An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1499


Filed: 15 November 2005


v.                        Bladen County
                            No. 03 CRS 1867, 1869

    Appeal by defendant from judgments entered 13 April 2004 by Judge James Floyd Ammons, Jr., in Bladen County Superior Court. Heard in the Court of Appeals 20 September 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Ronald M. Marquette, for the State.

    Hardison & Leone, L.L.P. by Richard B. Glazier for the defendant.

    LEVINSON, Judge.
    Defendant Furman Jacobs appeals from judgments entered upon his convictions of first degree murder and second degree rape. We affirm.
    Defendant was indicted for first degree murder, first degree kidnaping, and first degree rape, all arising from events allegedly occurring 18 April 2003. He was tried non-capitally in April 2004. The State's evidence at trial is summarized as follows: Aniko Ross (Ross) testified that she and the defendant met in 2000 and dated for two years. Ross lived with her parents, and defendant met Ross's parents on numerous occasions while they were dating. Her parents sometimes referred to the defendant as “Swindell.”     In February 2003 Ross began dating Gerald Williams. Ross and Williams planned to go out for supper on the evening of 18 April 2003. At around 5:00 p.m. on the 18th, while Ross was at home getting ready to go out, she saw defendant outside the house. She waited about fifteen minutes, then went outside and asked defendant to leave. He began kissing her neck and asking Ross to “give [him] a little bit.” When Ross pulled away and told the defendant that her father was in the house, the defendant said he would “fix that” and went to his car. Ross thought defendant was going to leave; instead, he returned from the car with a handgun. He pushed past her into the house, and went to the bedroom where Ross's father, Charles Ross, was sleeping. Defendant fired one shot at Charles Ross, grazing his leg and entering his abdominal area.
    After he shot Charles Ross, defendant warned Ross she “was going to give it up, one way or another”; forced her at gunpoint into his car, and drove to an isolated rural cemetery. At the cemetery, defendant ordered Ross to get out of the car, lie down on the ground, and to remove her pants. Defendant then raped her. After assaulting Ross, defendant ordered her back into the car, and they drove to a country store a few minutes away. As defendant and Ross were walking into the store, Ross began screaming for help, whereupon the defendant “took off” and drove away. Store personnel called an ambulance, and Ross was taken to Pender Memorial Hospital, where she was treated and released. While Ross was at the hospital, she was interviewed by law enforcement officers.    The testimony of other witnesses generally corroborated Ross's trial testimony, including testimony by: Laurie Tompkins, clerk at the store where defendant released Ross; Mary Ann Stanley, nurse at Pender Memorial Hospital; Larry Guyton, investigator with the Bladen County Sheriff's Department; and Gerald Williams, Ross's boyfriend. Williams testified that on 18 April 2003 he drove to Ross's residence at around 6:00 p.m. On his arrival, Williams saw Charles Ross lying in the open doorway of the house. Charles Ross's leg was bleeding, and he was on the telephone with a 911 operator. Charles Ross kept repeating that 'Swindell' shot him and took his daughter. Charles Ross was having trouble breathing, so Williams took the phone and continued the conversation with the 911 operator. In a few minutes, an ambulance arrived and Williams left to find Ross. He and Ross met later at the hospital.
    The jury heard a tape recording of the call Charles Ross made to the 911 operator. Expert medical evidence was introduced that Charles Ross died from internal bleeding caused by a single gunshot wound. Several law enforcement officers testified about their investigation, the arrest of defendant, and about the officers' discovery in defendant's house of a receipt for a gun the same caliber as that used in the shooting. The testifying officers were cross-examined about discrepancies between Ross's testimony and her earlier statement to police, and about certain omissions in the investigation, including failure to test for gunshot residue, dust for fingerprints, or make tire track molds.    Defendant presented ten character witnesses who testified generally that defendant had a reputation for truthfulness and peacefulness in his community; that he was reliable, honest, and hardworking; that he was a good father to his daughter; and that he had never been known to behave inappropriately towards women. In addition, defendant's brother, Donnell Jacobs, testified that the defendant was with members of his family at the time that Charles Ross was shot. Defendant also presented expert testimony that he was mildly mentally retarded. Defendant did not testify.
    After the presentation of evidence, the jury found defendant guilty of (1) first degree felony murder, based on kidnaping; (2) first degree kidnaping; and (3) second degree rape. Defendant was sentenced to life imprisonment without parole for first degree murder, and 73 - 97 months for second degree rape. From these convictions and judgments, defendant appeals.

