Appeal by defendant from judgment dated 30 April 1999 by Judge
Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in
the Court of Appeals 19 September 2000.
Attorney General Michael F. Easley, by Assistant Attorney
General Sarah Ann Lannom, for the State.
Bowen & Berry, PLLC, by Sue A. Berry, for defendant-appellant.
GREENE, Judge.
Larry Chavis (Defendant) appeals from a judgment entered after
a jury rendered a verdict finding him guilty of a statutory sexual
offense and of attempted statutory rape in violation of N.C. Gen.
Stat. §§ 14-27.7A(a) and 14-27.7(a).
Pre-trial
On 24 March 1999, Defendant sought discovery from the State of
the “[m]edical and psychiatric history of [the prosecuting witness
(M.F.P.)] admissible under Rule of Evidence 611(b) to impeach the
witness'[] ability to perceive, retain, or narrate.” The trial
court ruled that the State was under “no duty to go out and find
impeaching information with regard[] to its witnesses.” The trial
court, however, did indicate it would allow Defendant to inquire
into those matters on cross-examination.
On 27 April 1999, Defendant's case was called for trial. At
that time, Defendant sought a continuance to permit him to obtain
alternate counsel.
(See footnote 1)
The case was first set for trial in July 1998,
“at which time the State was unable to proceed to trial because
[Detective Ron Simmons (Simmons)] was on vacation.” The case was
then set for the early part of 1999, but “it was a short week and
the court had other obligations.” The lawyer whom Defendant sought
to retain was not present in the courtroom and Defendant had not
made any financial arrangements to hire the new lawyer. The
prosecuting attorney indicated to the trial court that all the
State's witnesses were present in court. The trial court, afterquestioning Defendant, denied Defendant's motion to continue
because “there appear[ed] to be no conflict with regard to counsel.
That issue is just now being brought to the [trial] court's
attention immediately before the matter is to be tried. . . . The
motion is being made unduly late . . . .”
State's evidence
M.F.P. testified that during the summer of 1997, she visited
with Defendant and his wife, Betty Chavis (Chavis), while her
parents were on vacation. On 26 July 1997, Defendant, M.F.P., and
M.F.P.'s sister “went [in an automobile] to visit people
[Defendant] said were his sisters, . . . to a gas station[,] and
some club that [Defendant] wanted to go to.”
After Defendant stopped and purchased beer, he said: “Well, I
guess we'll go on home.” Defendant, however, went down “some road
where there were no [automobiles] . . . out in the sticks.” While
driving down this road, Defendant “was shaking the wheel really
bad[ly] and he told [M.F.P.] something was wrong with the
[automobile].” Defendant told M.F.P. he needed to pull over the
automobile because he was scared to drive it home and needed to
check it. Defendant got out of the automobile and began “l[]ying
on the ground [and] looking at the tires.” Defendant told M.F.P.
to get out of the automobile and to shine the light for him.
As M.F.P. was standing outside the automobile, Defendant stood
up in front of her and told her “Don't tell [Chavis].” Defendant
then pushed M.F.P. against the automobile and started touching
M.F.P. “all over [her] body.” Defendant's hands “went under
[M.F.P.'s] underwear and [she] felt his fingers or his finger goinside [her].” Defendant eventually stopped touching M.F.P.
because an automobile “started coming down the road.” When M.F.P.
got into the automobile, “[Defendant] told [M.F.P.] that he was
just playing, he just wanted to see what [M.F.P.] would do if
something like that happened[,] if someone tried to hurt [her].”
M.F.P. stated she was scratched and bruised by Defendant during the
alleged assault.
After Defendant reached his residence, M.F.P. got out of the
automobile and ran to the house of Eliza Jane Wilkins Painter
(Painter), M.F.P.'s aunt. Painter called the Sheriff's Department
and was told to bring M.F.P. to the station to speak with someone.
M.F.P. spoke with Simmons, who took her statement.
On cross-examination, M.F.P. denied being involved in a
physical fight with her brother. M.F.P. stated that after the
incident, she “was supposed to have gotten checked out but . . .
wouldn't let them”; instead, photographs of her were taken.
