An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-886

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2003

STATE OF NORTH CAROLINA

    v.                            Henderson County
                                No. 00 CRS 55107
JOHNNY A. FOX                        
    

    Appeal by defendant from judgment dated 9 May 2001 by Judge Loto G. Caviness in Henderson County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General David G. Heeter, for the State

    James L. Goldsmith, Jr. for defendant appellant.

    BRYANT, Judge.

    Johnny A. Fox (defendant) appeals a judgment dated 9 May 2001 entered consistent with a jury verdict finding him guilty of voluntary manslaughter.
    On 22 January 2001, defendant was indicted for second-degree murder. At trial, the State presented evidence tending to show that, on 16 September 2000, Officer Alan Shook of the Hendersonville Police Department was dispatched to 611 Oak Street in response to a 911 report of shots fired at that address. Upon arriving at the scene, Officer Shook announced himself and called for any occupants to “come out with [their] hands up.” Defendant responded from inside the home that he could not move because hislegs were broken. When Officer Shook asked where the gun was, defendant replied it was “in the wheelchair.” Officer Shook then entered the home where he found defendant lying in a bed and a small handgun in a wheelchair. Officer Shook testified there was “a lot of stuff [lying] on the floor -- glass, dirt, plants, phone, fishing poles, those kinds of things.” Officer Shook recovered the handgun and ejected the cartridge. Officer Shook also found five spent shell casings. Outside defendant's home, the police discovered the victim, Barbara Anita Vance (Vance), who had suffered two gunshot wounds. She was transported to the hospital but died in surgery from loss of blood.
    When Officer Shook questioned defendant, defendant explained he and Vance had argued. Defendant had given Vance money a couple of days before for helping to take care of him. That evening, however, she had been drinking, had purchased crack cocaine and possibly smoked it, and wanted additional money from defendant to buy more crack cocaine. Vance left when defendant refused to give her money but returned a short time later. Upon her return, she began throwing things at defendant, including ashtrays, vases, flower pots, and flowers and began hitting him with a fishing pole. Defendant told Officer Shook he had pointed the gun at Vance and “fired two rounds to scare her.” This did not deter Vance as “she was still hitting [defendant] with the fishing pole, and that[ was] when he shot at her.” Subsequently, Vance stopped hitting defendant and left.
    Jackie Vance, the victim's sister-in-law, testified that, twoweeks before Vance's death, Vance had telephoned to tell her she and defendant had been in an argument and that defendant had shot her, the bullet grazing her thigh. The medical examiner who had determined the victim's cause of death offered corroborating testimony in stating he had found an injury on Vance's thigh that had already begun to heal and was “consistent with a grazing[-]type of injury from a bullet.”

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    The sole issue on appeal is whether the trial court erred in admitting the testimony of Vance's sister-in-law. Defendant contends this evidence should not have been admitted under Rule 404(b) because it was introduced merely as character evidence to show a propensity to commit violent acts. Defendant further asserts there was no evidence the alleged shooting ever happened,   (See footnote 1)  and in any event, intent was not a material fact at issue, making the prejudicial testimony irrelevant.
    After careful review of the record, briefs, and contentions of the parties, we conclude there was no error. 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.G.S. § 8C-1, Rule 404(b) (2001). This 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)). Evidence admissible under Rule 404(b) is further subject to the balancing test of Rule 403. See N.C.G.S. § 8C-1, Rule 403 (2001) (“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).
    In the case sub judice, defendant was indicted for second-degree murder. “Second-degree murder is defined as 'the unlawful killing of a human being with malice but without premeditation and deliberation.'” State v. Thibodeaux, 352 N.C. 570, 582, 532 S.E.2d 797, 806 (2000) (quoting State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997)). “The element of malice for second-degree murder . . . may be established by evidence that a person intentionally inflicted a wound that results in death.” State v. Coble, 351 N.C. 448, 451, 527 S.E.2d 45, 47 (2000). “[W]hen a specific mental intent or state of mind is an essential element of the charged offense, evidence of previous acts of the same kind is admissible to prove the defendant's intent or state of mind.” State v. Hall, 85 N.C. App. 447, 450, 355 S.E.2d 250, 252 (1987). The sister-in-law's testimony regarding the prior shooting was therefore relevant to prove malice in that it tended to showdefendant intentionally shot Vance on 16 September 2000, thereby inflicting a deadly wound. Furthermore, the danger of unfair prejudice to defendant under Rule 403 was limited by the trial court's instruction to the jury that the evidence was to be considered solely for the purpose of showing defendant's intent. See State v. Davis, 340 N.C. 1, 15, 455 S.E.2d 627, 634 (1995) (no error in refusing to exclude evidence of prior bad acts where the trial court gave a limiting instruction that the evidence of the prior act was being admitted solely for the purpose of showing intent). Accordingly, the trial court did not abuse its discretion in admitting the sister-in-law's testimony.
    No error.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
    The medical examiner's testimony clearly refutes this contention.

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