An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-414


    Filed: 5 April 2005


v.                        Haywood County
                            No. 02 CVS 287

    Appeal by defendant from judgment entered 12 September 2003 and order entered 31 October 2003 by Judge James U. Downs in Haywood County Superior Court. Heard in the Court of Appeals 30 November 2004.
             Smathers & Norwood, by Patrick U. Smathers, for plaintiff- appellee.

             Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J. Lopez, for defendant-appellant.

    HUDSON, Judge.

    On 21 August 2003, a jury found for plaintiff in a suit against her husband for assault and battery, intentional infliction of emotional distress, malicious prosecution, and abuse of process. The jury awarded plaintiff $50,000 for compensatory damages and $150,000 for punitive damages. The trial court denied defendant's motions for judgment n.o.v., amended judgment, vacated judgment, judgment set aside, and a newtrial. Defendant appeals. We affirm the judgments of the trial court.
    Plaintiff and defendant were married in 1981. At the beginning of 2001, the parties lived together with their three minor daughters on a mountain in Clyde, North Carolina. On 25 February 2001, defendant assaulted plaintiff by grabbing her from behind on the stairs and throwing her against a bookshelf. Two of the minor children witnessed the incident.
    On 20 March 2001, plaintiff and defendant got into an argument. Plaintiff planned to spend the night with her sister- in-law, in order to be closer to work for an early morning shift, and she wanted the couple's youngest daughter to accompany her. Defendant did not want the daughter to go and told plaintiff, “You can get the hell out of here, but she is not going anywhere.” Plaintiff stated that the daughter was coming with her and told the daughter to collect her belongings. Defendant pushed the daughter down, and when plaintiff stepped in between them, defendant grabbed plaintiff and threw her to the floor. Plaintiff told the daughter to leave, which she did briefly, but returned with a frying pan and struck defendant with it while he still had plaintiff pinned on the floor. Defendant chased after the daughter, and plaintiff chased defendant. Plaintiff called911 and told the dispatcher that she and her daughter were trying to get out of the house.
    Plaintiff then ran outside, where defendant caught her and pulled her backwards onto the driveway, which was covered by a foot of snow. Defendant sat on plaintiff in the foot-high snow, held her down, and packed snow into her mouth so that she had trouble breathing. When she tried to roll over, defendant shoved her back down into the snow. Defendant finally released plaintiff, headed back to the house, and told her that if she left she would never come in the house again. Plaintiff walked to the foot of the mountain where her nephew picked up her and her daughter and took them to a gas station to again call 911.
    A police officer met them at the gas station and escorted plaintiff and her daughter to the Haywood County Hospital emergency room. He photographed plaintiff and took her statement. Plaintiff had scratches on her face, which was red where defendant had packed snow into it. Her neck was also red where defendant had put his hand, and she had scratches and bruises on her arms, back, hips, thighs, and head. After being x-rayed and examined, plaintiff and her daughter were released from the hospital and spent the night with defendant's sister.
    The following morning, 21 March 2001, the sheriff served plaintiff with a criminal warrant for simple assault on defendantwith a frying pan. She was also served with an ex parte Domestic Violence Order of Protection defendant had obtained. The bond conditions of the criminal warrant and the provisions of the civil ex parte order prohibited plaintiff from returning to her home. Plaintiff and her daughter sought refuge at a domestic violence shelter, where they resided for approximately four to five months. After leaving the shelter, plaintiff rented a trailer and then a three-bedroom house. The ex parte domestic violence order against plaintiff was dismissed on 27 March 2001 and the criminal charges were dismissed on 25 July 2001.
    On 19 March 2002, plaintiff filed a complaint against defendant alleging assault and battery, intentional infliction of emotional distress, malicious prosecution, and abuse of process. Plaintiff alleged that on 20 March 2001, defendant physically and verbally assaulted her, causing severe emotional distress and harm. Plaintiff's claims for malicious prosecution and abuse of process were grounded on the criminal warrant and ex parte Domestic Violence Order, which plaintiff claimed defendant caused to be issued against her without probable cause and with malice.
    Defendant argues first that the trial court committed prejudicial error in admitting evidence of plaintiff's living expenses, instructing the jury about living expenses, and failing to grant defendant's post-trial motions.     We disagree. Attrial, plaintiff testified over defense's objection to the amount of living expenses she incurred from the date she left the marital home on 20 March 2001 until the time of the trial. Specifically, plaintiff testified regarding her monthly expenses for rent and utilities. Defendant concedes that in a suit for malicious prosecution, the plaintiff may recover for any loss which proximately resulted from the defendant's action. Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964). Defendant argues that any loss plaintiff suffered did not proximately result from the 21 March 2001 warrant and protective order, because plaintiff could have continued to live in the marital home after the warrant and ex parte order were dismissed. Defendant contends that, at most, plaintiff's damages relating to living expenses should be limited to the four-month period during which plaintiff was legally dispossessed.