    Defendant argues first that the trial court committed reversible error by refusing to allow James Merritt to testify as an expert witness on the subject of proper forensic police practices. We disagree.
    Defendant called Merritt as a defense witness, offering him as an expert in “police procedures and related subfields.” Defense counsel informed the trial court that the purpose of Merritt's testimony was to inform the jury that the investigation in the case was “inconsistent with professional [law enforcement] standards.” Specifically, defendant sought to elicit testimony that theinvestigating officers were remiss in their failure to conduct gunshot residue tests or fingerprint analysis, to conduct follow-up interviews with Ross, or to conduct timely crime-scene investigations. The trial court ruled that (1) Merritt was not an expert in the field; (2) Merritt's testimony was irrelevant to the issue of defendant's guilt or innocence; and (3) even if relevant, Merritt's testimony should be excluded on the grounds that any relevance was “vastly outweighed” by the likelihood that Merritt's testimony would sidetrack and confuse the jury, and would waste the jury's time. We conclude that the trial court's ruling was not error.
    “Relevant evidence” is defined by Rule 401 of the North Carolina Rules of Evidence as evidence with “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003). “Although 'the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.'” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991)).
    Defendant argues that after law enforcement officers spoke with Ross, they immediately decided that defendant was guilty, and therefore failed to perform various standard forensic tests. The gist of Merritt's proposed testimony was that the officers'omission of certain forensic tests fell below established standards of police investigative procedures. Defendant contends that Merritt's testimony would have helped demonstrate that law enforcement officers then performed an inadequate investigation. However, defendant fails to articulate how this fact, if believed, would tend to make it more or less likely that defendant committed the charged offenses, particularly since the jury already heard in cross-examination that investigating officers had not conducted gunshot residue tests, fingerprint analysis, crime scene investigation, or other forensic tests. Moreover, the State's case was largely based on the testimony of Ross, and on the dying declarations of Charles Ross. Accordingly, the credibility of this testimony, not the reliability of scientific evidence, was the central issue in the case.
    We conclude that the trial court did not err by excluding Merritt's testimony. This assignment of error is overruled.
    Defendant argues next that the trial court erred by allowing the medical examiner to testify concerning the likely effects of alcohol on the victim at around the time of his death. We disagree.
    Dr. Deborah Radish, associate medical examiner for North Carolina, testified regarding the cause of Charles Ross's death, and noted that, at the time of his death, Charles Ross had a blood alcohol level of .08. Defendant cross-examined Dr. Radish extensively on issues pertaining to Charles Ross's blood alcohollevel, such as the likelihood that Charles Ross was intoxicated, the variation in response to alcohol shown by different people, Dr. Radish's lack of information about Charles Ross's history with respect to alcohol, and whether alcohol-related thinning of the blood might change the length of time before a gunshot victim bled to death.
    In response to defendant's cross-examination, the State asked Dr. Radish on redirect whether, based on the 911 tape, Dr. Radish had an opinion as to (1) whether alcohol impaired Charles Ross's ability to speak or remember, and (2) whether the tape's length was consistent with the length of time Charles Ross likely survived after being shot. Dr. Radish answered that Charles Ross appeared to answer questions appropriately on the 911 tape, but that, even had he sounded confused on the tape, she would have been unable to determine the cause. She also testified that it was not possible from the tape to reconstruct the exact length of time Charles Ross lived after he was shot.
    We conclude that the defendant “opened the door” to this testimony by cross-examining Dr. Radish on issues pertaining to Charles Ross's having a blood alcohol level of .08. “'Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof[.]'” State v. Walters, 357 N.C. 68, 87, 588 S.E.2d 344, 355 (2003) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). “Therefore, since defendant 'opened the door' to this testimony, the prosecutor was entitled toquestion defendant about this evidence.” Walters, 357 N.C. App. at 87, 588 S.E.2d at 355. This assignment of error is overruled.
