An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1008
                                          &nb sp; 

Filed: 1 July 2003


v .                             Gaston County
                                No. 00 CRS 63565

    Appeal by defendant from judgment entered 7 May 2002 by Judge James W. Morgan in Gaston County Superior Court. Heard in the Court of Appeals 24 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist, for the State.

    Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant.

    LEVINSON, Judge.

    Defendant was indicted for the murder of Debra Rene Maltba (the “victim”). On 7 May 2002, a jury found defendant guilty of voluntary manslaughter, and he was subsequently sentenced to a term of imprisonment of a minimum of 120 months and a maximum of 153 months. Defendant appeals.

    The State presented evidence tending to show the following: Jerry Bright, defendant's roommate, testified he last saw the victim drinking beer and vodka in defendant's room at the West End Motel (the “Motel”) on 6 September 2000. At approximately 10:30 p.m. that same evening, defendant and the victim asked Bright to leave so that they could “have a little privacy.” Bright left, andthen returned at approximately midnight. He knocked on the door to defendant's room, and defendant responded he was busy and that Bright should go away.
    Bright did not return to the room until the following afternoon. At that time, he noticed defendant had a scratch on his neck that he had not noticed the prior evening. When he asked defendant about the scratch, defendant ignored him. Bright asked defendant about the victim, and defendant responded that she had left.
    Jackie Dean Runnels, an acquaintance of the victim and defendant and fellow tenant of the Motel, testified that on 7 September 2000 at approximately 9:30 a.m. he went to defendant's room to see the victim. No one answered his knocks on defendant's door, and he began to leave. Before leaving, Runnels saw defendant and talked with him in defendant's room. He asked defendant how the victim was, and defendant replied that she had gotten “real drunk” the previous evening, “cussed him out,” and “crawled up under the bed and refused to come out.” Runnels then looked down and saw a foot protruding from underneath the bed. One of the bed posts was resting on the foot. Runnels believed it was the victim's foot. He commented to defendant concerning the victim's foot, and defendant removed the bed from her foot.
    Runnels attempted to get the body under the bed to respond to his inquiries, but the body did not move. At that point, defendant told Runnels, “I told you she got real drunk.” Defendant also told Runnels that the victim drank a fifth of vodka and smoked rockcocaine. Before leaving, Runnels noticed blood smeared on defendant's left forearm.
    L.B. Hunsucker testified that on the morning of 14 September 2000, while working for the Gastonia City Police, he responded to a call concerning an odor behind a local business. Near train tracks behind the business, Hunsucker noticed an area of freshly cut brush. Underneath the brush, Hunsucker saw a human foot. Hunsucker notified his supervisors.
    Sergeant Phil Firrantello of the Gastonia Police Department testified that he is responsible for crime scene processing. He testified the body was covered by four layers of plastic and wrapped in a comforter. The body was tied around the neck and ankles with shoelaces. Comparing fingerprints inked during the autopsy of the body and known fingerprints of the victim, Sergeant Firrantello identified the body as that of the victim.
    Dr. John Butts, chief medical examiner for the State of North Carolina, testified that he performed an autopsy on the victim. Based on the circumstances surrounding the victim's discovery and her condition, Butts testified that she died as a result of violence to her body. Specifically, he determined she died of asphyxia. Although Dr. Butts testified that he was unable to find any natural cause of death that explained the victim's death, he could not say beyond all reasonable doubt that the victim had not died of natural causes.
    Detective Jimmy Arndt, lead investigator for the Gastonia City Police Department, testified that he located defendant in WestVirginia on September 20, 2000. After informing defendant that the victim was missing, Detective Arndt took an initial statement from defendant.
    In that initial statement, defendant told Detective Arndt that the victim was a prostitute and that he had seen her approximately two weeks before when they smoked crack cocaine, drank beer and vodka, and had sexual intercourse before going to sleep at approximately 1:00 a.m. At approximately 5:00 a.m. defendant awoke in the bed next to the victim. They drank the remaining vodka and went back to sleep. When defendant awoke again at 8:30 a.m., the victim was under the bed. Although he tried to remove her from under the bed, she refused his help. At approximately 1:00 p.m., defendant left the room for approximately 20 minutes. When he returned, the victim was gone, and he had not seen her since.
    Later that day, Detective Arndt told defendant that the victim was dead. Thereafter, he took another statement from him. Referring to the previous statement, defendant stated that while he and the victim were having sex, he noticed a gaping wound on the victim's arm. Upon seeing the wound, he gagged, and she fell off the bed such that she landed halfway under the bed. Defendant then drank the remaining vodka and fell asleep. He awoke at 8:30 a.m. and noticed that three fourths of the victim's body was then under the bed. He went back to sleep, but awoke again at 10:30 a.m. when someone knocked on the door. By the time he answered the door, the person who knocked had left. At that time, defendant noticed that the victim was still under the bed and that she had blood aroundher nose and mouth. He pushed her further under the bed. Mr. Runnels, who previously knocked on the door, returned and spoke with defendant. Mr. Runnels removed the bed post from the victim's foot and yelled at her. She did not respond. That evening he wrapped the victim in a blanket and string and placed her in a trash can. He then placed her near the train tracks where L.B. Hunsucker later found her and covered her with brush and plastic.
    Defendant later gave a third statement. He stated he was not sure if the victim had fallen out of the bed on her own accord or if he had pushed her. He stated the victim had “flipped” out of the bed on prior occasions. She would roll off the bed and then under it. He previously made her get back onto the bed. He also stated that when he returned to the room after waking and leaving at 8:30 a.m., he “freaked out” because he saw blood on the victim's cheek and did not know what happened to her. Additionally, defendant stated that when he spoke to Mr. Runnels, he pretended she was still alive although he knew she was dead. Defendant also told Detective Arndt, “I am the cause of what happened.”
    Detective James Anderson of the Gastonia City Police Department testified that after reviewing the defendant's statements he interviewed defendant regarding the cause of the victim's death. Defendant told Detective Anderson that while he and the victim were having sexual intercourse, she repeatedly put his hands “up to her neck.” He stated he put his hands around her neck four times but denied choking her. Detective Anderson notedthat when he asked defendant if he had choked the victim his demeanor changed, he began shaking, and he became confused.
    Defendant's evidence tended to show the following: Dr. Page Hudson, former chief medical examiner for the State of North Carolina, testified that he reviewed the autopsy performed on the victim and her medical records. Because she (a) was at high risk for natural disease, (b) had a history of suicide attempts, (c) was at high risk of accidental death due to her drug abuse, and (d) put herself at risk for homicide due to her conduct, Dr. Hudson concluded it was not possible to determine the cause of death.
    Defendant assigns as error the denial of his motions to dismiss at the close of the State's evidence and at the close of all the evidence. Because defendant elected to present evidence after it moved to dismiss at the close of the State's evidence, only the denial of his motion made at the close of all evidence is reviewable on appeal. State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985); State v. Jones, 97 N.C. App. 189, 200-01, 388 S.E.2d 213, 219 (1990).
    Addressing the denial of defendant's motion to dismiss at the close of all evidence:
        “[T]he trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of the defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied.” The trial court is to view all of the evidence in the light most favorable to the State and give the State all reasonable inferences that may be drawn fromthe evidence supporting the charges against the defendant. The trial court must determine as a matter of law whether the State has offered “substantial evidence of all elements of the offense charged so any rational trier of fact could find beyond a reasonable doubt that the defendant committed the offense.”

