1. Assault--deadly weapon--inflicting serious injury--separate charges--three bullet
wounds
The trial court erred in denying defendant's motion to dismiss the second charge of assault
with a deadly weapon inflicting serious injury because although the victim sustained three bullet
wounds, there is no evidence of a distinct interruption in the original assault followed by a second
assault.
2. Kidnapping--indictment--facilitating commission of a felony
The trial court committed plain error in allowing defendant to be convicted of first-degree
kidnapping under the theory that defendant unlawfully restrained the victim and removed her from
one place to another without her consent and for the purpose of facilitating the commission of a
felony, because: (1) the victim willingly got into the van with defendant to run errands during her
lunch hour and never tried to get away from defendant until after he shot her; (2) the indictment
alleged only that defendant kidnapped the victim to facilitate the commission of a felony,
N.C.G.S. § 14-39(a)(2); and (3) the evidence failed to reveal that defendant kidnapped the victim
before he shot her, or that the victim was with defendant against her will before she was shot.
3. Constitutional Law--right to counsel--pro se representation
The trial court did not err by allowing a criminal defendant to proceed pro se because: (1)
the trial court reviewed the waiver form and inquired of defendant each necessary element of the
form, revealing that defendant knowingly, intelligently, and voluntarily elected to proceed pro se;
(2) defendant understood the consequences of his waiver and exercised his own free will; (3)
defendant's court-appointed attorney remained in the courtroom with defendant as standby
counsel and made motions on defendant's behalf; and (4) defendant continued to confer with his
court-appointed counsel, thus availing himself of counsel's expertise and experience.
4. Evidence--prior bad acts--relevancy
The trial court did not err in a prosecution for assault with a deadly weapon inflicting
serious injury on his second wife by allowing the State to present evidence of defendant's prior
bad acts through the testimony of defendant's first wife that defendant snuck into her residence
during a time of marital separation, hid in her attic for seventeen hours, and then stabbed her
numerous times while she slept, because: (1) the time between defendant's assault of his first wife
and second wife was not so remote as to make his first wife's testimony inadmissible; (2) evidence
was offered that defendant attacked both women during a period of marital discord, stating at
different times that he would not allow them to leave him or to end their marriage to him; (3)
defendant never denied stabbing his first wife or shooting his second wife for those reasons; and
(4) the evidence was not so remote in time as to be irrelevant, and was more probative than
prejudicial to show defendant's motive, intent, preparation, plan, absence of mistake, and modus
operandi. N.C.G.S. § 8C-1, Rules 403 and 404(b).
5. Appeal and Error--preservation of issues--order not in record
Defendant's argument concerning his motion for appropriate relief, which states that his
arrest is illegal and he received ineffective assistance of counsel, is not properly before the Courtof Appeals because there is no order i
n the record from which to appeal. N.C. R. App. P. 9(a).
Attorney General Michael F. Easley, by Assistant Attorney
General Elizabeth F. Parsons, for the State.
Haakon Thorsen for defendant-appellant.
HUNTER, Judge.
Stephen David Brooks (“defendant”) appeals the trial court's
judgments against him for first degree kidnapping under N.C. Gen.
Stat. § 14-39 (case no. 96CRS39268), and two charges of assault
with a deadly weapon inflicting serious injury under N.C. Gen.
Stat. § 14-32(b) (case nos. 96CRS39269 and 96CRS39800). Having
found merit in two of defendant's arguments, we reverse in part and
find no error in part.
The facts pertinent to this appeal are as follows: Defendant
and the victim, Ruth Meeks, were married in July 1993 and lived
together as husband and wife until the following spring when Ms.
Meeks learned that, at the time of their wedding ceremony,
defendant was still married to another woman. Ms. Meeks requested
defendant to move out of her residence; however, the two remained
in contact. On the morning of 29 July 1996, defendant borrowed Ms.
Meeks' van for a doctor's appointment, but later informed her the
appointment was in the afternoon. Ms. Meeks allowed defendant to
keep the van all day provided he agreed to pick her up from work at
lunchtime and drive her to run some errands.
As planned, defendant picked Ms. Meeks up during her lunchhour and drove her to her brother's home. Ms. Meeks went
inside,
picked up $4,300.00 from her brother and, upon returning to the
van, asked defendant to take her to the bank so that she could make
a deposit. Approximately five minutes later, defendant yelled
“bitch,” to which Ms. Meeks looked up and defendant shot her. Ms.
