An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1352

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 5 August 2014


STATE OF NORTH CAROLINA


      v.                                    Wake County
                                            Nos. 09 CRS 211758—60, 211765
GREGORY ALDON PERKINS,
     Defendant.


      Appeal by defendant from judgments entered 4 December 2012

by Judge Paul G. Gessner in Wake County Superior Court.                     Heard

in the Court of Appeals 7 May 2014.


      Attorney General Roy Cooper, by Special                Deputy    Attorney
      General Anita LeVeaux, for the State.

      Glenn Gerding for defendant-appellant.


      BRYANT, Judge.


      Pursuant to Rule 609 of our Rules of Evidence, a defendant

who testifies at trial may be impeached with evidence of a prior

conviction.       Whether    a   defendant’s     testimony     at   trial    was

chilled by the State’s use of Rule 609 depends on the particular

facts of the case.          Where no authority exists in support of
                                               -2-
defendant’s argument that the trial court erred by failing to

intervene      ex    mero     motu       during      the     prosecutor’s             sentencing

argument before the trial court, defendant’s argument must be

dismissed.

       On 4 December 2009, defendant Gregory Aldon Perkins was

arrested on charges of first-degree sexual offense with a child,

first-degree        rape    of     a    child,       and    incest.            Defendant       was

indicted and tried on those charges during the November 2010

session of Wake County Superior Court, but after the jury failed

to reach a verdict, a mistrial was declared.

       Defendant     was     tried       a    second      time     on       twenty    counts    of

various child sexual assault offenses.                        Defendant was convicted

of one count of indecent liberties with a child.                                     Because the

jury   failed       to     reach       verdicts      on     the    remaining          counts,    a

mistrial was declared. Judgment was entered, and defendant was

sentenced      on   29     September          2011    for    the        indecent       liberties

conviction.         Defendant          was    sentenced       to       an    active     term    of

sixteen   to    twenty       months,         and   ordered        to    register      as   a   sex

offender upon his release and to undergo a risk assessment for

satellite-based monitoring.

       On 26 November 2012, defendant was retried and convicted by

a jury on four charges: one count each of first-degree sexual
                                           -3-
offense      by    digital    vaginal   penetration,      first-degree      sexual

offense      by    cunnilingus,    first-degree      rape    of   a    child,   and

incest.      The    State’s    evidence     at   trial   tended   to    show    the

following.

      In June 1998, defendant was hired by “Jane”1 to perform

computer system work for the Town of Albemarle.                   At that time,

Jane was married with two girls, “Susan” and “Carrie”; defendant

was   also    married    but    had   no    children.       Defendant    and    Jane

separated from their spouses to begin dating each other.                        They

married in June 2001 and subsequently moved from Albemarle to

Apex.

      Carrie testified that when she was in the third grade,

defendant began to sexually abuse her.                   Defendant would give

Carrie a back rub before moving his hands beneath her clothes.

The sexual abuse included defendant digitally penetrating her

vagina and performing oral sex on her.                   Defendant also taught

Carrie how to perform oral sex on him.              According to Carrie, the

abuse occurred as many as four times a week.

      In the summer before she began the sixth grade, defendant

had vaginal intercourse with Carrie.              Defendant offered Carrie a



1
  “Jane,” “Susan,” and “Carrie” are pseudonyms used to protect
the identity of the victim.
                                          -4-
“deal” by which she could receive things such as new clothes, no

curfew restrictions, or spending more time with friends if she

cooperated with his requests for sex.                   When Carrie was in the

ninth grade, defendant convinced Jane to let Carrie start taking

birth control. Carrie reiterated that defendant would typically

abuse her about four times a week.

      In 2008, defendant announced that he was unhappy with his

marriage     to     Jane   and    wanted       to   move   out   of    the   house.

Defendant’s last sexual encounter with Carrie occurred sometime

between Christmas 2008 and January 2009 when he moved out.

      In    October    2009,     Carrie    became     upset   while    looking   at

pictures of accused sexual offenders in a newspaper and told her

boyfriend that defendant had sexually abused her.                      Carrie then

told her sister, Susan, and her mother, Jane, that defendant had

abused her “for a long time.”                   Jane called the Apex Police

Department.

      The    Apex     Police     interviewed        Carrie,   Susan,    Jane,    and

Carrie’s boyfriend.          They also interviewed two childhood friends

of Carrie who, years before, had been told by Carrie that she

was   being       sexually     abused     by    defendant.        Mental     health

counselors determined that Carrie was depressed and exhibited

symptoms of post-traumatic stress disorder associated with long-
                                            -5-
term child sexual abuse.               When interviewed by the Apex Police,

defendant     denied        Carrie’s      allegations     and   stated      that   Carrie

created the allegations against him because she did not want

defendant to reconcile with Jane.

        After    his        conviction      on    all    four    counts,       defendant

stipulated to being a prior conviction level II.                               The trial

court found as a mitigating factor that defendant was honorably

discharged      from    the      military     but    that     this    factor    did   not

warrant   sentencing          in    the    mitigated      range.       Defendant      was

sentenced to three consecutive active sentences of 276 to 341

months each for first-degree sexual offense by digital vaginal

penetration      (09    CRS      211758),     first-degree      sexual      offense    by

cunnilingus (09 CRS 211759), and first-degree rape of a child

under   the     age    of    thirteen      (09    CRS    211760).      Defendant      was

further sentenced to 19 to 24 months for incest (09 CRS 211765)

to run at the expiration of the judgment for first-degree rape

of a child.      Defendant appeals.

