               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1101

                                Filed: 21 May 2019

Mecklenburg County, Nos. 17CRS209358, 17CRS209361

STATE OF NORTH CAROLINA,

              v.

ALPHONSO DAWKINS, JR., Defendant.


      Appeal by Defendant from judgment entered 5 July 2018 by Judge Carla

Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 10

April 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Jane
      Atmatzidis, for the State-Appellee.

      The Epstein Law Firm PLLC, by Drew Nelson, for Defendant-Appellant.


      COLLINS, Judge.


      Defendant appeals from judgment entered upon jury verdicts finding him

guilty of possession of a firearm by a felon and misdemeanor possession of marijuana,

following a jury trial on 5 July 2018. Defendant contends that the trial court erred

by (1) rejecting Defendant’s trial counsel’s attempt to stipulate to the fact that

Defendant was a convicted felon and (2) allowing the State to introduce evidence of

Defendant’s prior felony conviction, which showed evidence of Defendant’s prior

misdemeanor convictions. Finding no error, we affirm.
                                  STATE V. DAWKINS

                                  Opinion of the Court



                                  I.   Background

      On 10 March 2017, Defendant crashed his vehicle into the front yard of a

residence in Charlotte. Law enforcement officers arrived on the scene within minutes

in response to a call describing the scene and informing dispatch that the driver of

the vehicle had placed something inside a trash can next to the crashed vehicle.

      Upon arrival, Defendant told the officers that he had lost control while driving.

The officers received consent from the owner of the residence to search her trash cans,

and found a half-empty bottle of alcohol and a firearm therein. The owner of the

residence said that neither item belonged to her. One of the officers ran Defendant’s

information through the police database and learned that Defendant was a convicted

felon, and arrested Defendant for possession of a firearm by a felon. After being

placed under arrest, Defendant admitted to the officers that the firearm belonged to

him and that he had placed it in the trash can.

      The officers took Defendant to the police station and placed him in an interview

room, which was monitored with audio and visual recording equipment. Once alone

in the interview room, Defendant reached into his groin area, and the officers watched

as he removed something from his person and placed it into his mouth. The officers

reentered the interview room and demanded Defendant spit out what he had placed

into his mouth. Defendant complied, and spit out three small plastic bags containing

marijuana.



                                         -2-
                                  STATE V. DAWKINS

                                  Opinion of the Court



      On 12 June 2017, Defendant was indicted for possession of a firearm by a felon,

a violation of N.C. Gen. Stat. § 14-415.1 (2017), and misdemeanor possession of

marijuana, a violation of N.C. Gen. Stat. § 90-95(d)(4) (2017). On 2 July 2018,

Defendant pled not guilty to all charges, and trial commenced.

      Prior to the beginning of trial, the State and Defendant’s trial counsel agreed

to stipulate that Defendant had previously been convicted of a felony. Defendant’s

trial counsel conferred with Defendant and read him the proposed stipulation, and

then told the trial court that Defendant did not wish to sign the stipulation.

Defendant’s trial counsel stated that he believed the stipulation to be in Defendant’s

best interest, and that he believed the decision of whether to stipulate was his to

make, rather than Defendant’s. Ultimately, the trial court rejected the proposed

stipulation. The trial court noted that the State would be able to introduce the

Judgment and Commitment form for Defendant’s prior felony and misdemeanor

convictions (the “Form”) to prove Defendant’s status as a convicted felon. The trial

court also indicated that it might require certain portions of the Form to be redacted,

and recommended that the parties confer about proposed redactions.

      The following day, the parties and the trial court again discussed the Form.

Defendant objected to the admission of the Form because it reflected Defendant’s

prior convictions for two misdemeanors, which Defendant argued would be

prejudicial to him. The trial court conducted a balancing analysis under N.C. Gen.



