An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-842


Filed: 5 April 2005


v .                         Guilford County
                            No. 02 CRS 96104

    Appeal by defendant from judgment entered 10 December 2003 by Judge Melzer A. Morgan, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 14 February 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Tiare B. Smiley, for the State.

    J. Clark Fisher for defendant-appellee.

    ELMORE, Judge.

    Travis Watkins (defendant) appeals his conviction for voluntary manslaughter on the basis that the trial court committed prejudicial error by denying him the opportunity to present testimony which the trial court found inadmissible under Rule 403 of the Rules of Evidence. We disagree and find no error in the trial court's decision.
    Defendant was tried and convicted for the 3 September 2002 killing of Richard Boggs (Boggs), his girlfriend's former husband. That morning Mary Boggs (Mary), the victim's former wife, was at defendant's home waiting for him to get ready so they could go shopping. Just after defendant got out of the shower, the two heard loud banging noises on the front door. Defendant looked outthe window and confirmed that Boggs was outside his house banging on the doors and windows yelling for the two of them to either come outside or he was coming in. Defendant retrieved and loaded his gun while Mary called 911. Defendant testified that he came out of the bedroom to find Boggs in the house and, fearing for his life, shot at Boggs. Defendant then followed Boggs outside and continued firing on him as he was getting into his truck and, as defendant perceived, reaching for a gun. Defendant then came back in the house, set his gun down, and told Mary to go check on Boggs because he had fallen out of the truck.
    Officers from the Greensboro Police Department responded to the call of a shooting to find Mary standing over Boggs in the street. They called for defendant to come out of the house, and he immediately complied, telling them that the gun was in the kitchen. Later investigation could not determine whether any shots were fired in the house, but ten shell casings were found outside in the yard and around defendant's truck. Boggs was hit with six shots. An analysis of the scene suggested that Boggs was shot both outside the truck and while he was in the driver's seat, also all of the shots that had entered the cab of the truck came through the passenger's side window. A loaded gun was found in the glove compartment of Boggs's truck. Defendant signed a statement stating that he had shot Boggs inside the house and in his truck in self- defense.
    At trial Mary testified to numerous incidents throughout her relationship with Boggs that suggested he might have been theinitial aggressor against she and defendant. On different occasions throughout the couple's marriage, Mary testified that Boggs hit her with a whisk, threw her against a wall, hit her in the head with a broiler pan, rammed a hot curling iron into her genital area, inserted a gun into her vagina, and on several occasions pointed a gun at her head. She stated that the couple's marriage was marred with many incidents of domestic violence, both physical and emotional. She testified that she was constantly fearful of what Boggs would do to her. She further testified that defendant had been informed of many incidents of violence perpetrated against her by Boggs.
    Defendant also testified that Boggs had threatened him while he was dating Mary. He testified that Boggs came to Mary's apartment and threatened him with a gun and on a different occasion had threatened him while he was walking Mary's dog.
    Mary testified that she was at defendant's home on the day of the shooting because Boggs had just the previous day been to her apartment and threatened her. She testified that following the separation Boggs had repeatedly stalked and harassed her, following her to defendant's home, to her appointments, and other places around town. She eventually discovered that he had installed a tracking device on her car.
    Defendant contends that had the trial court allowed him to present an additional example of Boggs's aggressive nature he would have been found not guilty. We disagree. On voir dire, defendant solicited testimony from Mary that four years prior to theSeptember 2002 incident, Mary received a call from Boggs that their newborn son was injured. When Mary arrived home, Boggs told her that he had dropped the baby carrier on the ground and the child landed on his face. Although admitting her doubt about Boggs's account of the child's injury on the stand, Mary testified that Boggs threatened to manufacture stories of abuse and unfitness to win custody of their son should she ever mention the incident to anyone or seek medical attention for the child. The trial court ruled that this evidence was inadmissible under Rule 403.
    It is well settled that a defendant charged with a homicide and proceeding under a self-defense theory is entitled to present evidence of specific acts reflecting upon the victim's character for aggression or establishing that his fear or apprehension of the victim was reasonable. See N.C. Gen. Stat. § 8C-1, Rules 404(a)(2) and 405(b) (2003); State v. Ray, 125 N.C. App. 721, 725, 482 S.E.2d 755, 758 (1997).
        'Defendant may admit evidence of the victim's character to prove defendant's fear or apprehension was reasonable and, as a result, his belief in the need to kill to prevent death or imminent bodily harm was also reasonable.' State v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 706 (1994), cert denied, Watson v. North Carolina, 514 U.S. 1071, 115 S. Ct. 1708, 131 L.E.2d 569(1995), overruled in part on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). The specific incident of conduct a defendant seeks to enter into evidence becomes relevant 'only if defendant knew about it at the time of the shooting.' State v. Shoemaker, 80 N.C. App. 95, 101, 341 S.E.2d 603, 607 (1986).
State v. Dewberry, ___ N.C. App. ___, ___, 600 S.E.2d 866, 871 (2004). But this evidence still may be irrelevant or otherwise inadmissible under other rules of evidence.
    Rule 403 gives the trial court discretion to exclude evidence “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.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003); see also State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996) (“Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and its ruling may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.”).
    We find no abuse of the trial court's discretion in determining that the proffered incident was inadmissible. The trial court allowed Mary to testify to numerous specific acts reflecting Boggs's aggression. This particular act happened four years prior to the shooting and involved the couple's child and there was no information solicited suggesting that defendant knew of this incident. Given the wealth of information already admissible on the trait in question, the evidence would have been cumulative at best and likely prejudicial. Accordingly, we find no error in the trial court's evidentiary ruling.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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