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NO. COA11-801 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. TRAVIS LYNCH, Defendant. Chatham County No. 09CRS052169

Evidence -- victim's prior convictions -- admissible The trial court erred in a prosecution for robbery and kidnapping by denying the introduction of a defense exhibit consisting of the victim's criminal records where the victim's testimony was critical, he had minimized the number and severity of his past convictions, and defendant sought to present only evidence of the victim's convictions and did not inquire into the details of the crimes. Judge BRYANT dissenting.

NO. COA11-801 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. TRAVIS LYNCH, Defendant. Chatham County No. 09CRS052169

Appeal by defendant from judgments entered 3 February 2011 by Judge Allen Baddour in Superior Court, Chatham County. in the Court of Appeals 30 November 2011. Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberley A. D'Arruda, for the State. Robert H. Hale, Jr. & Associates, by Daniel M. Blau, for defendant-appellant. STROUD, Judge. Travis Lynch ("defendant") appeals from a conviction for robbery with a dangerous weapon and second-degree kidnapping. For the following reasons, we grant defendant a new trial. I. Background Heard

On 16 November 2009, defendant was indicted on one count of robbery with a dangerous weapon and one count of second-degree kidnapping. Defendant was tried on these charges at the 31

January 2011 Criminal Session of Superior Court, Chatham County.

-2The State's evidence presented at trial tended to show that on 18 June 2009, defendant was driving Michael Nicholas "Nick"

White, Rashad Farrar, and Rashad's sister, Tiffany Farrar, to Siler City, North Carolina when Nick and Rashad began talking about robbing James Tinnin, who owned a clothing store in

Liberty, North Carolina and also sold clothes and shoes from his van. Defendant told Nick to get a gun and, after the robbery,

they would go back to defendant's apartment. Rashad called Mr. Tinnin to tell him that he wanted to buy some clothes from him. Defendant then dropped Rashad and

Tiffany off at a barber shop in Siler City to meet Mr. Tinnin. Mr. Tinnin arrived at the barber shop in his van and Rashad purchased some shoes from him. Tiffany told Mr. Tinnin that a

guy she knew wanted to buy some clothes from him, but Mr. Tinnin would have to drive them to his house, which was only five minutes away. Mr. Tinnin, following directions from Rashad and

Tiffany, drove twenty minutes to a house located down a dirt driveway. Defendant was at the house sitting on the porch. Mr.

Tinnin parked the van, went up to meet defendant, and asked defendant his clothing sizes. As Mr. Tinnin began searching in

the back of his van for clothes, defendant grabbed Mr. Tinnin from behind and pulled him away from his van. Mr. Tinnin then

-3noticed Nick coming around from the side of the house pointing a rifle at Mr. Tinnin's head. the house, while Nick Defendant dragged Mr. Tinnin beside pointing the rifle at Mr.

continued

Tinnin.

Defendant then threw Mr. Tinnin on the ground and told Nick and Rashad then began taking clothes out

him to stay down.

of Mr. Tinnin's van and putting them in the trunk of defendant's car, which was parked at a neighboring house. After about five minutes, Mr. Tinnin noticed that the man holding the rifle had walked off so he walked back around the house and saw all four individuals "taking stuff out of the van." Mr. Tinnin yelled at them to stop and defendant, Tiffany, Nick Mr.

and Rashad ran away with items from the van in their arms. then turned around and pointed the gun back at Mr. Tinnin.

Tinnin ran back down the driveway towards the highway and called 911. As he was in the road talking to the 911 operator, he saw

Tiffany and Rashad leave in a car from the neighboring house. Defendant, Rashad, Nick, and Tiffany then went back to

defendant's apartment and later divided up the items taken from Mr. Tinnin's van. Mr. Tinnin testified that he did not have a Tiffany Farrar later gave a regarding the events that

gun on his person or in the van. statement to the sheriff's office

-4occurred, stating that defendant was a participant in the

kidnapping and robbery of Mr. Tinnin. Defendant testified that when Mr. Tinnin, Rashad, and

Tiffany arrived in Mr. Tinnin's van, he was sitting on the porch talking on his cell phone to his girlfriend. Mr. Tinnin, When

Rashad, and Tiffany exited the van and began arguing.

defendant approached the van to see what the argument was about, Mr. Tinnin reached in his van for a gun. Defendant grabbed Mr.

Tinnin and pulled him away from the van to keep him from the weapon. Defendant testified that he then let Mr. Tinnin go and

he, Rashad, Nick, and Tiffany ran through the woods to his car and left the scene, as he was afraid for his safety. Defendant

denied having a conversation with Nick or Rashad about robbing Mr. Tinnin; trying to kidnap or rob Mr. Tinnin; seeing Nick point a gun at Mr. Tinnin; or taking anything from Mr. Tinnin's van. On 3 February 2011, a jury found defendant guilty of both charges. The trial court sentenced defendant to a term of 51 to

71 months imprisonment for the robbery with a dangerous weapon conviction imprisonment and for a consecutive the term of 20 to 33 months

second-degree

kidnapping

conviction.

Defendant gave oral notice of appeal in open court and on 7

-5February 2011 filed written notice of appeal from the 3 February 2011 convictions. get a new trial On appeal, defendant contends that he should because (1) the trial court violated his

constitutional rights to a unanimous jury verdict as to the second-degree kidnapping charge; (2) his trial counsel did not provide him with effective assistance of counsel; (3) the trial court erred by giving an instruction as to aiding and abetting; (4) the trial court erred in not giving an instruction as to self-defense with respect to the charge of second-degree

kidnapping; (5) the trial court committed prejudicial error by refusing to admit certified copies of the victim/witness's

criminal records for impeachment of credibility purposes; and (6) the trial court committed plain error and prejudicial error by admitting irrelevant and prejudicial images from a magazine into evidence. We find issue five dispositive. II. Mr. Tinnin's Criminal Record

Defendant contends that "the trial court erred by refusing to admit certified true copies of Mr. Tinnin's criminal records, where the records were critical to impeach Mr. Tinnin's

credibility and Rule 609(a) required the trial court to admit the records." Defendant argues that Rule 609(a) "permitted

defense counsel to impeach Mr. Tinnin by admitting certified

-6true public records of his prior convictions without calling any additional witnesses[;]" the trial court "erred by refusing to admit Defendant's Exhibit 1" which contained copies of Mr.

Tinnin's prior convictions; and this error was prejudicial to defendant as he was not permitted to show that Mr. Tinnin, the

alleged victim and the State's "most important witness[,]" "had misrepresented his [prior criminal] record to the jury[;]" and had this exhibit that been the admitted, would "there have is a a reasonable different

possibility verdict."

jury

reached

The State, citing State v. Bell, 338 N.C. 363, 383,

450 S.E.2d 710, 720 (1994), cert. denied, 515 U.S. 1163, 132 L.Ed. 2d 861 (1995), counters that "[i]t is not necessary for this Court to decide if there was any error in this case,

because any error committed by the trial court in not allowing the introduction of a certified copy of Mr. Tinnin's criminal record at trial was not prejudicial[,]" because Mr. Tinnin had testified as to his prior convictions and this evidence "allowed the jury to evaluate Mr. Tinnin's credibility and there was no reasonable possibility that a different result would have been reached." N.C. Gen. Stat.

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