STATE OF NORTH CAROLINA
v. Lincoln County
Nos. 00 CRS 692
DAVID LYNN PECHE 00 CRS 693
Attorney General Roy Cooper, by Assistant Attorney General E.
Burke Haywood, for the State.
David A. Phillips for defendant-appellant.
THOMAS, Judge.
Defendant, David Lynne Peche, appeals convictions of
felonious breaking and entering and assault with a deadly weapon
with intent to kill inflicting serious injury. For the reasons
discussed herein, we find no error.
The State's evidence tends to show the following: Defendant
broke into the residence of his estranged wife on the evening of 9
February 2000. After gaining entrance into the residence,
defendant attempted to embrace Ms. Peche. When she rebuffed his
advances, defendant stabbed Ms. Peche in the hand, head and arm
with a knife, which resulted in serious injuries. He then fled and
Ms. Peche called for assistance.
Defendant presented the testimony of his father, RichardPeche, Sr., that his son and Ms. Peche had been separated since
April 1999. He was unaware of any contact between the two since
May 1999.
A jury subsequently found defendant guilty, and the trial
court sentenced him to consecutive sentences of 20-24 months
imprisonment for the breaking and entering conviction and 168-211
months imprisonment for the assault with a deadly weapon with
intent to kill inflicting serious injury conviction. Defendant
appeals.
By his first assignment of error, defendant argues that the
trial court committed reversible error in admitting a tape
recording of the assault in violation of N.C. R. Evid. 403. We
disagree.
Rule 403 provides for the exclusion of otherwise relevant
evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time or
needless presentation of cumulative evidence.” N.C. R. Evid. 403
(2001). Our Supreme Court elucidated in State v. Mercer that:
Rule 403 calls for a balancing of the
proffered evidence's probative value against
its prejudicial effect. Necessarily, evidence
which is probative in the State's case will
have a prejudicial effect on the defendant;
the question, then, is one of degree. The
relevant evidence is properly admissible under
Rule 402 unless the judge determines that it
must be excluded, for instance, because of the
risk of “unfair prejudice.”
State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986).
“The responsibility to determine whether the probative value ofrelevant evidence is outweighed by its tendency to prejudice the
defendant is left to the sound discretion of the trial court.”
State v. Alston, 341 N.C. 198, 231, 461 S.E.2d 687, 704 (1995),
cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996). The trial
court's decision to admit evidence after a Rule 403 analysis is
reviewable only upon a showing of an abuse of discretion, i.e.,
that the court's ruling was “'manifestly unsupported by reason or
[was] so arbitrary it could not have been the result of a reasoned
decision.'” State v. Thibodeaux, 352 N.C. 570, 579, 532 S.E.2d 797,
804-05 (2000), cert. denied, 531 U.S. 1155, 148 L. Ed. 2d 976
(2001) (quoting State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d
118, 133, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993),
reh'g denied, 510 U.S. 1066, 126 L. Ed. 2d 707 (1994)).
In the present case, the State presented the testimony of the
victim, defendant's estranged wife, as to the events which
transpired on the evening in question. Ms. Peche testified that
she had recorded the events of the evening, and over defendant's
objection, the court permitted the State to admit into evidence the
audio recording. Defendant did not present any evidence which
tended to rebut the State's evidence and the admission of said
recording does not constitute a manifest abuse of discretion. We
thus reject this argument.
By his second assignment of error, defendant argues that the
trial court erred in admitting evidence regarding a prior incident
of domestic violence against Ms. Peche, in violation of N.C. R.
Evid. 404(b). We disagree. Rule 404(b) governs the admission of evidence regarding
specific acts of misconduct by a defendant. It provides:
(b) Other crimes, wrongs, or acts.--Evidence
of other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake,
entrapment or accident.
N.C. R. Evid. 404(b) (2001). It is well settled that “Rule 404(b)
is a general rule of inclusion of relevant evidence of other crimes
or wrongs committed by a defendant and is subject to but one
exception which requires exclusion of such evidence only if offered
to show that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.” Alston, 341
N.C. at 228-29, 461 S.E.2d at 703. Significantly, “[our Supreme]
Court has repeatedly held that a defendant's prior assaults on the
victim, for whose murder defendant is presently being tried, are
admissible for the purpose of showing malice, premeditation,
deliberation, intent or ill will against the victim.” Id. at 229,
461 S.E.2d at 703. Remoteness in time generally goes to the weight
of the evidence. State v. Wilds, 133 N.C. App. 195, 202, 515
S.E.2d 466, 473 (1999).
The State presented evidence that on 4 April 1999, some ten
months prior to the events of this case, defendant traveled to Ms.
Peche's residence and began to argue with her. Defendant also
threw a pot of boiling water at her, threatening, “'If I wasn't on
probation, I'd beat the hell out of you' . ., 'I'd tear your carup[.]'” The State offered this evidence “to demonstrate intent or
motive or ill will toward the victim.”
