THE STATE OF NORTH CAROLINA
v
.
Guilford County
Nos. 02 CRS94476-77;
02 CRS 94495-96;
03 CRS 24529
RODNEY BOZEMAN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Patrick S. Wooten, for the State.
J. Clark Fischer, for defendant-appellant.
JACKSON, Judge.
Defendant, Rodney Bozeman, was tried on charges of assault on
a female, second degree trespass, injury to real property, making
a threatening phone call and misdemeanor breaking and entering in
the Superior Court of Guilford County. Defendant was convicted on
all charges and timely appealed the judgments entered on 7 April
2004.
At trial the State's evidence tended to show that defendant
and the victim, Diana Farrar (“Farrar”), entered into a contract
for defendant to enlarge and enclose Farrar's deck and perform
various other home improvements on 3 August 2002. Farrar gave
defendant a deposit check in the amount of $3,000.00 on 5 August2002. At the time the contract was signed, defendant told Farrar
that she had three days in which to change her mind and cancel the
contract.
On or about 7 August 2002, Farrar began to have second
thoughts and she attempted to contact defendant several times
without success, leaving several messages for defendant to call her
and telling him not to proceed with any work until he had spoken to
her. When defendant finally called Farrar she told him not to do
any work on her house. Farrar then attempted to stop payment on
the deposit check, only to discover that it already had cleared the
bank. Defendant contacted her by telephone and was irate and she
again told him not to work on her house. Farrar then left town for
a scheduled trip.
The day after she left town, Farrar spoke with one of her
neighbors who told her that there were people working on her house.
When Farrar returned home two days later, there were two men
working on the deck of her house. When she asked the men what they
were doing there one of them, Jason Southern (“Southern”), informed
her that defendant had told them she was his aunt and he was having
the work done as a surprise for her. Southern then called his boss,
who came to the location. Farrar called defendant, who arrived at
her house shortly thereafter.
Farrar asked defendant why he was having work done on the
house and pointed out that the work was not even the project they
had discussed in the first place. Farrar's ex-husband, who had
accompanied her on her trip and had returned to her house with her,questioned defendant's explanation. Defendant became angry and
pointed his finger at Farrar's ex-husband and told him not to talk
to him. Defendant said “You don't want to make me run to my truck.
Don't make me go to my truck.” Defendant then ran to the passenger
side of his truck and appeared to reach under the seat to retrieve
something. None of the witnesses were able to see what, if
anything, defendant had retrieved. Defendant then appeared to put
the item behind his back in the waistband of his pants and returned
to Farrar and her ex-husband with his hand behind his back.
Defendant stated, “You don't want to mess with me. I've got
something for your ass.” Defendant's statements and actions were
witnessed by the men working on the house, Farrar's ex-husband and
her daughter. The testimony of the witnesses was substantially
similar to Farrar's regarding the events up to that point.
Farrar further testified that she was frightened and told her
ex-husband and daughter to go into the house and call the police.
After her ex-husband and daughter went into the house, defendant
continued to yell at her and got “right in [her] face.” Farrar
began backing away from defendant who then, according to Farrar's
testimony, began poking her in the forehead with his finger.
Southern also testified that he saw defendant poke Farrar in the
forehead.
When Guilford County Sheriff's Department deputies arrived at
Farrar's home, defendant behaved in a calm and civil manner. He
informed the deputies that the incident was the result of a dispute
over the contract for his construction services. Farrar did notinform the deputies that defendant had poked her in the forehead.
The deputies decided that the incident was most likely a civil
matter and asked defendant to leave as requested by Farrar.
Farrar and her ex-husband went to the magistrate's office and
attempted to file charges against defendant for communicating
threats due to his actions. They were informed that because they
did not see a weapon, there was no direct threat and they were
unable to file charges against defendant at that time.
One or two days after the incident with defendant, Farrar
noticed dirt on the floor of her living room under the window. She
eventually was informed by Southern that he had knocked over a
plant when climbing through a window into the house. Southern
testified that he entered the house at defendant's direction to
flip a circuit breaker that the men's tools had tripped while
working on the deck. When the circuit breaker tripped, Southern's
boss had called defendant to inform him that they had lost power
and were unable to continue working. Defendant arrived and
instructed them to enter the house through the window and flip on
the breaker. Defendant assured them it was okay because it was his
aunt's house.
After climbing through the window and knocking over the plant,
Southern had difficulty finding the circuit breaker panel and
opened the door to allow his boss in to help him locate it. After
locating the panel and correcting the problem, Southern and his
boss began to leave the house when defendant came in the front
door. Defendant told them to go on outside and that he would makesure that everything was okay and in order and that he would lock
up. Southern testified that defendant was in the house for
approximately five to ten minutes.
Farrar contacted an attorney who advised her to go to the
police department and speak to a detective, explain the situation
and tell him that she needed to file charges for breaking and
entering, communicating threats, and destruction of personal
property. Farrar testified that she could not remember whether she
specifically told the attorney that defendant had poked her in the
forehead, but he did not advise her to tell the detective she
wanted to file assault on a female charges as well.