Meeks wrestled the gun away from defendant and threw it out of the
passenger-side window. When defendant jumped out to get the gun,
Ms. Meeks had intended to drive away. However, when Ms. Meeks
realized the defendant had taken the keys with him, she got out of
the van and began to run away. Not getting far, Ms. Meeks
collapsed in the street. Defendant picked up Ms. Meeks and put her
back into the van on the floor and drove off.
Ms. Meeks was shot three times. Evidence presented at trial
left the question of whether defendant shot Ms. Meeks all three
times at once -- that is, before she threw the keys out of the
window, or whether one or two of the shots were inflicted after she
threw the keys out of the window. Shortly after defendant caught
Ms. Meeks and put her onto the van floor, she fell unconscious.
Ms. Meeks did not regain consciousness until several hours later --
as it was becoming dark outside. Defendant was still driving heraround in the van. Ms. Meeks testified that defendant finally
parked the van, tied her up with duct tape and left her. He
returned to the van several hours later and tied her up again (she
had been able to get her hands free), then left again. The third
time he returned to the van, defendant drove Ms. Meeks to a
hospital in Charlotte. There he alerted emergency staff (by
cellular phone) of Ms. Meeks' being shot, but he would not let them
into the van to give Ms. Meeks medical attention. Instead,
defendant locked the van doors, threw the keys outside, then shot
himself. Both defendant and Ms. Meeks were rushed into surgery.
[1]Defendant has preserved six assignments of error; however,
he argues only five. The first is that because the evidence was
insufficient to show that two assaults were committed, the trial
court committed reversible error in not allowing defendant's motion
to dismiss the second assault at the close of the State's evidence.
We are persuaded by defendant's argument.
In reviewing the trial court's denial of defendant's motion to
dismiss, this Court must look to see whether
the trial court . . . consider[ed] the
evidence in the light most favorable to the
State, [having] giv[en] the State the benefit
of every reasonable inference which may be
drawn. [However,] [t]he State is still
“required to produce substantial evidence more
than a scintilla to prove the allegations in
the bill of indictment.”
State v. Jarrell, 133 N.C. App. 264, 267, 515 S.E.2d 247, 250
(1999) (citations omitted) (quoting State v. Overton, 60 N.C. App.
1, 26, 298 S.E.2d 695, 710 (1982), appeal dismissed and disc.review denied, 307 N.C. 580, 299 S.E.2d 652-53 (1983)).
Furthermore, “[i]t is immaterial whether the evidence is direct,
circumstantial, or both.” State v. Bradley, 65 N.C. App. 359, 362,
309 S.E.2d 510, 512 (1983). “[A] motion to dismiss is properly
denied if there is substantial evidence of each essential element
of the offense charged and that defendant committed the offense.”
State v. Leonard, 74 N.C. App. 443, 447, 328 S.E.2d 593, 595, disc.
review denied, 314 N.C. 120, 332 S.E.2d 487 (1985). “Substantial
evidence is that amount of evidence which a reasonable mind might
accept as adequate to support a conclusion.” State v. Rhome, 120
N.C. App. 278, 291, 462 S.E.2d 656, 665 (1995) (quoting State v.
Rich, 87 N.C. App. 380, 382, 361 S.E.2d 321, 323 (1987), citing
State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)).
Defendant is correct in stating that in order for him to be
charged with two counts of assault with a deadly weapon, there must
be two separate assaults. We agree with the trial court's
instructions to the jury, that to find defendant guilty of two
separate assaults, “there [must have been] a distinct interruption
in the original assault followed by a second assault.” In the case
at bar, there is no evidence of such a distinction. Consequently,
defendant's second assault should have been dismissed.
Ms. Meeks testified that she was first shot as defendant was
driving away from her brother's house. She then testified that she
wrestled with defendant and took the gun away from him and threw it
out of the van's passenger window. Then as he carried her back to
the van, defendant had the gun in his hand and she “figured” shewas going to get shot again. However, Ms. Meeks fell unconscious
soon after defendant put her onto the van floor. She was unclear
as to when she received the other two bullet wounds.
It was defendant's position at trial that after he shot Ms.
Meeks the first time, the gun went off twice more while she
struggled to get the gun away from him. Therefore, he argues that
the trial court should have accepted his version of when he shot
Ms. Meeks because Ms. “Meeks'[] testimony does not support two
assaults . . . [and there] is no evidence the shots were not [sic]
separated by any significant length of time.” We agree.