We conclude that the trial court properly admitted the
evidence under Rule 404(b). While it is true, as defendant argues,
that Rule 404(b) evidence is subject to Rule 403's balancing test,
the evidence of the prior assault was sufficiently similar and not
too remote in time to prohibit its admission under the balancing
test of Rule 403. State v. Moseley, 338 N.C. 1, 43, 449 S.E.2d
412, 437 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738
(1995). (“It is not necessary that the similarities between the two
situations 'rise to the level of the unique and bizarre.' Rather,
the similarities must tend to support a reasonable inference that
the same person committed both the earlier and later acts.”);
Wilds, 133 N.C. App. at 202, 515 S.E.2d at 473 (“Remoteness in time
may be significant when the evidence of the prior crime is
introduced to show that both crimes arose out of a common scheme or
plan. However, remoteness is less significant when the prior crime
is introduced to show intent, motive, knowledge, or lack of
accident.”). We thus reject this argument.
By his third and fourth assignments of error, defendant argues
that the State did not present sufficient evidence of his intent to
kill to submit the assault charge to the jury. He also contends
that the State did not present sufficient evidence of his intent to
commit a felony or larceny when he broke and entered the residence
of Ms. Peche, so as to submit the breaking and entering charge to
the jury. We disagree. To obtain a conviction for assault with a deadly weapon with
intent to kill inflicting serious injury, the State must present
substantial evidence of each of the following: "(1) an assault; (2)
with a deadly weapon; (3) with intent to kill; and (4) inflicting
serious injury not resulting in death.” State v. Grigsby, 351 N.C.
454, 456, 526 S.E.2d 460, 462 (2000). The State properly obtains
a conviction for the offense of felonious breaking and entering
upon a showing of substantial evidence that there was (a) a
breaking and entering (b) of any building (c) with the intent to
commit a felony or larceny therein. State v. Sluka, 107 N.C. App.
200, 204, 419 S.E.2d 200, 202 (1992). Substantial evidence has
been defined as that amount of relevant evidence a reasonable mind
might accept as adequate to support a conclusion. Grigsby, 351 N.C.
at 456, 526 S.E.2d at 462. If the trial court determines that the
evidence, when viewed in the light most favorable to the State,
permits a reasonable inference of the defendant's guilt, the court
must deny the defendant's motion to dismiss and send the case to
the jury although the evidence also supports reasonable inferences
of the defendant's innocence. State v. Alexander, 337 N.C. 182,
187, 446 S.E.2d 83, 86 (1994).
Concerning the assault charge, defendant only disputes the
sufficiency of the evidence as to the intent to kill element. The
North Carolina Supreme Court recently reiterated, “[a]n intent to
kill is a mental attitude, and ordinarily it must be proved, if
proven at all, by circumstantial evidence, that is, by proving
facts from which the fact sought to be proven may be reasonablyinferred." Grigsby, 351 N.C. at 457, 526 S.E2.d at 462 (quoting
State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956)).
“'Defendant's intent to kill may be inferred from the nature of the
assault, the manner in which it was made, the conduct of the
parties and other relevant circumstances.'” State v. Washington,
142 N.C. App. 657, 661, 544 S.E.2d 249, 252 (2001) (quoting State
v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988)).
In the case sub judice, the State presented evidence, through
the testimony of Ms. Peche, that defendant broke into her home on
9 February 2000, and that after she rebuffed his sexual advances,
he repeatedly stabbed her with a knife. Defendant first stabbed
Ms. Peche in the hand when she attempted to protect her face. That
wound extended some three and one-half inches from knuckle to
wrists, and was deep enough to sever the tendons and leaders in Ms.
Peche's hand. The wound to the hand prevented her from using her
hand for three months, and required further plastic surgery to
repair the damage. The second stab wound was to her mouth, which
split her lip. It required extensive stitches and also
necessitated plastic surgery. Defendant next stabbed Ms. Peche in
the temple area. It also required stitches and left her in severe
pain for an extended period of time. The final stab wound was to
her arm.
The unprovoked, vicious knife attack on Ms. Peche would
clearly permit a reasonable fact finder to infer that defendant had
the requisite intent to kill so as to support a conviction for
assault with a deadly weapon with intent to kill inflicting seriousinjury. The trial court did not err in denying defendant's motion
to dismiss this charge.
Defendant also disputes the sufficiency of the evidence as to
the intent to commit a felony element of the felony breaking and
entering charge. In State v. Williams, 330 N.C. 579, 411 S.E.2d
814 (1992), the Supreme Court explained, “[t]he criminal intent of
the defendant at the time of breaking or entering may be inferred
from the acts he committed subsequent to his breaking or entering
the building. In other words, the jury may find the defendant's
intent at the time of the breaking or entering from his subsequent
acts.” Id. at 585, 411 S.E.2d at 818 (citations omitted).
The evidence tends to show that after breaking into Ms.
Peche's home, defendant repeatedly stabbed her and left her lying
in a pool of blood. In accordance with the decision in Williams,
this evidence was sufficient to show that defendant intended to
commit a felony at the time of entering her home. Consequently,
the trial court did not err in denying defendant's motion to
dismiss the charge of felonious breaking and entering. Defendant's
third and fourth arguments are rejected.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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