An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-215

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 01 CRS 102433
JAMES LEE TROXLER

    Appeal by defendant from judgment entered 24 July 2002 by Judge Howard R. Greeson, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 20 November 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General John F. Maddrey, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen and James R. Glover, for defendant-appellant.

    TYSON, Judge.

    James Lee Troxler (“defendant”) appeals from a jury verdict finding him guilty of second degree murder. We find no error.

            I. Facts
    On the evening of 2 November 2001, Steven Kenneth Johnson (“Johnson”) and Felicia Pressley (“Pressley”), Johnson's cousin, were walking to a store and passed by defendant, who was standing in front of a house with another man. Johnson asked defendant to pay him ten dollars owed for moving a grill to the house. As defendant attempted to give Johnson the money, his girlfriend came out of the house and told defendant not to give Johnson any money. Johnson called the woman a “stupid bitch.” An argument ensued between defendant and Johnson. The two men exchanged words forthree to four minutes until Pressley grabbed Johnson's arm and pulled him away. Johnson and defendant continued “jawing” at each other as Johnson and Pressley walked away. Pressley and Johnson walked around to the back of the house as they were leaving. Pressley testified that defendant came out onto the back porch and stated, “You keep on running your mouth, I'll cap your ass.” Johnson began to walk towards the back porch while verbally challenging the defendant's statement. Johnson had nothing in his hand as he reached the bottom step of the back porch. Pressley testified that she heard a gunshot and saw Johnson fall back off the step.
    The police were called to the scene. Pressley identified defendant as the shooter. Defendant told the officers that he did not shoot Johnson. Defendant later testified at trial that he gave officers a false statement because he was nervous, scared, and had never shot anyone before. During a subsequent search of the house, the police found a pistol under the pillows of a love seat. The bullet removed from the victim was fired from that gun.
    Defendant testified that Johnson had later returned to the house after their initial argument and demanded money or “somebody is going to die tonight.” Defendant also testified that he decided to leave and grabbed a gun on the way out because he was nervous and scared. Defendant stated that as he exited the back door, Johnson came running towards him and pulled something “real shiny” out of his pocket. Defendant admitted to shooting the victim but only because he “was scared for his life.” No weapons wererecovered outside of the house or on Johnson's body.
II. Issues
    The issues are whether the trial court erred by: (1) refusing to allow defendant to present evidence of the victim's prior robbery with a knife, and (2) responding to the jury's requests to review evidence pursuant to N.C. Gen. Stat. § 15A-1233(a).
III. Evidence of Prior Robbery
    Defendant contends that the trial court erred by not allowing evidence of the victim's prior robbery with a knife. We disagree.
    At trial, defendant testified Johnson pulled something “real shiny” out of his pocket during their altercation and that defendant thought the object was a knife. Defendant also testified that he shot Johnson because he “was scared for his life.”
    Defendant attempted to prove his claim of self-defense in two ways. Defense counsel cross-examined Johnson's brother and indicated on voir dire that he wanted to ask the brother if he was aware that Johnson had been accused of robbing someone with a knife. The trial court sustained the State's objection finding that the prejudicial effect outweighed any probative value the answer to the question would have. The trial court stated that Johnson's brother had previously testified that he had never seen or known Johnson to carry a knife. The trial court noted that the question might be appropriate later in trial.
    Defense counsel also attempted to introduce evidence of an incident that occurred six months before Johnson's death where Johnson was accused of robbing a man with a knife. On voir dire,Officer Anders Lyndrup (“Officer Lyndrup”) testified that he had questioned the victim at the time of the incident, who identified Johnson as the robber. Officer Lyndrup also testified that he was present when another officer frisked Johnson and found a knife, which was in the custody of the Greensboro Police Department.
    The trial court determined that the proffered testimony concerned a specific act of a crime, not a pertinent character trait, and found that the evidence did not have the tendency to show whether or not Johnson was the aggressor at bar. The trial court stated that the testimony regarding the prior robbery “would only serve to show to this jury that the deceased in this case was somewhat less worthy of living than someone who hadn't performed those acts” and that the prejudicial effect far outweighs any credible value the testimony may have.
