An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-382


Filed: 18 May 2004


         v.                        Wilson County
                                No. 99 CRS 53070


    Appeal by defendant from judgment entered 6 August 2001 by Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for the State.

    John T. Hall, for defendant-appellant.

    CALABRIA, Judge.

    Danny Ondrell Parker (“defendant”) was charged with assault with a deadly weapon with intent to kill inflicting serious injury. On 1 April 1999, defendant assaulted Pauline Mozelle Brewington (“the victim”), which resulted in lacerations, a skull fracture, and brain injury. The victim was defendant's girlfriend and lived with him and her two children at 511 East Lee Street, Wilson, North Carolina. Prior to the assault, the victim had partially moved out, telling defendant that “it was a test to see if he really did love [her] or not.”
    At approximately 9:00 p.m. on 1 April 1999, defendant and the victim were arguing in the living room of the East Lee Streetresidence, when defendant reached behind the couch, grabbed a tree branch that was four feet long and "about the size of a tennis ball" in diameter, and started beating the victim with it. After the beating, defendant approached her with a green plastic trash bag and told her that he “had to kill [her] for what he had done.” Defendant then made the victim change out of her bloody clothes, forced her into his car, and proceeded to drive around for approximately five hours. During this time, defendant told the victim that he wanted to kill himself because he did not want to go to jail. Finally, around 2:00 a.m., defendant took the victim to Wilson Memorial Hospital where she received treatment for lacerations to her head, and she passed out.
    At the hospital, defendant told Officer Steven Stroud (“Officer Stroud”), of the Wilson Police Department, that he and the victim lived at 115 Fourth Street. When the officers questioned defendant about the origin of the victim's injuries, defendant explained to the officers that the victim had gone to a girlfriend's house on North Lee Street that evening and had been assaulted on her way home.     Officer Stroud subsequently followed up on defendant's story and went to the Fourth Street address, an address that was actually the residence of defendant's sister, to “make sure it wasn't a domestic violence situation.” Defendant answered the door at the Fourth Street address and gave the officer permission to search the residence. Upon investigation of the premises, Officer Stroud did not see any signs of a struggle. Again, defendant told Officer Stroud that the victim had beenvisiting a friend at her Northridge Street residence on the evening of the assault. When Officer Stroud visited the Northridge Street address, the resident who lived there said that she did not know the victim.
    Several weeks after the April 1999 assault, the victim accompanied by Officer Eric Smith of the Wilson Police Department, returned to the 511 East Lee Street apartment to collect some belongings. Though all of her blood from the floor and chairs appeared to have been cleaned up, when the victim turned over a pillow, Officer Smith noticed bloodstains on the underside of the pillow which was located on the chair that she had been sitting in when she was assaulted by defendant.
    Although warrants were issued for his arrest, police were unable to locate defendant. However, one year later, in April 2000, defendant was pulled over at a traffic checkpoint for not having a driver's license. He initially gave the officer at the checkpoint a fictitious name. The officer subsequently discovered defendant's true identity when he ran defendant's name in the NCIC database, and also learned that defendant was wanted by the Wilson Police Department for the 1 April 1999 assault on the victim. The officer arrested defendant.
    Defendant was not tried until 6 August 2001, because he twice failed to appear when his case was called for trial. Defendant testified on his own behalf, denying that he assaulted the victim and insisting that the victim received her injuries when she left the Lee Street residence to go to a friend's house. Defendantfurther testified that the victim was gone for about twenty minutes, when she returned with her injuries. According to defendant, the victim told him that she had been hit by a tree limb. Defendant also denied lying to police about his address on the evening of the assault. He further denied missing court the first time his case was called. According to defendant, he did not know that the police were looking for him in connection with the assault on the victim.
    A jury found defendant guilty of the lessor included offense of assault with a deadly weapon inflicting serious injury, and the trial court entered judgment on the jury's verdict, sentencing defendant to a term of 25-39 months in the North Carolina Department of Correction. Defendant appeals.
    In his first argument on appeal, defendant asserts the trial court erred in overruling his objections to the State's questions on cross-examination regarding his incarceration being the sole reason that he was present for trial. Defendant argues that this testimony was inadmissible under N.C. Gen. Stat. § 8C-1, Rules 403 and 404(b) (2003). We disagree.
    Rule 404(b) provides that relevant evidence of other crimes, wrongs or acts “may . . . 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). Rule 404(b) evidence is “subject to the weighing of probative value versus unfair prejudice mandated by Rule 403.” State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171,175 (1990). Our Supreme Court has long held that evidence which is probative of the State's case is necessarily prejudicial to defendant; “the question is one of degree.” State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990). The issue of whether evidence is to be excluded under Rule 403 is a question left to the sound discretion of the trial court. Id.
    During cross-examination, the prosecutor questioned defendant as follows:
            Q. (By Mr. Wolfe) Mr. Parker, sir, how did you get here for the trial of this case this week --

            MR. FARRIS: Objection.

