STATE OF NORTH CAROLINA
v. Wake County<
br>
No. 01CRS045942
DAVID FELIX
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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