STATE OF NORTH CAROLINA
v
.
Rowan County
Nos. 03CRS4040, 03CRS50660,
03CRS50738, 04CRS3745 and
04CRS3746
CALVIN EUGENE PHILLIPS
Attorney General Roy Cooper, by Assistant Attorney General
Lisa H. Graham, for the State.
Richard G. Roose for defendant-appellant.
McGEE, Judge.
Calvin Eugene Phillips (defendant) was indicted on two counts
of felonious breaking and/or entering, two counts of larceny after
breaking and/or entering, and two counts of felonious possession of
stolen goods on 26 April 2004. Defendant was also indicted for
being an habitual felon. Defendant was convicted of all charges
and pleaded guilty to the status of habitual felon on 8 October
2004. The trial court arrested judgment on the charges of
felonious possession of stolen goods and sentenced defendant to two
consecutive terms of 121 months to 155 months in prison.
At trial, Michael Cecil (Cecil) testified that he was a field
superintendent for Weaver-Cook Construction Company (Weaver-Cook)and had worked on a construction project on Newsome Road in
Salisbury, North Carolina in January 2003. He testified he
discovered that a copier, a fax machine, a telephone and some
paperwork were missing from Weaver-Cook's trailer on Newsome Road
on 20 January 2003. He also testified that a door to the trailer
had been pried open. Cecil reported the missing items to the
Salisbury Police Department. The police later recovered the
property and returned it to him.
Jason Chong testified at trial that he was the owner of
Crystal Cleaners in Salisbury, North Carolina. He testified that
on 28 January 2003, he discovered that the back door to his
business had been broken, and that two computers, a printer, a
comforter, a blanket, some customers' clothing, a laundry cart, and
a credit card machine were missing. He testified the items were
found later by the Salisbury Police Department and were returned to
him.
Mark Euart (Euart) testified that in 2002-2003, he owned a
paving company and had hired defendant as a general helper in
November 2002. Euart said defendant sold him a scanner, a copier,
a telephone, an answering machine, and possibly a fax machine in
late December 2002 or early January 2003, for approximately twenty
or thirty dollars. Euart also stated that his computer was stolen
around that time and that he called Detective Wyrick of the Rowan
County Sheriff's Office to report the computer stolen. Detective
Wyrick went to Euart's house to investigate the stolen computer.
While Detective Wyrick was at Euart's house, Euart showed him theequipment he had purchased from defendant. Euart testified that
Detective Wyrick took the answering machine with him. Euart later
turned over the rest of the equipment to the Salisbury Police
Department.
Euart further testified that defendant called him about two
weeks later at 4:30 a.m. and offered to sell him a computer and
other items. Euart said that after defendant's initial call at
4:30 a.m., defendant continued to call him about the sale of the
computer every fifteen to thirty minutes. Euart called Detective
Wyrick later that morning to tell Detective Wyrick that defendant
had offered to sell him a computer and other items that Euart
thought were stolen.
Euart met with Detective Wyrick and Rita Rule, an investigator
with the Salisbury Police Department, later that day. Euart agreed
to buy the computer and the other items from defendant. Euart
would purchase the property, load it into his truck, and the police
would stop Euart's truck and recover the items. Euart testified
that he and defendant went to an apartment and loaded two
computers, a comforter and a laundry cart into Euart's truck. They
drove away from the apartment and were stopped by the police.
Detective Wyrick testified that he determined the answering
machine that Euart purchased from defendant had been stolen from
Weaver-Cook's trailer on Newsome Road in Salisbury, North Carolina
on 20 January 2003. Shelly Lingle, a sergeant with the Salisbury
Police Department, testified that she identified the fax machine,
copier and telephone Euart had purchased from defendant as propertythat had also been stolen from Weaver-Cook's trailer. Rita Rule
testified the computer equipment, credit card machine, comforter
and laundry cart recovered from Euart's truck on 28 January 2003
had been stolen from Crystal Cleaners on 28 January 2003. She also
testified she retrieved clothing from the home of defendant's
sister on 29 January 2003 and she identified the clothing as having
been stolen from Crystal Cleaners.
