STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 01 CRS 23610, 113364
TRUMAN MCALLISTER

    Appeal by defendant from judgment entered 25 July 2001 by Judge Steve A. Balog in Guilford County Superior Court. Heard in the Court of Appeals 4 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General William W. Stewart, Jr., for the State.

    Hall & Hall, Attorneys at Law, P.C., by Douglas L. Hall and Susan P. Hall, for defendant-appellant.

    STEELMAN, Judge.

    On 19 March 2001, defendant was indicted for assault inflicting serious injury and habitual misdemeanor assault. A jury found defendant guilty of assault on a female and assault inflicting serious injury, the offenses underlying the habitual misdemeanor assault charge under N.C. Gen. Stat. § 14-33.2 (2001). The trial court found defendant to be prior record level IV and sentenced him within the presumptive range to a minimum term of 11 months and a maximum term of 14 months on the assault inflicting serious injury and habitual misdemeanor assault convictions.
    The State's evidence at trial tended to show that defendant and the victim, Brenda Headen (“Headen”), resided together for nine years, although they were never married. On 31 December 2000,defendant and Headen were at the house of defendant's cousin. Defendant, Headen and others present in the house were drinking, and Headen testified that she had “[q]uite a bit” of alcohol on that occasion. Defendant and Headen left the house at approximately 4:00 p.m.
    As they walked home, defendant started an argument with Headen. Defendant punched Headen in the face with a closed fist, and she fell to the ground. When she attempted to stand up, he kicked her in the shin. She passed out after he kicked her in the shin a second time. Before she passed out, Headen was in excruciating pain but was unaware that defendant's kicks had broken her leg.
    When Headen regained consciousness, defendant was no longer present. She was unable to stand up because her leg was broken. Headen called for help, and a passerby summoned an ambulance which took her to the hospital. At the hospital, Headen spoke to Officer Pollock of the Greensboro Police Department. She initially told Officer Pollock that defendant was not responsible for her injuries, but after realizing the severity of her injuries, she told him that defendant had caused them.
    On 1 January 2001, Headen underwent surgery to repair her leg which was broken in seven places. She recovered in the hospital for three days following her surgery and was immobilized for six months due to the injury.

I.

    In his first assignment of error, defendant contends the trial court committed prejudicial error in denying his motion to quash one of the two indictments.
    The record on appeal in criminal actions must contain copies of all indictments in the case and copies of the verdict and judgment from which appeal is taken. N.C.R. App. P. 9(a)(3)(c), (a)(3)(g) (2003). Mere transcript references to these documents do not suffice for the verbatim copies required under N.C.R. App. P. 9. State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993). It is the defendant-appellant's duty to ensure that the record before this Court is complete. State v. Brown, 142 N.C. App. 491, 543 S.E.2d 192 (2001).
    Defendant failed to include in the record on appeal the indictment charging assault on a female, the judgment and commitment for assault on a female and the complete judgment and commitment for assault inflicting serious injury. This Court cannot determine whether there is any error in the indictments without drawing inferences from the trial transcript concerning the nature of the indictment charging assault on a female. Therefore, we dismiss this assignment of error based on defendant's failure to present a complete record on appeal. State v. Norton, 27 N.C. App. 248, 218 S.E.2d 479 (1975) (dismissing appeal for failure to bring forward a record that would enable the Court to decide the issues raised on appeal).

II.

