An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                NO. COA13-1331
                       NORTH CAROLINA COURT OF APPEALS

                                 Filed: 15 July 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 13 CRS 000184; 13 CRS
                                              200086; 13 CRS 200087
CALVIN RICHARDSON



      Appeal by defendant from judgments and commitments entered

5 June 2013 by Judge Donald W. Stephens in Wake County Superior

Court.     Heard in the Court of Appeals 22 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Matthew Tulchin, for the State.

      Paul F. Herzog, for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Calvin    Richardson       (“Defendant”     or   “Forty”)    appeals      from

judgments and commitments adjudging him guilty of five counts of

robbery with a dangerous weapon, one count of conspiracy to

commit     robbery    with   a    dangerous     weapon,    and    one   count     of

possession of a firearm by a felon.              Defendant contends that the

trial court committed plain error in allowing a prior felony
                                              -2-
judgment to be published to the jury.                        Defendant also contends

that the trial court erred in allowing cross-examination and

testimony      concerning       the    prior    convictions           contained     in    that

judgment       over    Defendant’s       objection.              In    the    alternative,

Defendant contends that he received ineffective assistance of

counsel at trial.            For the following reasons, we find no error.

                       I.      Factual & Procedural History

       From 3 June to 5 June 2013, Defendant was tried in Wake

County Superior Court on five counts of robbery with a dangerous

weapon,    one       count    of    conspiracy        to     commit     robbery      with   a

dangerous weapon, and one count of possession of a firearm by a

convicted felon.            The evidence presented at trial tended to show

the following.

       On the evening of 31 December 2012, Mr. Roy Pulley (“Mr.

Pulley”) hosted a poker game at his apartment in Raleigh.                                 The

card players began to arrive at around 7:00 p.m.                             In attendance

were     Mr.    Craig       Washington       (“Mr.    Washington”),           Mr.     Charlie

Doughty    (“Mr.      Doughty”),        Mr.    Carl    Perry      (“Mr.      Perry”),     Mr.

Reggie    Arrington         (“Mr.     Arrington”),         Mr.    Steve      Hagans      (“Mr.

Hagans”),      and    Mr.     Maurice    Hines       (“Mr.    Hines”),       Mr.    Pulley’s

roommate.         These       men     were     longtime       friends        who    gathered

periodically to play cards.               A man named “Manney” also attended
                                         -3-
the card game and brought another man with him, introducing him

to the group as “Forty.”      None of the other card players had met

Forty prior to that night, but they did notice his tattoos—a

black “40” across his hand and a red star on his neck.

     After a few hours of playing cards, Manney and Forty were

the first to leave.1      Both lost money in the game.            Shortly after

Manney and Forty left, the remaining card players finished their

game and prepared to go out to celebrate the new year at a night

club.    Two   of   the   players,       Mr.   Washington   and   Mr.   Doughty,

decided not to go to the club and left before the others.                    Mr.

Washington walked out of the door of the apartment and before he

exited the building, Forty appeared with an AK-47 rifle, pointed

it at Mr. Washington, ordered him to be quiet, and demanded

money.    Another     man   with     a    handgun    accompanied    Forty    and

participated in the robbery.2             The men also demanded that Mr.

Doughty give them money.           Mr. Washington’s and Mr. Doughty’s

mobile phones were taken from them and Mr. Doughty had $290 in

cash taken.    Mr. Doughty and Mr. Washington fled as Forty and

1
  There are discrepancies in the testimony of the card players
regarding the timeline of the events that occurred that evening.
The estimates of the time of Manney and Forty’s departure from
the apartment range from 8:40 to 10:40 p.m. on 31 December 2014,
with the robberies occurring between 9:40 and 11:40 p.m.
2
  The second gunman’s identity was never confirmed. Several of
the men described the second gunman as a young, small man with a
light complexion and long hair, possibly dreadlocks.
                                          -4-
the    other   gunman     went     into      the     apartment.         Following    the

incident, Mr. Washington and Mr. Doughty drove straight home and

did not immediately contact the police.

       Upon entering the apartment, Forty demanded that everyone

put their phones and money on the table and get on the floor.

Forty kicked Mr. Pulley in the head and took the money and some

of the cell phones before leaving with the other gunman.

       The remaining card players also did not contact the police

immediately.          Instead, Mr. Pulley, Mr. Arrington, Mr. Hagans,

and Mr. Hines went to the night club as planned.                            Mr. Pulley

thought Manney had set them up and because he knew Manney, he

thought he could convince him to bring the money and phones

back.     Others       testified      that    they    did     not    call   the   police

because they feared retaliation from the robbers.