    “Whether or not to exclude evidence under [Rule 403] is a matter within the sound discretion of the trial court, reversible only upon a showing that the ruling was arbitrary and unsupported by reason.” State v. Abraham, 338 N.C. 315, 352, 451 S.E.2d 131, 151 (1994). “Defendant has the burden on appeal of demonstrating that these rulings were incorrect.” Id.
    The facts in Abraham are very similar to those at bar. The victim of an assault had possessed a handgun during a crime which had occurred less than thirty days prior to the shooting for which defendant was being tried. The Court held that testimony showing the victim may have used a weapon in the commission of an earlier felonious assault “has slight bearing, if any, on whether he wasarmed” on the date of the shooting for which defendant was being tried. Id. at 353, 451 S.E.2d at 151.
    “The proper inquiry in a self-defense claim focuses on the reasonableness of defendant's belief as to the apparent necessity for, and reasonableness of, the force used to repel an attack upon his person.” State v. Morgan, 315 N.C. 626, 639, 340 S.E.2d 84, 92 (1986). Our Supreme Court later affirmed the exclusion of evidence concerning the victim's prior crimes or wrongful acts, tendered to show the victim was the aggressor in an altercation with the defendant, and held, “Rule 404(b) expressly prohibits admission of evidence for this purpose.” State v. Smith, 337 N.C. 658, 666, 447 S.E.2d 376, 381 (1994).
    Here, the jury had to consider whether Johnson was possibly armed with a knife when defendant shot him to death. Whether Johnson possessed a knife six months prior to the shooting was marginally relevant to defendant's claim of self-defense. The trial court did not abuse its discretion in determining that the prejudicial effect outweighed any probative value of the evidence of Johnson's prior robbery with a knife. Defendant's assignment of error is overruled.
IV. N.C. Gen. Stat. § 15A-1233(a)
    Defendant contends he is entitled to a new trial based on the trial court's actions in response to requests by the jury to review portions of exhibits and testimony. We disagree.
    After being instructed by the trial court, the jury retired to deliberate on the charges against defendant. The jury madenumerous requests to review evidence and testimony. The jury first sent a note requesting a copy of defendant's statement to the police. The trial court instructed counsel for both sides to approach the bench and discussed the jury's request. Neither made any objections. The trial court complied with the request and sent the statement to the jury. Thirty minutes later, the jury sent a second note requesting a writing board, “post-it” notes, and two maps of the home. The trial court again instructed counsel to approach the bench and relayed the jury's request to them. Neither the State nor defense counsel objected to any of the requests. The trial court complied with the requests.
    A short time later, the jury made a third request and asked for the testimony of Pressley and another witness. Again, counsel approached the bench and the trial court relayed the jury's request. Defense counsel stated that he was not sure whether the testimony should be allowed to be given to the jury but stated, “I'll leave it in your sound discretion.” The trial court brought the entire jury back into the courtroom and asked if the testimonies were needed in order for the jury to reach a fair and impartial verdict. The entire jury answered affirmatively. The trial court instructed the court reporter to prepare the transcripts of the two witnesses and informed counsel and the jury that the transcripts would be ready the following morning. The next morning the trial court delivered the transcripts to the jury without objection.
    In the jury's absence, a discussion ensued between the trialcourt and counsel about the submission of the transcribed testimony given to the jury. The trial court had determined that it was improper to allow the jury to take the transcribed testimony into the jury room. The trial court asked counsel whether they would consent to having the transcripts marked and entered into evidence. The State agreed, but defense counsel stated that he was in a “quandary.” Defense counsel explained to the trial court that he did not want the court to declare a mistrial, but that he also did not want to give away defendant's appellate rights. When questioned by the trial court, defense counsel agreed that he had not objected earlier and had consented to the transcripts being delivered to the jury.
    Defense counsel requested that he be given an opportunity to discuss all options with defendant. The trial court agreed. After meeting with defendant, defense counsel stated to the court that he had explained all of the options to defendant, who agreed to the court marking and entering the transcripts as exhibits rather than declaring a mistrial. Defense counsel also stated that he had no objections. The State agreed and the trial court returned the jury to the courtroom where the transcripts were marked as exhibits. The trial court instructed the jury not to give undue influence to those transcripts to the exclusion of the other evidence. The jury retired to deliberate. A few minutes later, the jury found defendant guilty of second degree murder.
    The duties of a trial judge regarding a jury's request to review trial evidence are set out in N.C. Gen. Stat. § 15A-1233(a)which states:
        If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