    In a related argument, defendant contends that the trial court erred by allowing the State to play the 911 tape for Dr. Radish on redirect examination. For the reasons discussed above, we conclude that the trial court did not err by allowing the State to replay the 911 tape on redirect examination. This assignment of error is overruled.
    Defendant next argues that the trial court erred by overruling defendant's objection to admission into evidence of a receipt found in defendant's house. We disagree.
    As part of their investigation in this case, law enforcement officers performed a consent search of defendant's mobile home. Just inside the trailer's front door, they found a cardboard box containing a .380 caliber semiautomatic pistol. Earlier forensic testing indicated that Charles Ross had been shot by a .380 caliber firearm; however, scientific tests determined that the .380 caliber weapon found in defendant's house was not the gun used to shoot Charles Ross. The box also contained various receipts, including several receipts for other firearms. Among these was a handwritten receipt for a different .380 firearm. Written on this receipt were the words “Rocky Point Shooters World”; the name “David Jacobs”; and a description and serial number for a .380 pistol. Further search of defendant's house revealed eight other firearms, somewith matching receipts in the cardboard box; however, the officers never found the .380 gun described on the handwritten receipt.
    Defendant argues that the trial court erred by admitting the handwritten receipt into evidence, on the grounds that it was not properly authenticated, was irrelevant, and, if relevant, was unduly prejudicial. We will consider these arguments in turn.
    Authentication of documents is governed by N.C. Gen. Stat. § 8C-1, Rule 901 (2003), which provides in relevant part that the requirement that evidence be authenticated “is satisfied by evidence . . . that the matter in question is what its proponent claims.” Rule 901(a). Further, the rule lists, as an example of proper authentication, evidence of an item's appearance, contents, or “other distinctive characteristics, taken in conjunction with circumstances.” Rule 901(b)(4). This rule was applied in State v. Reed, 153 N.C. App. 462, 570 S.E.2d 116 (2002), in which this Court upheld admission of a business card found at defendant's house, stating:
        Although the statement on the card was not in defendant's handwriting and defendant did not testify to the card's authenticity, the card was properly authenticated by the State based on its “distinctive characteristics”, . . . includ[ing]: (1) the card being one of many . . . in a box in defendant's bedroom during the search; . . . and (3) defendant being the sole occupant of the house in which the card was found. . . . [T]his Court has previously held that a showing that defendant was the sole occupant of the residence where documents were found “is sufficient for [those documents] to be admitted into evidence, and the weight given the evidence is for the jury to decide.”
Reed, 153 N.C. App. at 467, 570 S.E.2d at 120 (quoting State v. Mercer, 89 N.C. App. 714, 716, 367 S.E.2d 9, 11 (1988)) (emphasis added).
    In the instant case, the handwritten receipt was found during a search of defendant's house, and he was the only occupant of the house. Based on Reed, we conclude that the receipt was properly authenticated.
    We also conclude that the receipt was relevant to the issue of defendant's guilt or innocence. Forensic evidence showed that Charles Ross was shot by a .380 weapon. This firearm was never found; however, the receipt at issue was for a gun the same caliber as the missing weapon. Moreover, it was in defendant's house, among defendant's other receipts for firearms, and referred to a buyer or seller of the last name Jacobs, which is defendant's last name. The receipt was relevant in that it tended to make it more likely that defendant had at some point been in possession of a firearm of the same caliber as the murder weapon.
    Defendant also argues that admission of the receipt was prejudicial. “Certainly, the evidence was prejudicial to the defendant in the sense that any evidence probative of the State's case is always prejudicial to the defendant. [T]he trial court did not abuse its discretion under the balancing test of Rule 403, however, in concluding in this case that the probative value of the [receipt] evidence outweighed any possible unfair prejudice.” State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 895 (1991).    We conclude that the trial court did not err by admitting evidence of the handwritten receipt found in defendant's mobile home. This assignment of error is overruled.
    We have considered defendant's remaining assignments of error and find them to be without merit. For the reasons discussed above, we conclude that the defendant received a fair trial, free from reversible error.
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***