            THE COURT: Overruled. You may answer that.

            A. Sir?

            Q. (By Mr. Wolfe) How did you come to be in that chair and in that chair for the trial of this case today and yesterday?

            MR. FARRIS: Objection.

            THE COURT: Overruled.

            A. I was arrested for not showing up for court.

            Q. (By Mr. Wolfe) That's right. Where did you come from to sit in that chair for the trial of this case yesterday and today?

            A. Over to the jail.

            Q. The sheriff brought you in here, right, so that --

            A. Yes, sir.

            MR. FARRIS: Objection. Motion to strike- -
            Q. -- you would be here for this trial?

            MR. FARRIS: That's argumentative, your Honor.

            THE COURT: I didn't hear that last question.

            MR. WOLFE: I asked if that wasn't the only way this defendant would be here for this trial.

            MR. FARRIS: We object. Move to strike the question. Improper.

            THE COURT: Overruled. You may answer that.
            A: Repeat that.
            Q: (By Mr. Wolfe) The sheriff bringing you in here is the only way you'll appear for the trial of this case, isn't it?
            A: No, sir.

    Defendant's answers to the prosecutor's questions tended to show that defendant failed to appear for trial in this matter, and that he was therefore to be kept in custody for the duration of his trial. The subject questions were asked to elicit testimony which would tend to show that defendant was a flight risk. See State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 591, 354 N.C. 575, 559 S.E.2d 184 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002) (providing that to receive an instruction on flight, a prosecutor must present “some evidence that defendant took steps to avoid apprehension[]”). As the instant testimony was not offered solely for the purpose of showing defendant's propensity to commit criminal acts, the evidence was properly admitted under Rule 404(b). Moreover, while necessarily prejudicial, we cannotconclude the testimony to be unduly so, so as to be excluded under the balancing test of Rule 403. Accordingly, the trial court did not abuse its discretion in allowing the prosecutor to question the defendant in this regard. Defendant's first assignment of error is overruled.
    We conclude similarly in regard to defendant's next assignment of error by which he argues that the trial court erred in instructing the jury on the issue of flight. Defendant asserts that there was not sufficient evidence to support such an instruction. We disagree.
    It is well settled that there must be “'some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged'” before a trial court may properly instruct on defendant's flight. State v. Levan, 326 N.C. 155, 164- 65, 388 S.E.2d 429, 434 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). In determining whether an instruction on flight is warranted, the North Carolina Supreme Court has stated, “[t]he relevant inquiry is whether the evidence shows that defendant left the scene of the crime and took steps to avoid apprehension.” Anthony, 354 N.C. at 425, 555 S.E.2d at 591 (quoting State v. Grooms, 353 N.C. 50, 80, 540 S.E.2d 713, 732 (2000)).
    Without belaboring the point, we conclude that there was plenary evidence in the record to support the court's instruction on flight. First, defendant lied to the investigating officer about his address when questioned at the hospital after the 1 April1999 assault on the victim. Moreover, in days following the subject assault, attempts to find defendant failed, despite officers leaving messages with family members for defendant to contact them. Defendant also gave a false name when stopped during a routine traffic stop. Finally, as discussed above, defendant twice failed to appear when his case was called for trial. In light of this evidence, defendant's argument fails, and this assignment of error is also overruled.
    In his final argument on appeal, defendant asserts the trial court erred in denying his motion to dismiss because the evidence was insufficient to identify him as the perpetrator of the offense. Specifically, defendant contends the evidence was so “incredible and contradictory,” it was insufficient to create more than a conjecture of guilt and therefore the verdict is not reliable. Again, we disagree.
    To establish sufficient evidence and, thus, survive a motion to dismiss, the State must present substantial evidence of all material elements of the offense and to identify the defendant as the perpetrator. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). A trial court should submit the case to the jury if a “reasonable inference of the defendant's guilt may be drawn . . . even though the evidence may also support reasonable inferences of thedefendant's innocence.” State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)). In evaluating the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
    To obtain a conviction for assault with a deadly weapon with intent to kill inflicting serious injury, the State must produce evidence of the following: “(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, and (5) not resulting in death.” State v. Wampler, 145 N.C. App. 127, 132, 549 S.E.2d 563, 567 (2001). In the instant case, defendant takes issue only with the sufficiency of the evidence as to him being the perpetrator of the crime. We, therefore, limit our analysis to that particular issue.
    The State presented evidence, including most significantly the testimony of the victim, that defendant assaulted her with a tree branch, inflicting serious injuries. Although, defendant, in his testimony, offered a different explanation for the victim's injuries, this contradiction was for the jury to resolve. See Olson, 330 N.C. at 564, 411 S.E.2d at 595 (“Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.”). As the evidence, viewed in the light most favorable to the State, could lead a reasonable mind to conclude that the defendant was the perpetrator of the offense, weconclude that the trial court did not err in denying defendant's motion to dismiss. Defendant's final assertion is, therefore, overruled.     Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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