Although M.F.P. denied requesting a pregnancy test at the hospital
on 27 July 1997, Defendant produced medical records showing M.F.P.
had requested a pregnancy test. Defendant attempted to question
M.F.P. concerning an incident which occurred approximately two
years prior to the July 1997 incident, but the State objected. On
voir dire, Chavis testified that two years before the July 1997
incident, M.F.P. told Chavis “a man approached [M.F.P.] with a
knife and pulled her in[to] the woods and raped her.” Chavis
stated M.F.P. made no request to get a medical exam, but did ask
Chavis to go with her to get a pregnancy test. Because M.F.P.
requested a pregnancy test at the hospital after the July 1997event, Defendant sought to introduce the evidence of the alleged
prior sexual assault to show M.F.P.'s habit as to “when she's
concerned about whether she's pregnant or not, to report a sexual
assault, decline medical care and seek a pregnancy test.” The
trial court declined to permit Defendant to introduce evidence of
the earlier incident, finding “the two incidents . . . [occurring]
two years apart [do not constitute] a habit within the purview of
[Rule] 406.”
The State tendered Dr. Margaret Barnes (Dr. Barnes), a
licensed clinical psychologist, as an expert “in the field of
clinical psychology with a focus on behavior and treatment of post
traumatic stress disorder [PTSD] and sexual assault victims.” Dr.
Barnes received her Masters in Psychology and her Ph.D. at the
University of North Carolina at Greensboro with her primary
“specialty or practice . . . in . . . anxiety disorders, including
[PTSD].” Dr. Barnes interned for one year at High Point Mental
Health with Family and Children Services and also interned for one
year at Forsyth County Mental Health in Adult Services. Over
Defendant's objection, the trial court received Dr. Barnes “as an
expert in the field of clinical psychology.”
During Dr. Barnes' testimony, the trial court gave the
following limiting instruction:
Members of the jury, you're about to hear
evidence regarding [PTSD]. This evidence is
to be considered by you only for the purpose
of corroboration of other evidence if you find
it does so. It is not to be considered by you
as substantive evidence. That is, it may not
be considered by you as proof of any fact in
issue.
M.F.P. first came to see Dr. Barnes on 28 August 1997. Overthe noted objection of Defendant, Dr. Barnes testified
she
diagnosed M.F.P. with PTSD. M.F.P.'s symptoms included “having a
lot of flashbacks[,] . . . going into the shower and scrubbing
herself raw[,] . . . [and] difficulty sleeping.” Dr. Barnes was
asked by the State if M.F.P. had described to her any recent event
that might have constituted a “triggering event” for the PTSD. Dr.
Barnes responded in pertinent part: “[M.F.P.] indicated that on
July 26 of [1997], she was with the alleged perpetrator. . . .
[M.F.P.'s] sister was in the [automobile] . . . and saw [the] whole
thing happen.”
M.F.P.'s brother testified he and M.F.P. had a disagreement on
26 July 1997, prior to Defendant and M.F.P. leaving to visit
Chavis. M.F.P.'s brother denied the disagreement escalated to a
physical altercation.
The State also introduced evidence by D.H., who relayed an
event that occurred between her and Defendant on 23 December 1990.
This event resulted in Defendant being convicted in January 1991 of
assault and sentenced to a fifteen-year active sentence, of which
he served approximately six years. This evidence was offered
pursuant to Rule 404(b) to show Defendant's intent and common
scheme. Over Defendant's objection, the trial court accepted the
evidence under Rule 404(b) and allowed D.H. to testify about the 23
December 1990 assault, finding the following similarities between
the 1990 assault and the 1997 alleged assault: the ages of the
alleged victims were similar; the facts were similar; it appeared
Defendant had been drinking; the victims visited various residences
or places in which they were not familiar; the incidents occurredat night; the victims were taken by automobile to isolated areas;
the sexual assaults occurred in isolated areas; Defendant told the
victims something was wrong with the automobile; and once Defendant
had the victims outside of the automobile, he proceeded to sexually
assault them. The trial court then ruled, pursuant to Rule 403,
that “the probative value outweighs any prejudicial effect of the
conviction” and gave the following limiting instruction with
respect to D.H.'s testimony:
This evidence is being received for the
purpose of showing that . . . Defendant had
intent, which is a necessary element of the
crime charged in this case, and that there
existed in the mind of . . . Defendant a plan,
scheme or system or design involving the crime
charged in this case. If you believe this
evidence which is being offered, you may
consider it but only for the limited purposes
for which it is being received.