Defendant presented evidence on his own behalf. Defendant
argues that the trial court erred in overruling defendant's
objections to the State's questions to defendant during its cross-
examination. Defendant testified on direct examination as follows:
Q. But what I'm trying to understand and to
get clear in my mind and before this jury,
have you ever taken those items that you said
you brought by, the answering machine, the
copy machine, and those other pieces of
equipment, and sold them to . . . Euart?
A. No, sir. [Euart] was mad because the
checks got stolen, and he didn't know who
stole them, and I guess he was trying to find
out somehow to get back at me. You know what
I'm saying?
On cross-examination of defendant, the following colloquy occurred
between the State and defendant:
Q. Now, were you aware that . . . Euart had
some business checks stolen from him?
MR. GRAY: Objection.
A. No, ma'am.
MR. GRAY: Objection.
THE COURT: Overruled.
Q. Were you aware-
MR. GRAY: Move to strike the answer.
THE COURT: Overruled. Go ahead.
Q. Were you aware that . . . Euart had some
business checks stolen?
MR. GRAY: Objection.
THE COURT: Overruled. Counsel, approach
just a minute.
(Bench Conference)
Q. Mr. Phillips, I believe I asked you if you
were aware that . . . Euart had some business
checks stolen.
A. No, ma'am.
Q. Did you not testify on direct testimony
that when you found out about the checks,
something happened? Didn't you testify about
that on direct testimony?
A. That was later on after all this breaking
and entering occurred. Like I say, you want
me to call the name of who- speaking of the
check, you want me to call the name of how it
went down or something, you know. You can't
really-
Q. Okay. Well, let me just ask you since you
brought it up on your direct testimony. You
are aware that . . . Euart had some business
checks stolen, are you not?
A. Yeah. At the time. Yeah.
Q. And you were aware that some information
had been provided to . . . Euart about those
stolen checks, were you not?
A. No, ma'am.
Q. You weren't aware of a conversation with
Mike Phillips?
A. No, ma'am.
Q. You weren't aware of that?
A. No.
Q. So the fact of the matter is, you and Mike
Phillips and Brian Davis took those checks to
the Rowan County Library and were typing those
checks out to each other, cashing them at
these same stores where you were getting the
payroll checks cashed, and splitting the
proceeds. Isn't that true?
MR. GRAY: Objection, Your Honor.
The trial court overruled defendant's objection. Defendant
also made a motion for a mistrial which the trial court denied.
Defendant contends the trial court erred in overruling
defendant's objection to the State's questions to defendant about
"entirely unrelated criminal misconduct for which he had not been
convicted." Specifically, defendant argues the State's proffered
instances of alleged misconduct by defendant were not probative of
defendant's truthfulness or untruthfulness, as is required by North
Carolina Rule of Evidence 608(b). N.C. Gen. Stat. § 8C-1, Rule
608(b)(2003). Under Rule 608(b),
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however, in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on
cross-examination of the witness . . .
concerning his character for truthfulness or
untruthfulness[.]
Our Supreme Court recognized several types of misconduct which are
clearly admissible under Rule 608(b): "'[U]se of false identity,
making false statements on affidavits, applications or government
forms (including tax forms), giving false testimony, attempting tocorrupt or cheat others, and attempting to deceive or defraud
others.'" State v. Bishop, 346 N.C. 365, 390, 488 S.E.2d 769, 782
(1997) (quoting State v. Bell, 338 N.C. 363, 382, 450 S.E.2d 710,
720 (1994), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995))
(internal citations omitted).
In reviewing evidentiary rulings of a trial court, we apply an
abuse of discretion standard of review. State v. Boston, 165 N.C.
App. 214, 218, 598 S.E.2d 163, 166 (2004); see Bishop, 346 N.C. at
391, 488 S.E.2d at 783 (where the North Carolina Supreme Court
applied an abuse of discretion standard to the review of a trial
court's determination that the State's questions were probative of
the defendant's untruthfulness in accordance with N.C. Gen. Stat.
§ 8C-1, Rule 608(b)). An "'[a]buse of discretion results where the
[trial] court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.'" State v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381,
408 (2004) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d
523, 527 (1988)).
