STATE OF NORTH CAROLINA
v . Nos. 00 CRS 50649,
Attorney General Roy Cooper, by James M. Stanley, Jr., for the
Robert C. Trenkle, for defendant-appellant.
Randolph Scott (defendant) appeals judgments convicting him of one count of assault on a law enforcement officer inflicting serious bodily injury, and two counts of assault on a law enforcement officer. We find no error in the trial, but remand for re-sentencing.
The State presented evidence that on the night of 29 July 2000 and during the early morning hours of 30 July 2000, Patria McMillan (Mrs. McMillan) and Mrs. McMillan's husband, Eric McMillan (Mr. McMillan) had a party at their residence. Officer Ramona Goodwin (Officer Goodwin) and Officer Robert Leviner (Officer Leviner) (collectively the officers) responded to several noise complaints from the McMillans' neighbors. After the first complaint, theofficers drove by Mrs. McMillan's home without stopping because they did not hear any loud music. An hour later, in response to a second complaint, the officers returned and heard loud music. The officers issued a verbal warning to Mr. McMillan and his father. After a third complaint, Officers Goodwin and Leviner returned to the McMillan home and when they spoke to Mr. McMillan, he and other partygoers became hostile toward them. Concerned for their own safety, the officers returned to their cars, called for backup, and Deputy Matt Norris (Deputy Norris) responded.
After Deputy Norris arrived, the officers proceeded to arrest Mr. McMillan for disorderly conduct and for violating a noise ordinance. After being informed he was under arrest, Mr. McMillan turned and walked away. Officer Leviner and Deputy Norris pursued Mr. McMillan and began to handcuff him. While Mr. McMillan was being restrained, defendant approached Officer Leviner from behind and hit him. Officer Goodwin went to Officer Leviner's aid and started struggling with defendant. During the struggle, the two fell to the ground. Defendant got to his feet first and kicked Officer Goodwin in the face while she was on her hands and knees. Officer Goodwin was transported to the emergency room with ruptured blood vessels in her right eye, two black eyes, and five fractures to her nose. As a result of the injuries, Officer Goodwin was unable to chew solid food for three days and unable to work for over two months. Furthermore, due to the necessity for reconstructive surgery, she was restricted to limited work duties for an additionalthree months. Later that morning, while defendant was being processed at the jail, he poked Officer Leviner in the eye.
On 17 October 2003, defendant was convicted of one count of felony assault on a law enforcement officer inflicting serious injury and two counts of misdemeanor assault on a law enforcement officer. With respect to the felony, the trial court found as an aggravating factor that the defendant's actions created a great risk of injury to law enforcement officers and the people present at the party and as a mitigating factor that defendant had a community support system. The trial court determined the aggravating factor outweighed the mitigating factor and sentenced defendant in the aggravated range to a term of twenty-four to twenty-nine months in the custody of the North Carolina Department of Correction. For the two misdemeanors, the trial court sentenced defendant to seventy-five days in the custody of the North Carolina Department of Correction to be served at the expiration of the felony sentence.
As an initial matter, we note defendant cites as the legal basis for each of his assignments of error multiple amendments and sections of the United States and North Carolina Constitutions and the North Carolina General Statutes generally. Under N.C. R. App. P. 10(c)(1) (2005), [e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. (Emphasis added). Assignment of error number one is representative of defendant's assignments of error: The trial court erred when it prevented the defendant from questioning Officer Goodwin about potential bias in violation of the [d]efendant's rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 19 and 23 of the Constitution of North Carolina as well as under the North Carolina General Statutes.
Defendant's broad reference to various constitutional provisions and to the North Carolina General Statutes as a whole does not comply with N.C. R. App. P. 10(c)(1), and this failure to comply with the Rules of Appellate Procedure subjects defendant's appeal to dismissal. Fletcher v. Dana Corporation., 119 N.C. App. 491, 459 S.E.2d 235 (1995). Nevertheless, pursuant to our discretionary power under N.C. R. App. P. 2 (2005), we elect to review the merits of defendant's appeal but admonish counsel to confine assignments of error to a single issue of law when possible and to state plainly [and] concisely . . . the legal basis upon which error is assigned. N.C. R. App. P. 10(c)(1).
Defendant first asserts that the trial court abused its discretion when it curtailed defendant's cross examination of Officer Goodwin. Specifically, defendant argues the trial court erred in ruling that examination concerning Officer Goodwin's purported bias against the McMillans was inadmissible as irrelevant, or alternatively, properly excluded under N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
The right to cross examine a witness to expose the witness' bias is not unlimited. While it is axiomatic that the cross- examiner should be allowed wide latitude, the trial judge has discretion to ban . . . inquiry into matters of tenuous relevance. State v. Hatcher, 136 N.C. App. 524, 526, 524 S.E.2d 815, 816 (2000) (internal citations and quotation marks omitted). Moreover, Rule 403 states that, [a]lthough relevant, evidence may be excluded if 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. (Emphasis added). The court's ruling on the scope of cross examination will not be disturbed absent a showing of abuse of discretion. State v. Bullock, 154 N.C. App. 234, 241, 574 S.E.2d 17, 21 (2002) (citation omitted). An abuse of discretion occurs, only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision. State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996).
