The opinion
Judge Bryant,
dissenting.
The majority grants defendant a new trial by finding prejudice in the trial court’s denial of a defense exhibit containing a witness’s record of convictions. Because the record does not contain evidence that would establish prejudicial error, I respectfully dissent.
First, assuming it was error for the trial court to deny, pursuant to N.C.G.S. § 8C-1, Rule 609(a), defendant’s request to admit certified public records of Mr. Tinnin’s prior convictions, that error was not prejudicial.
It is well established that
[ e]ven where the trial court improperly excludes certain evidence, moreover, a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error. The test for *463 prejudicial error is whether a different result would have been reached if the error had not been committed.
State v. Black, 111 N.C. App. 284, 290 , 432 S.E.2d 710, 715 (1993) (citations omitted).
The majority contends that “the jury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin’s prior convictions,” and therefore, defendant was prejudiced such that defendant should be granted a new trial. I disagree with the majority’s reasoning and the result they reach.
Defendant was charged and convicted by a jury of robbery with a dangerous weapon and second-degree kidnapping. Mr. Tinnin was the prosecuting witness for the state and the victim of the crimes for which defendant was charged. On the witness stand under cross-examination by defendant, Mr. Tinnin admitted to his prior convictions of maintaining a dwelling/vehicle for the use of controlled substances; trafficking in cocaine by manufacturing; trafficking in cocaine by possession; possession with intent to sell or deliver marijuana; and, misdemeanor use of a counterfeit trademark. However, defendant did not attempt to impeach Mr. Tinnin directly during his cross examination. Instead, after defendant had rested his case, defendant was allowed to mark the exhibit for identification, then attempted to have it admitted.
Defendant’s Exhibit 1 includes four documents certified as true copies of Mr. Tinnin’s criminal record. These four documents represent four judgments dated 20 May 2003, 11 September 2006, 12 September 2006, and 11 March 2010. These four judgments represent twelve to thirteen felonies 1 and two misdemeanors. Mr. Tinnin plead guilty to all of the offenses, including guilty pleas to a total of ten felonies and one misdemeanor on two consecutive days. All of these offenses can be placed in three basic categories: possession of drugs (cocaine and marijuana); maintaining a car or dwelling for use of controlled substances; and use of a counterfeit trademark. The majority opinion strongly emphasizes what it sees as prejudice because the “jury did not have sufficient or accurate evidence as to the number and severity of Mr. Tinnin’s prior convictions.” However, on the wit *464 ness stand, under cross examination, Mr. Tinnin admitted to three types of convictions represented by the four judgments; he simply did not admit to each of the fourteen or fifteen individual convictions. Further, based on Mr. Tinnin’s responses to questions on cross examination, it is likely that, had defendant attempted to use the exhibit to impeach Mr. Tinnin’s credibility during cross examination rather than simply attempting to admit it later, Mr. Tinnin might have admitted all the convictions. At the very least Mr. Tinnin would have had an opportunity to see that the record in Exhibit 1 contained not only the fact that four judgments were entered on four different dates, but that each judgment contained multiple convictions.
Even if one views Mr. Tinnin’s testimony as the only critical testimony at trial, the record cannot support a determination that Mr. Tinnin’s credibility would have been impeached to the point of total erosion by admission of the exhibit. There is no reasonable possibility that the jury, which apparently believed Mr. Tinnin notwithstanding his criminal record of drug possession, drug trafficking, maintaining a vehicle/residence for drugs, and use of a counterfeit trademark, would not have believed him had they known that he had plead guilty to additional crimes of the same type as he admitted at trial.
However, Mr. Tinnin’s testimony was not the only critical testimony. While Mr. Tinnin was the chief prosecuting witness and the victim of the crimes charged against defendant, Mr. Tinnin’s testimony was only a portion of the evidence before the jury. Prior to Mr. Tinnin’s testimony the jury heard from two law enforcement officers from the Chatham County Sheriff’s Office — -Patrol Sergeant Brian Phillips and Detective Sergeant David Green, who responded to Mr. Tinnin’s 911 call for assistance, reporting he had been robbed. Those officers testified at trial to Mr. Tinnin’s demeanor as Mr. Tinnin described what he had just experienced — very nervous, agitated, incredulous (like he couldn’t believe this had happened to him). They also testified to their observations at the crime scene: Mr. Tinnin’s van facing the front of the house; rear hatch door open; sliding door open; lots of boxes, clothes, DVDs, CDs, etc. visible through the open doors. In addition to the officers’ testimony of their observations of Mr. Tinnin shortly after the crime occurred, the jury also heard the statement Mr. Tinnin gave to Patrol Sergeant Phillips while at the scene, a statement consistent with Mr. Tinnin’s trial testimony.
For these reasons I believe the majority’s opinion that the trial court erred and prejudice occurred in the denial of the introduction of Defendant’s Exhibit 1 is not supported by this record. Further, the *465 majority holds that the instant case is distinguishable from State v. Bell, 338 N.C. 363 , 450 S.E.2d 710 (1994), because Bell held that the trial court properly restricted the defendant’s impeachment of a witness by prior convictions under 608(a) but erred in restricting defendant’s impeachment by specific instances of conduct under 608(b). However, where the error is not constitutional, the test for improper exclusion of evidence is the prejudicial error test: whether “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. . .” Bell, 338 N.C. at 383 , 450 S.E.2d at 721 (citing N.C.G.S. § 15A-1443(a)). See also Black, 111 N.C. App. at 293 , 432 S.E.2d at 710 .
For the foregoing reasons, I respectfully dissent.
. The criminal records in Defendant’s Exhibit 1 are confusing. In addition to the four judgments noted by the majority and in this dissent, a separate page of the exhibit indicates a felony trafficking in cocaine offense, which offense may or may not represent a conviction. Therefore, it is difficult to tell whether defendant was convicted of twelve or thirteen felonies; perhaps that was the reason defendant did not impeach Mr. Tinnin with the record during Mr. Tinnin’s testimony on cross examination.