Southern testified that a few days after the incident he
received a phone call from defendant. Southern testified that he
recognized defendant's voice and that defendant identified himself.
Defendant told Southern, “Don't worry about coming to court” and
that he was going to get Southern his money. Southern testified
that defendant also told him that he knew where Southern was
working and that he (defendant) and a couple of his buddies were
going to stop by and see him. Southern stated that defendant's
tone was similar to how it had been when he was yelling at Farrar
at her house and that he felt threatened by defendant's tone and
comments. Southern then went with Farrar to the magistrate's
office to act as a witness in support of her attempt to file
charges against defendant and to file charges of communicating a
threat against defendant on his own behalf for the phone call he
received from defendant. Defendant made motions to dismiss all charges at the close of
the State's evidence and again at the close of all evidence based
on the insufficiency of the evidence. Both motions were denied.
Defendant was convicted on all charges and sentenced to 150 days
confinement on the assault on a female charge and probation on the
remaining charges. Defendant timely appealed.
Defendant makes seven assignments of error, yet argues only
two of them on appeal. “Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned. N.C. R.
App. P. Rule 28(b)(6) (2005); see State v. Drew, 162 N.C. App. 682,
592 S.E.2d 27 (2004)(when criminal defendant brought forward eight
assignments of error but argued only two in his brief on appeal,
remaining six were deemed abandoned).
Defendant's remaining assignments of error are (1) that the
trial court erred in denying his motions to dismiss all charges at
the close of the State's evidence and at the close of all evidence
and (2) that the trial court committed plain error in allowing the
State to introduce hearsay evidence characterizing defendant as a
“con man.”
Defendant first argues that the trial court erred in denying
his motions to dismiss, at the close of the State's evidence and
again at the close of all evidence, the charges of assault on a
female, second degree trespass, misdemeanor breaking or entering,
and making a threatening phone call for insufficient evidence. A
criminal defendant who presents evidence in his defense after hismotion to dismiss for insufficient evidence is denied at the close
of the State's evidence waives that motion to dismiss and cannot
use it as a basis for appeal. N.C. Gen. Stat. . 15-173 (2003);
State v. Harris, 323 N.C. 112, 129, 371 S.E.2d 689, 699 (1988). In
the case sub judice, defendant presented evidence after the State
rested its case and, consequently, he has waived his motion to
dismiss made at the close of the State's evidence. Accordingly, we
consider only the motion he renewed at the close of all evidence.
The standard of review on appeal of the denial of a criminal
defendant's motion to dismiss for insufficient evidence is well
established. That standard is whether the State has offered
substantial evidence to show the defendant committed each element
required to be convicted of the crime charged. State v. Williams,
154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). Substantial
evidence is defined as relevant evidence which is sufficient to
persuade a rational juror to accept a conclusion. State v. Frogge,
351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994,
148 L. Ed. 2d 459 (2000). The evidence must be considered in the
light most favorable to the State when reviewing a denial of a
motion to dismiss for insufficient evidence. State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
Assault on a female
The required elements for conviction on a charge of assault on
a female are: (1) an assault; (2) upon a female; (3) by a male; and
(4) the male is at least eighteen years of age. N.C. Gen. Stat. .
14-33(c)(2) (2003). In North Carolina assault is not statutorilydefined and therefore common law rules apply. State v. Roberts,
270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Applying the common
law rules, our Supreme Court has defined assault as “'an overt act
or an attempt, or the unequivocal appearance of an attempt, with
force and violence, to do some immediate physical injury to the
person of another, which show of force or menace of violence must
be sufficient to put a person of reasonable firmness in fear of
immediate bodily harm.'” Id. (quoting 1 Strong's N.C. Index,
Assault and Battery, § 4, p. 182). Battery has been defined by
this Court as the unlawful application of force to the person of
another. State v. Thompson, 27 N.C. App. 576, 577-78, 219 S.E.2d
566, 568 (1975). Every battery necessarily includes an assault,
although the reverse need not be true. Id.
At trial the State presented the testimony by both Farrar and
Southern that defendant had poked Farrar, clearly applying force to
her person. There was no evidence presented that Farrar had
authorized defendant to touch her or that defendant was in some way
privileged to do so. Therefore, defendant's poking of Farrar was
unlawful. The testimony of Farrar and Southern is relevant and
could be sufficient to persuade a rational juror to accept the
conclusion that defendant committed a battery on the victim.
