An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1109


Filed: 21 June 2005


         v.                        Mecklenburg County
                                No. 03 CRS 236418

    Appeal by defendant from judgment entered 18 March 2004 by Judge Beverly T. Beal in Superior Court, Mecklenburg County. Heard in the Court of Appeals 30 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Michelle B. McPherson, for the State.

    Tin Greene Bushnaq & Owen, PLLC, by Noell P. Tin, for defendant-appellant.

    McGEE, Judge.

     Defendant was found guilty of assault on a female and was sentenced to sixty days in jail. The sentence was suspended and defendant was placed on supervised probation for thirty-six months.
    The State presented evidence tending to show that on 31 July 2003 defendant's wife, Kim Forrester, decided to move out of the marital home and take their six-month-old daughter with her. While his wife gathered clothes for herself and the baby, defendant backed his wife against a kitchen counter, grabbed her mouth and nose with his left hand, inserted one finger into her nostril and began pushing her head back and forth. He then released her, saying he was going to call the police to report her for kidnapping. Mrs. Forrester ran from their apartment into hermother's waiting vehicle. After arriving at her parents' house, Mrs. Forrester called the police. A policeman came to the house, took her statement, and made photographs. Officer Norman Garnes, Jr. testified that he came to Mrs. Forrester's parents' house and observed that Mrs. Forrester's lip was swollen and bruised. Officer Garnes asked Mrs. Forrester what happened to her and she told him how defendant had attacked her earlier in the day. He took photographs of Mrs. Forrester's lip and face. About a week later Mrs. Forrester sought help from Victim's Assistance. Another set of photographs of her injuries was taken at that time.
    Defendant testified that he did not intentionally strike Mrs. Forrester. He stated instead that Mrs. Forrester knocked his hand into her face.
    The sole issue on appeal is whether the trial court erred by refusing to allow defendant to cross examine Mrs. Forrester regarding a domestic violence restraining order she obtained against defendant. He argues he should have been allowed to cross examine her to show bias and interest.
    The State filed a motion in limine prior to trial to prohibit inquiry by defendant into a civil action filed by Mrs. Forrester seeking, inter alia, a domestic violence protective order. The trial court denied the motion, stating it would rule on any objections as they were made at trial. After the jury was empaneled but before any evidence was presented, the trial court heard further argument with regard to the motion in limine. The trial court allowed the motion, concluding that the probative valueof the evidence was outweighed by the danger of unfair prejudice under Rule 403 of the N.C. Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 403.
    The decision to exclude evidence pursuant to Rule 403 is within the discretion of the trial court, whose decision will not be disturbed unless it was so arbitrary that it could not have been the product of a reasoned decision. State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996).
    Defendant argues that in State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954), the Supreme Court held that "[a] party to an action or proceeding, either civil or criminal, may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation." Id. at 711, 80 S.E.2d at 902. Consequently, the Court stated that a prosecuting witness could be compelled "to disclose on cross-examination that he has brought, or is preparing to bring a civil action for damages against the accused based on the acts involved in the criminal case." Id.
    In the case before us, the trial court distinguished Hart by stating
        the situation is not one where there is a pecuniary interest created, or a bias shown rising out of the same set of facts _ child custody and child support, possession of property, are all issues that do not relate to these same facts. . . . The issues involving domestic violence and the standard as to the burden of proof as to such things as alimony, child support, are all questions that arise in a wholly different context. . . . It issimply confusing to the jury for them to be addressing a question involving a matter which is, as far as I can tell from what you said, over. Evidently orders were sought and denied, and evidently it has come to an end.

    None of the documents pertaining to the civil action are included in the record on appeal. This Court, therefore, cannot determine whether or not any of the factual statements made by the trial court are erroneous.
    Even assuming, arguendo, that the evidence should have been admitted, its exclusion was not prejudicial error as there is not a reasonable possibility that, had the error in question not been committed, a different outcome would have resulted. See N.C. Gen. Stat. § 15A-1443(a). There is clear evidence of defendant's guilt. Defendant admitted that he struck Mrs. Forrester's mouth. The statement given by Mrs. Forrester to the officer is consistent with her trial testimony. Officer Garnes observed and captured in photographs the bruising and injury to Mrs. Forrester's lip and mouth.
    No error.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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