An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-780


Filed: 1 April 2003


         v.                                Wake County< br>                                         No. 01CRS045942
DAVID FELIX                

    Appeal by defendant from judgment entered 27 November 2001 by Judge J.B. Allen, Jr. in Wake County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa Granberry Corbett, for the State.

    Terry W. Alford for defendant-appellant.

    HUNTER, Judge.

    On 3 July 2001, David Felix (“defendant”) was indicted on charges of second degree kidnapping, assault on a female, assault with a deadly weapon, and communicating threats. Prior to trial, all the charges except the kidnapping charge were dismissed by the State. The case was tried at the 27 November 2001 Criminal Session of Wake County Superior Court. Defendant appeals his conviction of second degree kidnapping for which he was sentenced to a term of forty-six to sixty-five months imprisonment. We find no error.
    The State presented evidence at trial which tended to show the following: The defendant and Wanda Jones had a relationship which began in 1997. They lived together for three years, until January 2001. On 19 May 2001, defendant and Jones spent time together,with defendant spending the night at Jones' daughter's home, where Jones was staying. The next morning, they went back to defendant's home. The two planned to spend the day together, as well as that night, and then Jones would go back to her daughter's house the next day.
    While defendant painted some picture frames for Jones, Jones did some cleaning in defendant's home. Jones also began preparing dinner with defendant's brother. Meanwhile, both defendant and Jones drank beer. Sometime around 6:00 p.m., Steve Grace (“Grace”), a friend and neighbor of defendant, came over looking for something “to do shots with.” Defendant did not have any liquor, so he, his brother Victor, and Grace went to Grace's home to drink.
    Defendant returned between 7:30 and 8:00 p.m., and his mood had “drastically” changed. Jones told defendant that she had not put the chicken on the grill because she was unfamiliar with the gas grill and did not know how to get it started. Defendant cursed at Jones for not having started the grill, so Jones decided she wanted to go home. When Jones told defendant she was leaving, he grabbed her by her arm and told her she was “not going anywhere.” Jones pulled away from defendant and started to run down the hall, but defendant grabbed her again and struck her in her eye with his fist. Jones was knocked back by the blow, and defendant was still holding her arm. Jones started kicking defendant, and defendant “knocked” her into the bedroom. Jones was screaming for help, but defendant put his hand across her face and again told her she wasnot leaving. During the struggle, defendant threw her on the bed, up against a wall, knocked her into the bathtub, and kicked her several times. Defendant continued to tell Jones that she was not going anywhere.
    After about two hours, defendant pulled out a knife and told Jones he was going to kill her, Jones' daughter, and then himself. Defendant put the knife to Jones' throat, and Jones thought she was going to die. Eventually, however, defendant backed off and put the knife away. Defendant finally laid down and either went to sleep or passed out. Jones waited until she was sure defendant was unconscious, and then left.
    We first consider whether testimony by Jones that defendant had previously been violent with her should have been excluded by Rule 404(b). Jones testified that defendant had once picked her up by the throat, thrown her on a bed and then smothered her face with a pillow. Jones further testified that defendant had too many physical altercations with her to remember. Although defendant did not object, he contends the trial court should have stopped the questioning and gone through the weighing process of Rule 403.
    We initially note that defendant has waived review of his argument by failing to assert plain error in his assignment of error. N.C.R. App. P. 10(c)(4); see State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995) (finding that the defendant failed “specifically and distinctly” to assert that the trial court committed plain error, thus waiving his right to appellate review). However, even assuming arguendo that defendant had properlypreserved his argument for appellate review, his contentions are wholly without merit.
    Rule 404(b) of the North Carolina Rules of Evidence provides:
        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. Gen. Stat. § 8C-1, Rule 404(b) (2001). Our Court has stated that:
        This rule is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.”

State v. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397 (2000) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). Here, Jones' testimony was arguably relevant to show defendant's modus operandi, i.e., that for years defendant had been terrorizing her by use of violence. The evidence would thus be relevant to the question of the defendant's intent, and whether he restrained or confined her for the purpose of terrorizing her. Therefore, the trial court did not abuse its discretion by admitting the testimony. Accordingly, there was no error, much less plain error.
    Defendant next argues that there was insufficient evidence to sustain the conviction. Specifically, defendant argues that theevidence shows that the reason he kept the victim at the house was because she was too drunk to drive. However, we decline to review this assignment of error. Defendant failed to move for a dismissal at the close of the evidence, and is thus precluded from challenging the sufficiency of the evidence on appeal. State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988) (citing N.C.R. App. P. 10(b)(3)). Furthermore, although defendant argues that the Court should review his assignment of error under plain error analysis, this Court has “previously decided that plain error analysis applies only to instructions to the jury and evidentiary matters.” State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000).
    We next consider whether the trial court committed plain error by instructing the jury that they could find defendant guilty of second degree kidnapping if they found that defendant confined, restrained, or removed the victim. Defendant contends that the “disjunctive phrasing rendered the verdict potentially non- unanimous.” Defendant concedes that our Supreme Court has decided this issue contrary to his position in State v. Hartness, 326 N.C. 561, 566, 391 S.E.2d 177, 180 (1990) (disjunctive instruction not error where a single wrong is established by a finding of various alternative elements). However, defendant asks this Court to revisit this issue.
    Again, defendant has waived review of his argument by failing to assert plain error in his assignment of error. Furthermore,even if we were to address defendant's arguments, as he concedes, this Court is bound by Hartness. Accordingly, we find no error.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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