STATE OF NORTH CAROLINA
v. Dare County
No. 01-CRS-3061
01-CRS-3062
ROCKY LANE WILLIAMS
Attorney General Roy Cooper, by Assistant Attorney General
Kevin L. Anderson, for the State.
Alexy, Merrell, Wills & Wills, L.L.P., by James R. Wills, III,
for defendant-appellant.
McGEE, Judge.
Defendant appeals from judgments sentencing him to consecutive
terms of thirty-four to fifty months on convictions by a jury of
two counts of assault with a deadly weapon inflicting serious
injury.
The State presented evidence tending to show that on 21 May
2001, Tommy Evans and Kim Evans were married but separated. Kim
Evans was living with defendant in defendant's mobile home.
Tommy Evans testified that he saw defendant and Kim Evans at
the house of a mutual friend on 21 May 2001. Defendant told Tommy
Evans and Kim Evans to go to defendant's house and try to
reconcile. They went to defendant's house and had sexualintercourse. After falling asleep, they were awakened by the sound
of defendant returning home. Defendant went on a rampage,
repeatedly striking Kim Evans with his fists and kicking her.
Defendant hit Tommy Evans with his fists, a bar stool and a glass
jug, cutting Tommy Evans' shoulder. Defendant then suddenly left.
Tommy Evans picked up Kim Evans from the floor and the two of them
walked to his residence, where his roommate called for emergency
assistance. The two of them were taken by ambulance for medical
treatment. Tommy Evans received sutures and staples to treat
lacerations in his shoulder and back.
Kim Evans testified that she and defendant attended a party
together that evening and that she decided to return home alone.
Tommy Evans, against her wishes, followed her home and into the
bedroom. They were in the bedroom when defendant returned home.
Defendant found Tommy Evans in the bedroom with her and ordered
Tommy Evans to leave the house. The two men engaged in a scuffle.
During the scuffle she was accidentally struck by a bar stool.
Defendant then left the residence. She and Tommy Evans walked to
another house. The two of them were transported by ambulance for
medical treatment. She received treatment for a lacerated
forehead, a broken thumb, and a broken finger.
Corporal Mark Evans of the Kill Devil Hills Police Department
testified that he returned a call from defendant on 21 May 2001.
Defendant told him to get an ambulance to defendant's house because
defendant had "caught Tommy in bed with Kim and . . . he had beat
the F out of them and I needed to get an ambulance over there, thatthere was a lot of blood." Defendant also stated that he thought
they might be dead.
Detective Gene R. Johnson, Jr. of the Kill Devil Hills Police
Department testified that he reported to the Outer Banks Medical
Center on 21 May 2001 and found Tommy Evans receiving treatment for
heavy bleeding from a lacerated shoulder and Kim Evans receiving
treatment for severe head injuries. Tommy Evans told him the
following: Tommy Evans met defendant at a friend's house on 21 May
2001. Defendant encouraged Tommy Evans and Kim Evans to go to
defendant's house and reconcile for the sake of their child. Tommy
Evans and Kim Evans were in bed together when they heard defendant
come into the house. Kim Evans jumped out of bed and met defendant
in the hall outside the bedroom door. Defendant hit Kim Evans with
his fist and then he punched Tommy Evans. Defendant grabbed Tommy
Evans by the hair and pulled him into the hallway. Defendant swung
a five gallon glass jug at Tommy Evans, striking him on the back
and shoulder. The jug broke, lacerating Tommy Evans across the
upper back and shoulder. After defendant left, Tommy Evans and Kim
Evans walked to Tommy Evans' house and asked his roommate to call
for help.
Detective Johnson also testified that defendant gave him a
statement in which defendant indicated he returned home and saw Kim
Evans coming down the hall naked and then he saw Tommy Evans.
Defendant said he "got mad and lost it because they had been f-ing
in his bed." Defendant hit Tommy Evans and Kim Evans with his
fists and hit Tommy Evans with a large bottle. Defendant stoppedwhen he saw blood and realized that he might have killed them.
Defendant then left and called 911.
