869-70 (1991). However, to the
extent the prosecutor's questions went beyond these limited Finch
inquiries, these additional inquiries were proper under Rules
404(a)(1) and 405(a) of the North Carolina Rules of Evidence. See
Garner, 330 N.C. at 288, 410 S.E.2d at 870.
Rule 404 is a limited codification of the long-established
principle that once a defendant in a criminal case 'puts his
character in evidence,' the prosecution may offer evidence of a
defendant's bad character. Garner, 330 N.C. at 289, 410 S.E.2d at
870. Rule 404(a)(1), however, limits the admission of character
evidence to 'pertinent traits' of character. Id. Rule 404(a)(1)
reads, in relevant part:
(a) Character evidence generally. _ Evidence
of a person's character or a trait of his
character is not admissible for the purpose of
proving that he acted in conformity therewith
on a particular occasion, except:
(1) Character of accused. _ Evidence of a
pertinent trait of his character offered
by an accused, or by the prosecution to
rebut the same
N.C. Gen. Stat. § 8C-1, Rule 404(a)(1) (2005). Rule 405, in contrast to the common law, specifically allows
the prosecutor to cross-examine a witness concerning relevant,
specific instances of conduct. Garner, 330 N.C. at 289, 410
S.E.2d at 870. Rule 405(a) reads, in relevant part:
(a) Reputation or opinion. _ In all cases in
which evidence of character or a trait of
character of a person is admissible, proof may
be made by testimony as to reputation or by
testimony in the form of an opinion. On
cross-examination, inquiry is allowable into
relevant specific instances of conduct.
N.C. Gen. Stat. § 8C-1, Rule 405(a) (2005); Garner, 330 N.C. at
289, 410 S.E.2d at 870. When a defendant puts his character in
evidence during direct examination by testifying in detail about
himself and his relationship with the victim, specifically if he
painted a picture of himself as a level-headed, peaceful
individual . . ., it is proper for the prosecutor to cross-
examine defendant concerning this pertinent trait of character.
Garner, 330 N.C. at 289-90, 410 S.E.2d at 870 (internal quotations
In this case, defendant put his character into evidence by
presenting himself as a peaceful individual who maintained such a
positive relationship with Mrs. Terry between September 2004 and
the events of 9 February 2005 that Mrs. Terry often called him on
the telephone, visited him at his house, went out to eat with him,
exchanged Christmas gifts, and engaged in sexual intercourse with
him. It was therefore proper for the State to cross-examine
defendant concerning the pertinent trait of peacefulness by
eliciting details of the conviction for violating the 2002protective order to rebut defendant's direct testimony as to his
The trial court therefore did not err in admitting the details
of his prior convictions. Accordingly, defendant's first
assignment of error is overruled.
Defendant next argues the trial court erred by allowing the
State to present a prior conviction that was more than ten years
old, in violation of Rule 609(b) of the North Carolina Rules of
Evidence. The conviction in question is a 1992 assault of an ex-
girlfriend, elicited from the defendant in the following exchange:
THE STATE: Mr. Terry, who is Crystal Boyd?
DEFENDANT: She's a girl I used to go with?
Q. And were you convicted in 1992 of
A. Yes, ma'am.
Rule 609(b) limits the use of a prior conviction that is more
than ten years old to impeach a witness unless the court
determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. N.C. Gen. Stat.
§ 8C-1, Rule 609(b) (2005). However, [f]ailure to object in apt
time to incompetent testimony results in a waiver of objection so
that admission of the evidence will not be reviewed on appeal
unless the evidence is forbidden by statute or results from
questions asked by the trial judge or a juror. State v.Blackwell, 276 N.C. 714, 720, 174 S.E.2d 534, 538 (1970), cert.
denied, 400 U.S. 946 (1970). Furthermore, Rule 10(b)(1) of the
North Carolina Rules of Appellate Procedure requires that a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context in order to preserve a question for appellate
review. N.C.R. App. P. 10(b)(1). Defendant did not object to the
introduction of this 1992 conviction and therefore did not preserve
the question of its admissibility for appellate review.
