An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-172


Filed: 1 April 2003


v .                         Johnston County
                            No. 96 CRS 12316

    Appeal by defendant from judgment entered 28 August 1997 by Judge Robert F. Floyd, Jr. in Superior Court, Johnston County. Heard in the Court of Appeals 16 October 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.

    Michael J. Reece, for defendant-appellant.

    McGEE, Judge.

    Douglas Johnson (defendant) was convicted of second degree murder on 28 August 1997 and sentenced to 157 to 198 months active imprisonment. The State's evidence included testimony from several eyewitnesses of the events in question. The State's evidence tended to show that around midnight on 16 August 1996, at the Coastal gas station in Benson, North Carolina, William Pope (Pope) stated to his friends Steve Gustafson (Gustafson) and Teddy Harmon (Harmon), that "he was going to kick [his] a--," referring to James Dormio (Dormio). The three men approached Dormio at Dormio's vehicle which was parked beside the gas pumps. Pope was supposedly mad at Dormio because a woman who had previously dated Gustafson had complained to Pope and Gustafson that Dormio was calling andharassing her.
    The eyewitnesses further testified that Pope pushed Dormio, asking him if he had a problem. Dormio replied that he did not even know Pope and Dormio attempted to get into his vehicle. Gustafson began arguing with Dormio. Gustafson pushed Dormio and threw his arms up in the air saying, "Do you want to go?" Dormio moved forward from his vehicle and Pope, Gustafson, and Harmon began pushing Dormio around among them. Dormio started to defend himself but decided instead to try to get away. However, Pope pushed Dormio again in the chest and the shoving by Pope, Gustafson, and Harmon continued. Defendant approached Dormio from "out of nowhere," said "Don't f--k with my friends," and hit Dormio in the face with his fist. Dormio, who was wearing a cast on his leg from an injury, stumbled and fell face first to the pavement. Defendant started kicking Dormio while Dormio was lying on the ground. Dormio may have tried to get up at that point, but defendant kicked him again in the side and in the back, and then defendant took three or four steps back and kicked Dormio with a great deal of force. Eyewitness Ann Lee (Lee) described the kick as "hard like you would with all your might and [sic] kick a football." Dormio was lying face down on the ground and not moving. Defendant jumped and stomped on Dormio's back and neck "with all his might" several times, followed by two or three hard kicks to the back of Dormio's head. Dormio's head was rolling every time it was hit or kicked. Harmon, a co-defendant in this case, had also been kicking and stomping on Dormio's head and neckseveral times. Defendant stopped kicking Dormio and walked away just before Harmon stopped. At some point during the attack, blood began coming from Dormio's mouth. No one saw Dormio with a weapon, nor did anyone testify Dormio struck anyone.
    Officer Ashley McLamb testified he arrived at the gas station in the early hours of 17 August 1996, in response to a call that a fight was in progress. Officer McLamb located Dormio's unconscious body near the gas pumps, with bruises on his face and blood coming from his mouth and nose. A rescue squad transported Dormio to a hospital where he was pronounced dead on arrival. Officer McLamb was given a description of the vehicle in which defendant had fled and in what direction he had driven. Defendant was arrested about an hour later in the parking lot of a motel near the Coastal gas station.
    The State's medical expert testified that Dormio died as a result of bleeding around the base of his brain, coming from a blunt force trauma which tore one of the major arteries that supplies blood to the brain. The expert testified that a kick or some other type of violent blow that caused a wrenching of the neck or twisting of the head could cause such an injury. The medical expert further testified that the tearing could have been the result of one or more violent blows. The expert testified that it was unlikely the injury could have been caused by a blow to the back or by a blow to the back of the head, or by Dormio's falling forward and hitting his face without catching himself, or by a punch to the jaw. However, a blow to the neck area or a kick tothe head causing the head to snap to the side could cause such an injury.
    Sammy Lee Holt (Holt) testified for defendant that after Gustafson pointed out Dormio to Pope at the gas station, Pope said he wanted to talk to Dormio. Holt testified that when Pope asked Dormio why Dormio had been talking about Pope and Gustafson's girlfriend, Dormio clenched his fist, "puffed up," and Pope said, "you don't want to start with me." Holt testified that defendant came up behind Dormio and said, "don't f--k with my friend." Holt said that Dormio tried to "ball up," defendant pushed him, and then Gustafson and Harmon pushed Dormio, causing Dormio to fall down. While Holt testified that both defendant and Harmon kicked Dormio while Dormio was on the ground, Holt stated that defendant never kicked Dormio in the head, only in the right leg and in the side. On cross-examination by the State, Holt challenged the part of his previous statement to an SBI agent where he stated that defendant hit Dormio in the face with his fist.
     Defendant failed to perfect his appeal in a timely manner, but his appeal was allowed by an order of our Court granting defendant's writ of certiorari on 23 January 2001.
    Defendant has failed to put forth an argument in support of assignments of error three, four and five. Thus, defendant has abandoned these assignments. N.C.R. App. P. 28(b)(5).