Our Supreme Court has held that alleged prior, unrelated acts
of larceny by a witness, without more, are not probative of
untruthfulness under the standard of Rule 608(b). Bell, 338 N.C.
at 382-83, 450 S.E.2d at 721. However, in Bishop, our Supreme
Court held the trial court did not abuse its discretion by allowing
the State to inquire about the defendant's alleged forgery of a
loan application and a check. Bishop, 346 N.C. at 391, 488 S.E.2d
at 783. In Bishop, the evidence tended to show that the defendantand her boyfriend committed first-degree murder. Id. at 376, 488
S.E.2d at 774. In Bishop, the State asked the defendant on cross-
examination about allegations that the defendant applied for a loan
against her boyfriend's life insurance policy and that the
defendant forged her boyfriend's signature on the application. Id.
at 391, 488 S.E.2d at 783. The defendant testified that she signed
the loan application with her boyfriend's consent. Id. She
further testified that she received and cashed a check, which was
made payable to her boyfriend, and that she gave her boyfriend the
money. Id.
On appeal, the defendant argued that "taking money from a
friend does not inherently involve dishonesty and that nothing in
the context of the challenged questions suggested that the 'taking'
involved any deceit or was probative of [the] defendant's
truthfulness or untruthfulness." Bishop, 346 N.C. at 391, 488
S.E.2d at 783. The Court, however, observed that "[t]he 'taking'
referred to by the [State's] inquiry involved the allegation that
[the] defendant forged [her boyfriend's] name on both a loan
application and a check and that she cashed the check without [her
boyfriend's] permission." Id. The Court held the trial court did
not abuse its discretion pursuant to Rule 608(b) by allowing the
questioning because the State's purpose for the inquiry was to
establish the defendant's character for untruthfulness. Id.
In the present case, the State's inquiry was analogous to the
State's inquiry in Bishop. In the present case, it is clear that
the context of the State's questions suggested deceit anduntruthfulness on the part of defendant. The State asked whether
defendant and others "took [Euart's] checks" and "typed [Euart's]
checks out to each other." The State further asked whether
defendant and others "cash[ed] [Euart's checks] at [the] same
stores where [defendant] [was] getting the payroll checks cashed"
and whether defendant and others "split[] the proceeds." As in
Bishop, the State's inquiries in the present case suggested that
defendant stole Euart's checks, forged them, cashed them and then
took the proceeds. We conclude the State's inquiry in the present
case was intended to show conduct indicative of defendant's
untruthfulness and was therefore permissible under Rule 608(b).
We also note that a witness who testifies concerning an issue
on direct examination opens the door to cross-examination on the
same issue. State v. Thompson, 110 N.C. App. 217, 223, 429 S.E.2d
590, 593-94 (1993). In the present case, defendant opened the door
to cross-examination concerning the theft of Euart's business
checks by raising the issue on direct examination and by suggesting
that Euart testified against defendant because Euart was mad that
his business checks had been stolen. For the reasons stated above,
we overrule defendant's assignment of error.
Defendant also argues that if the alleged misconduct was
probative of defendant's untruthfulness, any probative value was
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, pursuant to North
Carolina Rule of Evidence 403. N.C. Gen. Stat. § 8C-1, Rule 403
(2003). Rule 403 states that "[a]lthough relevant, evidence may beexcluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Id. The decision
whether or not to exclude evidence under Rule 403 is a matter left
to the sound discretion of the trial court and the trial court's
decision will only be reversed for an abuse of discretion. State
v. Campbell, 359 N.C. 644, 674, 617 S.E.2d 1, 20 (2005).
In the present case, defendant argues the State's inquiry
predisposed the jury to convict defendant based solely upon
negative character evidence. As discussed earlier, the State
properly impeached defendant's character for truthfulness pursuant
to Rule 608(b). The State also presented plenary evidence of
defendant's guilt of the offenses of which defendant was convicted.
Accordingly, the trial court did not abuse its discretion.
Defendant has abandoned his remaining assignments of error by
failing to set them out in his brief. N.C.R. App. P. 28(b)(6).
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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