In the case at bar, there was no doubt that Ms. Meeks
sustained three bullet wounds. However, her testimony at trial
left a gaping hole in answer to exactly when she sustained the last
two wounds. Unlike cases where there is a contradiction in the
parties' versions of what happened, thus making it proper for the
issue to be submitted to the jury, State v. Ali, 329 N.C. 394, 407
S.E.2d 183 (1991), this is a case in which there was evidence
presented by defendant with no contradicting evidence offered by
the State. Ms. Meeks' testimony that at first she “could only see
two wounds[] [but she] knew [she] had some somewhere else because
he initially shot [her]” in a particular area of her body is heart-
wrenching. However, we are not persuaded that her testimony rises
to the level of being substantial enough to pose a contradiction to
defendant's testimony of the events, being alone. The State offers
no other evidence that the three shots were not simultaneous --
“fail[ing] to prove an essential element of the crime charged. [Therefore,] [d]efendant's motion to dismiss was . . . improperly
denied and defendant's conviction [for the second assault (case no.
96CRS39800)] must be reversed.” State v. Phipps, 112 N.C. App.
626, 629, 436 S.E.2d 280, 282 (1993).
[2]Defendant's next assignment of error is that the trial
court committed plain error in allowing him to be convicted of
kidnapping under a theory not supported by the bill of indictment.
Stating the bill of indictment alleged he had kidnapped Ms. Meeks
“by unlawfully restraining her and removing her from one place to
another, without her consent, and for the purpose of facilitating
the commission of a felony,” defendant argues that since the only
felony he committed happened before he restrained Ms. Meeks, the
act did not conform to kidnapping under the theory outlined in the
indictment. Instead, defendant argues, the only theory of
kidnapping available to the State was that it was done “to
facilitate [defendant's] flight” following the commission of a
felony.
It is well established that where a defendant has failed to
object at trial to the trial court's submission of a charge to the
jury, appellate review of his argument may be sought only under the
plain error standard. State v. Odum, 307 N.C. 655, 656, 300 S.E.2d
375, 376 (1983); see also State v. Frye, 341 N.C. 470, 495-96, 461
S.E.2d 664, 676-77 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed.
2d 526 (1996). Furthermore, the term plain error does not simply
mean obvious or apparent error.
In order to rise to the level of plain
error, the error in the trial court's[actions] must be so fundamental that (i)
absent the error, the jury probably would have
reached a different verdict; or (ii) the
error would constitute a miscarriage of
justice if not corrected.
State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997),
cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998). (We note
that, in its argument before this Court, the State conceded that if
the Court found defendant's second assault conviction to be error,
then the kidnapping charge must also be held error.) We agree with
defendant that the trial court committed plain error.
Our General Assembly has defined kidnapping in the following
way:
(a) Any person who shall unlawfully
confine, restrain, or remove from one place to
another, any other person 16 years of age or
over without the consent of such person . . .
shall be guilty of kidnapping if such
confinement, restraint of removal is for the
purpose of:
(1) Holding such other person for a
ransom or as a hostage or using such
other person as a shield; or
(2) Facilitating the commission of
any felony or facilitating
flight of any person following
the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so
confined, restrained or removed
or any other person; or
(4) Holding such other person in
involuntary servitude in
violation of G.S. 14-43.2.
(b) There shall be two degrees of
kidnapping as defined by subsection (a). If
the person kidnapped either was not released
by the defendant in a safe place or had beenseriously injured or sexually assaulted, the
offense is kidnapping in the first degree
. . . . If the person kidnapped was released
in a safe place by the defendant and had not
been seriously injured or sexually assaulted,
the offense is kidnapping in the second degree
. . . .
N.C. Gen. Stat. § 14-39(a), (b) (1999).
It is undisputed that Ms. Meeks willingly got into the van
with defendant to run errands during her lunch hour. Further, Ms.
Meeks testified that she never tried to get away from defendant
until after he shot her, when she got out of the van and tried to
run but collapsed in the street. Therefore, it was then and only
then that kidnapping became a viable charge against defendant,
because it was only then that he had to take steps to “confine,
restrain, [and] remove” Ms. Meeks from place to place against her
will. N.C. Gen. Stat. § 14-39(a).