    Defendant argues the trial court erred in admitting into evidence the testimony of Lee concerning defendant's involvement ina fight a week before the one that resulted in Dormio's death. During the State's direct examination of Lee, she was asked had she seen defendant previously. She answered, saying she had seen defendant in a fight in the Coastal gas station parking lot the weekend before Dormio was killed. She again testified on cross- examination by co-defendant Harmon's counsel that she had witnessed defendant fighting in the Coastal gas station parking lot the week before Dormio's death. Defendant objected when Harmon's counsel asked what had happened during that fight, and the trial court sustained the objection. Defendant's counsel's cross-examination of Lee on the matter consisted of two questions:
        Q.    Now, you have testified that you saw Mr. Johnson in a fight a week earlier.

        A.    Yes.

        Q.    Who was with you at the time?

        A.     Olivia.

On redirect examination of Lee by the State, she again testified without objection that she had seen defendant fighting the weekend before Dormio's death. Defendant objected when the State asked her to describe what she had seen; however, this time, after hearing arguments from both parties outside the presence of the jury, the trial court overruled the objection and allowed Lee to describe the earlier assault.
    The trial court at first disagreed with the State's argument that the evidence of the details of the prior fight demonstrated motive, stating that:
        if it[]s hypothetically shown that a defendantentered into fights for no reason over a period of time, I think it would go beyond propensity, if it was the same type of situation that had arisen over a period of time, rather than showing some other related bad act just showing he was a bad character and he had the propensity to enter into fights. If it was something that was a common occurrence, I think it could be argued. This case you have only one prior occurrence being testified to.

However, the trial court then heard arguments that defendant had opened the door to the admission of the evidence on the basis of defendant's questioning of Lee. The trial court overruled defendant's objection and allowed Lee to testify to the details of the fight she had witnessed the week prior to Dormio's death.
    We agree with the trial court that the evidence of a fight the week before only shows defendant's propensity to fight, the type of evidence that is inadmissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001). Rule 404(b) states, in pertinent part: "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." N.C.G.S. § 8C-1, Rule 404(b). Under N.C.G.S. § 8C-1, Rule 404(b), the details of the single previous fight in this case, even if it occurred at the same location as the incident in which Dormio was killed, were inadmissible.
    Further, given the other facts in evidence, even at the time the State sought to have Lee testify as to the details of the fight, the probative value of the details of the previous fight would be slight in relation to the charged offense. See State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202, cert. denied,354 N.C. 222, 554 S.E.2d 647 (2001) (noting that even if evidence is admissible under Rule 404(b), it must still be excluded if its probative value is substantially outweighed by the danger of undue prejudice). As the State correctly points out, "any act evidencing 'wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief' . . . is sufficient to supply the malice necessary for second degree murder." State v. Snyder, 311 N.C. 391, 394, 317 S.E.2d 394, 396 (1984) (quoting State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978)). Evidence of "any act" in relation to the assault that resulted in Dormio's death that would satisfy this standard had already been admitted, thus making the details of a fight the previous week which did not involve Dormio of minimal probative value. There was already testimony that defendant had attacked Dormio, later bolstered by other witnesses' testimony, which was essentially uncontradicted. The evidence showed that defendant entered the fray unprovoked by Dormio, that Dormio never struck anyone, and that Dormio was unarmed. The probative value of the details of the previous week's fight would have been substantially outweighed by its undue prejudicial impact on defendant.
    Nevertheless, despite its inadmissibility under N.C.G.S. § 8C- 1, Rules 403 and 404(b), the trial court allowed Lee's testimony about the details of the prior fight, apparently under the rationale that defendant himself had opened the door by inquiring about the fight on Lee's cross-examination. However, the recorddoes not show that the door was opened to allow into evidence the details of the previous week's fight. We acknowledge that "where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such later evidence would be incompetent or irrelevant had it been offered initially." State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585 (2001) (citations omitted). However, the cases in which this rule has been applied involve situations where a party has introduced evidence in an incomplete manner or framed it in such a way that it would be misinterpreted by a jury if not further explained or placed into context by the opposing party. See id.; State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) ("This testimony, unexplained, could well [mis]lead the jury. . . . Under such circumstances, the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself.").
    This is not such a case. First, defendant did not introduce evidence that he was in a fight the previous week; this evidence was elicited during direct examination by the State. In addition, there is little danger that the fact that defendant was involved in the earlier fight would mislead the jury, or need to be rebutted or explained by the State. Further, defendant's question to Lee concerned who was with her when she saw the fight. Defendant never actually asked about details of the previous week's fight as contended by the State. We do not agree with the State thatdefendant opened the door to questioning about the details of the previous week's fight.
    It is true "'that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.'" State v. Hudson, 331 N.C. 122, 151, 415 S.E.2d 732, 747-48 (1992), cert. denied, 506 U.S. 1055, 122 L. Ed. 2d 136 (1993) (quoting State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979)). Defendant's failure to object to Lee's statement that she saw defendant in a prior fight did not waive defendant's objection to the admission of testimony concerning the details of that fight. Lee's response was to a question asking if she knew defendant. Lee's testimony that she saw defendant in a fight the previous week was not in response to any question that would normally be expected to elicit such a response. Once the statement was made, defendant was faced with the tactical choice of objecting to the statement or asking for a limiting instruction, thereby drawing the jury's attention to the response, or allowing the statement to be admitted. Every time a party asked Lee about the details of the prior week's fight, defendant objected. This is not a case where defendant failed to object to testimony or evidence and is now seeking to keep out substantially the same statement or evidence. See State v. Nobles, 350 N.C. 483, 501, 515 S.E.2d 885, 896 (1999); State v. Singletary, 344 N.C. 95, 108, 472 S.E.2d 895, 903 (1996); Campbell, 296 N.C. at 399, 250 S.E.2d at 231.
    We find that the trial court's admission of Lee's descriptionof the fight in which defendant participated the week prior to Dormio's death to be error. However, in order for such an error to require a new trial, "[d]efendant has the burden of showing that he was prejudiced by the admission of the evidence. To meet this burden, defendant must show that, had the error in question not been committed, a different result would have been reached at the trial." State v. Hutchinson, 139 N.C. App. 132, 139, 532 S.E.2d 569, 574 (2000) (citations omitted). Defendant has failed to show a reasonable possibility that the outcome of the trial would have been different if the evidence had been excluded. N.C. Gen. Stat. § 15A-1443(a) (2001).
    The uncontroverted evidence was overwhelming that defendant participated in the assault that resulted in Dormio's death. There was also substantial evidence that defendant inflicted the types of blows the State's medical expert described as sufficient to result in Dormio's death. There was substantial evidence of each of the elements of second degree murder and thus the erroneous admission of Lee's description of the earlier fight was non-prejudicial.