Bruce, 315 N.C. at 281, 337 S.E.2d at 515 (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) and State v. Thompson, 306 N.C. 526, 532, 294 S.E.2d 314, 318 (1982)) (citations omitted).
    In order to establish the elements necessary for voluntary manslaughter, the State must present evidence that the defendant unlawfully killed the victim without malice and without premeditation and deliberation. State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994). Furthermore, although the State presented only circumstantial evidence tending to show defendant committed manslaughter, that, alone, does not make the evidence deficient in any respect. State v. Rick, 342 N.C. 91, 99, 463 S.E.2d 182, 186 (1995).
    Here, defendant made inconsistent statements regarding the victim's death. He stated that when Mr. Runnels came to his hotel room, he pretended the victim was still alive, although he knew she was dead. He put the victim's body in a garbage container, placed the container in a wooded area, and concealed the container under brush and other materials. Defendant told detective Arndt that he was “the cause of what happened.” Additionally, Dr. Butts testified that, based on the condition of her body, the victim died from asphyxia as the result of violence. Considering all thisevidence and the balance of the record, we conclude the State presented sufficient evidence that defendant unlawfully killed the victim without malice and without premeditation and deliberation such that a rational trier of fact could find beyond a reasonable doubt that defendant committed voluntary manslaughter. See e.g., State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451 (holding circumstantial evidence that defendant willfully or neglectfully deprived the victim of food and other nourishment resulting in the victim's death was sufficient to support the jury's verdict of manslaughter), cert. denied sub nom., Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 15 (2000); State v. Stephens, 244 N.C. 380, 383-84, 93 S.E.2d 431, 433-34 (1956) (holding substantial circumstantial evidence of every element of manslaughter was sufficient to submit the charge to the jury).
    Additionally, defendant's argument that his motion to dismiss should have been granted because of contradictions between the testimonies of Drs. Butts and Hudson is without merit. “Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Further, '[t]he trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying a defendant's motion to dismiss.'” Bruce, 315 N.C. at 281, 337 S.E.2d at 516 (quoting State v. Powell, 299 N.C. 95, 101, 261 S.E.2d 114, 118 (1980)).