During the course of the trial, it was brought to the trial
court's attention that Juror No. 5 [the Juror] attempted to have
contact with the prosecuting attorney in this case, despite the
trial court's admonishments the jury “have no contact with the
participants.” The Juror sought to speak with the prosecuting
attorney concerning a witness present in the courtroom he “thought
[he] knew.” The prosecuting attorney refused to speak with the
Juror and he was told “[y]ou're a juror. [The prosecuting
attorney] can't speak with you.” After being told this, the Juror
left and raised his concerns with the bailiff. The trial court
conducted a
voir dire examination and refused to remove the Juror,
finding “[t]here appears to be nothing that would in any way affect
[the Juror's] ability to proceed as originally announced during thejury selection process and be a fair and impartial juror.”
The State also called Simmons, who testified concerning his
investigation of the July 1997 incident and M.F.P.'s version of
what happened. On cross-examination, Defendant attempted to have
Simmons read, to the jury, Defendant's statement given to Simmons
shortly after the incident, and the State objected. The trial
court sustained the State's objection on the ground it was
inadmissible hearsay. On re-direct, Simmons was permitted to
testify, over Defendant's objection, he obtained the arrest
warrants after speaking with Defendant. On re-cross, Defendant
again attempted to have Simmons read Defendant's statement because,
Defendant argued, the State's inquiry as to when Simmons obtained
the warrants made it “appear to the jury that [Simmons] got them in
response to something [Defendant] said.” The trial court again
ruled Defendant's statement was inadmissible. Defendant then asked
Simmons if the warrants in this case were obtained “despite what
[Defendant] had told [Simmons].” The trial court sustained the
State's objection to this question.
Defendant's evidence
Chavis testified that during M.F.P.'s visit, M.F.P. asked for
directions so her boyfriend could visit. Defendant refused to let
M.F.P.'s boyfriend visit and M.F.P. responded, “'If it's the last
thing I do, I'll fix you, you S.O.B.'” During M.F.P.'s visit,
Chavis saw M.F.P. with marijuana and asked her not to use the
substance while in her home.
Katrina Campbell (Campbell), Chavis's sister, testified that
on 26 July 1997, she observed M.F.P. and M.F.P.'s brother “[f]istfighting and cussing.” Campbell testified M.F.P.'s brother
7;had
been scratching [M.F.P.] up, [and] [M.F.P.] had scratched him back
and was hitting him.” After the altercation, M.F.P. “had scratches
on her face, her arms, and her legs . . . and bruises.” Martin
Campbell, Campbell's husband, also stated M.F.P. had scratches on
her after a fight with her brother. Painter testified M.F.P. was
doing drugs and she observed the fight between M.F.P. and her
brother. Painter, who also was present during M.F.P.'s visit to
the hospital, heard M.F.P. state “she wanted to get a pregnancy
test.” On cross-examination, Painter verified M.F.P.'s version of
the events at trial was the same as the version given by M.F.P. to
Painter on 27 July 1997.
Sentencing
During the sentencing phase of Defendant's trial, Defendant
argued mitigating factors were shown at trial and included:
Defendant supports his family; Defendant has a support system in
the community; and Defendant is gainfully employed. The trial
court declined to make any written findings and sentenced Defendant
within the “presumptive range.”
____________________________
The issues are whether: (I) the State is under an obligation
to provide Defendant with medical and psychiatric history of a
witness, when that history is not in its possession; (II) Defendant
was entitled to a continuance for purposes of obtaining counsel of
his choice; (III) two incidents occurring approximately two years
apart constitute habit, within the meaning of Rule 406; (IV)
evidence of Defendant's 1990 assault of D.H. was properly admittedunder Rule 404(b) to prove intent and/or common scheme; (V) Dr.