N.C. Gen. Stat. § 15A-1233(a) (2003). In State v. Ashe, our Supreme Court held:
        [t]his statute imposes two duties upon the trial court when it receives a request from the jury to review evidence. First, the court must conduct all jurors to the courtroom. Second, the trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue.

314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985).
    In State v. Helms, this Court held that a defendant may waive his right to assert on appeal the judge's failure to comply with N.C. Gen. Stat. § 15A-1233(a). 93 N.C. App. 394, 378 S.E.2d 237 (1989). In Helms, we explained that although the trial court failed to follow N.C. Gen. Stat. § 15A-1233(a), the defendant was not entitled to a new trial because defense counsel had acceded to the procedure used by the court. Id. at 401, 378 S.E.2d at 241. We held that:
        [a] lack of objection at trial does not bar a defendant's right to assign error to a judge's failure to comply with the mandates of Section 15A-1233(a). In this case, however,defendant's lawyer, beyond simply failing to enter an objection, consented to the communication procedure. We hold, therefore, that defendant has waived his right to assert, on appeal, the judge's failure to bring the jury to the courtroom.

Id. (internal citations omitted).
    Here, defense counsel was brought to the bench each time the trial court received a request from the jury to review evidence. Defense counsel was informed of the jury's request and was asked each time if he had any objections. Defense counsel stated that he had no objections concerning defendant's statement, writing board, “post-it” notes, and two maps of the home. When the trial court received the jury's request for the testimony of Pressley and another witness, the court again informed counsel of the jury's request. Defense counsel stated that he was unsure whether to allow the testimony to be provided and that he would leave it to the “sound discretion” of the court. The trial court allowed the jury to review the transcripts of the testimony. The trial court later determined it was improper to provide transcripts to the jury. The trial court informed defense counsel and asked if he had previously consented to giving the jury the transcripts. Defense counsel replied that he had consented to allowing the jury to review the transcripts. Counsel requested to be allowed to discuss all options with defendant. The trial court agreed. Defense counsel discussed the situation with defendant and informed the trial court that defendant did not want a mistrial and would consent to having the transcripts of the witnesses' testimony marked as exhibits.    Defense counsel not only failed to object, but defendant consented to the procedures used by the trial court after being given the option of having a mistrial declared. Defendant has waived his right to assert the trial court's failure to abide by the requirements of N.C. Gen. Stat. § 15A-1233(a). Id.
    Defendant also failed to show any alleged error was prejudicial and that “absent the error a different result would have been reached.” State v. Colvin, 92 N.C. App. 152, 159, 374 S.E.2d 126, 131-132 (1988), disc. rev. denied, 324 N.C. 249, 377 S.E.2d 758 (1989). Our Supreme Court has stated that even when a trial court errs in allowing materials to be taken into a jury room during deliberations over defendant's objection and without his consent, a defendant must satisfy the burden of showing prejudicial error. State v. Wagner, 343 N.C. 250, 258, 470 S.E.2d 33, 38 (1996). “[T]he fact that the trial court granted the jury's request that the testimony of a State's witness be read does not in and of itself constitute prejudicial error.” State v. Weddington, 329 N.C. 202, 209, 404 S.E.2d 671, 676 (1991). Defendant's assignment of error is overruled.
V. Conclusion
    Defendant failed to show that the trial court abused its discretion in excluding evidence of Johnson's prior robbery with a knife. Defendant consented to the procedures used by the trial court and waived his right to assert this assignment of error on appeal.
    No error.    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***