STATE OF NORTH CAROLINA
v. Caldwell County
No. 02 CRS 52949
CHARLES EDWIN PEARSON
Attorney General Roy Cooper, by Assistant Attorney General
Lisa C. Glover, for the State.
James N. Freeman, Jr., for defendant-appellant.
MARTIN, Chief Judge.
Defendant Charles Edwin Pearson was indicted for assault with
a deadly weapon inflicting serious injury. He pled not guilty.
The evidence presented at trial tended to show the following: On 28
September 2002, Sherilyn Berry and defendant, who was her
boyfriend, were at defendant's parent's house in Caldwell County.
Berry and defendant were “hanging out” and using crack cocaine.
Berry testified that their relationship revolved around drugs.
Defendant sent Berry out to get more crack, but she came back
empty-handed because she had no money. Berry stated that defendant
called her a “lying bitch” and accused her of smoking the crack
herself. Berry testified that defendant then picked up a half-gallon Mason jar and started hitting her in the head with it,
knocking her unconscious. When she came to, she covered her face
with her arm. Defendant hit her again, and the jar broke on her
arm, the glass cutting her arm “all the way to the bone” and
causing nerve and tissue damage. Defendant took Berry to the
hospital and told the receptionist Berry had fallen through a
window.
Berry testified that she did not immediately report the
assault, but waited approximately one month, because she loved the
defendant and did not want to hurt him. Berry stated that she
filed the report after defendant beat her again in October 2002.
She conceded that she had smoked crack that day, but stated that
she could still remember defendant beating her.
Defendant was convicted of assault with a deadly weapon
inflicting serious injury and appeals from the judgment entered
upon the verdict.
Defendant first argues the trial court erred by allowing into
evidence testimony of a subsequent bad act. Berry testified that
in October 2002, defendant hit her and broke the windshield of her
car. Officer Tracey Pyle then gave corroborating testimony,
stating that Berry told her defendant slapped her and broke her
windshield because she “made him” lose a dollar, and thus he could
not buy any crack cocaine. Defendant asserts that the evidence was
inadmissible because it was for the improper purpose of showing
that he had a propensity for violence. Defendant further argues
that the trial court erred by failing to give a limitinginstruction.
After careful review of the record, briefs and contentions of
the parties, we find no error. Rule 404(b) of the North Carolina
Rules of Evidence provides:
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). Our Court has stated
that:
This rule is a clear general rule of inclusion
of relevant evidence of other crimes, wrongs
or acts by a defendant, subject to but one
exception requiring its exclusion if its only
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. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397
(2000)(emphasis & citation omitted), disc. review denied, 353 N.C.
396, 547 S.E.2d 427-28 (2001). “The list of permissible purposes
for admission of 'other crimes' evidence is not exclusive, and such
evidence is admissible as long as it is relevant to any fact or
issue other than the defendant's propensity to commit the crime.”
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert.
denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995).
In this case, Berry's testimony was elicited to explain why
she waited a month to report the assault. Thus, we conclude that
its purpose was not to show that defendant had a propensity for
violence, and the trial court did not abuse its discretion byadmitting the testimony. We additionally note that defendant did
not request a limiting instruction. State v. Stager, 329 N.C. 278,
310, 406 S.E.2d 876, 894 (1991)(“The defendant, having failed to
specifically request or tender a limiting instruction at the time
the evidence was admitted, is not entitled to have the trial
court's failure to give limiting instructions reviewed on
appeal.”). Furthermore, Officer Pyle's testimony was admitted not
pursuant to Rule 404(b), but was for corroborative purposes only.
The trial court instructed the jury that the testimony was not
elicited for its truth, but was being offered to corroborate
Berry's testimony. Accordingly, we find no error.
Defendant next argues that the trial court erred by failing to
instruct the jury on self-defense. Defendant cites Officer Pyle's
testimony that defendant told her that Berry had attacked him and
that he hit her to get her off of him. Defendant notes that Berry
was at least an inch taller than he and outweighed him by more than
seventy pounds. Defendant argues that these facts warranted an
instruction on self-defense.
We find no error. This Court has stated:
A defendant is entitled to a jury instruction
on self-defense when there is evidence from
which the jury could infer that he acted in
self-defense. The right of self-defense is
only available, however, to “a person who is
without fault, and if a person voluntarily,
that is aggressively and willingly, enters
into a fight, he cannot invoke the doctrine of
self-defense unless he first abandons the
fight, withdraws from it and gives notice to
his adversary that he has done so.”
Furthermore, when confronted with a
nonfelonious assault, a party is required to
retreat “if there is any way of escape open tohim.” We consider the facts in the light most
favorable to Defendant in determining whether
the trial court should have instructed the
jury on self-defense.
State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998)
(citations omitted).
In the instant case, even when viewing the evidence in the
light most favorable to the defendant, he was not entitled to an
instruction on self-defense. The only evidence suggesting that
Berry initiated the fight was defendant's self-serving statement to
Officer Pyle. However, even if Berry initiated the fight, there
was no evidence that Berry was armed, and thus defendant was
required to retreat rather than repeatedly assault her with a glass
jar. See id. (“[r]egardless of who started the altercation, . . .
[d]efendant was required to retreat from the nonfelonious assault
rather than escalate the incident through the use of a weapon.”).
Accordingly, the assignment of error is overruled.
Defendant finally argues that the trial court erred by not
allowing him to make a statement on his own behalf at the
sentencing hearing. Defendant cites N.C. Gen. Stat. 15A-1334(b)
and argues that while the trial court initially offered him the
opportunity to speak, he was cut off. Defendant contends that he
is entitled to a new sentencing hearing. We are not persuaded.
“N.C. Gen. Stat. § 15A-1334(b) expressly gives a non-capital
defendant the right to 'make a statement in his own behalf' at his
sentencing hearing if the defendant requests to do so prior to the
pronouncement of sentence.” State v. Miller, 137 N.C. App. 450,
461, 528 S.E.2d 626, 632 (2000)(internal citations omitted). “Thepurpose of allocution is to afford defendant an opportunity to
state any further information which the trial court might consider
when determining the sentence to be imposed.” State v. Rankins,
133 N.C. App. 607, 613, 515 S.E.2d 748, 752 (1999). Here,
defendant was given the opportunity to make a statement. However,
rather than address issues related to sentencing, defendant
complained about the performance of his attorney. Thus, we
conclude that the trial court did not abuse its discretion by
refusing to allow defendant to continue his statement. See State
v. Jackson, 119 N.C. App. 285, 288-289, 458 S.E.2d 235, 238
(1995)(“a judgment will not be disturbed because of sentencing
procedures unless there is a showing of abuse of discretion,
procedural conduct prejudicial to the defendant, circumstances
which manifest inherent unfairness and injustice, or conduct which
offends the public sense of fair play.”). Accordingly, we find no
error.
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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