                              ____________________________

    Defendant raises three issues on appeal: whether the trial

court erred (I) in ruling that defendant’s prior conviction was

admissible;      (II)       in     using    defendant’s       prior    conviction      to

calculate     his     prior      record     level;      and   (III)    by   failing    to
                                        -6-
intervene ex mero motu during the prosecutor’s arguments during

sentencing.

                                              I.

    Defendant      argues   the     trial      court     erred    in    ruling   that

defendant’s      prior   conviction       was      admissible          if   defendant

testified.    We disagree.

    North Carolina Rules of Evidence, Rule 609, holds that:

“[f]or the purpose of attacking the credibility of a witness,

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) (2013).       “The language of Rule 609(a) (‘shall be

admitted’) is mandatory[.]”          State v. Brown, 357 N.C. 382, 390,

584 S.E.2d 278, 283 (2003).

    Defendant filed a motion in limine to exclude evidence of

his prior conviction.       In response, at the pretrial hearing, the

State   argued   that    pursuant    to   Rule     609    it     was   permitted   to

question   defendant     about    his     prior    conviction          if   defendant

testified at trial.         The trial court, in denying defendant’s

motion, held that the State could cross-examine defendant as to

his prior conviction pursuant to Rule 609 but restricted the
                                        -7-
State   from     mentioning    the    prior     conviction      unless       and   until

defendant      testified.      The    trial     court    then    reserved      further

consideration of the issue until defendant testified.

    Defendant contends the trial court’s ruling on his motion

in limine “chilled his right to testify and present a defense.”

Defendant’s      argument     is    similar     to    those    made    based       on   an

improper impeachment by prior conviction.                     However, because of

the ruling of the United States Supreme Court in Luce v. United

States,    469   U.S.   38,    43    (1984)    (holding       that    “to    raise      and

preserve for review the claim of improper impeachment with a

prior     conviction,    a     defendant       must     testify”),          defendant’s

argument is not properly preserved for appeal.                         See State v.

Hunt, 123 N.C. App. 762, 770, 475 S.E.2d 722, 727 (1996) (“[I]n

the absence of a defendant's testimony, any potential harm is

purely speculative. . . .              We hold that in order to preserve

rulings made under North Carolina Rule[s] of Evidence . . . for

appeal, a defendant must testify.”); State v. Norris, 101 N.C.

App. 144, 148—49, 398 S.E.2d 652, 654—55 (1990) (holding that

where a defendant does not testify, defendant’s claims of harm

via chilled speech are speculative).                  Accordingly, this portion

of defendant’s argument is dismissed.

                                              II.
                                     -8-
        Defendant next argues that the trial court erred in using

his prior conviction to calculate his prior record level.                  We

disagree.

      This Court reviews the trial court’s determination of a

defendant’s prior record level de novo.            State v. Fraley, 182

N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007).

      Defendant   contends     the   trial   court’s   use    of   his   prior

conviction to calculate his prior record level was prejudicial

error.    However, defendant stipulated to his prior record level.

Although the State must prove

            that a prior conviction exists and that the
            offender before the court is the same person
            as   the   offender  named   in  the   prior
            conviction. . . .    [D]efense counsel need
            not affirmatively state what a defendant's
            prior record level is for a stipulation with
            respect to that defendant's prior record
            level to occur.

State v. Mack, 188 N.C. App. 365, 378, 656 S.E.2d 1, 11 (2008)

(citations and quotations omitted).          Where a defendant indicates

his agreement with the State’s calculation of his prior record

level, such stipulation is binding.           Id. at 379, 656 S.E.2d at

11.

      Here, the State presented the trial court with a prior

record level worksheet for defendant.             When the trial court

asked    defendant   if   he   wished   to   respond   to    the   worksheet,
                                      -9-
defendant responded: “I have stipulated to that, Your Honor.”

As such, defendant’s stipulation as to his prior record level

was   binding.      Accordingly,     the    trial    court   did   not    err   in

calculating defendant’s prior record level.

                                        III.

      In his final assignment of error, defendant contends the

trial court erred by failing to intervene ex mero motu during

the     prosecutor’s     arguments    during        sentencing.          However,

defendant’s      argument,    while    creative,        is   without      merit.

Defendant cites to no authority, and we are aware of none, in

which an argument of counsel during a sentencing hearing before

the trial judge, as opposed to a jury, is subject to review on

appeal for error.        Moreover, “[f]ailure to cite authority is a

violation of N.C. R. App. P. 28(b)(6) and subjects this argument

to dismissal.”      Good Hope Health Sys., L.L.C. v. N.C. Dep’t of

Health & Human Servs., 189 N.C. App. 534, 562, 659 S.E.2d 456,

473 (2008) (citations omitted).

      Even assuming arguendo we reviewed defendant’s argument, it

must fail.       Although defendant contends the State’s sentencing

argument improperly influenced the trial court because defendant

was sentenced to consecutive terms, this Court has held that

there    is   “nothing    inherent[ly       prejudicial]      in   consecutive
                                  -10-
sentencing” because "a criminal sentence must be proportionate

to the crime for which the defendant has been convicted."     State

v. Ysaguire, 309 N.C. 780, 785—86, 309 S.E.2d 436, 440 (1983)

(citation omitted).     There is nothing inherently prejudicial in

sentencing defendant to consecutive terms for four convictions

involving   long-term    sexual    abuse   of   his   step-daughter.

Defendant’s argument is therefore overruled.

    No error.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
