Appeal by defendant from judgment dated 12 July 2004 by Judge
Jack W. Jenkins in Superior Court, Brunswick County. Heard in the
Court of Appeals 14 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel S. Johnson, for the State.
Jeffrey Evan Noecker for defendant.
Timothy Daniel Locklear (defendant) was convicted of second-
degree sexual offense and was sentenced to a minimum term of 168
months in prison, to begin at the expiration of the sentences
defendant was serving at the date of trial.
The State's evidence at trial tended to show that on 5September 2003, defendant was incarcerated in the Brunswick County
jail. Defendant was moved into a cell occupied by Joshua Zack
(Zack), James Rash (Rash), and two other inmates. Zack slept on a
mat on the cell floor and defendant slept in a bunk bed. During
the evening of 5 September 2003, while the other cellmates were
sleeping, defendant invited Zack onto defendant's bed. Zack and
defendant sat on defendant's bed drawing with a pencil.
Zack testified that defendant pressed the pencil behind Zack's
right ear and demanded that Zack perform oral sex on defendant.
Zack complied. Defendant also had anal sex with Zack, after which
Zack got down from the bunk and struck defendant in the mouth. A
fist fight ensued, and the other cellmates awoke. Defendant told
Zack not to tell anyone about what had occurred. Zack reported the
incident to a prison guard two days later.
Rash testified that on 5 September 2003, he shared a cell with
defendant and Zack. Rash awoke during a fight between defendant
and Zack. Rash heard Zack say "[n]o" and noticed that Zack's pants
were down. Rash testified that he heard defendant tell Zack that
if Zack "said anything about what [had] happened that [defendant
would] kill [Zack]." Rash later heard defendant brag about raping
Zack. Rash also testified that he had seen defendant harass
another young inmate by pulling down that inmate's pants.
After the assault was reported, Zack was removed from the cell
and James Burriss (Burriss) took Zack's place. Burriss testified
that defendant bragged about using a pencil to force Zack to engage
in sexual acts. Burriss also testified that defendant forced aninmate who was "not very mentally stable" to dance naked on a
Benny Narem (Narem), another inmate, heard defendant on 6
September 2003 brag about "rap[ing] the guy . . . named Zack" and
forcing Zack to perform oral sex. Narem also testified that he had
seen defendant harass the same young inmate to whom Rash had
referred. Narem saw defendant touch the young inmate in a sexual
Defendant testified that on 5 September 2003 Zack offered to
perform oral sex on defendant. Defendant described the fight
between himself and Zack as a fight over Zack not paying for some
cookies. Defendant denied using force or a pencil against Zack and
denied having anal sex. On cross-examination, defendant admitted
making several false statements to the investigating detective and
admitted to prior criminal convictions.
 Defendant's first assignment of error is that the trial
court entered its judgment out of term. Defendant argues that the
trial court failed to enter an order extending court after the
session was scheduled to expire on 9 July 2004. As a result,
defendant argues, the judgment is null and void and must be
vacated. We disagree.
A trial court's extension of a session of court is governed by
N.C. Gen. Stat. § 15-167 (2003), which provides:
Whenever a trial for a felony is in progress
on the last Friday of any session of court and
it appears to the trial judge that it is
unlikely that such trial can be completedbefore 5:00 P.M. on such Friday, the trial
judge may extend the session[.] . . . Whenever
a trial judge continues a session pursuant to
this section, he shall cause an order to such
effect to be entered in the minutes
order may be entered at such time as the judge
directs, either before or after he has
extended the session.
N.C.G.S. § 15-167 (emphasis added).
In State v. Harris
, 181 N.C. 600, 107 S.E. 466 (1921), our
Supreme Court addressed what a trial court must do to issue an
order "continuing the trial of the cause after the expiration of
the term by limitation."
(See footnote 1)
, 181 N.C. at 607, 107 S.E. at
469. The Supreme Court determined that "the statute was complied
with by the daily entries on the docket: 'Pending the trial of the
case of S. v. J.T. Harris
, the court takes a recess until 9:30
tomorrow,' and the entry next day, 'Court convened at 9:30 a.m.
pursuant to recess,' etc., in regular form." Id.
at 607, 107 S.E.