Our Supreme Court has long held that in order to properly
indict a defendant for first degree kidnapping, the State must
allege both the essential elements of kidnapping as provided in
N.C. Gen. Stat. § 14-39(a) and at least one of the elements of
first degree kidnapping listed in N.C. Gen. Stat. § 14-39(b).
State v. Ellis, 90 N.C. App. 655, 369 S.E.2d 642 (1988).
Furthermore, an indictment will not support a conviction for a
crime unless all the elements of the crime are accurately and
clearly alleged in the indictment. State v. Perry, 291 N.C. 586,
231 S.E.2d 262 (1977). See also State v. Taylor, 280 N.C. 273, 185
S.E.2d 677 (1972). One of the essential elements of kidnapping is that the State
prove defendant either unlawfully confined, restrained, or removed
Ms. Meeks from one place to another, without her consent. N.C.
Gen. Stat. § 14-39(a). The indictment against defendant was
limited to one of the alternative reasons listed in the statute as
to why defendant had unlawfully confined, restrained or removed Ms.
Meeks, the State having chosen to prove a kidnapping to
“facilitat[e] the commission of a[] felony.” N.C. Gen. Stat. §
14-39(a)(2). However, because we held in the earlier argument that
the trial court incorrectly submitted the issue of whether
defendant committed two separate assaults against Ms. Meeks; in
order for the State to prove kidnapping as alleged in the
indictment, the evidence at trial must have shown that defendant
kidnapped Ms. Meeks before he shot her. There was no evidence at
trial that before she was shot, Ms. Meeks was with the defendant
against her will. Therefore, the State did not meet its burden of
proof and we are required to reverse the kidnapping conviction
(case no. 96CRS39268).
[3]Thirdly, defendant assigns error to the trial court's
failure to conduct a sufficient inquiry before permitting defendant
to proceed pro se. Defendant argues that because the trial court
did not inform him of the maximum punishments, his convictions
should be vacated and the case remanded for a new trial. We find
this argument completely unpersuasive.
From the Sixth Amendment of the United States Constitution, as
applied to the states by the Fourteenth Amendment, a criminaldefendant obtains the right to the assistance of counsel.
Furthermore, the United States Supreme Court has long ruled that
part of that constitutional right is the right to refuse the
assistance of counsel and to conduct one's own defense. In line
with the Constitution's requirements, North Carolina law provides,
in pertinent part, that a defendant may proceed in a trial without
the assistance of counsel “only after the trial judge makes
thorough inquiry and is satisfied that the defendant: . . .
[c]omprehends the nature of the charges and proceedings and the
range of permissible punishments.” N.C. Gen. Stat. § 15A-1242(3)
(1999).
The record reflects that defendant was appointed counsel, who
worked with defendant for more than a year. However, on the day
his trial was to begin and after jury selection, defendant told the
trial court he and his attorney had a difference of opinion as to
upon what strategy his case should be pursued. Revealing a very
lengthy discussion between the trial court and defendant, the
record reflects that the trial court apprised defendant not only of
his right to counsel -- though not necessarily his right to “fire”
counsel and have more appointed -- but also of the possible
consequences of his less-than-prudent decision. Nevertheless,
stating that he had thirty years of paralegal experience, defendant
insisted that the strategy issue was paramount.
THE COURT: . . . First of all, I want
you to understand there may be -- there's
often a misconception as to what the role of
the lawyer is and what the role of the client
is as far as decision making goes in the trial
of the case.
Once you obtain the assistance of counsel
. . . there are certain decisions in the case
that are best made by the lawyer. There are
some decisions in the case that are absolutely
the client's decision. . . .
. . .
But when we get into areas such as trial
strategy, the questions of whether or not to
call a particular witness, the question of
whether or not to present a particular legal
defense, the question of how to cross-examine
a witness, what method to use, what theory of
the case to present . . . those are matters of
trial strategy . . . [and] generally are
within the discretion of the lawyer.
. . .
. . . [Y]ou do have the right to
discharge your attorney at anytime and to
represent yourself if that's what you wish to
do.
Now, you do not necessarily have the
right simply to fire Mr. Bender and say I want
somebody else to represent me other than Mr.
Bender.
. . .
I think you do understand what your
options are as I explained to you. Any person
has the right to represent himself . . . at
anytime in a proceeding. That's not something
that I recommend.
THE DEFENDANT: It's not something I want
to particularly do.
