Criminal Practice – Evidence – Prior Conviction – More Than 10 Years Old – Plain-Error Review

State v. Bortone. (Lawyers Weekly No. 11-16-0188, 16 pp.) (Martha A. Geer, J.) Appealed from Brunswick County Superior Court. (Ola M. Lewis, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: Even though more than 10 years had elapsed since defendant’s conviction of felony forgery of deeds or wills when defendant was asked about that conviction on cross-examination, defendant has failed to show that 10 years had passed since he was released from any confinement imposed for that conviction. Under N.C. R. Evid. 609, the 10 years begins running from “the later” of the conviction or the release from confinement imposed for the conviction.

We find no error in defendant’s conviction of two counts of injury to property.

Even if the use of defendant’s conviction were error, this evidence did not make a difference in the outcome of the trial, as there was ample evidence of defendant’s guilt. Defendant admitted at trial that he had dug a ditch to direct rainwater off his access easement. A surveyor showed that defendant’s ditch went several feet into the victim’s property.

The victim filled in the ditch on April 14, 2008. He took photos of the area and produced photos that showed another ditch had been dug after he had filled in the first one.