An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1031

NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

STATE OF NORTH CAROLINA

     v .                              Guilford County
                                      No. 02 CRS 96306
TINA LYNN BOWMAN STAMEY

    Appeal by defendant from judgment entered 16 January 2004 by Judge Judson D. DeRamus, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 24 March 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jill B. Hickey, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender, Daniel R. Pollitt, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Tina Lynn Bowman Stamey appeals after being found guilty of voluntary manslaughter. The State's evidence tended to show that Danny Cecil died of a stab wound to the heart on 5 September 2002. Officer Chris Cole of the High Point Police arrived at 508 Carr Street at 4:26 a.m. on the date of the incident. A neighbor told Officer Cole to check the driveway. There, Officer Cole found Cecil crouched in the fetal position.
    Margaret Ann Carden testified that she saw defendant and Cecil at a muffler shop on 5 September 2002. Defendant was yelling at Cecil and slapping him on his face. Cecil did not hit her back. When defendant walked away, Carden spoke with Cecil. When she waswalking on Carr Street a few hours later, Carden heard defendant and Cecil arguing again. She also heard glass breaking.
    Later that morning, Carden saw defendant and asked her why there were fire trucks and ambulances at Cecil's house. In response, defendant explained that she had a fight with Cecil and stabbed him.
    A neighbor and resident of 510 Carr Street, Lauren Wood, testified that at about 12:30 a.m., she saw the police arrive at 508 Carr Street because there had been an argument between defendant and Cecil. When the police arrived, defendant and Cecil told the police that they simply had a misunderstanding.
    Wood went to sleep, but woke up at 4:30 a.m. when she heard defendant and Cecil arguing. According to Wood, the altercation began near Cecil's house before moving onto the street. At that time, Wood opened her window and told them to take their disagreement inside. Defendant then ran to the porch of Wood's house, knocked on the door, and said, “Call the police. He's gonna kill me.” Cecil responded, “Yeah, call the law, because I'm gonna take a warrant out on her for breaking our glass.” While the parties were on her porch, Wood could not see them because the overhang blocked her view.
    Wood ran downstairs and asked Marvin Brown to call the police. Afterwards, she told the parties that Brown had called the police. At that point, defendant ran away. Cecil had his hand over his heart and was stumbling across the yard to the driveway. Wood also saw Cecil fall into the fetal position.     The only witness who saw defendant and Cecil fighting was Robert Lloyd. Lloyd lived across the street at 509 Carr Street. Lloyd testified that he saw the argument in the middle of the street. He went back inside his house. About an hour later, Lloyd looked outside and saw Cecil kneeling on the sidewalk. He hollered to Cecil, “Why don't you get up off the ground like that?” Cecil did not move or respond in any way.
    Detective Jerry Thompson of the High Point Police Department testified that he interviewed defendant. He testified that during the first portion of the interview, defendant denied that she stabbed Cecil. During the second portion of the interview, however, defendant admitted to stabbing Cecil.
    Defendant offered evidence tending to show that she had a bruise and cut on her shoulder, a loose tooth, and dried blood on the back of her head when the nurse at the High Point Jail, Sharon Poe, examined her. The dentist at the High Point Jail, Dr. Harold Holt, testified that defendant had a fractured cheekbone, swelling under her left eye, and two loose teeth that had to be extracted when he examined defendant shortly after her arrest.
    After hearing all of the evidence, the jury found defendant guilty of voluntary manslaughter. The trial judge sentenced defendant to a minimum term of 103 months and a maximum term of 133 months in prison. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) failing to submit the charge of involuntary manslaughter to the jury, (2) instructing the jury on a theory of voluntarymanslaughter that was not supported by the evidence, (3) admitting evidence that should have been excluded, (4) permitting hearsay evidence, and (5) considering improper matters in determining the severity of the sentence. We disagree and conclude that defendant received a fair trial free from reversible error.

