STATE OF NORTH CAROLINA
v. Wayne County
Nos. 99 CRS 55272
CHARLES DUNN 00 CRS 1312
Attorney General Roy Cooper, by Assistant Attorney General C.
Norman Young, Jr., for the State.
MacQueen & Turnage, LLP, by Kevin F. MacQueen, for defendant-
appellant.
WALKER, Judge.
Defendant was charged with attempted second degree rape, two
counts of attempted second degree sexual offense, second degree
sexual offense, and second degree kidnapping. The State's evidence
tended to show that, on 25 November 1999, the victim accompanied
her Aunt Mary to a party at the apartment of Mamie Dixon (Aunt
Mamie). Aunt Mary lived in the 1500 building of Courtyard
Apartments and Aunt Mamie lived in the 1800 building. After
consuming about a pint of an alcoholic beverage, the victim went to
a party located upstairs from Aunt Mamie's apartment. At the
party, the victim danced with defendant, who she knew as her Aunt
Mamie's boyfriend. When the victim returned to Aunt Mamie'sapartment, she became sick from the alcohol. Aunt Mary argued with
the victim about her drinking. As the victim and Aunt Mary started
walking back to Aunt Mary's apartment, the victim vomited in the
parking lot and the two women continued to argue. Aunt Mary went
to talk to someone while the victim sat with a woman named Kendra
and her boyfriend on the steps of the 1200 building.
Defendant joined the victim on the steps. After defendant
advised the victim to reconcile with her Aunt Mary, the victim and
defendant walked to Aunt Mary's apartment. No one answered Aunt
Mary's door, so they walked back outside. Upon seeing Aunt Mamie,
Kendra and Aunt Mary at the 1200 building, defendant suggested to
the victim that they keep walking to make Aunt Mamie jealous.
As the two reached the breezeway of the 1100 building,
defendant pushed the victim against the wall and tried to pull up
her dress. Defendant forced the victim onto the ground and removed
her underwear. The victim started to cry and told defendant to
stop. Defendant then inserted his fingers into the victim's
vagina. He attempted to force the victim to perform fellatio on
him. Defendant stopped when a man came down the steps of the
building holding a phone in his hand. Defendant represented to
the man that the victim was his girlfriend and led her away from
the breezeway. Aunt Mamie saw defendant and the victim and called
to the victim. The victim, who was crying, ran to Aunt Mamie.
Defendant then ran around the side of the building where a “bunch
of people jumped on him.” Meanwhile, Officer Brandon Harris of the Goldsboro Police
Department took a 911 call from a male who subsequently hung up on
him. After two attempts to call him back, Officer Harris spoke to
the male. Officer Harris testified that the male told him that a
female was being raped around the 1000 building of Courtyard
Apartments and that the suspect walked the female off toward the
1200 or 1300 building. Officer Harris further testified that he
received another 911 call from a female who stated that another
female had been raped and that the suspect was being beaten up by
several people. Over defendant's objection, a portion of the 911
tape was admitted into evidence.
Sergeant Michael West of the Goldsboro Police Department
subsequently received a call from dispatch requesting that he back
up a primary unit en route to a possible sexual assault at the
Courtyard Apartments. Upon his arrival, Sergeant West saw a group
of about twenty people in the vicinity of the 1600 building.
Sergeant West began his search for the victim and suspect at the
1100 building. He eventually found the victim, whose hair and
clothes were “messed up.” Sergeant West stayed with her until
another patrol car arrived. After he located the defendant at the
1800 building, Sergeant West transported the victim to the police
station.
Officers Wayne Cannucci and Denise Salo took defendant into
custody. Officer Salo advised defendant of his Miranda rights at
the police station. Defendant waived his rights and made a written
statement. Defendant stated that, while he and the victim werewalking in the breezeway, he “started to want to have sex with
her.” He further stated that, while he kissed the victim and
touched her breasts, he did not have sex with the victim. The
trial court admitted defendant's pre-trial statement into evidence
over defendant's objection.
At the close of the State's evidence, defendant moved to
dismiss. The trial court allowed the motion as to the second
degree kidnapping charge and one attempted second degree sexual
offense charge. Defendant did not present any evidence. A jury
found defendant guilty of attempted second degree sexual offense.
Defendant admitted to being an habitual felon. The trial court
sentenced defendant to 80 to 105 months in prison. Defendant
appeals.
In his first two arguments, defendant contends the trial court
erred in admitting into evidence the audio tape of the 911 calls
and defendant's pre-trial statement. Defendant argues that the
prejudicial effect of the tape and pre-trial statement outweighed
their probative value under Rule 403 of the North Carolina Rules of
Evidence.
Under N.C. Gen. Stat. § 8C-1, Rule 403 (2001), “evidence may
be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.” The decision to exclude evidence
under Rule 403 is left to the sound discretion of the trial court,
and its decision in this respect will not be overturned absent a
manifest abuse of that discretion. State v. Cagle, 346 N.C. 497,
506-07, 488 S.E.2d 535, 542, cert. denied, 522 U.S. 1032, 139 L.Ed. 2d 614 (1997). An abuse of discretion occurs only where a
trial court's ruling is neither supported by reason nor is the
result of a reasoned decision. State v. Riddick, 315 N.C. 749,
756, 340 S.E.2d 55, 59 (1986).
Here, defendant has not shown that the trial court abused its
discretion in admitting the 911 tape or the pre-trial statement.
Specifically, defendant has not shown that the trial court's
decision to admit the 911 tape or the pre-trial statement was not
the result of a “reasoned decision.” Id. Moreover, defendant has
failed to show that, had this allegedly prejudicial evidence been
excluded, a different result would have been reached at trial.
N.C. Gen. Stat. § 15A-1443. Any error by the trial court was thus
harmless. Accordingly, defendant's first two assignments of error
are overruled.
Defendant has abandoned his remaining assignment of error.
No error.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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