    Defendant contends the trial court erred in excluding from admission into evidence a briefcase and its contents. The briefcase contained photographs, cloth, handkerchief, rope, handcuffs, an empty condom box, three sexual aids, and a bondage magazine. Detective Arndt testified on voir dire the photographs depicted the victim “tied up.” Defendant argues the evidence is admissible under Rule 404(b). See N.C.G.S. § 8C-1, Rule 404(b) (2001). Specifically, he contends the evidence is probative as to the victim's motive in moving defendant's hands to her neck. The State argued at trial and now on appeal that Rule 404(b) is not applicable and that, even were it applicable, the evidence is “so highly prejudicial as to outweigh any probative value.”
     Rule 404(b) provides, in pertinent part:
        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.

“Rule 404(b) is a '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. Hyatt, 355 N.C. 642, 661, 566 S.E.2d 61, 74 (2002) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)), cert. denied sub nom., Hyatt v. North Carolina, __ U.S. __, 154 L. Ed. 2d 823 (2003)(emphasis added). “Rule 404(b) has been interpreted as applicable only to parties and, in a criminal case, would usually be applicable only to a defendant.” State v. Morgan, 315 N.C. 626, 636, 340 S.E.2d 84, 91 (1986).
    The admissibility of Rule 404(b) evidence is also limited by Rule 403. N.C.G.S. § 8C-1, Rule 403 (2001). “When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in Rule 403.” State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991). Whether to admit evidence pursuant to Rule 403 rests within the sound discretion of the trial court, and its ruling will not be overturned unless it is shown that the ruling was “'manifestly unsupported by reason and could not have been the result of a reasoned decision.'” State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992) (quoting State v. Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)).
    Here, defendant argues the evidence is probative of the victim's motive and intent in moving his hands to her neck and, thus, attempts to utilize Rule 404(b) for admission in connection with the victim's actions, not his. Defendant specifically denies strangling the victim but, nonetheless, argues the jury should be able to infer that the briefcase items, in and of themselves, suggest the victim desired to have defendant's hands around her neck or wanted to be subject to strangulation in some manner. Even were we to find Rule 404(b) applicable to the instant case, wediscern no abuse of discretion by the trial court in excluding the evidence. This assignment of error is overruled.

    Lastly, defendant assigns as error the trial court's decision to instruct the jury on false, contradictory, or conflicting statements pursuant to Pattern Jury Instruction 105.21. “It is established by our decisions that false, contradictory or conflicting statements made by an accused concerning the commission of a crime may be considered as a circumstance tending to reflect the mental processes of 'a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself].'” State v. Walker, 332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992) (quoting State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983)), cert. denied sub nom., Walker v. North Carolina, 508 U.S. 919, 124 L. Ed. 2d 271 (1993).
    Before the trial court charged the jury, the following conversation took place between the trial court and counsel:
        [Prosecutor]: . . . We would request 105.21, false, contradictory or conflicting statements of the defendant.

        THE COURT: Okay. Do you want to be heard about that?

        [DEFENSE COUNSEL]: Yes. We would object to that.

        . . . .

        [DEFENSE COUNSEL]: We still object to it, but we will leave it in the Court's discretion.

        THE COURT: All right. I would give the instruction.
        . . . .

        THE COURT: . . . Any other requests from the State?

        [DEFENSE COUNSEL]: I don't think we are going to deny that he gave - because I mean there was an obvious - the obvious statement that she was still alive, and so I guess we would not ask for that.

From the record, it is unclear whether defendant effectively objected to the trial court's decision to instruct the jury under Pattern Jury Instruction 105.21. Nonetheless, after reviewing the evidence we find the trial court was warranted in instructing the jury pursuant to Jury Instruction 105.21. Specifically, the trial court instructed the jury as follows:
        The State contends that the defendant made false, contradictory or conflicting statements. If you find that the defendant made such statements, they may be considered by you as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience seeking to divert suspicion or to exculpate himself, and you should consider that evidence along with all the other believable evidence in this case. However, if you find that the defendant made such statements, they do no create a presumption of guilt, and such evidence standing alone is not sufficient to establish guilt.

    In defendant's first statement given to police, he stated that he went to the bathroom and she was gone when he returned. However, after detectives informed defendant that the victim's body had been recovered, defendant admitted that he had moved the victim's dead body from his hotel room. This inconsistency is not minor, as defendant argues, but fits the spirit and letter of the law concerning a trial court's instructions on contradictorystatements. See e.g., State v. Barnett, 141 N.C. App. 378, 384, 540 S.E.2d 423, 427 (2000), disc. review denied, 353 N.C. 527, 549 S.E.2d 552 (2001). This assignment of error is overruled.
    Upon careful review, we find defendant's remaining assignments of error without merit. They are, therefore, overruled.
    No error.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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