I. Failing to Submit the Charge of Involuntary Manslaughter
    Defendant argues that the trial court erred by failing to submit the charge of involuntary manslaughter to the jury. After careful consideration, we disagree.
    The trial court must give a lesser included offense where the evidence would allow a rational jury to find defendant guilty of the lesser offense and not guilty of the greater offense. State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989). The trial court must consider whether or not there is evidence in the record that could convince a rational trier of fact to convict defendant of a less grievous offense. Id.    
    Our courts have defined involuntary manslaughter as
        “the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty.”

State v. Lawson, 6 N.C. App. 1, 7, 169 S.E.2d 265, 269 (1969) (citation omitted). “To constitute involuntary manslaughter, the homicide must have been without intention to kill or inflictserious bodily injury, and without either express or implied malice.” State v. Foust, 258 N.C. 453, 459, 128 S.E.2d 889, 893 (1963) (emphasis added).
    In the present case, defendant was not entitled to an instruction on involuntary manslaughter because the evidence did not support the first element of the crime (that defendant acted without intention to kill or to inflict serious bodily injury). The evidence at trial tended to show that the victim died of a stab wound to the heart. The knife entered the victim's body between his fourth and fifth ribs, fractured his fourth rib, and entered the right ventricle of his heart. The wound was four to six inches deep, and defendant admitted to stabbing the victim.
    In her brief, defendant seizes upon a portion of her statement to police in which she claimed that she did not mean to kill the victim. However, defendant also stated, “Yea[h]. I thought I just cut him enough to make him leave me alone and that's when I left when I did.” Our courts have noted that an instruction on involuntary manslaughter is not necessary, “regardless of whether the actual killing was intentional or unintentional, when the intentional act leading to death was naturally dangerous to human life.State v. Lawrance, 94 N.C. App. 380, 382, 380 S.E.2d 156, 158 (emphasis added), disc. review denied, 325 N.C. 548, 385 S.E.2d 506 (1989). Therefore, even if defendant did not intend to kill the victim, she did carry out an intentional act that was naturally dangerous to human life by stabbing the victim in the heart. Thefact that the wound was four to six inches deep is further evidence that the act was intentional.
    Even if we were to rely only upon the portion of defendant's statement in which she claims that she did not mean to kill the victim, such reliance would not lead to a different result. Where there is no evidence that the killing was accidental aside from defendant's assertion that he had not meant to kill, the crime is at least voluntary manslaughter, and the submission of the charge of involuntary manslaughter is erroneous. State v. McConnaughey, 66 N.C. App. 92, 97, 311 S.E.2d 26, 30 (1984). Because the evidence would only permit the jury to conclude that defendant engaged in an act likely to result in death or serious bodily injury, defendant was not entitled to an instruction on involuntary manslaughter.
    Although it is not essential to our holding, we turn to consider defendant's argument that the trial court should have given an instruction on involuntary manslaughter because this was an unintentional or inadvertent stabbing. Where a defendant inadvertently stabs the victim in the chest while not attempting or intending to do so and the victim dies from the wound, the killing has resulted from a culpable or criminally negligent act. State v. Daniels, 87 N.C. App. 287, 289, 360 S.E.2d 470, 471 (1987). In these instances, an instruction on involuntary manslaughter is warranted. Id.
    
Several cases illustrate the application of this rule. In Daniels, defendant and the victim were involved in a violentaltercation. Id. at 288, 360 S.E.2d at 470. Defendant struck at the victim while trying to get away, but never intended to stab or hurt the victim. Id. Thus, there was evidence showing that the victim was inadvertently stabbed in the chest, and the killing resulted from a culpable or criminally negligent act. Id. at 289, 360 S.E.2d at 471.
    
In State v. Drew, 162 N.C. App. 682, 686, 592 S.E.2d 27, 30, appeal dismissed, disc. review denied, 358 N.C. 735, 601 S.E.2d 867 (2004), this Court explained that
        a jury could find that defendant, who had been told that no one was in the house, was surprised in the bathroom by a man whom he did not immediately recognize; that the intruder lunged or swung at [defendant]; that [defendant] immediately swung back holding the knife; and that [defendant] ran away out of fear. The jury could also find . . . that defendant did not know that he had stabbed [the victim] and that he did not intend to kill him.

