Criminal Practice – Effect of Felony Conviction in Closing Arguments – Weapon on Educational Property – Hearsay

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State v. Minton. (Lawyers Weekly No. 10-16-0830, 14 pp.) (Cheri Beasley, J.) (Barbara Jackson, J., concurring in the result only) Appealed from Orange County Superior Court. (Paul C. Ridgeway, J.) N.C. App. Unpub.

Holding: Defendant has waived any challenge to the admission of hearsay evidence on appeal because defense counsel elicited the same evidence on cross-examination regarding the boundaries of UNC-Chapel Hill’s campus. The trial court did not err when it upheld the state’s objections to defense counsel’s argument to the jury about the societal implications of a felony conviction.

No error in defendant’s conviction of possession of a gun on educational
property.

Facts

Defendant was arrested in April 2009 and charged with possession of a gun on educational property after an officer of the University of North Carolina police force observed a handgun and ammunition in defendant’s car, which was parked in a small parking lot off an alley that runs between two commercial buildings on Franklin Street in Chapel Hill. The jury found the defendant guilty. We affirm the judgment.

Discussion

Under G.S. § 14-269.2(b), weapons are not allowed on educational property. Defendant argues that the judge improperly allowed the officers to testify as to the boundaries of the university, saying that the testimony was hearsay. The trial court relied on the hearsay exception for reputation evidence concerning boundaries under N.C. R. Evid. 803(20).

However, because defense counsel elicited the same testimony on cross-examination, we conclude that the defendant has waived any challenge to its admission on appeal. Defense counsel stated that the university boundaries are part of the element of the crime, and that the officer only knew “what he was told by somebody else who was told by somebody else.”

Even assuming that the admission was erroneous, we hold it was harmless. The erroneous admission of hearsay is not always so prejudicial as to require a new trial. In this case, the state offered competent evidence that the parking lot was owned by the university. The officers also described a sign on the alley near the parking lot entrance prohibiting weapons, and spoke of another sign with “an Old Well or University logo” that displays days and times when the parking lot is restricted to faculty and students.

Defendant also argues that the trial court erred by sustaining the state’s objections to portions of his counsel’s closing arguments. To impress upon the jury the seriousness of a felony conviction, defense counsel listed several jobs held by defendant that demand trust because they require him to enter other people’s property. The prosecutor objected, and the trial court sustained the state’s objections to statements such as, “Being a felon in this country means you can’t be trusted,” and “It changes your rights; it changes your status.”

The defendant contends he was exercising his right to inform the jury of the punishment that might be imposed, a right guaranteed by G.S. § 7A-97. But the law does not support a discussion of social implications that may be associated with that sentence. Counsel was asking for a verdict of not guilty, not because the elements of the crime were not met, but because the indirect consequences of the statutory punishment were too severe in light of defendant’s behavior.

Although the statute allows wide latitude in argument of the case, the argument cannot travel outside the record and inject counsel’s own theories grounded on beliefs not supported by the evidence. Counsel described in her argument the defendant‘s possession of a gun as an innocent act (even though there is no mens rea element) and spoke of “innocent behaviors, behaviors that he should not be convicted of a felony for.”

No error.