    Defendant argues the trial court erred in its refusal to instruct the jury on voluntary manslaughter. "[A] defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support it." State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986) (citations omitted). If the evidence would support a conviction of murder, but would not allow the jury to find the defendant guilty of voluntarymanslaughter, the trial court was correct in refusing to instruct the jury on voluntary manslaughter. State v. Rogers, 323 N.C. 658, 667, 374 S.E.2d 852, 858 (1989).
    "Voluntary manslaughter is the killing of another human being without malice and without premeditation and deliberation under the influence of some passion or heat of blood produced by adequate provocation." State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995) (citing State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d 577, 580 (1989)). Defendant would therefore be entitled to an instruction on voluntary manslaughter only if there was evidence tending to show that (1) defendant assaulted Dormio in the heat of passion; (2) defendant's passion was provoked by acts of the victim which the law regards as adequate provocation; and (3) the assault took place immediately after the provocation. Tidwell, 323 N.C. at 673, 374 S.E.2d at 580 (1989); State v. Robbins, 309 N.C. 771, 778, 309 S.E.2d 188, 192 (1983).
    The key inquiry in this case concerns whether defendant's actions were provoked by acts our Courts have regarded as adequate provocation. The kind of provocation that normally satisfies this requirement, thereby negating malice and reducing a homicide to manslaughter, ordinarily must be an actual physical assault or threatened assault by the victim on the perpetrator. Watson, 338 N.C. at 176, 449 S.E.2d at 700 ("Mere words, however abusive or insulting are not sufficient provocation to negate malice and reduce the homicide to manslaughter.") (citations omitted); Rogers,323 N.C. at 667, 374 S.E.2d at 858.
    The uncontroverted evidence in this case indicates that Dormio never assaulted defendant, nor did he threaten to assault defendant. Any conversation Dormio might have had during the incident around midnight on 16 September 1996 was with Pope and Gustafson. Further any implied attempts by Dormio to either defend himself or engage his assailants, which are questionable at best, only occurred when he was being pushed around by Pope, Gustafson, and Harmon. There was overwhelming evidence showing that defendant came "out of nowhere" and punched Dormio in the face without Dormio making any threats, conversation, or contact with defendant. Any claim that alleged actions or statements by Dormio were sufficient to provoke defendant when they were not in any way directed at defendant fails. The trial court did not err in refusing to instruct the jury on voluntary manslaughter. Defendant's second assignment of error is overruled.
    Defendant received a fair trial free of prejudicial error.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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