Barnes was properly received as an expert in clinical psychology;
(VI) it was proper to allow Dr. Barnes to testify that M.F.P. was
suffering from PTSD as a result of the 26 July 1997 incident, and
if not, whether the erroneous admission of the testimony resulted
in prejudicial error; (VII) a juror must be removed for failing to
abide by the trial court's instructions; (VIII) Defendant should
have been allowed to cross-examine Simmons concerning Defendant's
statement to Simmons; and (IX) the trial court erred in sentencing
Defendant within the presumptive range.
I
[1]A defendant is constitutionally entitled to all
exculpatory evidence, including impeachment evidence, in the
possession of the State.
State v. Soyars, 332 N.C. 47, 63, 418
S.E.2d 480, 490 (1992). The State, however, is under a duty to
disclose only those matters in its possession and “is not required
to conduct an independent investigation” to locate evidence
favorable to a defendant.
State v. Smith, 337 N.C. 658, 664, 447
S.E.2d 376, 379 (1994).
In this case, Defendant presented no evidence the State
actually had M.F.P.'s medical and psychiatric history in its
possession or that such history would have been favorable to
Defendant. Accordingly, the State was under no obligation to
obtain and disclose this information to Defendant.
II
[2]A motion to continue based on a defendant's request to
obtain private counsel raises a constitutional question and is thusfully reviewable by the appellate court.
State v. Searles, 304
N.C. 149, 153, 282 S.E.2d 430, 433 (1981);
State v. Little, 56 N.C.
App. 765, 768, 290 S.E.2d 393, 395,
appeal dismissed, 306 N.C. 390,
294 S.E.2d 217 (1982). The right to retain private counsel is not
absolute and is balanced against “the need for speedy disposition
of the criminal charges and the orderly administration of the
judicial process.”
State v. Foster, 105 N.C. App. 581, 584, 414
S.E.2d 91, 92 (1992).
In this case, Defendant's motion was made on the morning the
trial was set to begin on the basis Defendant wanted to employ
private counsel. The private counsel Defendant indicated he wanted
to employ was not in the courtroom at the time the motion was made
and there was no evidence Defendant had made financial arrangements
with this or any other private attorney. The record shows all the
State's witnesses were in the courtroom and Defendant did not point
to any conflict he had with his appointed attorney. Finally, this
case had been rescheduled twice due to various conflicts.
On this record, the trial court did not err in denying
Defendant's motion to continue.
III
[3]Evidence of a person's habit, “whether corroborated or not
and regardless of the presence of eyewitnesses, is relevant to
prove that the conduct of the person . . . on a particular occasion
was in conformity with the habit.” N.C.G.S. § 8C-1, Rule 406
(1999). In deciding whether specific instances constitute habit,
the trial court should consider: the number of instances, whetherthe instances are similar, and the regularity of the instances.
Crawford v. Fayez, 112 N.C. App. 328, 335, 435 S.E.2d 545, 550
(1993),
disc. review denied, 335 N.C. 553, 441 S.E.2d 113 (1994).
Whether instances constitute habit “is a question to be decided on
a case-by-case basis, and the trial court's rulings thereon will
not be disturbed absent an abuse of discretion.”
Id. (citing
N.C.G.S. § 8C-1, Rule 104 (1992)).
In this case, Defendant sought to examine M.F.P. about a 1995
alleged assault which Defendant contends M.F.P. reported for the
sole purpose of obtaining a pregnancy test. It is Defendant's
contention in this case that he did not assault M.F.P. and she
claimed an assault only for the purpose of obtaining a pregnancy
test. The trial court denied admissibility of this evidence
because it believed the “two incidents” occurring “two years apart”
were not sufficient to constitute a habit within the meaning of
Rule 406. We cannot hold this constitutes an abuse of discretion.
IV
A
Relevancy
[4]“Evidence of other 'crimes, wrongs or acts' [is] not
admissible to 'show that the defendant has the propensity or
disposition to commit an offense [of] the nature of the crime
charged.'”
