An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1232


Filed: 19 July 2005


         v.                    Rowan County
                            Nos. 03 CRS 57917
SHAKUR ABDUL SHABAZZ,                03 CRS 11943-44

    Appeal by defendant from judgment dated 11 May 2004 by Judge Christopher M. Collier in Rowan County Superior Court. Heard in the Court of Appeals 13 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Ashby T. Ray, for the State.

    J. Clark Fischer for defendant-appellant.

    BRYANT, Judge.

    Shakur Abdul Shabazz (defendant) appeals his judgment dated 11 May 2004, entered consistent with a jury verdict finding him guilty of assault with a deadly weapon upon a law enforcement officer, and assault with a deadly weapon inflicting serious injury.
    On 1 December 2003, defendant was indicted for assault with a deadly weapon on a law enforcement officer, assault with a deadly weapon with intent to kill inflicting serious injury, and having attained the status of a habitual felon. These matters came for jury trial at the 10 May 2004 criminal session of Rowan County Superior Court with the Honorable Christopher M. Collier presiding. The jury found defendant guilty of assault with a deadly weapon ona law enforcement officer, and assault with a deadly weapon inflicting serious injury on 11 May 2004. By judgment dated 11 May 2004, defendant was sentenced to 130 - 165 months of imprisonment. Defendant gave notice of appeal in open court.

    The State's evidence at trial tended to show the following: Wallace Earl Passmore, an officer at the Department of Correction's Piedmont Correctional Institution, was instructed to conduct a search of defendant's prison cell for contraband on 3 October 2003. Accompanied by fellow guard Allen Dwayne Beaver, Officer Passmore entered defendant's cell block on the prison's sixth floor and ordered defendant to stick his hands through a small opening at the top of his cell door, so he could be handcuffed. On his way to his cell door, defendant “kind of veered off to his . . . right where his table was and sort of hesitated[,]” before complying with Officer Passmore's request. After handcuffing defendant, Officer Passmore opened the door to the cell and ordered defendant outside. Defendant exited his cell as instructed. As Officer Passmore began his search, however, defendant stood at the door opening, blocking Officer Passmore's means of egress and verbally harassed him. Officer Passmore instructed defendant several times to move into the block area before he complied. As Officer Passmore searched the cell's window ledge, he “was hit three or four times in the head.” Turning around, Officer Passmore saw defendant had freed one of his hands and was “continually hitting” him in the face and head with the handcuffs. Officer Passmore began to pass out andfell to the ground. With his free hand, defendant removed the can of pepper spray from Officer Passmore's belt and sprayed him in the face. Officer Passmore came out of the cell and into the block area before being sprayed a second time by defendant. With Beaver controlling the electronic door, Officer Passmore managed to exit the cell block and proceeded downstairs to clean the blood and pepper spray from his face. He went to the hospital where he received several stitches on his face, staples on his head and was diagnosed with a broken nose. He was out of work for two weeks following the assault.
    Over defendant's objection, the State introduced evidence defendant freed his arms and chest from a restraint chair during a search of his jail cell on 30 January 2004. Lieutenant Tommy Lane of the Rowan County Sheriff's Department testified that on 30 January 2004, he was notified by a fellow detention officer that defendant had a razor blade in his cell. Lt. Lane dispatched officers to retrieve the blade. They searched defendant in the jail's booking area, but could not locate it. When defendant began “raising cane[,]” the officers strapped him into a restraint chair and left him alone while they searched his cell. Defendant's legs were shackled in irons, and his arms and chest were bound to the chair with straps. Ten minutes later, an officer advised Lt. Lane “that the straps had been cut.” Lt. Lane found defendant seated in the restraint chair. Although his legs remained shackled, “[t]he straps that were on the arm[s] and the chest had been cut” cleanly, as though by a razor. Defendant's “arms were free and his chestwas free.” At Lt. Lane's prompting, defendant opened his mouth to reveal a razor blade lying “flat on his tongue.”
    After hearing evidence on voir dire, the trial court ruled the evidence admissible under Rule 404(b), and further found “that the probative value is not substantially outweighed by the prejudicial effect.” The trial court instructed the jury, “[t]his evidence was received solely for the purpose of showing that there existed in the mind of the defendant a plan, scheme, system or design . . ., or that the defendant had the opportunity to commit the crime.”
    Defendant's sole argument on appeal is the court erred in admitting the evidence of his actions on 30 January 2004 under Rule 404(b), claiming it showed nothing other than his general propensity to commit the offenses with which he was charged. Alternatively, defendant insists the court should have excluded the evidence under Rule 403, based upon its tendency “to inflame the jury against [him] and divert attention from the fact at issue.” But for this contested evidence, he suggests, “the jury might well have convicted [him] only of misdemeanor assault[.]”
    The text of Rule 404(b) reads as follows:
        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 Supreme Court has characterized this evidentiary rule as one “of inclusion[,]”permitting the trial court to admit relevant evidence of other wrongdoing by a defendant, unless “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. Hoffman, 349 N.C. 167, 183, 505 S.E.2d 80, 90 (1998) (citing State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). Moreover, the Rule's litany of possible purposes for which such evidence may be admitted has been held to be “neither exclusive nor exhaustive.” State v. Moseley, 338 N.C. 1, 32, 449 S.E.2d 412, 431 (1994).
    We find the evidence of defendant's act of releasing his arms and chest from the straps of the restraint chair during the search of his cell on 30 January 2004, relevant to show he possessed the knowledge or skill to escape from restraints, which afforded him the opportunity to assault Officer Passmore during the search of his cell on 3 October 2003, despite being handcuffed. Moreover, because this evidence was probative of defendant's knowledge, skill, and opportunity, the span of four months between the two incidents did not render the 30 January 2004 incident too remote in time for purposes of Rule 404(b). See State v. Artis, 325 N.C. 278, 299-300, 384 S.E.2d 470, 481-82 (1989) (relevant prior incidents must be sufficiently similar and not so remote in time so as to run afoul of the balancing test set forth in Rule 403), judgment vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).
    We further find no merit to defendant's challenge to the trial court's admission of the evidence under Rule 403. A ruling “underRule 403 is a matter generally left to the sound discretion of the trial court, which we leave undisturbed unless the trial court's ruling is 'manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.'” State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74 (2002) (quoting State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1990)) (internal citations omitted). Here, the trial court properly concluded evidence of this incident was not unfairly prejudicial. This assignment of error is overruled.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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