Thus, the jury could have found that the stabbing was an unintentional act of culpable negligence because defendant swung a knife at someone he thought was an intruder. Id.
    Unlike the factual scenarios in Daniels and Drew, there are
also fatal stabbing cases in which an instruction on involuntary manslaughter was not proper. In State v. Davis, 66 N.C. App. 334, 338, 311 S.E.2d 311, 313 (1984),
        [d]efendant's conduct in intentionally grabbing the knife and moving it toward the deceased during the course of a fight initiated and aggressively pursued by defendant, constituted an act naturally dangerous to human life in that the fatal consequences were probable under all the factsexisting at the time. There was no evidence to support a verdict of involuntary manslaughter and the trial court was correct in not submitting it as a possible verdict.

    We believe that the present case is analogous to the situation in Davis. Here, while fighting with the victim, defendant stabbed the victim in the heart and created a wound that was four to six inches deep. At the very least, this constituted an act naturally dangerous to human life. Defendant has admitted to carrying out the act, and there is nothing in the record to support the view that this was an unintentional or inadvertent stabbing. Therefore, defendant was not entitled to an instruction on involuntary manslaughter. We overrule this assignment of error.
II. Instructing on a Theory Not Supported by the Evidence
    Defendant contends that the trial court erred by instructing the jury on a theory that the evidence did not support. Defendant claims that it was plain error for the trial court to allow the jury to consider the charge of voluntary manslaughter based on the theory that defendant was the aggressor in initiating the fight which led to the victim's death. We disagree.
    “A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection[.]” N.C. R. App. P. 10(b)(2)(2005). Since defendant did not object at trial, she is only entitled to plain error review. The plain error rule applies in truly exceptional cases, and the appellate court must beconvinced that absent the alleged error, the jury probably would have reached a different result. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983).
    “It is generally prejudicial error for the trial judge to permit a jury to convict upon a theory not supported by the evidence.” State v. Moore, 315 N.C. 738, 749, 340 S.E.2d 401, 408 (1986). “[I]t is error for the court to charge the jury that a defendant, if otherwise acting in self-defense, is guilty of voluntary manslaughter if he was the aggressor in bringing on the fight where the record contains no evidence that the defendant was the aggressor.State v. Temples, 74 N.C. App. 106, 109, 327 S.E.2d 266, 268 (emphasis added), disc. review denied, 314 N.C. 121, 332 S.E.2d 489 (1985).
    Defendant argues that there was no evidence that she started a fight with the victim or voluntarily entered into a fight with him. The record does not support this contention. Although there was evidence that defendant and the victim had been fighting twelve hours before the victim's death, there was evidence tending to show that defendant initiated the altercation that resulted in the victim's death. On the preceding afternoon, defendant and the victim were fighting in the middle of the street. Around midnight, defendant and the victim fought again, and the police came to their house. About three hours later, defendant, the victim, and Margaret Ann Carden were at the muffler shop on English Road. At that time, defendant was yelling at the victim and slapping him across the face. The victim did not hit her back. Defendantwalked away and later took a steak knife to the victim's house and left her keys there.
    About an hour later, defendant returned to the victim's house and started pounding on the door. Carden heard defendant threatening to break the window if the victim did not let her in. Then, Carden heard glass break. A neighbor, Lauren Wood, testified that when defendant ran over to her porch around 4:30 a.m. and asked her to call the police, the victim ran over and stated, “Yeah, call the law, because I'm gonna take a warrant out on her for breaking our glass.” While there was some evidence to the contrary, this evidence tended to show that defendant was the aggressor and initiated the altercation which led to the victim's death. Therefore, defendant's contention that there was no evidence to support the aggressor theory is without merit. We overrule this assignment of error.
III. Evidentiary Matters
    Defendant argues that the trial court committed plain error in its rulings on a number of evidentiary matters. In particular, defendant disapproved of Detective Thompson's statement that “foul play” may have been involved, his use of the word “homicide,” and his testimony referencing inconsistencies in defendant's statement to police.
    Where a criminal defendant fails to object to the admission of evidence, the plain error analysis is the proper standard of review. State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000). If “we are not persuaded that the jury probably wouldhave reached a different result had the alleged error[s] not occurred, we will not award defendant a new trial.” Id. Since defendant did not make these objections at trial, we will conduct plain error review.
    