                                         -3-
                                  STATE V. DAWKINS

                                  Opinion of the Court



Stat. § 8C-1, Rule 403 (2018), and ruled that the evidence of the misdemeanors was

not “overly prejudicial.” Defendant did not specifically object to the evidence of the

two prior misdemeanors, nor move the trial court to redact the evidence of the

misdemeanors from the Form. The only content Defendant asked the trial court to

redact was the “sentence imposed” on the Form for the felony and misdemeanor

convictions combined, which the trial court declined to do because it found the

sentence not “overly prejudicial.” Defendant did not object further to the Form. The

trial court thus allowed the Form’s admission, subject to the redaction of the offenses

charged, the prior record level, and the prior record points, but not the evidence of

the misdemeanor convictions altogether.

       At trial, the State called the Assistant Clerk of Superior Court of Mecklenburg

County as a witness, who identified the Form. The redacted Form was shown to the

jury, and the Assistant Clerk testified that it showed Defendant had been convicted

of a felony and two misdemeanors. Defendant did not object to the Form’s admission,

or to the Assistant Clerk’s testimony regarding the Form, when said evidence was

offered at trial.

       On 5 July 2018, the jury convicted Defendant of both offenses charged, and the

trial court entered judgment sentencing Defendant to 22-36 months’ imprisonment.

Defendant timely appealed.

                           II.   Appellate Jurisdiction



                                         -4-
                                    STATE V. DAWKINS

                                    Opinion of the Court



         This Court has jurisdiction to hear Defendant’s appeal of the judgment under

N.C. Gen. Stat. § 7A-27(b)(1) (2018).

                                     III.   Analysis

         Defendant contends that the trial court erred by (1) rejecting Defendant’s trial

counsel’s attempt to stipulate to the fact that Defendant was a convicted felon and (2)

allowing the State to introduce evidence of Defendant’s prior felony conviction, which

showed evidence of Defendant’s prior misdemeanor convictions. We address each

argument in turn.

                                       a. Stipulation

         Defendant first argues that the trial court erred by denying the stipulation

proposed by the State and Defendant’s trial counsel regarding Defendant’s status as

a convicted felon, a proposed stipulation that the record reflects Defendant refused to

sign when asked.        By rejecting the stipulation proposed by his trial counsel,

Defendant argues, the trial court failed to heed Defendant’s trial counsel’s decision,

and as a result, Defendant was deprived of his right to effective counsel guaranteed

by the Sixth Amendment to the United States Constitution. Because the trial court

deprived Defendant of his right to effective counsel, the argument continues, the trial

court committed reversible error and Defendant’s subsequent convictions must be set

aside.




                                            -5-
                                  STATE V. DAWKINS

                                  Opinion of the Court



      Defendant’s argument is premised upon the proposition that, where a

defendant and his lawyer reach an impasse regarding a tactical decision to be made

at trial—here, the decision of whether to require the State to prove that Defendant

was a convicted felon, or to stipulate to that fact—it is the defendant’s lawyer’s

desired tactical decision that controls, rather than the defendant’s. This premise has

been specifically rejected by our Supreme Court. In State v. Ali, 329 N.C. 394, 407

S.E.2d 183 (1991), the Court held:

             While an attorney has implied authority to make
             stipulations and decisions in the management or
             prosecution of an action, such authority is usually limited
             to matters of procedure, and, in the absence of special
             authority, ordinarily a stipulation operating as a surrender
             of a substantial right of the client will not be upheld. . . .
             [W]hen counsel and a fully informed criminal defendant
             client reach an absolute impasse as to such tactical
             decisions, the client’s wishes must control; this rule is in
             accord with the principal-agent nature of the attorney-
             client relationship. In such situations, however, defense
             counsel should make a record of the circumstances, her
             advice to the defendant, the reasons for the advice, the
             defendant’s decision and the conclusion reached.

Id. at 403-04, 407 S.E.2d at 189 (citation omitted).