In this case, the felony trial was not completed on Friday, 9
July 2004. The record does not contain a written orderspecifically referencing N.C. Gen. Stat. § 15-167 and stating that
the session was extended thereunder. However, there are sufficient
statements made by the trial court in the record to comply with
N.C. Gen. Stat. § 15-167 and to effectively extend the court
session. The trial court had several discussions with counsel and
the jury in open court, in which the trial court clearly referenced
the extension of the session. The transcript from Friday, 9 July
2004, reads in pertinent part:
THE COURT: . . . It is Friday afternoon, after
three o'clock[.] . . . So, in my discretion,
and I do apologize that you will need to come
back on Monday, but, in my discretion, I'm
going to let you go for the day but you will
need to be back here on Monday. Now, on
Mondays, we don't start at 9:30. We start at
10:00. And what will happen on Monday, that
should be the last day, one way or the other
in this case. But, as I told you at the
outset, I can't make any guarantees, one way
or the other, but you do need to be here
Monday. You do need to be here at 10:00
o'clock. . . . As I indicated, please be
mindful that the starting time on Monday is
10:00 instead of 9:30. When you come back on
Monday, I ask that you come back to the same
room that you've been coming back to.
. . . .
THE COURT: It will give you an opportunity
over the weekend to look at it to just make
sure there's no error, omission or anything
else that we need to clarify Monday
morning. . . . Anything else we need to take
up today? State or Defendant?
[THE STATE]: No, Your Honor.
[DEFENSE]: No, Your Honor.
THE COURT: All right then, as I understand it,
Monday morning we will basically conclude the
charge conference and at that time move
. . . .
THE COURT: . . . Anything else we need to take
up at this time?
[STATE]: No, Your Honor.
[DEFENSE]: No, sir.
THE COURT: All right, have a good weekend and
I'll see you Monday.
(Court is recessed for the day at 4:00 p.m.)
The trial court reconvened the following Monday at 10:00 a.m.
The transcript from Monday, 12 July 2004, reads in part:
(July 12, 2004 - 10:00 a.m.)
THE COURT: Good morning. Let the record
reflect we are back in court. Twelve members
of the jury are here but they are not in the
. . . .
THE COURT: All right. The charge conference
is closed. Are there any other issues to take
up on the record at this time before we
proceed with closing arguments? Anything from
[STATE]: No, sir.
THE COURT: Anything from the Defendant?
[DEFENSE]: No, Your Honor.
While it would have been the better practice for the trial
court to expressly set forth in the minutes a formal order
extending the court session, we hold that the trial court, in
making repeated announcements in open court without objection from
defendant, satisfied N.C. Gen. Stat. § 15-167. This assignment of
error is overruled.
 In his next assignment of error, defendant argues that the
trial court erred in admitting testimony that defendant had
sexually harassed other inmates in the Brunswick County jail.
Defendant argues that the testimony was improperly admitted as
evidence of defendant's character, in violation of N.C. Gen. Stat.
§ 8C-1, Rule 404(a), and that the State never recited the purpose
for which it was seeking to have the evidence admitted, in
violation of N.C. Gen. Stat. § 8C-1, Rule 404(b). North
Carolina Rule of Evidence 402 provides, in pertinent part, that
"[a]ll relevant evidence is admissible" and that "[e]vidence which
is not relevant is not admissible." N.C. Gen. Stat. § 8C-1, Rule
402 (2003). Rule 401 defines relevant evidence as "evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." N.C. Gen.
Stat. § 8C-1, Rule 401 (2003). Rule 403 limits the admission of
relevant evidence where "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
Rule 404(a) provides that "[e]vidence of a person's character
or a trait of his character is not admissible for the purpose of
proving that he acted in conformity therewith on a particular
occasion[.]" N.C. Gen. Stat. § 8C-1, Rule 404(a) (2003). Rule404(b) continues:
(b) Other crimes, wrongs, or acts
. -- 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) (2003).