THE COURT: Right. A lawyer can provide
valuable assistance in a case. Representing
yourself in a trial, particularly a criminal
trial, makes about as much sense as somebody
saying I don't need a doctor; I can remove my
own appendix. . . .
THE DEFENDANT: In 1994 and respectively
in 1990 . . . I was charged with assault --
I represented myself and I was found not
guilty in both . . . .
So I've been through this before, Your
Honor. So I'm not completely oblivious as to
the consequences . . . . [T]his is a much
more serious matter and I understand that.
But I just want to let you know again, I do
understand and I appreciate your admonition.
THE COURT: All right. Well, you [and
Mr. Bender] take some time and talk about
these issues and then let me hear from you
when you're ready to give me some further
information, and we'll go from there.
(WHEREUPON, . . . a recess was
observed.)
THE DEFENDANT: I'd like to invoke my
constitutional right and represent myself.
THE COURT: All right, sir. Now, in that
regard, have you given careful consideration
to what you're doing?
THE DEFENDANT: I believe I have, Judge.
THE COURT: Do you understand that you
have a right to be represented by a lawyer in
this case?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that the
case will be tried according to the Rules of
Evidence and that I cannot give you advice
about how to handle your defense or what
questions to ask, what objections to make or
any other aspect of the case? Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that if you
represent yourself in the case, which, of
course, you have an absolute constitutional
right to do, but if you represent yourself in
the case, you will be held to the same
standards of conduct as would any attorney
appearing in the courtroom, which means your
demeanor and your behavior must conform to therules that would be expected of any lawyer
appearing in this court?
THE DEFENDANT: Yes.
THE COURT: And so you do wish to
discharge Mr. Bender and represent yourself in
this matter?
THE DEFENDANT: Yes.
. . .
THE COURT: . . . Well, let me ask you
this. Do you wish to have Mr. Bender remain
in the courtroom through the balance of the
trial?
THE DEFENDANT: Yes, if he wants to.
. . .
THE COURT: Generally I would have -- in
a case in which you're representing yourself,
I would have someone here as stand-by counsel.
Unless you have some objection to it, I would
instruct Mr. Bender to remain here as stand-by
counsel; that is, to be available for
questions if you have any questions about the
Rules of Evidence, about strategy or anything
else, and to be available to take over the
defense if you grow weary or if for any other
reason you cannot proceed to defend yourself
at some point in the course of the trial.
That would be my instruction to him unless you
object to that. Do you object?
THE DEFENDANT: No, I don't, Your Honor.
Checking that all requirements of the written waiver form were met,
the trial judge continued:
[THE COURT:] You do understand the
nature of the charges against you; is that
correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that you're
charged with first degree kidnapping, two
counts of assault with a deadly weapon withintent to kill inflicting serious injury, one
count of felonious larceny?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand what the
possible punishments are for those?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand that you
have a right to have counsel represent you;
. . . ?
And you understand and appreciate the
effect of your choice to waive those rights
and represent yourself in this matter?
THE DEFENDANT: Yes, Your Honor.
It is unclear whether the trial judge required defendant to
sign a written waiver. If so, that waiver is not part of the
record before us. However, it is clear from the record that the
trial judge reviewed the form, inquiring of defendant each
necessary element of the form. “With nothing in the record to
indicate otherwise, [State v.] Warren[, 82 N.C. App. 84, 345 S.E.2d
437 (1986)] requires us to presume that defendant knowingly,
intelligently, and voluntarily elected to proceed pro se.” State
v. Love, 131 N.C. App. 350, 355, 507 S.E.2d 577, 581 (1998),
affirmed, 350 N.C. 586, 516 S.E.2d 382 (1999).
Therefore, from the foregoing, we find defendant's waiver of
counsel was knowing, intelligent and voluntary. Furthermore, the
record clearly reflects that defendant is “. . . 'literate and
competent, that he understood the consequences of his waiver, and
that, in waving his right, he was voluntarily exercising his own
free will.'” Id. at 354, 507 S.E.2d at 580 (quoting State v.Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980)).
Additionally, we note that although defendant chose to represent
himself and conduct his own direct and cross-examinations, his
court-appointed attorney, Mr. Bender, remained in the courtroom
with defendant and made motions on defendant's behalf.
Furthermore, defendant continued to confer with Mr. Bender, thus
availing himself of Mr. Bender's expertise and experience.