State v. Elliott, 137 N.C. App. 282, 285, 528 S.E.2d
32, 35 (quoting
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990)),
reversed on other grounds, --- N.C. ---, 535 S.E.2d
32 (2000); N.C.G.S. § 8C-1, Rule 404(b) (1999). This evidence,however, may be admissible if it is relevant for some other
purpose. N.C.G.S. § 8C-1, Rule 404(b);
State v. Bagley, 321 N.C.
201, 206, 362 S.E.2d 244, 247 (1987),
cert. denied, 485 U.S. 1036,
99 L. Ed. 2d 912 (1988). “The evidence is relevant for some other
purpose if it 'tends to prove a material fact in issue in the crime
charged.'”
Elliott, 137 N.C. App. at 285, 528 S.E.2d at 35
(quoting
State v. Johnson, 317 N.C. 417, 425, 347 S.E.2d 7, 12
(1986)). In making this evaluation, the trial court must reject
the relevancy of the evidence if it “does not clearly perceive the
connection between the extraneous criminal transaction and the
crime charged.”
Id. at 286, 528 S.E.2d at 35 (citations omitted).
Common scheme
The trial court admitted evidence of the 1990 assault for the
purpose of proving plan, scheme, system or design. Evidence of
other crimes is material and, therefore, relevant if it “tends to
establish a . . . scheme embracing the commission of a series of
crimes so related to each other that proof of one or more tends to
prove the crime charged and to connect the accused with its
commission.”
State v. Bean, 55 N.C. App. 247, 249, 284 S.E.2d 760,
761 (1981),
disc. review denied, 305 N.C. 303, 290 S.E.2d 704
(1982). The crimes are related if they are sufficiently similar
and not too remote in time.
See State v. McKinney, 110 N.C. App.
365, 372, 430 S.E.2d 300, 304,
appeal dismissed, disc. review
denied, and cert. denied, 334 N.C. 437, 433 S.E.2d 182 (1993).
In this case, the 1990 assault and the current charges aresimilar in nature. In both instances the victims, simila
r in age,
visited various residences or places in which they were unfamiliar
and then were taken by automobile to isolated areas at night.
During both instances, Defendant told the victims something was
wrong with the automobile, asked the victims to get out of the
automobile, and then proceeded to sexually assault them.
Likewise, the 1990 assault and the current charges are not too
remote in time. Although approximately seven years elapsed between
the 1990 assault and the current charges, some six of those years
Defendant was in prison and those six years are not to be
considered in evaluating remoteness.
See State v. Davis, 101 N.C.
App. 12, 20-21, 398 S.E.2d 645, 650 (1990),
appeal dismissed and
disc. review denied, 328 N.C. 574, 403 S.E.2d 516 (1991).
Accordingly, the 1990 assault was relevant evidence and was
properly admitted under Rule 404(b) to show common scheme.
Intent
The trial court also admitted evidence of Defendant's
previous assault on D.H. to show Defendant's intent to commit a
statutory sexual offense and an attempted statutory rape. Intent
is not an element of statutory sexual offense and statutory rape.
State v. Murry, 277 N.C. 197, 203, 176 S.E.2d 738, 742 (1970).
Intent is an element of an attempt to commit a crime.
State v.
Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000). Assuming the
existence of a crime of attempted statutory rape,
see id. at 451,
527 S.E.2d at 48 (logically impossible “for a person to
specifically intend to commit a form of murder which does not have,as an element, specific intent to kill”), an issue not argued by
Defendant in this case, the evidence of the 1990 assault was
relevant and thus admissible to prove intent under Rule 404(b). It
was not relevant and thus not admissible to prove intent to commit
statutory sexual offense. The improper admission of this evidence,
however, did not prejudice Defendant because it was properly
admitted to show common scheme.
See State v. Haskins, 104 N.C.
App. 675, 683, 411 S.E.2d 376, 382 (1991) (“no prejudicial error
where at least one of the two purposes for which the prior act
evidence was admitted was correct”),
disc. review denied, 331 N.C.
287, 417 S.E.2d 256 (1992).
B
Unfair prejudice
Although we have determined the 1990 assault is relevant for
some purpose(s) under 404(b), it may nevertheless be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice.
