An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-431


Filed: 4 March 2003


         v.                        Mecklenburg County
                                No. 00 CRS 56427

    Appeal by defendant from judgment entered 12 July 2001 by Judge Jessie B. Caldwell in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Ann B. Wall, for the State.

    Michael J. Reece for defendant-appellant.

    TYSON, Judge.

    Michael L. Hill (“defendant”) appeals his conviction for assault on a female. We find no error.

I. Background

    Defendant was charged with striking his wife, Theresa Hill (“Mrs. Hill”), in the face on the night of 21 December 2000. At the time of this incident, Mrs. Hill was living in the marital residence with their two children, Andrew and Christa. Defendant had moved out of the residence in February 2000 after Mrs. Hill obtained a Civil Domestic Violence Protective Order against him.
    Defendant arrived at the residence the evening of 21 December 2000 with Christmas presents for the children. Mrs. Hill waspacking up in preparation to move. As defendant and Mrs. Hill argued about her decision to move, Andrew called defendant “stupid.” When defendant grabbed Andrew by the arm to spank him, Mrs. Hill interceded. Defendant hit her in the nose with his fist. Mrs. Hill sat down on the couch and asked defendant to leave. Andrew telephoned the police. Mrs. Hill remained on the couch for several minutes feeling “pretty dazed” and “pretty much in shock.”
    Defendant denied hitting Mrs. Hill, claiming, “I didn't even know she had been touched at all except she stopped me from spanking Andrew and I put my belt back together and I came back and set back on the Piano bench where we continued fussing about the issue.”
II. Issues

    Defendant argues on appeal that the trial court erred in admitting evidence of his prior acts of violence against Mrs. Hill under N.C.R. Evid. 404(b), absent any showing that they were “similar” to the alleged offense. Defendant also assigns as error the court's instruction to the jury that it consider the evidence of defendant's prior acts of violence against Mrs. Hill to establish lack of accident.
III. Waiver of Rule 404(b) Evidence

    “It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). We recently reiterated that "[t]he benefit of an objection is lost when the same or similarevidence is later admitted without objection." State v. Holadia, 149 N.C. App. 248, 256, 561 S.E.2d 514, 520, writ denied and disc. review denied, ___ N.C. ___, 562 S.E.2d 432 (2002).
    In this case, defendant offered only a single, general objection when the prosecutor asked Mrs. Hill about defendant's prior violence against her:
        Q.    Had the defendant hit you before this incident?

            [Defense counsel]: Objection.
After a bench conference, the court instructed Mrs. Hill to answer the question. The following exchange then occurred between the prosecutor and Mrs. Hill without any further objection from defendant:
        [Mrs. Hill]: Do I just say yes, ma'am or how many times or what?

        Q.    Well, had he hit you before?
        A.    Yes, ma'am.
        Q.    How many times had the defendant hit you before?

        A.    If you are talking about through 20 years, I can't remember anymore?

        Q.    . . . When was the first time the defendant hit you?

        A.    The first time he slapped me was three months after we were married but I didn't tell anybody for years.

        Q.    And during the course of your marriage, did the defendant continue to hit you?

        A.    Well, through the early years it was just a time or two a year. It was a push, a shove, a pop up beside the head.
        Q.    What about later in the year or two before this incident happened?

        A.    Well, the last five years were really rough. . . .

Defendant's counsel procured additional testimony from Mrs. Hill regarding defendant's prior acts of violence against her:
        Q.    You said over the course of a 20-year marriage, you said he had hit you previously, correct?

        A.    Yes, ma'am he did.
        Q.    Okay. One of your response to [the prosecutor]'s questions about previous incidents was that you couldn't remember anymore. What did you mean by that?

        A.    I can't count them any more.
        Q.    Isn't it also true that you also hit [defendant] as well throughout the 20 years?

        A.    No.
Defense counsel also asked Mrs. Hill about the predicate for her seeking a prior domestic violence restraining order, eliciting testimony from Mrs. Hill that defendant “had knocked [her] over.” As this testimony shows, evidence of violent acts similar to the type of evidence defendant objected to was later submitted without objection, some by the defendant himself. Defendant's assignment of error is overruled.
IV. Jury Instruction

    Defendant contends the trial court erred by instructing the jury that his prior bad acts could show a lack of accident. Defendant waived his objection to the evidence. He was not prejudiced by an instruction limiting the jury's considerationthereof to a proper purpose. See generally N.C. Gen. Stat. §§ 15A- 1231(b), 1443(a) (2001) (requiring the defendant to show prejudice arising from alleged error). The trial court charged the jury on this issue as follows:
        Evidence has been received tending to show that at an earlier time, the defendant physically struck his wife, Theresa Hill. This evidence . . . was received solely for the purpose of showing the absence of accident. If you believe this evidence, you may consider it but only for the limited purpose for which it was received.

The instruction is entirely consistent with N.C.R. Evid. 404(b), which allows evidence of a defendant's prior misconduct to show lack of accident. See, e.g., State v. Boczkowski, 130 N.C. App. 702, 709, 504 S.E.2d 796, 800-1 (1998).
    Defendant claims for the first time on appeal that there was no evidence of accident at trial to support the court's instruction. In defense counsel's opening statement, she forecast that the evidence would show “Mrs. Hill jumped up and this is when she was bumped in the nose with [defendant']s elbow as he was loosening his belt.” Counsel then explicitly argued to the jury that “[a]ny contact between Mrs. Hill and [defendant] had to be purely accidental.” In his own testimony, defendant remarked, “I didn't even know she had been touched at all[,]” leaving open the possibility of accidental contact. Although defendant did not offer direct evidence that he accidentally struck Mrs. Hill, his testimony supported a jury instruction on the issue, particularly in view of his counsel's opening statement. We find the instruction “a correct statement of the law and proper in thecontext of this case." State v. Avery, 315 N.C. 1, 33, 337 S.E.2d 786, 804 (1985).
V. Abandoned Assignments of Error

    Defendant's remaining assignment of error is not addressed in his brief to this Court. It is abandoned. See N.C.R. App. P. 28(b)(6).
VI. Conclusion

    We have carefully reviewed both of defendant's assignments of error. We conclude that defendant received a fair trial before an able judge and jury free from errors he assigned and argued.
    No error
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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