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STATE OF NORTH CAROLINA v. KAREN ELAINE EVERETT
Filed: 20 June 2006
1. Evidence-_character--victim's propensity for violence-_self-defense--neutral witness
The trial court erred in a second-degree murder case by excluding a witness's testimony
concerning the victim's propensity for violence, including the victim's prior violent behavior at a
car dealership where he damaged property, because: (1) the evidence was relevant and admissible
to show whether defendant's apprehension of death and bodily harm was reasonable; and (2) the
error was prejudicial in light of defendant's assertion of self-defense, the witness was defendant's
only neutral witness, and defendant's testimony regarding the car dealership incident would
possibly be viewed by the jury as self-serving.
2. Evidence-_hearsay--character--victim's propensity for violence-_state of mind
exception--victim's plan or intent to engage in future act
The trial court erred in a second-degree murder case by excluding defendant's testimony
regarding an incident between the victim and defendant's former subordinate employee to show
the victim's violent nature, because: (1) N.C.G.S. § 8C-1, Rule 103(a)(2) provides that an offer
of proof is not necessary to preserve an issue for appellate review if the substance of the excluded
testimony is apparent from the context within which the question was asked, and the grounds
under which defendant sought to have this evidence admitted were apparent in the record from
the context of trial and the exchange; (2) defendant's testimony that her employee told her that
the victim threatened to shoot up his house should have been admitted as further evidence of the
victim's violent character to show defendant's fear of the victim was reasonable; and (3) the
statement was not offered for the truth of the matter asserted, but instead to show that
defendant's apprehension of death and bodily harm was reasonable.
3. Evidence--prior crimes or bad acts--shot a dog
The trial court erred in a second-degree murder case by admitting evidence that defendant
once shot a dog, because: (1) whether defendant was knowledgeable about firearms or had
experience shooting them does not make it more or less probable that she shot her husband in
self-defense; (2) defendant admitted that she shot the victim with a pistol; and (3) if the State
seeks to establish relevance on remand, the evidence is equally relevant to show the victim also
shot and killed the dog.
Judge GEER dissenting.
Appeal by defendant from judgment entered 12 August 2004 by
Judge Leon Stanback in Wake County Superior Court. Heard in the
Court of Appeals 12 April 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Amos Granger Tyndall, P.A., by Amos Granger Tyndall, for
Karen Elaine Everett (defendant) appeals from judgment
entered after a jury found her to be guilty of second degree
murder. We award defendant a new trial.
A. State's Evidence
On 26 November 2000 at approximately 5:40 p.m., Wake County
Sheriff's Deputy Joel Holt (Deputy Holt) was serving warrants
when he was dispatched to a call reporting a shooting at the 6100
block of Highway 401 in Fuquay-Varina. Deputy Holt arrived at the
residence and saw defendant standing in the doorway and speaking on
the telephone. As Deputy Holt walked into the yard toward the
house, defendant entered her home. Deputy Holt went to the front
door, identified himself, looked into the house, and saw a pistol
laying on the coffee table. Deputy Holt identified himself again
upon entering the house and heard a child crying, My daddy, my
daddy, I want my daddy. A blanket covered the child's head.
Deputy Holt observed the body of Michael Everett (the victim) in
the hallway. The victim was lying on his right shoulder with his
feet toward the kitchen and head toward the hallway. Deputy Holt
detected no movement in the victim and observed a large puddle of
blood on the floor. He testified defendant was calm, not emotional
or upset, and was trying to prevent her child from seeing the
victim's body. He also testified defendant's clothes were nottorn, contained no blood, and he did not observe marks on
defendant's face or neck. Defendant straightforwardly acknowledged
that she had shot the victim.
A volunteer fireman, Captain Lonnie Bridges (Captain
Bridges), arrived at the scene. Captain Bridges observed pooled
blood around the victim that appeared congealed and old. The
victim's body was cool.
Wake County Sheriff's Deputy James Landmark (Deputy
Landmark) arrived and asked defendant what had happened.
Defendant responded that she did not want to talk with him in front
of her daughter. Defendant's father-in-law came to the home and
took custody of the child.
Defendant told Deputy Landmark that she and her husband, the
victim, had been arguing for a couple of days after he accused her
of seeing someone else. Defendant told Deputy Landmark her husband
pushed her, threatened to kill her, and grabbed her by the throat.
