STATE OF NORTH CAROLINA
v. Wilson County
No. 99 CRS 53070
DANNY ONDRELL PARKER
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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