Therefore, we find no error in the trial court's allowing defendant
to continue pro se.
[4]Defendant's fourth assignment of error is that the trial
court erred in allowing the State to present evidence of his prior
bad acts. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999), allows the
admission of evidence of defendant's prior bad acts for the limited
purpose of proving “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake . . . .” However, that
evidence is not admissible either to prove that defendant acted in
conformity therewith or to prove that defendant had the propensity
or disposition to commit the offense with which he is now charged.
State v. Thomas, 350 N.C. 315, 514 S.E.2d 486 (1999). Furthermore,
that evidence is inadmissible if the probative value is far
outweighed by undue prejudice. N.C.R. Evid. 403.
The State offered evidence, by way of defendant's former wife
(Mrs. Brooks) testifying, that in 1979 defendant had -- during a
time of marital separation from her -- snuck into his then-wife's
residence, hidden in the attic for seventeen hours, and thenstabbed her numerous times while she slept. The evidence also
tended to show that defendant did not want that marriage to end,
just as he did not want his marriage to Ms. Meeks to end.
Following the State's voir dire and defendant's voir dire cross-
examination of Mrs. Brooks, the trial judge listened carefully to
defendant's objection that the testimony was more prejudicial than
probative “because it only shows a propensity for violence. I
never denied that I shot the victim in this particular case. . . .
[That's] not been contested, [therefore,] it's highly prejudicial
and it's inflammatory.” Plainly laying out its thought processes,
the trial court ruled:
I have considered this evidence under
rule 404(b), and in trying to determine the
probative value of this evidence on the points
of identity, plan and modus operandi. I've
considered the point in time at which the
alleged prior events occurred. I've
considered any factual similarities between
those alleged prior events and the events in
question in this trial.
With respect to the remoteness in time, I
have considered, as I believe I am compelled
to do, the testimony which is uncontradicted
that as a result of the alleged prior
incident, the defendant was convicted and
spent some eight to nine years in prison
between that time and the time of the
occurrence of the events being considered in
this trial. And I find that the time frame is
sufficiently relevant. It is not too remote
in time so as to preclude it from being
relevant on the issues involved in this case.
I find that the factual description of
the events have a number of similarities with
the events being tried in this particular case
including, but no limited to, the fact that
this involved an estranged spouse, it occurred
some months after a marital separation, that
it involved acts of significant violenceresulting in serious injury to the victims,
which included statements by the defendant
that he would kill the victim, and which
indeed resulted in serious injury to the
victims, and in each case death did not
result.
That the violent acts involved repeated
wounds to the body of the victims; that in
each case there occurred or at least there was
involved a significant lapse of time during
the carrying out of the acts; in the alleged
prior act, a waiting period of approximately
17 hours during which time the defendant
allegedly secreted himself in the attic of the
victim's home, and in the case now under
consideration an alleged lapse of some 22
hours between the time of the perpetration of
the alleged assault and the time that the
victim was released at Carolinas Medical
Center for treatment.
Given those similarities, given the time
frames involved, I find that the alleged prior
acts are sufficiently similar so as to have
probative value on the questions of modus
operandi, identity and plan, as well as
motive.
Next, I have considered the alleged prior
acts under Rule 403 and I've conducted a
weighing of the probative value of those
alleged prior acts against the possibility of
unfair prejudice, surprise, confusion of the
jury, delay or waste of time in the trial of
this matter, and I find that the likelihood of
those factors is outweighed by the probative
value of this evidence on these points that
I've mentioned. And [sic] therefore have
determined in my discretion that the evidence
should be allowed and that it will be
admitted.
Now, . . . a very important point in my
consideration has been the extent to which
this evidence might be offered or might tend
to show a propensity for violence, and, of
course, the evidence may not be considered for
that purpose. And I have specifically
analyzed this evidence that's being offered
and asked myself the question as to whether
this evidence has probative value on thelimited points on which I've specifically
addressed, or is this merely propensity
evidence.
And I find that the evidence does have
probative value on those other points, as
opposed to being evidence of the defendant's
propensity for violence. And I plan to so
instruct the jury in that regard . . . . It's
certainly not admissible for that purpose.
Noting that it did so instruct the jury, we agree with the trial
court, the evidence was not so remote in time as to be irrelevant
or of more prejudicial than probative value to the defendant
because it tended to show motive, intent, preparation, plan and the
absence of mistake and modus operandi. See State v. Cox, 344 N.C.