    Defendant's second and third assignments of error assert the trial court committed plain error when it informed him of the consequences of admitting or denying his prior convictions and subsequently asked defendant whether he admitted or denied his prior convictions without advising him of his Miranda rights.
    A party asserting that the trial court committed plain error must make an argument to this Court supporting the contention of plain error. State v. Cummings, 352 N.C. 600, 536 S.E.2d 36 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001); see also N.C.R. App. P. 28(a), (b)(6) (2001). The plain error standard requires a defendant to prove that “(i) a different result probably would have been reached but for the error or (ii) the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d 428, 451 (2000) (citation omitted), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001).
    Defendant cites no authority in support of his plain error assignments. He fails to allege that a different result would have been reached but for the trial court's statement and questioning or that the alleged errors resulted in a miscarriage of justice or denial of a fair trial. Defendant has waived plain error review by failing to make a proper supporting argument to this Court.
     Assuming, arguendo, that defendant properly preserved the right to plain error review of the trial court's statement and questioning, we conclude the trial court did not err.    Defendant's second assignment of error is predicated upon a fundamental misunderstanding of the law. He argues that the trial court was required to bifurcate the trial proceeding by first conducting a trial on his guilt or innocence of the assault inflicting serious injury charge, and then conducting a second trial on whether defendant was guilty of the habitual misdemeanor assault charge based upon five prior misdemeanor convictions. Defendant contends the trial court erred in forcing him to admit the five prior convictions before the second phase of the trial.
    While defendants charged with being an habitual felon, N.C. Gen. Stat. § 14-7.1 (2001), or being a violent habitual felon, N.C. Gen. Stat. § 14-7.7 (2001), receive a bifurcated trial, this procedure is not required for a habitual misdemeanor assault charge under N.C. Gen. Stat. § 14-33.2. Unlike the habitual felon offense, habitual misdemeanor assault is a substantive offense, analogous to the offense of habitual impaired driving. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, appeal dismissed, 353 N.C. 277, 546 S.E.2d 391 (2000). The State is required to prove five prior misdemeanor convictions as an element of the crime of habitual misdemeanor assault, in the absence of an admission to those convictions by the defendant. See 1 N.C.P.I_Crim. 208.45.
    N.C. Gen. Stat. § 15A-928 (2001) provides that when a defendant's prior conviction is one of the elements of the crime for which the defendant is being tried, the trial court must arraign the defendant outside the presence of the jury. N.C. Gen. Stat. § 15A-928(c) further provides that at this proceeding, thetrial judge “must advise him [the defendant] that he may admit the previous conviction alleged, deny it, or remain silent.” If the defendant admits the previous conviction, it is deemed to be an established element of the crime charged in the indictment, the State may not present evidence regarding the conviction, and the trial court must submit the case to the jury without reference to the prior conviction. N.C. Gen. Stat. § 15A-928(c)(1). If the defendant denies the previous conviction or remains silent, the State may present to the jury evidence of the prior conviction which is an element of the crime charged. N.C. Gen. Stat. § 15A- 928(c)(2). The State is not prohibited from introducing proof of prior convictions when otherwise permitted under our rules of evidence.
    In the absence of the jury, the trial court personally addressed defendant and explained the consequences of his admitting or denying the prior convictions. The trial court also asked whether defendant had consulted with his lawyer and was aware of the procedure and consequences of his admission or denial. The trial court did not err in addressing defendant and explaining the consequences of an admission or denial of the prior convictions.
    In his third assignment of error, defendant argues the that the trial court violated his privilege against self-incrimination by questioning him about the prior convictions constituting the basis of the habitual misdemeanor charge without first advising defendant of his Miranda rights. The Fifth Amendment of the United States Constitution provides that no person “shall be compelled inany criminal case to be a witness against himself.” Where the consequences of a choice between admission and remaining silent produce de minimis harms and do not compel a defendant to give self-incriminating testimony, there is no violation of the Fifth Amendment. McKune v. Lile, 536 U.S. 24, 35-42, 153 L. Ed. 2d 47, 58-62 (2002). The choices presented to a criminal defendant during the course of criminal proceedings have not been held to violate the privilege against self-incrimination. Id. at 43, 153 L. Ed. 2d at 63 (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 140 L. Ed. 2d 387 (1998)).
    In the instant case, the trial court asked defendant about the prior convictions that were alleged to be an element of the habitual misdemeanor assault charge. Each conviction was discussed separately and identified by the offense, date of the offense and file number. Defendant admitted each of the five prior convictions, and the trial court concluded that “it will not be necessary or appropriate for the State to present evidence in its case in chief of those prior convictions, the defendant having admitted those.”
    The trial court complied with the express requirements of N.C. Gen. Stat. § 15A-928(c) in asking defendant, in the absence of the jury, whether he admitted or denied the prior convictions the State had intended to introduce into evidence. Upon defendant's uncoerced admissions, the trial court properly concluded that the State would not be permitted to put on evidence of these prior convictions.     The consequence of defendant's decision to remain silent was that the State would have been permitted to put on evidence of his prior convictions as part of its case in chief. According to the McKune rule, this does not compel the witness to speak or incriminate himself, as would be the case if his failure to admit the convictions resulted in the loss of livelihood. See, e.g., Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562 (1967). We hold the trial court did not err in questioning defendant about his prior convictions in accordance with N.C. Gen. Stat. § 15A-928(c).

III.

    In his fourth assignment of error, defendant contends the trial court committed prejudicial error in admitting evidence of his prior assaults in violation of N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001).
    Rule 404(b) states:
        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). Admissibility under Rule 404(b) is constrained by the requirements of similarity and temporal proximity. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988). In cases that deal with crimes between domestic partners, our Supreme Court has held that evidence of prior misconduct, assaults, ill-treatment and quarrels is admissible under Rule 404(b) to prove motive and absence of accident. State v. Scott,343 N.C. 313, 471 S.E.2d 605 (1996); State v. Syriani, 333 N.C. 350, 428 S.E.2d 118, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993), reh'g denied, 510 U.S. 1066, 126 L. Ed. 2d 707 (1994).
    The temporal remoteness of prior acts generally affects only the weight to be given the evidence, not its admissibility. Syriani, 333 N.C. at 377, 428 S.E.2d at 132. Temporal remoteness is less significant when the prior conduct is used to show motive or lack of accident. State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Our Supreme Court has affirmed the admissibility of evidence of prior crimes or acts occurring more than two years prior to the crime charged. Syriani, 333 N.C. at 375-78, 428 S.E.2d at 131-32; see also State v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998) (admitting evidence that the defendant shot his first wife twenty- two years before he was charged with shooting his second wife), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
    In the instant case, the trial court conducted a voir dire to determine the admissibility of Headen's testimony regarding three prior assaults by defendant. The trial court ruled that Headen could testify regarding these assaults for the limited purpose of proving motive and absence of mistake. The trial court performed the balancing test under N.C. Gen. Stat. § 8C-1, Rule 403 (2001) and held that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The trial court stated its intention to give the jury a limiting instruction both at the time the evidence was introduced and duringits final charge to the jury.
    The prior acts involved the same victim, were similar in nature and severity, and occurred within three years of the two assaults with which defendant was charged in these matters. The acts were not remote enough to render them inadmissible. We hold the trial court did not err in admitting Headen's testimony regarding prior assaults by defendant.