Defendant first contends that the trial court committed plain error when it allowed Detective Thompson to opine that “foul play” may have been involved. Pursuant to N.C. Gen. Stat. § 8C-1, Rule 602 (2003), “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” Rule 701 provides:
        If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 8C-1, Rule 701 (2003). Detective Thompson's use of the term “foul play” was a statement of his opinion based upon his personal observations at the scene and his experience as a police officer. This testimony expressed Detective Thompson's view that someone stabbed the victim. Since it was rationally based upon his perception and was helpful to the jury's understanding of a fact in issue (how the victim may have died), the testimony was admissible under Rule 701.
    In a related argument, defendant claims that Detective Thompson's use of the term “homicide” was improper. Once again, we disagree with this contention because this testimony was a factual description based upon what Detective Thompson saw at the scene. Detective Thompson discovered the victim slumped over on the driveway with a stab wound in his chest. This evidence was admissible because it was rationally based upon the witness's perception and was helpful to the jury's understanding of how the victim may have died.
    Defendant also suggests that allowing Detective Thompson to use the term “homicide” was improper because it concerned whether a legal standard or conclusion had been met. In State v. Parker, 354 N.C. 268, 289, 553 S.E.2d 885, 900 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002), our Supreme Court noted that an expert is not permitted to testify as to whether a legal standard or conclusion has been met where the standard has a legal meaning not readily apparent to the expert. This case is not helpful to defendant's position because, as defendant acknowledges, Detective Thompson was not testifying as an expert. More importantly, Detective Thompson's use of the word “homicide” was not a legal conclusion; it was simply his opinion that someone else probably killed the victim.
    In describing the term “homicide,” this Court has explained:
        Homicide is defined as “[t]he killing of any human creature.” “The killing of one human being by an act, procurement, or omission of another.” “The act of a human being taking away the life of another.” A homicide often is an intentional act, but it is not necessarily so. An unintended killing of one human being by another is also a homicide.

McNeil v. Insurance Co., 19 N.C. App. 348, 350-51, 198 S.E.2d 753, 755-56 (1973)(citations omitted). Furthermore, “[h]omicide is notnecessarily a crime.” Deluxe Black's Law Dictionary 734 (6th ed. 1990). “The term 'homicide' is neutral; while it describes the act, it pronounces no judgment on its moral or legal quality.” Id. Because defendant has failed to show that Detective Thompson was testifying as an expert or that his use of the word “homicide” was a legal conclusion, we reject this argument.
    