      The record reflects the following: (1) the circumstances leading to the

disagreement between Defendant and his trial counsel regarding the proposed

stipulation; (2) that, in conference with Defendant, Defendant’s trial counsel advised

Defendant to sign the proposed stipulation; (3) that Defendant’s trial counsel so

advised Defendant because the Form that the State otherwise would almost certainly


                                         -6-
                                  STATE V. DAWKINS

                                  Opinion of the Court



use to prove that Defendant was a convicted felon contained evidence which

Defendant’s trial counsel believed ran the risk of prejudicing Defendant, and

Defendant’s trial counsel thus believed stipulating was in Defendant’s best interest;

(4) that, after receiving his trial counsel’s advice, Defendant refused to sign the

proposed stipulation; (5) that Defendant’s trial counsel petitioned the trial court to

accept the proposed stipulation despite Defendant’s unwillingness to stipulate

(creating the “absolute impasse” contemplated by Ali); and (6) the trial court rejected

the proposed stipulation.

      Defendant argues that Ali is inapplicable here because he was not “fully

informed” regarding the stipulation and because his “refusal to sign the stipulation

should be seen as a refusal to participate in the trial process and a knee-jerk refusal

of his counsel’s recommendation” rather than the “absolute impasse” between a

defendant and his trial counsel contemplated by Ali.

      Defendant’s statement that he “refus[ed] his counsel’s recommendation”—in

“knee-jerk” fashion or otherwise—is a concession that Defendant understood his trial

counsel’s recommendation and that he could take it or leave it. If at that point

Defendant did not feel adequately informed by his trial counsel to make the decision

he faced, Defendant could have expressed a lack of understanding to his trial counsel

or to the trial court and sought further explanation. The record nowhere reflects that

Defendant had such a lack of understanding regarding the stipulation, that he asked



                                         -7-
                                  STATE V. DAWKINS

                                  Opinion of the Court



his trial counsel or the trial court for more information, or that he took any other

steps to inform himself.     To the contrary, the record reflects that Defendant

specifically told his trial counsel that he did not want to sign the stipulation. It is

Defendant’s burden to demonstrate to this Court that his trial counsel was ineffective

and prejudiced his case, State v. Banks, 367 N.C. 652, 655, 766 S.E.2d 334, 337 (2014),

and without supporting evidence in the record, we cannot conclude that Defendant

was not “fully informed” within the meaning of Ali.

      Defendant’s argument that his refusal to sign the stipulation was a “refusal to

participate in the trial process” rather than an impasse with his trial counsel is

unavailing. Defendant was faced with a choice: to heed his counsel’s recommendation

to sign the stipulation, or to reject his counsel’s recommendation and refuse to sign

the stipulation. Defendant chose the latter course, and because Defendant’s trial

counsel maintained his insistence upon the former, an impasse was created within

the meaning of Ali, which controls our analysis.

      Because we hold that Defendant’s decision not to stipulate was controlling

under Ali, the trial court was required to abide by Defendant’s wishes and reject the

stipulation. State v. Freeman, 202 N.C. App. 740, 746, 690 S.E.2d 17, 22 (2010) (“It

was error for the trial court to allow counsel’s decision to control when an absolute

impasse was reached on this tactical decision, and the matter had been brought to

the trial court’s attention.”). We accordingly conclude that the trial court did not



                                         -8-
                                        STATE V. DAWKINS

                                         Opinion of the Court



violate Defendant’s Sixth-Amendment right to effective counsel or otherwise err by

rejecting the proposed stipulation sought by Defendant’s trial counsel.

                                          b. Misdemeanors

       Defendant also argues that by allowing the State to introduce the Form1 as

evidence of Defendant’s prior felony conviction, when the Form also contained

evidence of Defendant’s prior misdemeanor convictions, the trial court erred by

admitting irrelevant evidence that unfairly prejudiced Defendant.

       The record reflects that Defendant objected to the Form’s admission on the day

of the trial on the grounds of prejudice, during a colloquy with the trial court and the

State that took place outside of the presence of the jury and before the Form was

offered into evidence, and that Defendant’s objection was overruled at that time. The

record does not reflect that Defendant (1) objected during the colloquy to the Form’s

admission on relevance grounds, or (2) objected to the Form’s admission on any

ground when it was actually offered into evidence.

