STATE OF NORTH CAROLINA
Richmond County
v
.
Nos. 00 CRS 50649,
50654, 50658
RANDOLPH SCOTT
Attorney General Roy Cooper, by James M. Stanley, Jr., for the
State.
Robert C. Trenkle, for defendant-appellant.
CALABRIA, Judge.
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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