Defendant told the victim to back off. The victim kept coming
toward defendant, at which point she shot him.
Sergeant Gerald Baker (Sergeant Baker) was the lead
investigator at the scene and also interviewed defendant.
Defendant told Sergeant Baker the victim had threatened to kill her
and had put his hands around her neck. The victim told defendant,
I can kill you now, bitch. The victim came toward defendant in
the kitchen. Defendant retrieved her gun from the living room.
Defendant fired the gun toward the kitchen cabinets. The victim
continued to come towards defendant and she fired the gun at him. Agent Dave Edington (Agent Edington) of the City-County
Bureau of Investigation testified he recovered a bullet imbedded in
the windowsill above the kitchen sink. Based on the method of
entrance by the bullet, Agent Edington testified the gun was
apparently fired from the living room near the Christmas tree.
Defendant's aunt, Eton Everett (Everett), also testified for
the State. Defendant called Everett at 5:31 p.m. and told her,
call daddy and you guys get out here right away, I just shot
Michael. Everett also testified defendant and the victim had
suffered domestic problems over the years. Defendant had never
told Everett she was afraid of the victim. Everett did not know of
incidents where the victim had injured defendant. Everett never
saw the victim act violently towards anyone. She never observed
the victim with a gun. Everett admitted she was married to the
Agent David Santora (Agent Santora) testified as an expert
witness in firearm identification. Agent Santora testified that a
bullet hole on the victim's right shirt sleeve was consistent with
a contact shot. The other bullet holes on the victim were caused
by shots fired less than eighteen inches away.
Dr. Cheryl Szpak (Dr. Szpak) performed the autopsy on the
victim. Dr. Szpak testified that no alcohol was found in the
victim's blood. One bullet had entered the victim's right biceps,
traveled through the sternum and the heart, and lodged in the
victim's lung. Another bullet entered the left chest area belowthe nipple, perforated the lung and diaphragm, and lodged close to
the spine. The remaining bullet entered the victim's lower back to
the right of the spine and lodged in his spinal canal. Dr. Szpak
testified the cause of the victim's death was massive blood loss in
the chest and a rupture of the heart resulting from gunshot wounds.
B. Defendant's Evidence
Defendant testified she married the victim in 1988. In the
early years of their marriage, the couple engaged in verbal and
physical arguments. The victim would tear things up and defendant
would try to stay out of the way of it. Once in 1990, defendant
was supposed to meet the victim after work, but defendant was
unable to meet him. The victim accused her of leaving work with
someone. The victim choked defendant and ripped her clothes.
Defendant reported the incident to the police. The victim was
charged with and convicted of assault.
Defendant also testified that there were lots of incidents
in the early years of their marriage and that it was easy for
[her] to get away. Defendant slept in her office at times.
The couple engaged in another physical altercation in 1998.
Defendant was helping her friend, Iris Bryant (Bryant), move a
fish aquarium. Bryant owned a hair salon. Defendant was Byant's
client and friend. Defendant turned her back and the victim jumped
on her and pushed her through a screen door. The victim banged
defendant's head against a wall and choked her. Bryant
corroborated defendant's account at trial. Bryant testified the
victim came and grabbed [defendant] by the neck, and he swung herout the door to the back of the porch, and her body was against the
wall, and he tore off all her clothes. Defendant's breasts were
exposed and she was scarred up at the neck. Defendant obtained
a domestic violence protective order against the victim. The
victim was charged and convicted of assault on a female as a result
of this altercation.
Bryant further testified the victim dropped defendant off at
her salon a couple of months before the shooting. The victim took
defendant's book bag out of the car, threw it at defendant, and
called her a bitch.
Defendant testified beginning in 2000 their arguments became
more violent and the victim's temper worsened. The victim insisted
that defendant was having extramarital affairs. One evening in
November 2000, the same month as the shooting, defendant was asleep
on the couch and awoke to find the victim holding an assault rifle
pointed at her head. He told her he was going to blow [her] head
off. Defendant coaxed the victim into putting down the gun by
telling him that the gun had not been cleaned and it could explode
if he fired it.
Defendant kept problems in their marriage private because her
aunt, Eton Everett, was married to defendant's brother. Defendant
continued to live with the victim because she wanted her daughter
to have one more Christmas holiday with him as a family. She
believed that the marriage would work if she kept working at it.