In the instant case, the trial court held a voir dire and concluded that the issue of alleged bias towards the McMillans was irrelevant because defendant was not involved with the prior incidents that gave rise to the alleged bias. Our review of the record and transcript reveals no evidence that contradicts the trial court's conclusion regarding the irrelevance of alleged bias towards the McMillans. Accordingly, the trial court did not abuse its discretion by ruling evidence of the alleged bias was inadmissible. Defendant next asserts the trial court erred under Rule 403 by admitting testimony concerning alleged assaults by Mrs. McMillan and another female guest on Officer Leviner while he was handcuffing Mr. McMillan. Alternatively, defendant contends that the trial courterred by not allowing him to rebut the testimony concerning the attacks with evidence that both Mrs. McMillan and the other female were acquitted of all charges in a separate trial.
Defendant cites State v. Scott, 331 N.C. 39, 42-43, 413 S.E.2d 787, 788-89 (1992), for the proposition that evidence of a crime for which a party was previously acquitted is generally inadmissible under Rule 403. However, Scott states that evidence of a crime for which a defendant was previously acquitted is generally inadmissible and further acknowledges that the use of evidence of conduct underlying a prior charge of a crime for which the defendant [was] tried and acquitted has been permitted in . . . case[s] in which the conduct occurred in the same 'chain of circumstances' as the crime for which the defendant is being tried. Id., 331 N.C. at 45, 413 S.E.2d at 790.
In the instant case, we are not faced with the admission of evidence of a crime for which defendant was acquitted but evidence of a crime for which a witness and a person who did not testify was acquitted. Therefore, Scott is inapplicable to the case at bar, and we can discern no prejudice inuring to defendant based on evidence of a prosecution in which he was not the defendant. Moreover, the State offered evidence of the alleged assaults on Officer Leviner to show the chain of circumstances leading up to the assaults committed by the defendant. Finally, the defendant was permitted to rebut the testimony concerning the alleged assaults by fully cross-examining Officer Goodwin and by calling witnesses to contradict Officer Goodwin's testimony. Accordingly, the trialcourt did not err by permitting evidence of the alleged assaults on Officer Leviner or by barring evidence of Mrs. McMillan's acquittal for the alleged attacks.
Defendant further asserts the trial court erred by allowing the State to introduce Mr. McMillan's criminal record. At trial, Mr. McMillan did not testify, but some of his statements were elicited by defense counsel during Mrs. McMillan's testimony and by the State during the officers' testimony. After a brief hearing, the trial court granted the State's motion to introduce Mr. McMillan's criminal record pursuant to N.C. Gen. Stat. 8C-1, Rule 806(c) (2003) (permitting the credibility of a declarant of a hearsay statement to be attacked as though he had testified as a witness). Defendant's only objection at trial was that Mr. McMillan's criminal record was inadmissible pursuant to Rule 403 because admission of the record would be unduly prejudicial. On appeal, defendant asserts that Mr. McMillan's statements were offered for the non- hearsay purpose of explaining the sequence of events; therefore, Rule 806 was inapplicable.
In order to preserve an issue for appellate review, the appellant must have raised the issue at trial to allow the trial court to rule upon it. N.C. R. App. P. 10(b)(1) (2005). Our Supreme Court has long held that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount[.] State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (internal quotes and citations omitted). At trial, defendantdid not argue Mr. McMillan's statements, as testified to by Mrs. McMillan and the officers, were for non-hearsay purposes. Rather, defense counsel acknowledged the testimony was hearsay by stating, I understand 806, or whatever it is, allows you to [admit Mr. McMillan's record][,] and proceeded to make an argument based on Rule 403. Accordingly, defendant failed to properly preserve this assignment of error, and we deem it abandoned.
Lastly, defendant has submitted a motion for appropriate relief asserting he was sentenced in the aggravated range in violation of the recent holding by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). Recently, our Supreme Court considered the applicability of Blakely to North Carolina's Structured Sentencing Act, and held that those portions of N.C.G.S. § 15A-1340.16 (a), (b) and (c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon such judicial findings of such aggravating factors by a preponderance of the evidence violate the Sixth Amendment to the United States Constitution. State v. Allen, ___ N.C. ___, ___, 615 S.E.2d 256, 265 (2005). Furthermore, the Court held that the harmless-error rule does not apply to sentencing errors which violate a defendant's Sixth Amendment right to jury trial pursuant to Blakely. Such errors are structural and, therefore, reversible per se. Id., ___ N.C. ___, 615 S.E.2d at 272. In the instant case, the trial court made findings in aggravation and mitigation based on a preponderance of the evidence,and after finding that the aggravating factor outweighed the mitigating factor, sentenced defendant in the aggravated range. Accordingly, we remand for re-sentencing.
For the foregoing reasons, we hold defendant received a fair trial free from error. However, we remand for re-sentencing.
Remanded for re-sentencing.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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