Defendant testified that he did not give Tommy Evans
permission to be in his house, nor did he tell Tommy Evans and Kim
Evans to go to his house and reconcile. When defendant returned
home that evening, Kim Evans met him and said she could not get
Tommy Evans to leave the house. Defendant told Tommy Evans to
leave and Tommy Evans "started giving [defendant] a lot of mouth
and all." Defendant attempted to physically remove Tommy Evans
from the house. The two of them struggled. Defendant grabbed a
bar stool away from Tommy Evans and struck him with it, knocking
him down onto some glass bottles. Defendant also accidentally
struck Kim Evans with the bar stool. When he saw Tommy Evans get
off the floor "with blood flying," he stopped fighting and decided
to get help for them.
Defendant presents three assignments of error on appeal. He
first argues the trial court erred by instructing the jury that the
deadly weapons employed by defendant were his fist and the bar
stool, when the indictment charged that the weapons were his fists
and a large broken glass bottle.
Defendant did not object to the trial court's instructions or
otherwise raise the issue at trial. In order to obtain appellate
review of this issue, he must specifically and distinctly contend
by assignment of error and argument in his brief that the alleged
instructional error amounted to plain error. State v. Nobles, 350
N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999); State v. Truesdale,340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). Defendant has
failed to do so. Defendant's first assignment of error is
therefore dismissed.
Second, he contends the trial court erred by refusing his
request for an instruction on self defense. He also contends the
court erred by failing to submit an instruction on defense of
habitation. Defendant did not request an instruction on defense of
habitation at trial. Although defendant did request an instruction
on self defense during the charge conference, he declined to object
to the instructions given by the trial court or to request
additional instructions when he was offered the opportunity by the
court at the conclusion of the jury charge. By not objecting,
defendant waived appellate review of the court's refusal to submit
instructions. State v. Gay, 334 N.C. 467, 486, 434 S.E.2d 840, 851
(1993). Again, in order to overcome the waiver of appellate
review, defendant must have assigned plain error to the trial
court's failure to submit the instructions and argued in his brief
that the court committed plain error. Nobles, 350 N.C. at 514-15,
515 S.E.2d at 904; Truesdale, 340 N.C. at 232-33, 456 S.E.2d at
301.
Even if we could consider the issue of the court's refusal to
submit self defense to the jury, we conclude the trial court did
not err. To be entitled to an instruction on self defense, there
must be evidence that (1) the defendant was free from fault in
bringing about the difficulty or affray and (2) it was necessary,
or reasonably appeared to be necessary, for the defendant to killor inflict serious bodily injury in order to protect himself from
death or serious bodily injury. State v. Spaulding, 298 N.C. 149,
154, 257 S.E.2d 391, 394-95 (1979). To be free from fault, the
defendant must not have precipitated the fight by assaulting the
victim or inciting in the victim the reaction leading to the fight.
Id. at 154, 257 S.E.2d at 395. Defendant's own testimony shows
that he initiated the confrontation and physical contact that
resulted in the fight. There is no evidence that defendant
believed that it was necessary, or that it reasonably appeared
necessary, to inflict serious bodily injury upon Tommy Evans in
order to protect himself from death or serious bodily injury.
By his third assignment of error, defendant contends the trial
court erred by admitting hearsay testimony, offered for
corroborative purposes, by the police officers concerning the
statements made to them by Tommy Evans, Kim Evans and defendant.
He argues that these statements should have been excluded because
they contained additional matters not articulated during trial
testimony.
Once again, defendant did not object to the admission of the
evidence. He has not contended that the court committed plain
error. Even if defendant had properly raised the issue, we
conclude the court did not err. Information contained in a
witness' prior statement but not referred to in the witness' trial
testimony may still be admitted for corroborative purposes if it
tends to add weight or credibility to the trial testimony. State
v. Jennings, 333 N.C. 579, 602, 430 S.E.2d 188, 198, cert. denied,510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Prior inconsistent
statements may also be admitted to impeach the testimony at trial.
State v. Riccard, 142 N.C. App. 298, 303, 542 S.E.2d 320, 323,
cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001).
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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