Because defendant failed to object to the admission of this
evidence and preserve for appellate review the question of its
admissibility, defendant assigns and argues that the error is plain
error. In criminal cases, a question which was not preserved by
objection noted at trial . . . may be made the basis of an
assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4) (2005). Plain error is error so
fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached. State v. Bagley, 321 N.C. 201, 213,
362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 27 L. Ed.
2d 252 (1988) (citing State v. Walker, 316 N.C. 33, 340 S.E.2d 80
(1986); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)).
Upon review and consideration of the record, it cannot be said
that the jury would have reached a different verdict but foradmission of evidence of defendant's 1992 conviction for assault.
The State presented ample evidence regarding defendant's guilt as
to the kidnaping and robbery, and the prejudicial effect of the
1992 conviction, if any, was minimal given the weight of the
prosecution's other evidence. Accordingly, we overrule defendant's
second assignment of error.
Defendant next contends the trial court erroneously allowed
the impeachment of defense witnesses with specific incidents and
prior convictions of the defendant, in violation of Rule 405 of the
North Carolina Rules of Evidence. After defense witnesses Ms.
Allen and Queen Terry testified about the acts of reconciliation
between defendant and Mrs. Terry, the State inquired as to whether
the witnesses knew of a variety of prior incidents and convictions.
These included defendant's domestic violence orders; breaking into
Mrs. Terry's car, waiting for her and attempting to stab her as she
entered the vehicle; and convictions for two separate assaults on
As stated above, Rule 405 allows inquiry into relevant
specific instances of conduct during cross-examination when the
defendant places his character at issue. Defendant placed his
character at issue by having his sisters testify and portray him as
a peaceful individual, a pertinent trait of his character that may
be rebutted by inquiry into specific instances of misconduct.
See N.C. Gen. Stat. § 8C-1, Rules 404(a)(1) and 405(a).
Accordingly, the trial court committed no error by allowing theState to impeach the credibility of Ms. Allen and Queen Terry by
inquiring into specific instances of misconduct by defendant, as
well as prior convictions.
Finally, defendant argues the trial court erroneously used
prior convictions to enhance defendant's punishment. He argues the
trial court improperly used two prior convictions to establish a
Prior Record Level for Felony Sentencing of Level IV rather than
Level III. During sentencing, defendant refused to stipulate to
convictions with case numbers 92 CR 4320 and 92 CR 1427 because he
maintained that he was not the defendant in those two convictions.
When a defendant assigns error to the sentence imposed by the
trial court, he is entitled to appeal as a matter of right the
issue of whether or not his . . . sentence is supported by evidence
introduced at the trial . . . . N.C. Gen. Stat. § 15A-1444
(2005). The State bears the burden of proving, by a preponderance
of the evidence, that a prior conviction exists and that the
offender before the court is the same person as the offender named
in the prior conviction. Id.
at § 15A-1340.14(f). A defendant's
prior convictions may be proven by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
During sentencing, the parties stipulated to the validity of
all of defendant's prior convictions listed on his prior record
worksheet except case numbers 92 CR 1427 and 92 CR 4320. Case 92
CR 1427 is an assault on a female, Crystal Boyd. Case 92 CR 4320
is an assault on a female, Diane Boyd.
The State carried its burden of proving by a preponderance of
the evidence that the defendant in each of these cases was the same
person as defendant. First, defendant testified that he had been
convicted of assaulting Crystal Boyd in 1992. Second, the
defendant's birth date matched that of the arrest record for case
number 92 CR 4320, and the trial judge stated that [t]he Court has
examined the signature of the alleged defendant on the waiver of
counsel notice, compared the signature to that contained in the
other files and found them to be identical.
Therefore, we hold that the trial court properly included the
two convictions with case numbers 92 CR 1427 and 92 CR 4320 in its
calculation of defendant's sentencing level. Defendant was
properly assigned a Level IV prior record level and properly
sentenced within the guidelines of that prior record level.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).
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