       Several hours later, Mr. Pulley called the police.                         Raleigh

Police arrived at the apartment at 3:09 a.m. and several of the

card    players    returned      to    talk     to    the     police.       During   his

interview      with    Officer     C.A.      Schmidt     of    the    Raleigh     Police

Department, Mr. Pulley described Forty as a black male, wearing

dark clothes, with a tattoo of the number “40” across his hand,

and a tattoo of a red star on the side of his neck.
                                       -5-
       Agent Stacy Johnson of City-County Bureau of Identification

(“CCBI”) arrived at 4:13 a.m. and collected fingerprints on a

glass used by Forty during the card game.                       CCBI confirmed the

prints matched Defendant’s.          Detective S.B. Snowden (“Detective

Snowden”) of the Raleigh Police Department conducted interviews

with    those    present    at   the       apartment.            Based     on   their

descriptions    of   Forty,   Detective       Snowden       identified      Forty    as

Defendant and created a photographic line-up for the witnesses

to review.      Mr. Pulley and Mr. Perry reviewed the line-up and

positively identified Defendant as the individual who had robbed

them.    At trial, Defendant was called up to the witness stand to

show his hands and both sides of his face and neck to the jury.

Detective    Snowden   identified      a    red     star    on    Defendant’s      neck

underneath his ear and the number “40” on his left hand and

testified that these tattoos were consistent with the witnesses’

descriptions    of   the   robber.         After    presenting      the    foregoing

evidence, the State rested its case and Defendant made a motion

to dismiss, which was denied.

       Thereafter,     Defendant        offered            an     alibi     defense.

Defendant’s     evidence   tended    to      show    that       after    leaving    Mr.

Pulley’s apartment with Manney, Defendant went to Ms. Tracey

Horton’s apartment, arriving between 10:00 and 10:35 p.m.                          From
                                      -6-
there,    Defendant   walked   with    his   fiancée,    Ms.   Juanita    Renee

Rand, to downtown Raleigh to watch the acorn drop.

    After hearing the foregoing evidence, the jury convicted

Defendant on all counts and the trial court sentenced Defendant

to consecutive terms of 84 to 113 months, 84 to 113 months, and

33 to 52 months active imprisonment.                  Defendant gave timely

notice of appeal in open court.

                             II.   Jurisdiction

    Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013).

                               III. Analysis

    Defendant’s       appeal    presents      three    questions    for    this

Court’s    review:    (1)   whether   the    trial    court   committed   plain

error in allowing a prior felony judgment against Defendant to

be published to the jury; (2) whether the trial court committed

prejudicial error in allowing cross-examination and testimony

regarding Defendant’s prior convictions over his objection; and

(3) whether Defendant received ineffective assistance of counsel

at trial when defense counsel neither offered to stipulate to

the prior felony conviction nor objected to the prior judgment

being published to the jury.          We address each in turn.
                                     -7-
A.   Defendant’s Plain Error Argument

      Defendant’s     first    argument    on   appeal   is   that   the   trial

court committed plain error in allowing a prior felony judgment

to   be   published   to   the   jury.     The   prior   judgment,     dated   6

September 2007, establishes that Defendant had been previously

convicted of four counts of robbery with a dangerous weapon—the

same crime for which Defendant was charged and convicted in this

action.    The prior judgment was admitted into evidence as proof

of a prior felony conviction, an essential element of another

crime with which       Defendant had been charged             in this action,

possession of a firearm by a convicted felon.                   See N.C. Gen.

Stat. § 14-415.1 (2013).          Because Defendant’s prior convictions

are also for the crime of robbery with a dangerous weapon, and

because the State’s burden under N.C. Gen. Stat. § 14-415.1 was

to establish the existence of a single prior felony conviction,

Defendant contends that the probative value of the judgment was

substantially outweighed by the danger of unfair prejudice.                  See

N.C. R. Evid. 403 (stating that such evidence “may be excluded”

by the trial court).          Defense counsel initially objected to the

admission of the judgment into evidence, but did not object when

a copy of the judgment was published to the jury.                Accordingly,

Defendant seeks plain error review of this issue on appeal.
                                        -8-
    “In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.”      N.C. R. App. P. 10(a)(4).                “Plain error is an

error that is ‘so fundamental as to result in a miscarriage of

justice or denial of a fair trial.’”                 State v. Cunningham, 188

N.C. App. 832, 835, 656 S.E.2d 697, 699 (2008) (quoting State v.

Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)).                       “Under

the plain error rule, defendant must convince this Court not

only that there was error, but that absent the error, the jury

probably   would   have    reached      a    different     result.”      State    v.

Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

    However,       our    Supreme    Court       “has      elected      to    review

unpreserved issues for plain error when they involve either (1)

errors in the judge’s instructions to the jury, or (2) rulings

on the admissibility of evidence.”               State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996).              Moreover, our Supreme Court

“has specifically refused to apply the plain error standard of

review   ‘to   issues    which   fall       within   the   realm   of   the   trial

court’s discretion[.]’”          Cunningham, 188 N.C. App. at 837, 656
                                     -9-
S.E.2d at 700 (quoting State v. Steen, 352 N.C. 227, 256, 536

S.E.2d 1, 18 (2000)).

    Here,    Defendant’s    Rule     403   argument,    that   the   probative

value of his prior felony judgment was substantially outweighed

by the danger of unfair prejudice, concerns a matter within the

trial court’s discretion.           See State v. Jones, 176 N.C. App.

678, 687, 627 S.E.2d 265, 271 (2006) (“Whether or not to exclude

evidence under Rule 403 of the Rules of Evidence is a matter

within the sound discretion of the trial court and its decision

will not be disturbed on appeal absent a showing of an abuse of

discretion.” (quotation marks and citation omitted)).

    Accordingly, because evidentiary decisions under Rule 403

are reviewed for abuse of discretion, plain error review is not

available.   Cunningham, 188 N.C. App. at 837, 656 S.E.2d at 700

(“The balancing test of Rule 403 is reviewed by this court for

abuse of discretion, and we do not apply plain error to issues

which fall within the realm of the trial court’s discretion.”

(quotation marks and citation omitted)).               We therefore decline

to consider Defendant’s first argument.

B. Defendant’s Evidentiary Arguments

    Next,    Defendant     argues    that    the   trial   court     committed

prejudicial error during the cross-examination and testimony of
                                      -10-
Defendant’s alibi witnesses, Ms. Tracey Horton and Ms. Juanita

Rand.       Specifically,    Defendant       contests   the    trial   court’s

decision to allow the following exchange between the State’s

attorney and Ms. Horton:

            [STATE’S ATTORNEY:] Were you aware that the
            defendant had been convicted of four armed
            robberies in 2006 and had just gotten out of
            prison?

            [DEFENSE COUNSEL]: Objection.

            THE COURT: Overruled.

            [MS. HORTON]: Yeah.

            [STATE’S ATTORNEY:] And you             still     didn’t
            mind having him in your home?

            [MS. HORTON:]      No.    I mean, no.

Defendant    also   contests    the    following    exchange     between   the

State’s attorney and Ms. Rand:

            [STATE’S ATTORNEY:] You said that you’ve
            known this defendant for about two years?

            [MS. RAND:]     Yes, ma’am.

            [STATE’S ATTORNEY:]         Did you meet him when
            he was locked up?

            [MS. RAND:]    No, ma’am,         I   didn’t.     Didn’t
            know him back in 2006.

            [STATE’S ATTORNEY:]        And you got to know him
            in 2010?

            [MS. RAND:]     Uh-hmm.
                                        -11-
          [STATE’S ATTORNEY:] How long had he been out
          of jail then?

          [MS. RAND:]         I think --

          [DEFENSE COUNSEL]:        Object.

          THE COURT:      Overruled.

          [MS. RAND]: Maybe about five months or four
          months or so.

          [STATE’S ATTORNEY:]             And you knew what he
          was locked up for?

          [MS. RAND:]         Um-hmm.

          [DEFENSE COUNSEL]: Objection.

          THE COURT:      Overruled.

    Defendant’s brief challenges the trial court’s decision to

allow the above testimony under Rules of Evidence 401 and 402

(relevancy),   Rule     403    (balancing       of   probative   value   and   the

danger   of    unfair    prejudice),           and   Rule   404(b)   (character

evidence).      However,       notwithstanding        Defendant’s    evidentiary

objections, we hold that even if the foregoing evidence was

admitted in error, Defendant has not demonstrated prejudice.

          A defendant is prejudiced by errors relating
          to rights arising other than under the
          Constitution of the United States when there
          is a reasonable possibility that, had the
          error in question not been committed, a
          different result would have been reached at
          the trial out of which the appeal arises.
          The burden of showing such prejudice . . .
          is upon the defendant.
                                 -12-


N.C. Gen. Stat. § 15A-1443(a) (2013).        When a defendant does not

address the effect of the error on his conviction with argument

on appeal, it follows that the defendant has failed to show that

he was prejudiced by the admission of the evidence.           See State

v. Keys, 87 N.C. App. 349, 356, 361 S.E.2d 286, 290 (1987) (“In

the present case defendant argues only that the evidence was

irrelevant and never addresses the effect of the error on her

conviction.    Therefore, we find defendant has failed to show she

was prejudiced by the admission of the evidence and overrule

this assignment of error.”).