       Where a defendant objects to evidence at trial outside of the presence of the

jury, but fails to object when the evidence is actually admitted, the issue of the


       1  In his arguments, Defendant fails to acknowledge that he objected only to the admission of
the Form as a whole during his preliminary colloquy with the trial court and the State. Defendant
never specifically objected to those portions of the Form reflecting the misdemeanor convictions, or
asked the trial court to redact those portions. Defendant’s argument on appeal that “the misdemeanor
convictions should have been redacted” because “[t]rial counsel for [Defendant] objected to the
inclusion of the misdemeanor convictions and requested that they be redacted from the form” fails both
for (1) Defendant’s failure to cite to any authority setting forth a duty to redact prejudicial evidence
from relevant documents admitted and (2) the fact that the record does not reflect that Defendant’s
trial counsel made the objection that Defendant suggests.

                                                 -9-
                                   STATE V. DAWKINS

                                   Opinion of the Court



evidence’s admissibility is not preserved for appellate review. See State v. Oglesby,

361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (“a trial court’s evidentiary ruling on a

pre-trial motion is not sufficient to preserve the issue of admissibility for appeal

unless a defendant renews the objection during trial”); State v. Conaway, 339 N.C.

487, 521, 453 S.E.2d 824, 845 (1995) (“A motion in limine is insufficient to preserve

for appeal the question of the admissibility of evidence if the defendant fails to further

object to that evidence at the time it is offered at trial.”). Since Defendant failed to

object to the Form when it was offered into evidence, the issue of the Form’s

admissibility was not preserved.

      We may review unpreserved evidentiary errors in criminal cases for plain

error. State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018). Under plain

error review, a 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.”

Id. at 563, 819 S.E.2d at 370 (citation omitted).           However, a defendant must

“specifically and distinctly” contend on appeal that the error amounted to plain error.

N.C. R. App. P. 10(a)(4) (2018). As the State argues, Defendant does not contend that

the trial court committed plain error, but merely states that Defendant was

prejudiced by the trial court’s purported error.          By failing to “specifically and

distinctly” argue that the purported error amounted to plain error, Defendant has

waived plain error review. State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677



                                          - 10 -
                                   STATE V. DAWKINS

                                    Opinion of the Court



(1995) (holding defendant “waived appellate review of [unpreserved] arguments by

failing specifically and distinctly to argue plain error”).

      Finally, Defendant asks us to suspend the requirements of Appellate Rule 10

and consider the merits of his unpreserved objection to “prevent manifest injustice to

a party[.]” N.C. R. App. P. 2 (2018). But because the record shows that Defendant

was able but refused to stipulate that he was a convicted felon, and by so doing

effectively required the State to prove its case by publishing the Form (and potentially

the evidence of his prior misdemeanor convictions reflected thereupon) to the jury,

we discern no manifest injustice to prevent. See N.C. Gen. Stat. § 15A-1443(c) (2018)

(“A defendant is not prejudiced by the granting of relief which he has sought or by

error resulting from his own conduct.”); State v. Eason, 336 N.C. 730, 741, 445 S.E.2d

917, 924 (1994) (“When a party invites a course of action, he is estopped from later

arguing that it was error.”). We therefore decline to invoke Appellate Rule 2.

                                    IV. Conclusion

      Because Defendant refused to sign the proposed stipulation regarding his

status as a convicted felon, the trial court did not err in rejecting the proposed

stipulation. Defendant’s failure to object to the admission of the Form when it was

offered into evidence at trial means that his objection is unpreserved, and Defendant’s

failure to argue that the trial court’s admission of the Form had a probable impact




                                           - 11 -
                                 STATE V. DAWKINS

                                  Opinion of the Court



upon the jury’s decision to convict him constitutes a waiver of plain error review. We

accordingly find no error.

      NO ERROR.

      Judges BRYANT and STROUD concur.




                                         - 12 -
