               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
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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

convictions.

       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.

                                             -19-
                                STATE V. WAYCASTER

                                  Opinion of the Court



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


                                          -2-
                                 STATE V. WAYCASTER

                                  Beasley, J., concurring

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.


                                           -3-
                         STATE V. WAYCASTER

                         Beasley, J., concurring

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.




                                             -2-
                                   STATE V. WAYCASTER

                      Earls, J., concurring in part and dissenting in part



      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.

                                              -3-
                                   STATE V. WAYCASTER

                      Earls, J., concurring in part and dissenting in part



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



                                              -4-
                                     STATE V. WAYCASTER

                        Earls, J., concurring in part and dissenting in part



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



                                                -5-
                                    STATE V. WAYCASTER

                       Earls, J., concurring in part and dissenting in part



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.

                                               -6-
                                   STATE V. WAYCASTER

                      Earls, J., concurring in part and dissenting in part



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


                                              -7-
                                  STATE V. WAYCASTER

                     Earls, J., concurring in part and dissenting in part



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-


                                             -8-
                                   STATE V. WAYCASTER

                      Earls, J., concurring in part and dissenting in part



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-