      Here, Defendant has not met his burden to show how he was

prejudiced.    In his brief, Defendant cites to several cases to

show that the trial court erred in its evidentiary decisions,

but has not shown how the outcome in this case would have been

different     had   the   alleged   errors     not    been    committed.

Accordingly, Defendant’s second argument on appeal is overruled.

C. Defendant’s Ineffective Assistance of Counsel Argument

      Finally, Defendant contends that we should find on direct

review that Defendant received ineffective assistance of counsel

at   trial.    Specifically,   Defendant   contends    that   his   trial

counsel erred by failing to offer to stipulate that Defendant

had been convicted of a felony and by failing to object to the
                                            -13-
publication of Defendant’s prior judgment to the jury.                               Because

of these alleged deficiencies in defense counsel’s performance,

Defendant contends he was “irreparably prejudiced.”

    To prevail on an ineffective assistance of counsel claim,

               a defendant must first show that his
               counsel’s performance was deficient and then
               that    counsel’s     deficient     performance
               prejudiced    his    defense.         Deficient
               performance may be established by showing
               that counsel’s representation fell below an
               objective    standard     of    reasonableness.
               Generally,    to   establish     prejudice,    a
               defendant   must   show    that   there   is   a
               reasonable    probability     that,   but    for
               counsel’s unprofessional errors, the result
               of the proceeding would have been different.
               A reasonable probability is a probability
               sufficient to undermine confidence in the
               outcome.

State     v.    Allen,      360   N.C.      297,     316,    626      S.E.2d       271,   286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867 (2006).

    Furthermore, “a court need not determine whether counsel’s

performance         was    deficient        before     examining           the     prejudice

suffered       by    the     defendant        as   a    result        of     the     alleged

deficiencies.”            Strickland     v.    Washington,         466     U.S.    668,   697

(1984).         Indeed,      “[i]f     it     is     easier      to      dispose     of    an

ineffectiveness           claim   on   the     ground       of   lack      of     sufficient

prejudice, . . . that course should be followed.”                          Id.
                                          -14-
       Here, Defendant was convicted of possession of a firearm by

a convicted felon under N.C. Gen. Stat. § 14-415.1.                          Pursuant to

that   statute,     “records     of   prior      convictions        .    .   .   shall   be

admissible in evidence for the purpose of proving a violation of

this section.”       Id.     Under the statute, the State was required

to prove that Defendant was previously convicted of a felony.

While the record in this case is clear that defense counsel did

not stipulate that Defendant had been convicted of a felony, the

record does not reveal whether Defendant was consulted about

whether he should stipulate to the same, or whether he wanted

the    State   to   be   held    to   its    burden     to   prove       the     essential

element of a prior felony conviction.                        We also do not know

whether    Defendant’s       trial    counsel     and   the    State         discussed    a

stipulation before trial or off the record.                    However, we do not

need to know these facts to                 rule on Defendant’s ineffective

assistance     of   counsel      claim.      Even     assuming,         arguendo,     that

defense counsel should have suggested that the parties stipulate

to    Defendant’s    prior      felony    conviction,        and,       consistent    with

Defendant’s second argument, that defense counsel should have

objected to the prior judgment being published to the jury,

doing so would not have prejudiced Defendant.
                                              -15-
       The record indicates that there was overwhelming evidence

to    support    the       jury’s      verdict.       Two    eyewitnesses      identified

Defendant in a photographic lineup as the robber.                         At trial, all

five eyewitnesses identified Defendant as the man who robbed

them.     They testified to his distinguishing tattoos, which were

later pointed out on Defendant’s hand and neck in front of the

jury.     Defendant’s fingerprints were also found on a drinking

glass    at    the    scene       of    the    crime.        Thus,    Defendant’s    alibi

defense       was,        at    best,     somewhat      imperfect.            Furthermore,

Defendant received a limiting instruction from the trial court

to the effect that the jury should only consider Defendant’s

prior convictions for the purpose of deciding the charge of

possession of a firearm by a convicted felon.

       Thus, in light of the overwhelming evidence against him,

and measures taken by the trial court to mitigate any possible

prejudice, Defendant has failed to show a reasonable probability

that, but for his trial counsel’s alleged unprofessional errors,

the     result       of    the     proceeding        would     have    been    different.

Accordingly,         we        overrule      Defendant’s      ineffective      assistance

claim.

                                       IV.    Conclusion

       For the foregoing reasons, we find no error.
                         -16-
NO ERROR.

Judges ERVIN and DAVIS concur.

Report per rule 30(e).