IV.

    In his fifth assignment of error, defendant argues the trial court erred in denying his request for a mistrial based on the jurors' viewing the trial docket which showed that defendant was charged with habitual misdemeanor assault.
    The trial court has discretion whether to grant a motion for mistrial on the ground of juror misconduct, and this decision “will not be disturbed on appeal unless there is a clear showing that the trial court abused its discretion.” State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990). “Abuse of discretion occurs where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” Syriani, 333 N.C. at 379, 428 S.E.2d at 133. A motion for mistrial should only be granted by the trial court when there “'are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.'” State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995) (citation omitted), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). However, the trial court has the duty to investigate alleged jurymisconduct and make an appropriate inquiry. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, disc. review denied, 317 N.C. 337, 346 S.E.2d 142 (1986).
    The trial court asked the jurors who had read the docket to remain in the courtroom for questioning, while the remaining jurors were excused. Only two of the jurors who examined the docket actually saw defendant's name, and the trial court questioned each of these jurors separately. One of them could not remember what he had seen defendant charged with on the court docket, while the other only recalled reading “aggravated assault” next to defendant's name.
    The trial court was exceptionally thorough in questioning the jurors to insure that no juror was improperly influenced by what they or others had read on the court docket. The trial court's findings of fact are reasonable and based on the results of its inquiry. There is no indication that any of the jurors were improperly influenced by the incident. Defendant failed to show any prejudice that would have prevented him from receiving a fair and impartial verdict. We hold the trial court did not abuse its discretion, and this assignment of error is without merit.

V.

    In his sixth assignment of error, defendant contends the trial court committed plain error in failing to give a limiting instruction regarding the jury's use of Rule 404(b) evidence, specifically, Headen's testimony about prior assaults on her bydefendant.
    Prior to Headen's testimony, the trial court gave the jury the following instruction:
        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. In this particular case, evidence is about to be offered tending to show that at an earlier date, earlier than these events at issue here that the defendant allegedly had assaulted Ms. Headen before. This evidence is received solely for the purpose of showing that the defendant had a motive for the commission of the crime charged in this case, or to show the absence of accident.

        If you believe this evidence, you may consider it but only for those limited purposes for which it was offered.

The trial court repeated the limiting instruction in its charge to the jury:
        Evidence has been received tending to show that the defendant assaulted Ms. Headen on three prior occasions. This evidence was received solely for the purpose of showing that the defendant had a motive for the commission of the crime charged in this case, or the absence of accident. If you believe this evidence, you may consider it but only for the limited purpose for which it was received.
    Contrary to defendant's contention, the trial court did, in fact, give the required limiting instruction at two points during the trial. These instructions followed the North Carolina Pattern Jury Instructions for Rule 404(b) evidence. 1 N.C.P.I._Crim. 104.15 (2002). Defendant has failed to establish error, much less plain error, in the giving of these instructions. We hold thisassignment of error is without merit.

VI.

    Defendant expressly abandoned its seventh assignment of error in its argument to this Court; therefore, it will not be considered on appeal. N.C.R. App. P. 28(a) (2003).

VII.

    Finally, defendant argues the trial court erred in denying his motion to dismiss for insufficient evidence that he committed assault on a female and assault inflicting serious injury.
    When ruling on a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime charged. State v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted). The trial court must view all evidence in the light most favorable to the State. State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994).
    N.C. Gen. Stat. § 14-33(c) (2001) states:
        [A]ny person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (1) Inflicts serious injury upon another person or uses a deadly weapon; (2) Assaults a female, he being a male person at least 18 years of age.
    In this case, Headen, a female, testified that she was punched in the face by defendant, a male over the age of 18. This satisfies the elements of assault on a female. N.C. Gen. Stat. .14-33(c)(2). Headen also testified that defendant assaulted her by kicking her in the leg and inflicting the serious injury of multiple bone fractures, which caused her significant pain and suffering. This satisfies the elements of assault inflicting serious injury. N.C. Gen. Stat. . 14-33(c)(1). Headen's daughter and son-in-law testified that defendant admitted he assaulted Headen on the date of the events at issue in this case.
    Although some of Headen's previous statements contradicted her trial testimony, the jury must determine the weight and credibility given Headen's testimony. State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991). Viewed in the light most favorable to the State, there was sufficient evidence from which a jury could conclude that defendant was guilty of assault on a female as well as assault inflicting serious injury. Therefore, we hold this assignment of error is without merit.
    NO ERROR.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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