Consequently, because every battery includes an assault; Farrar is
a female; and defendant is a male at least eighteen years of age,
substantial evidence of all required elements of assault on a
female was presented. Defendant's motion to dismiss the charge of
assault on a female for insufficient evidence was properly denied.Second Degree Trespass
The required elements for the crime of second degree trespass
are: (1) entering or remaining on the premises of another; (2)
without authority; and (3) after having been notified not to enter
or remain on the premises by the owner. N.C. Gen. Stat. . 14-
159.13 (2003). At trial the State presented evidence through
Farrar's testimony that she had told defendant not to work on her
house prior to the time defendant sent a crew to begin work during
her absence. The State presented evidence of defendant's presence
on Farrar's property while she was gone on vacation through
Southern's testimony. The testimony of these two witnesses
constituted substantial evidence that defendant had: (1) entered
Farrar's premises; (2) without authority; and (3) after having been
notified not to enter on her premises. Defendant's motion was,
therefore, properly dismissed.
Breaking or Entering
Breaking or entering is a statutory offense. A person commits
the offense of misdemeanor breaking or entering when he commits a
wrongful breaking or entering of any building. N.C. Gen. Stat. .
14-54(b) (2003). Here Southern testified that defendant entered
Farrar's house while she was away on vacation. There was no
evidence presented that Farrar had consented to defendant's entry
into her house at any time other than the occasions that he was
invited into her home to discuss the project. The lack of such
consent is supported by the fact that defendant was not provided
with a key to the residence as reasonably would have been expectedhad Farrar intended defendant to have access to her house while she
was away. The State also presented evidence that defendant had
concocted a story that Farrar was his aunt and had been
hospitalized in order to convince the work crew to participate in
the construction. Again, the State presented substantial evidence
in support of each required element of the offense and defendant's
motion to dismiss was properly denied.
Threatening Phone Call
The required elements of making a threatening phone call as
charged in the case sub judice are: (1) use of any words or
language threatening to inflict bodily harm on another; and (2) in
telephonic communications. N.C. Gen. Stat. . 14-196(a)(2) (2003)
(emphasis added). The State's evidence relevant to this charge was
presented through the testimony of Southern, who was the recipient
of the phone call in question.
Southern testified that on or about 15 August 2002, a few days
after the incident in which defendant assaulted Farrar, he received
a phone call from defendant. Southern further testified that
defendant told him “don't worry about coming to court,” that he
(defendant) knew where Southern was working and that he and some of
his buddies were going to stop by and see Southern at his job site.
Southern stated that he felt threatened by defendant's statements
and that defendant's tone of voice was the same as it had been when
he was yelling at Farrar during the incident at her house.
Defendant's statements reasonably could be construed as threats -
particularly in light of defendant's prior behavior in Southern'spresence. Accordingly, it was proper to allow the jury to
determine whether defendant's statements were, in fact, threats of
bodily harm to Southern and defendant's motion to dismiss was
properly denied.
In summary, we find defendant's arguments alleging that the
trial court erred in denying his motions to dismiss each of the
four charges discussed unpersuasive. Accordingly, the trial court
did not err in its denial of those motions.
Defendant next argues that the trial court committed plain
error in allowing the State to present hearsay evidence, without
objection from defendant, characterizing defendant as a “con man.”
“The plain error rule applies only in truly exceptional cases.”
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60 (2000). In
order to find that a trial court's action constitutes “plain error”
an appellate court must be convinced by the defendant that a
different result would have been reached if the error had not been
made. Id. Plain error also may be established by convincing an
appellate court that an error was made that was so fundamental that
it resulted in a miscarriage of justice or denied defendant a fair
trial. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779
(1997).
Defendant asserts that the allegedly inadmissible hearsay
testimony “allowed the jury to convict [defendant] based on hearsay
slander rather than a dispassionate analysis of the evidence.”
This argument is unpersuasive and, as it lacks any supporting
authority in defendant's brief, is nothing more than a conclusorystatement. This is particularly true in light of the fact that the
statement in question characterized defendant as a con man which
invokes impressions of untruthfulness or deception on his part, yet
none of the offenses with which defendant was charged involve a
crime of artifice. In addition, the State presented ample
additional evidence to support defendant's conviction of the
charges. Accordingly, defendant has failed to carry his burden of
showing that, absent the alleged error, a different result would
have been reached.
Defendant also argues that the trial court had an affirmative
duty to act ex meru moto in instructing the jury to disregard the
allegedly improper testimony and that failure to do so was such a
fundamental failing that defendant was entitled to a new trial.
“[A] [d]efendant's empty assertion of plain error, without
supporting argument or analysis of prejudicial impact, does not
meet the spirit or intent of the plain error rule.” Cummings, 352
N.C. at 637, 536 S.E.2d at 61. Defendant provides absolutely no
legal authority for the imposition of such a duty he suggests
imposing upon the trial court. Defendant also fails to present any
argument or analysis regarding how the alleged failure of the trial
court to fulfill such an affirmative duty was so fundamental and
prejudicial as to entitle him to a new trial. Thus, defendant has
failed to carry his burden of showing that the alleged error was so
fundamental as to constitute a miscarriage of justice or denied
defendant a fair trial. This assignment of error is overruled.
No error.
Judges WYNN and BRYANT concur.
Report per 30(e).
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