"We have held that Rule 404(b) is a rule of inclusion, subject
to the single exception that such evidence must be excluded if its
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. Berry
, 356 N.C. 490, 505, 573 S.E.2d 132,
143 (2002). The list of purposes in the second sentence of
subsection (b) of Rule 404 is neither exclusive nor exhaustive.
State v. Morgan
, 315 N.C. 626, 637 n. 2, 340 S.E.2d 84, 91 n. 2
At trial, defendant did not object to the evidence of prior
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure states, in part, that "[i]n order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, objection or motion[.]" N.C.R. App. P.
10(b)(1). Where a defendant does not object at trial, our review
of this issue is limited to plain error. See
N.C.R. App. P.
10(c)(4). Our Supreme Court has stated that
[p]lain error includes error that is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done; or grave errorthat amounts to a denial of a fundamental
right of the accused; or error that has
resulted in a miscarriage of justice or in the
denial to appellant of a fair trial.
State v. Gregory
, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996)
(citing State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). Under this standard, a "defendant is entitled to a new
trial only if the error was so fundamental that, absent the error,
the jury probably would have reached a different result." State v.
, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
In this case, defendant fails to show that the jury probably
would have reached a different result had the evidence of prior bad
acts not been admitted. Defendant argues that the jury's acquittal
of defendant on the original charge of first degree sexual offense
shows that the jury had some reservations about defendant's guilt,
and that the evidence of prior acts unfairly influenced the jury's
result. We are not persuaded. Defendant was convicted of second-
degree sexual offense under N.C. Gen. Stat. § 14-27.5. To find
defendant guilty of this offense, the jury found beyond a
reasonable doubt that defendant "engage[d] in a sexual act with
another person . . . [b]y force and against the will of the other
person[.]" N.C. Gen. Stat. § 14-27.5 (2003). To find defendant
guilty of the original charge of first degree sexual offense, the
jury must have found the additional element that defendant
a. Employ[ed] or display[ed] a dangerous or
deadly weapon or an article which the
other person reasonably believe[d] to be
a dangerous or deadly weapon; or
b. Inflict[ed] serious personal injury upon
the victim or another person; or
c. . . . commit[ted] the offense aided and
abetted by one or more other persons.
N.C. Gen. Stat. § 14-27.4 (2003).
The jury's failure to find an additional element of first
degree sexual offense does not in itself show that the jury doubted
that defendant engaged in a sexual act with Zack by force and
against Zack's will. The State presented substantial evidence of
defendant's guilt through the testimony of Rash, who was present in
the cell at the time of the assault. Rash testified that he heard
Zack say "[n]o" and saw the fight between defendant and Zack, whose
pants were down. Rash heard defendant threaten to kill Zack if
Zack said anything, and later heard defendant brag about raping
Zack. This testimony was corroborated by Burriss and Narem, who
also heard defendant bragging about the sexual assault. In light
of the evidence of defendant's guilt presented at trial, we hold
the trial court did not commit plain error in admitting evidence of
defendant's prior acts. See State v. Perkins
, 154 N.C. App. 148,
571 S.E.2d 645 (2002).
Defendant argues in the alternative that the testimony should
have been excluded because the trial court never performed the
requisite balancing test under N.C. Gen. Stat. § 8C-1, Rule 403.
Rule 403 permits a trial court to exclude relevant evidence when
"its probative value is substantially outweighed by the danger of
unfair prejudice[.]" N.C.G.S. § 8C-1, Rule 403. Since all
evidence against a defendant is necessarily prejudicial, evidence
may only be excluded when it is unfairly
prejudicial. See State v.
, 317 N.C. 87, 94-95, 343 S.E.2d 885, 889-90 (1986). Again,
defendant fails to show that the jury probably would have reacheda different result had the evidence of prior bad acts not been
admitted. Accordingly, we find no plain error.
Defendant presented no argument on his remaining assignments
of error and they are therefore abandoned. N.C.R. App. P.
No prejudicial error.
Judges McCULLOUGH and JACKSON concur.