State v McKinnon, (04-1308) 09/06/2005

Appeal by defendant from judgment entered 29 April 2004 by Judge Robert P. Johnston in the Superior Court in Mecklenburg County. Heard in the Court of Appeals 22 August 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

Lynne Rupp, for defendant-appellant.

HUDSON, Judge.

    A jury convicted defendant of violating a domestic violence protective order, but found him not guilty of assault on a female. The trial court sentenced him to 150 days in the Mecklenburg County Jail. Defendant gave notice of appeal in open court.
     On 14 November 2001, the district court issued a domestic violence protective order forbidding defendant to “assault, or threaten” his wife, Delynn McKinnon. At trial, McKinnon testified that beginning on 21 October 2002 and continuing into the morning of 22 October 2002, she and defendant had an argument regarding her thirteen-year-old daughter. In the course of the argument, defendant slapped her in the face with his hand, struck her on theknee with a cordless telephone and “threatened to bash [her] head in with the phone.” Once her children had left for school, McKinnon collected some personal effects and left the house. She went to the Department of Social Services and called police to report defendant's actions. She gave a written statement to police at 1:45 p.m. on 22 October 2002, and filled out a report at a magistrate's office, both of which tended to corroborate her testimony. The State also adduced the testimony of a DSS supervisor and three police officers who recounted her statements to them on 22 October 2002.
    Defendant denied striking or threatening his wife and claimed instead that she had him arrested in order to “get [him] out of the house so that she could do what she want[ed] to do and without [him] seeing what's going on.”
    On appeal, defendant argues that the trial court erred by refusing to allow him to impeach McKinnon's testimony with evidence of her 10 December 1993 conviction of welfare fraud. The State objected to the introduction of this evidence based upon defendant's failure to provide written notice of his intent to use it, as required for prior convictions more than ten years old under N.C.R. Evid. 609(b). On voir dire, McKinnon acknowledged the prior conviction, explaining that she had failed to report income from a part-time job while collecting welfare benefits. The trial court sustained the State's objection to the evidence “under [N.C.R. Evid.] 609 and 403, finding that any “probative value is substantially outweighed by the danger of unfair prejudice,confusion of the issues.”
    We find no error by the trial court in excluding this evidence. Rule 609 establishes a presumption that a witness's prior convictions obtained more than ten years prior to the date of her testimony are inadmissible “unless the court determines, in the interest of justice that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” N.C.R. Evid. 609(b). While allowing a proponent to rebut this presumption, the rule also provides that “evidence of a conviction more than ten years old . . . is not admissible unless the proponent gives to the adverse party sufficient advance written notice of the intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” N.C.R. Evid. 609(b). Inasmuch as defendant failed to provide any advance written notice to the State, the evidence was “not admissible” under the explicit provisions of the rule. Moreover, we find no abuse of discretion by the trial court in concluding that the risk of undue prejudice arising from McKinnon's 1993 conviction outweighed any probative value. Given the limited proffer on voir dire, we believe the court's ruling is entirely consistent with the rule as well as the general tenor of our jurisprudence noting the “rare instances where the use of the older prior convictions was not more prejudicial than probative[.]” State v. Blankenship, 89 N.C. App. 465, 468, 366 S.E.2d 509, 511 (1988).
    Although defendant raised no constitutional claim in the trialcourt, he now avers that the court's evidentiary ruling violated his constitutional rights to due process and confrontation. “Because it is well settled that constitutional matters that are not raised and passed upon at trial will not be reviewed for the first time on appeal, defendant has failed to preserve this assignment of error for our review.” State v. Garcia, 358 N.C. 382, 420, 597 S.E.2d 724, 750 (2004) (citing State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003), cert. denied, 541 U.S. 944, 158 L. Ed. 2d 370 (2004)), cert. denied, 125 U.S. 1301, 161 L. Ed. 2d 122 (2005).
    Defendant further claims the trial court erred in allowing the prosecutor to amend the warrant charging defendant with misdemeanor violation of a domestic violence protective order, see N.C. Gen. Stat. § 50B-4.1(a) (2003). As originally issued on 22 October 2002, the warrant charged defendant with violating the domestic violence protective order “by assaulting [complainant].” Immediately prior to trial, however, the court allowed the State to amend the warrant to allege defendant violated the order “by assaulting [complainant] and threatening [complainant].” Defendant argues that this amendment violated the statutory proscription against amending indictments in N.C. Gen. Stat. § 15A-923(e) (2004), by “add[ing] additional element to the offense charged.”
    Consistent with N.C. Gen. Stat. § 15A-922(f) (2003), "[a] statement of charges, criminal summons, warrant for arrest, citation, or magistrate's order may be amended at any time prior to or after final judgment when the amendment does not change thenature of the offense charged.”     For example, in State v. Clements, 51 N.C. App. 113, 117, 275 S.E.2d 222, 225 (1981), the defendant was charged with misdemeanor death by vehicle, a violation of N.C. Gen. Stat. § 20-141.4 (2003). Under the statute, the State was required to establish that the defendant “unintentionally cause[d] the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic[.]” N.C. Gen. Stat. § 20-141.4 (a2). The warrant initially charged the defendant with unintentionally causing the person's death “by following too closely.” The trial court allowed the State to amend the warrant to strike the allegation of following too closely in favor of an allegation of "failure to reduce speed to avoid an accident[.]” In affirming the trial court's decision, we reasoned as follows:
        Although the death by vehicle statute contemplates that some violation of a motor vehicle statute or ordinance be specified in a warrant charging death by vehicle, it is not essential that the motor vehicle violation alleged in the warrant as originally issued be the same as the motor vehicle violation alleged in the warrant as considered by the jury where, as here, the substituted motor vehicle violation is substantially similar to that originally alleged. The nature of the offense with which defendant was charged, death by vehicle, was not changed simply by striking the allegation of following too closely (a violation of G.S. § 20-152) and substituting therefore “failure to reduce speed to avoid an accident, a violation of G.S. 20-141(m).”

Clements, 51 N.C. App. at 116-17, 275 S.E.2d at 225.
    Here, as in Clements, the State's amendment of the warrant didnot change the nature of the offense with which defendant was charged, i.e. a violation of the domestic violence protective order entered by the district court on 14 November 2001. It merely expanded upon the nature of his alleged violation. We note that the allegation that defendant threatened complainant is substantially similar to the allegation of assault, inasmuch as a threat of imminent bodily harm can be a form of assault. Accordingly, this assignment of error is overruled.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***