     Carver, the only case defendant cites, does not support these arguments. It is well-established that the jury determines whether there is proximate cause, unless it is clear that reasonable people could not differ. See, e.g., Boudreau v. Baughman, 322 N.C. 331, 346, 368 S.E.2d 849, 860 (1988). We conclude that the court here correctly let the jury determine whether plaintiff's living expenses proximately resulted from defendant's actions. Furthermore, “'[t]he burden is on theappellant not only to show error but to enable the court to see that he was prejudiced or the verdict of the jury probably injured thereby.'” The Hajmm Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 589, 403 S.E.2d 483, 490 (1991)(internal citation omitted). Here, defendant fails to show how the admission of evidence of plaintiff's living expenses prejudiced him. In its award of damages to plaintiff, the jury did not specify what amount, if any, it gave for living expenses. Thus, we conclude that even if the evidence had been admitted in error, there was no prejudice.
    Likewise, defendant asserts that the trial court erred in instructing the jury that they could consider plaintiff's living expenses during her dispossession as an item for damages, but he fails to demonstrate any prejudice. As with erroneous admission of evidence, a party asserting erroneous jury instructions must show that the trial court erred, but must also show prejudice. Word v. Jones ex rel Moore, 350 N.C. 557, 565, 516 S.E.2d 144, 148(1999). The aggrieved party must show “that the jury was misled or that the verdict was affected by an omitted instruction.” Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002) . As defendant fails to show any prejudice, we overrule this assignment of error. Because defendant's arguments regarding the alleged erroneous admissionof evidence and erroneous jury instruction s fail, we necessarily conclude that the trial court did not err in failing to grant his post-trial motions based on these same alleged errors.
     Defendant also argues that living expenses were addressed in plaintiff's Chapter 50 action for child custody, equitable distribution, post-separation support, and permanent alimony, and thus to award plaintiff damages for living expenses here amounts to double recovery. Again, defendant cites no authority in support of his argument; thus, we are not persuaded of its merit. Additionally, we note that plaintiff's Chapter 50 action was unresolved at the filing of the parties' briefs to this Court and although plaintiff had been awarded post-separation support, this support began 1 June 2002 and did not address the period from March 2001 to June 2002.
    Defendant next contends that the trial court should have set aside the compensatory damages award as clearly excessive and ordered a new trial. We disagree. The jury awarded plaintiff $50,000 in compensatory damages. Defendant speculates that in calculating this amount, the jury awarded plaintiff over $46,000 for pain and suffering. However, defendant's assertions regarding how much the jury awarded for the various damage elements are speculation, as the jury's verdict did not itemizethe damages. Where there is no stipulation of damages, the testimony of witnesses becomes evidence within the sole province of the jury. Blow v. Shaughnessy, 88 N.C. App. 484, 494, 364 S.E.2d 444, 449 (1988). As the finder of fact, the jury is “entitled to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence.” Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408, 413 (1986). However, the trial court may grant a new trial where there is “manifest disregard by the jury of the instructions of the court” or where the jury awards “[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice. ” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6) (2003). A motion for a new trial on the grounds of inadequate damages is addressed to “'the sound discretion of the trial court.'” Warren v. Gen. Motors Corp., 142 N.C. App. 316, 320, 542 S.E.2d 317, 319 (2001) (internal citation omitted). Thus, this Court may reverse such a decision, “only in those exceptional cases where abuse of discretion is clearly shown.” Lusk v. Case, 94 N.C. App. 215, 217, 379 S.E.2d 651, 652 (1989).
    Here, plaintiff introduced evidence of medical costs, lost wages, living expenses, attorney's fees, and physical and psychological pain and suffering. Mental health professionals testified here that plaintiff suffered from ongoing anxiety,depression, and post-traumatic stress syndrome following the 20 March 2001 incident. Given this testimony, as well as the other evidence introduced, we cannot conclude that the trial court abused its discretion in denying defendant's motion to set aside the damages award.
    Defendant also argues that the trial court committed prejudicial error by failing to instruct the jury that, as to punitive damages, it could consider evidence of the existence and frequency of similar past conduct by the defendant. N.C. Gen. Stat. § 1D-35 (2003) provides that
            [i]n determining the amount of punitive damages, if any, to be awarded, the trier of fact: (1) Shall consider the purposes of punitive damages set forth in G.S. 1D-1; and (2) May consider only that evidence that relates to the following:
     . . .
            g. The existence and frequency of any similar past conduct by the defendant.