State v. Wallace, 104 N.C. App. 498, 503, 410
S.E.2d 226, 229 (1991) (citing N.C.G.S. § 8C-1, Rule 403 (1988)),
disc. review denied, 331 N.C. 290, 416 S.E.2d 398,
cert. denied,
506 U.S. 915, 121 L. Ed. 2d 241 (1992). The question of whether
evidence is unfairly prejudicial “is a matter left to the sound
discretion of the trial court.”
Haskins, 104 N.C. App. at 680, 411
S.E.2d at 381.
In this case, the trial court admitted the evidence of
Defendant's 1990 assault of D.H. for the limited purposes of
proving a common scheme and Defendant's intent. In admitting theevidence, the trial court found the probative value of the
testimony outweighed any prejudicial effect of the conviction. We
cannot hold this constitutes an abuse of discretion.
See State v.
Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (“[i]n light
of the limiting instruction, the probative value of [the prior bad
act evidence] was not substantially outweighed by its prejudicial
impact”),
cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997).
V
[5]A witness may be “qualified as an expert by knowledge,
skill, experience, training, or education,” and may testify in the
form of an opinion “[i]f scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue.” N.C.G.S. § 8C-1, Rule 702(a)
(1999). To qualify as an expert, the witness need only be “better
qualified than the jury as to the subject at hand.”
State v.
Davis, 106 N.C. App. 596, 601, 418 S.E.2d 263, 267 (1992)
(citations omitted),
disc. review denied, 333 N.C. 347, 426 S.E.2d
710 (1993). Whether a witness qualifies as an expert is
“exclusively within the trial judge's discretion,” and should “'not
be reversed on appeal absent a complete lack of evidence to support
his ruling.'”
Id. (quoting
State v. Howard, 78 N.C. App. 262, 270,
337 S.E.2d 598, 603 (1985),
appeal dismissed and disc. review
denied, 316 N.C. 198, 341 S.E.2d 581 (1986)).
The evidence shows Dr. Barnes has her masters in psychology,
has a Ph.D., and is a licensed clinical psychologist whospecializes in anxiety disorders, including PTSD. Given Dr.
Barnes' education and extensive experience, she was well qualified
to testify as an expert, and her testimony was properly admitted as
expert testimony. Accordingly, the trial court did not abuse its
discretion in qualifying Dr. Barnes as an expert and the record
supports this ruling.
VI
[6]Evidence from an expert that a prosecuting witness is
suffering from PTSD is admissible, for corroborative purposes,
State v. Hall, 330 N.C. 808, 821, 412 S.E.2d 883, 890 (1992), to
assist the jury in understanding the behavioral patterns of sexual
assault victims,
id. at 822, 412 S.E.2d at 891;
State v. Huang, 99
N.C. App. 658, 664, 394 S.E.2d 279, 283,
disc. review denied, 327
N.C. 639, 399 S.E.2d 127 (1990). The expert witness may not,
however, explicitly or implicitly indicate the PTSD was caused or
contributed to by the actions of the defendant that are the subject
of the trial.
State v. Hensley, 120 N.C. App. 313, 319, 462 S.E.2d
550, 553-54 (1995). On this factual question, whether a defendant
actually committed the act with which he is charged, the expert is
“in no better position to have an opinion than the jury.”
State v.
Wilkerson, 295 N.C. 559, 570, 247 S.E.2d 905, 911 (1978).
In this case, the trial court allowed Dr. Barnes to testify as
to M.F.P.'s PTSD. As the trial court instructed the jury to
consider this evidence only for corroborative purposes, the
evidence was properly admitted to assist the jury in evaluating the
credibility of M.F.P.'s testimony. It was error, however, for thetrial court to permit Dr. Barnes to testify that the 26 July 1997
assault by Defendant was the “triggering event” of the PTSD. This
testimony directly implicated Defendant as the person who sexually
assaulted M.F.P. and was thus not admissible, either as substantive
or corroborative evidence.
Prejudicial error
Defendant argues admission of Dr. Barnes' testimony concerning
the triggering event was prejudicial error because of conflicting
evidence at trial. We disagree.
