NO. COA02-886
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.”
___________________________
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