Defendant next contends that the trial court committed plain error in allowing Detective Thompson to testify that defendant lied when she gave her statement. This argument is meritless because there were inconsistencies in defendant's statement to police. Defendant denied stabbing the victim in the first portion of the interview, but later admitted that she did stab the victim. Both the tape recording and the transcript of this interview were admitted into evidence, and jurors had the opportunity to hear these inconsistencies for themselves.
    Under these circumstances, we cannot conclude that Detective Thompson's reference to defendant's untruthfulness would amount to plain error. Since defendant's inconsistent statements were already in the record, the admission of Detective Thompson's statement did not prejudice defendant in any way.
    After careful consideration, we conclude that the trial court acted appropriately in making these evidentiary rulings. Even if we assume arguendo that any of the evidence was improperly allowed, defendant would not be entitled to a new trial. In the present case, it is unlikely that the jury would have reached a differentresult had the alleged error or errors not occurred. We overrule this assignment of error.
IV. Hearsay Testimony
    Defendant argues that the trial court committed plain error in admitting hearsay testimony. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). At trial, defendant objected to a portion of Detective Thompson's testimony which described what the District Attorney advised him to do. The trial court sustained the objection. However, immediately thereafter, Detective Thompson responded to a question by stating, “[The District Attorney] advised me to get a warrant for her [defendant], yes, for murder.” At that time, defendant did not object and did not make a motion to strike the testimony. “Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). In the present case, defendant lost the benefit of her objection when the evidence was subsequently admitted without objection. Furthermore, even if erroneous, the admission of this evidence did not rise to the level of plain error. It is unlikely that this benign reference to obtaining a warrant had any impact on the jury's decision. We overrule this assignment of error.
V. Sentencing
    Defendant argues that the trial court erred by considering improper matters in determining the severity of defendant's sentence. “[T]he trial judge is in the best position to determine appropriate punishment for the protection of society and rehabilitation of the defendant.” State v. Powell, 6 N.C. App. 8, 11, 169 S.E.2d 210, 212 (1969). Accordingly, “the trial judge must be allowed to exercise wide discretion within the statutory limits.” Id. “Within the limits of the sentence permitted by law, the character and extent of the punishment to be imposed is a matter for the sound discretion of the court, and may be reviewed by the appellate court only in case of manifest and gross abuse.” State v. Hullender, 8 N.C. App. 41, 42, 173 S.E.2d 581, 583 (1970). As long as the punishment is within the maximum provided by law, this Court must presume that the trial judge acted appropriately. State v. Harris, 27 N.C. App. 385, 386, 219 S.E.2d 306, 307 (1975). With this deferential standard in mind, we turn to consider defendant's argument.
    Defendant claims that the trial judge considered improper matters, namely her prior convictions for Class 2 and Class 3 misdemeanors, in determining the severity of her sentence. This argument is unpersuasive because the trial court did not consider these matters in determining defendant's prior record level. Defendant's prior record level worksheet indicated that she had seven record level points based upon two 1982 convictions and one 1984 conviction. Thus, she was a Prior Record Level III forsentencing purposes. Although the State argued for aggravating factors and defendant advocated for the adoption of mitigating factors, the trial judge sentenced defendant to a minimum term of 103 months, a period that is within the presumptive range for Class D Felonies with a Prior Record Level III. N.C. Gen. Stat. § 15A- 1340.17(c) (2003). The court made no findings on mitigating or aggravating factors and was not required to do so. See State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999) (explaining that “a trial court is not required to justify a decision to sentence a defendant within the presumptive range by making findings of aggravation and mitigation”).    
    We believe that the trial judge acted properly. He was in the best position to determine the appropriate punishment. Furthermore, the fact that defendant received a sentence that was within the presumptive statutory range shows that the trial judge did not commit a manifest or gross abuse of his discretion.
    Defendant relies heavily on State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967). In Swinney, the trial court accepted defendant's plea of nolo contendere to the charge of voluntary manslaughter. Id. at 131, 155 S.E.2d at 546. The evidence tended to show that after a party in the home of defendant and her husband, where there was drinking and dancing, defendant's husband attacked her and she shot and killed him. Id. at 132, 155 S.E.2d at 547. Through his statements in open court, the trial court revealed that he was punishing defendant, not for the killing, butfor her part in the party. Id. at 133-34, 155 S.E.2d at 548. This Court vacated the judgment and remanded for a proper sentence. Id. at 134, 155 S.E.2d at 548. The present case is distinguishable from Swinney because defendant in this case was punished for the crime charged, rather than extraneous conduct that was not directly related to the offense. Therefore, the result in Swinney has no bearing on the outcome here.
    Finally, defendant points out that the trial court “could lawfully have imposed a much lesser sentence[.]” However, the fact that the trial judge could have imposed a lesser sentence does not mean that he abused his discretion in imposing a greater one. Furthermore, we will not, as defendant suggests, “assume” that the trial court considered improper matters in increasing the severity of the sentence. Rather, since the punishment is within the maximum provided by law, this Court must presume that the trial judge acted appropriately. Harris, 27 N.C. App. at 386, 219 S.E.2d at 307. This assignment of error is overruled.
    After careful consideration, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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