184, 472 S.E.2d 760 (1996) (evidence of prior threats admissible to
prove premeditation and deliberation -- intent, preparation and
plan); State v. Penland, 343 N.C. 634, 472 S.E.2d 734 (1996), cert.
denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997) (defendant's
actions against former girlfriend and those against victim were
sufficiently similar so that the 10-year span between the crimes
charged and the prior bad acts did not render the evidence too
remote to be probative on the issue of common plan or scheme --
modus operandi). All of these are proper purposes for admitting
the evidence. See State v. Dammons, 128 N.C. App. 16, 493 S.E.2d
480 (1997).
We find State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812
(1994) dispositive. In that case, the State charged defendant with
the statutory rape of his youngest daughter A.J. (age 10 at the
time) from his current marriage. Over defendant's objection that
the prior bad acts were too remote, the trial court allowedtestimony that defendant had raped both his daughters (B.L. and
Toni) from a prior marriage, when they were but 9 or 10 years old.
In reviewing the trial court's decision to allow the testimonies,
this Court stated:
The remoteness factor [of 404(b)
evidence] must be examined carefully to
determine whether the plan or scheme of
molestation was interrupted or ceased due to
underlying circumstances, and then resumed in
a continual fashion. For example, in State v.
Davis, this Court determined that a
ten-and-one-half-year period between the
defendant's prior sexual misconduct and the
crime for which he was tried was not so remote
in time as to render the evidence
inadmissible, since the defendant had been in
prison for the majority of that time. Davis,
101 N.C. App. at 20, 398 S.E.2d at 650.
Here, the remoteness in time was due to
defendant's having almost no access to the
daughters of his first marriage following his
divorce. Defendant divorced [his first wife]
in 1975, and he seldom had contact with B.L.
and Toni . . . thereafter. In July of 1975
defendant married A.J.'s mother. A.J. was not
born until 16 April 1979, and did not reach a
prepubescent age until several years later.
One of the State's witnesses testified the
defendant told her that when his daughters
“got old enough to know about love,” that “he
was going to be the one to teach them.” As in
Davis, we find that circumstances prevented
the defendant from carrying out his plan to
sexually molest his daughters for an extended
period of time, however, once the opportunity
presented itself, defendant resumed the sexual
abuse. Accordingly, we conclude that the
remoteness in time in the present case does
not make B.L.'s testimony regarding
defendant's prior sexual abuse inadmissible.
Furthermore, the evidence was not
violative of N.C.R. Evid. 403. Although the
evidence was harmful to defendant's case, its
probative value outweighed the possibility of
unfair prejudice. We conclude the trial courtdid not err in admitting the evidence pursuant
to Rules 404(b) and 403.
Jacob, 113 N.C. App. at 611-12, 439 S.E.2d at 815-16.
Likewise, in the case at bar, we find that the time between
defendant's assault of his first wife and his second wife was not
so remote as to make his first wife's testimony inadmissible.
First, we note that defendant spent at least half of the seventeen
years in prison serving time for the assault. Secondly, evidence
was offered, which defendant did not contradict, that he attacked
both women during a period of marital discord, stating at different
times that he would not allow them to leave him or to end their
marriage to him. Thirdly, defendant never denied stabbing his
first wife or shooting his second wife for those reasons.
Therefore, we hold that “circumstances prevented the defendant from
carrying out his plan [and intent to keep his wives from divorcing
him] for an extended period of time, however once the opportunity
[or necessity] presented itself, defendant resumed [his initial
intent].” Id. at 612, 439 S.E.2d at 815. We then hold the trial
court committed no error in admitting the evidence.
[5]Defendant's final assignment of error regarding his motion
for appropriate relief which states “that his arrest is illegal and
he received ineffective assistance of counsel,” is not properly
before this Court. There is no order in the record from which to
appeal. N.C.R. App. P. 9(a) (review is solely upon the record on
appeal). Therefore, we do not address it.
Based on the foregoing, we reverse the trial court's judgment
regarding defendant's convictions of a second assault (case no.96CRS39268), and the accompanying kidnapping for the purpose of
facilitating the commission of a felony (case no. 96CRS39800). We
further find no error in defendant's conviction of the first
assault (case no. 96CRS39269).
Reversed in part, no error in part.
Judges WYNN and MARTIN concur.
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