Per N.C. Gen. Stat. § 1D-40 (2003), the court in a jury trial “shall instruct the jury with regard to subdivisions (1) and (2) of G.S. 1D-35.” Id. Here, the court denied defendant's request that the court instruct the jury regarding factor (g) of N.C. Gen. Stat. § 1D-35. As discussed earlier, a party asserting erroneous jury instructions must show prejudice. Word, 350 N.C. at 565, 516 S.E.2d at 148; Bass 149 N.C. App. At 160, 560 S.E.2dat 847. Although defendant contends that there were “zero” past incidents of similar conduct by him, plaintiff testified to a February 2001 incident involving defendant's assaultive behavior. Thus, we conclude that an y error here was not prejudicial to defendant and that defendant has failed to show that the jury's verdict was affected by this alleged error.
    Defendant also asserts that the trial court erred in denying defendant's request for a special limiting instruction regarding future damages and in giving an erroneous instruction. At trial, defendant argued that there was insufficient evidence for the jury to consider regarding future me dical expenses and future pain and suffering, and requested that the court not instruct the jury regarding these issues, or that limiting instructions be given. The court denied these requests.
    Defendant contends that plaintiff's experts gave conflicting testimony regarding whether her post-traumatic stress syndrome was curable and that no one offered testimony regarding the course or costs of future treatment. However, where the evidence supports more than one reasonable conclusion, determination of the issue properly belongs to the jury. Maness v. Fowler-Jones Const. Co., 10 N.C. App. 592, 598, 179 S.E.2d 816, 819 (1971). The trial court may instruct a jury on a claimor defense only “'if the evidence, when viewed in the light most favorable to the proponent, supports a reasonable inference of such claim or defense.'” Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C. App. 139, 152, 565 S.E.2d 254, 262 (2002) (internal citation omitted). Here, we conclude that the plaintiff introduced sufficient evidence regarding future medical expenses and pain and suffering. The different forecasts offered did not undermine the sufficiency of the evidence, but merely created a question of fact for the jury.
    Defendant argues that the jury instructions given for future medical expenses and for future pain and suffering were too “ loose” and “vague.” As discussed earlier, defendant bears the burden of showing that the alleged error in the affected the verdict. Here, defendant has not made such a showing. Furthermore, this Court reviews jury instructions contextually and in their entirety. Bass, 149 N.C. App. at 160, 560 S.E.2d at 847. On appellate review, the charge will be held sufficient unless the trial court's presentation of the law created “'reasonable cause to believe the jury was misled or misinformed.'” Id. (internal citation omitted). Here, after careful review of the record, we conclude that the trial court gave sufficient jury instructions.     Defendant next argues that the trial court erred in accepting the jury's punitive damages verdict and in denying defendant's motion for a new trial based upon this verdict. Defendant's argument here rests on two of his earlier arguments. First, defendant relies on his argument that the trial court failed to give required instructions under N.C. Gen. Stat. § 1D- 35(2)(g). Because we have already overruled that assignment of error, this argument fails. Similarly, defendant asserts that the punitive damages were erroneous because they are based on compensatory damages, per N.C. Gen. Stat. § 1D-35 (2)(e), which defendant has argued were erroneously awarded. Again, as we overruled this assignment of error earlier, defendant's argument here fails as well.
    In his final assignment of error, defendant argues that the trial court erred in giving jury instructions regarding defendant's prior admission of a no contest plea. Earlier in the trial, the jury heard testimony by a deputy court clerk to which no objection was lodged, including that defendant had entered a plea of no contest to a criminal assault charge arising out of the same circumstances as the instant civil case. The witness also testified that when asked “[a]re you in fact guilty?,” defendant answered, “[y]es.” However, defendant objected to jury instructions regarding the no contest plea and now asserts thatthese instructions were erroneous because a no contest plea does not act as an admission.
    While a no contest plea does not act as an admission, it does act as a conviction:
        N.C.G.S. § 15A-1022(c) provides that before a court may accept a no contest plea it must determine that there is a factual basis for the plea . . . . When a plea of no contest is . . . entered there must be a finding by a court that there is a factual basis for the plea. This finding and the entry of a judgment thereon constitute an adjudication of guilt.

State v. Outlaw, 326 N.C. 467, 469, 390 S.E.2d 336, 337 (1990). However, here, the court instructed the jury as follows:
        There is some evidence that tends to show in this case that Mr. Cooke admitted some fact or facts when he pled no contest to assault on a female and simple assault in a criminal matter that arose out of these same circumstances. And whether he did admit or didn't admit would be for you and you alone to find, and also you will . . . decide what truthfulness you'll give to such response and the weight that you'll give to that plea of no contest to those charges . . . [O]ne is treated by a plea of no contest the same as if they had pled guilty, because the court finds facts up to that point justified the entry of that plea.

(emphasis added). We conclude that the court adequately instructed the jury on the law and that the instructions given did not suggest that the jury should accept the no contest pleaas an admission. Furthermore, given the other evidence introduced at trial, even if the jury charge here were erroneous , we fail to see how any error prejudiced the defendant.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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