The erroneous admission of evidence requires a new trial only
when the error is prejudicial.
State v. Locklear, 349 N.C. 118,
149, 505 S.E.2d 277, 295 (1998),
cert. denied, 526 U.S. 1075, 143
L. Ed. 2d 559 (1999). To show prejudicial error, a defendant has
the burden of showing that “there was a reasonable possibility that
a different result would have been reached at trial if such error
had not occurred.”
Id.; N.C.G.S. § 15A-1443(a) (1999).
In this case, M.F.P. testified about the alleged sexual
assault in detail and Defendant's alleged assault of M.F.P. is very
similar to Defendant's assault of D.H. M.F.P. gave the same
account at trial she had previously given to Painter and Simmons.
In addition, there was physical evidence of scratches and bruises
on M.F.P, consistent with M.F.P.'s testimony. Although there is
some evidence these scratches and bruises came from an altercation
with M.F.P.'s brother, the brother denies any altercation. This
limited conflict in the evidence is not sufficient to support a
reasonable possibility a different result would have been reachedat trial if Dr. Barnes had not been allowed to testify about the
triggering event of M.F.P.'s PTSD. The admission of this
testimony, therefore, was not prejudicial error.
VII
[7]The trial court, in its discretion, determines whether
juror misconduct has occurred and if so, whether the defendant was
prejudiced as a result of such conduct.
See State v. Williams, 330
N.C. 579, 583, 411 S.E.2d 814, 817 (1992). Absent a clear abuse of
discretion, the trial court's ruling on juror misconduct will not
be disturbed on appeal.
See State v. Sneeden, 274 N.C. 498, 504,
164 S.E.2d 190, 194-95 (1968).
In this case, the Juror sought to speak with the prosecuting
attorney concerning the Juror's possible familiarity with one of
Defendant's witnesses. The trial court conducted a
voir dire
examination of the Juror to determine if there had been any
prejudice to Defendant. Defendant has not shown how he was
prejudiced by the Juror's conduct or that the Juror's ability to
remain impartial was impacted.
(See footnote 2)
Accordingly, the trial court did not abuse its discretion in
denying Defendant's motion to remove the Juror.
VIII
[8]Defendant contends the trial court committed reversible
error in not permitting Simmons to disclose to the jury the
contents of the statement Defendant made to Simmons. Simmons
testified he obtained the warrant against Defendant immediately
after talking with Defendant and Defendant wanted the jury to know
that there was nothing in Defendant's statement that would support
the warrant.
The trial court rejected Defendant's request on the ground the
statement was inadmissible hearsay. We disagree. A statement made
by a defendant to another person is not hearsay and is admissible
when the statement explains the subsequent conduct of the person to
whom the statement was made.
Coffey, 326 N.C. at 282, 389 S.E.2d
at 56; N.C.G.S. § 8C-1, Rule 801(c) (1999).
In this case, Defendant sought to disclose his statement to
Simmons in an effort to place some context on or explain why
Simmons subsequently sought a warrant for Defendant's arrest.
Thus, Defendant's written statement to Simmons was not hearsay and
the trial court erred in denying Defendant's request. Not every
error, however, mandates a new trial,
Locklear, 349 N.C. at 149,
505 S.E.2d at 295, and in this case there is no reasonable
possibility, for the reasons previously given (in our discussion of
prejudicial error in the context of Dr. Barnes' testimony), a
different result would have been reached at trial if Simmons had
been permitted to read Defendant's statement to the jury.
IX
[9]Defendant finally contends the trial court abused its
discretion in failing to impose a sentence less than thepresumptive range, on the grounds of undisputed evidence in
mitigation. We disagree. This Court has held the trial court is
required to take “into account factors in aggravation and
mitigation
only when deviating from the presumptive range in
sentencing.”
State v. Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d
282, 283 (1997) (emphasis in original). As the trial court imposed
the presumptive sentence in this case, it was not required to take
into account any evidence offered in mitigation.
No error.
(See footnote 3)
Judges MARTIN and EDMUNDS concur.
Footnote: 1