During the day before the shooting, defendant and her daughter
went to the movie theater with friends. When they returned home,the victim insisted defendant had been out with another man. The
couple argued that evening. Defendant left and went to a female
friend's house for a couple of hours. Later, she returned home and
slept on the couch.
Defendant described the day leading up to the shooting as a
normal day. The victim came home and they argued again.
Defendant laid down on the couch. When she tried to get up, the
victim pushed her down and told her he should have finished what
he started . . . that he should have killed [her] when he had a
chance. The victim told defendant he was not leaving the house
and that she would only leave in a body bag or on a stretcher.
Defendant got up and picked up the pistol because she wanted
to keep him off of her. The victim saw the gun and stated,
What, you want to play with guns now? The victim said he was
going to get a gun and kill everything [sic] up in there.
Defendant testified the victim normally was screaming and yelling
and tearing things up during prior arguments, but that he was
calm and cold the evening of the shooting. Defendant further
testified that she had never been more afraid of the victim.
Defendant testified she told the victim that she wanted to get
her daughter and leave. The victim moved toward defendant and she
shot at the kitchen window to scare him. The victim continued to
move toward her. He refused to stop after she told him to. The
victim moved toward her like he was going to grab her.
Defendant testified she believed the victim was going to take
the gun away from her. At that point, defendant shot the gun athim. The victim did not initially react to the second shot
defendant fired and continued to walk toward her. The victim
turned toward the hallway and defendant continued to fire at him.
Defendant testified she believed he was going to get a gun located
in the hallway. Defendant did not think she had hit the victim.
When the victim fell, defendant realized he had been hit. After he
fell, she ran over to him, held his head in her lap, and called the
victim's name. Defendant did not see any blood and did not know
the extent of his injuries. Defendant testified she does not
remember further events after the shooting, and does not remember
placing the call to 911.
Defendant testified that she was not trying to kill the victim
and stated, I wanted to leave, and when he started coming toward
me, I felt he was either going to go get his gun or he was going to
take the gun from me. She further testified that she just wanted
him to stop.
Defendant's father, John Rowland (Rowland) testified that he
was aware of the couple's marital problems. Rowland recounted an
incident in the early 1990s when the victim slapped defendant and
threw her clothes into the yard. Rowland bailed the victim out of
C. State's Rebuttal Evidence
Eton Everett returned to the stand and testified about a 1998
incident where the victim had attacked defendant. Defendant told
Everett that if she could have gotten her gun she would have shot
the victim. Sergeant Baker also returned to the stand andcorroborated that Everett had told him that defendant had said to
her after the 1998 incident. Sergeant Baker's notes said,
[Everett] stated [defendant] told her she and [the victim] fought
and [the victim] had to force [defendant] out of the front door
because, quote, 'He knew I was going to get my gun and shoot his
Defendant was indicted for first-degree murder. The jury
found defendant to be guilty of second degree murder. This Court
vacated the judgement and ordered a new trial on 2 March 2004. See
State v. Everett, 163 N.C. App. 95, 592 S.E.2d 582 (2004) (holding
the trial court erred in failing to instruct the jury that
defendant claiming self-defense had no duty to retreat). Defendant
was retried and found to be guilty of second degree murder.
Defendant was sentenced as a Prior Record Level I with no prior
record points. Defendant presented evidence of multiple mitigating
factors. The trial court made no findings of aggravation or
mitigation and sentenced defendant to an active term within the
presumptive range to a minimum of 135 months and a maximum of 171
months. Defendant appeals.
Defendant argues the trial court erred by: (1) excluding
evidence of the victim's propensity for violence; and (2) admitting
evidence of her prior conduct that was irrelevant and prejudicial.
III. Evidence of the Victim's Violent Character
 Defendant argues she should be granted a new trial because
the trial court erred in excluding evidence of the victim's violentcharacter. Defendant presented evidence that she shot the victim
in self-defense. Defendant argues the trial court excluded
specific instances of the victim's violent character that would
have shown the reasonableness of her fear and why she used deadly
force. We agree.
A. Virgil Rhodes's Testimony
Virgil Rhodes (Rhodes) testified during voir dire that he
worked at a used car dealership and had sold a car to the victim.
The victim called the owner of the car dealership and complained
the car's trunk would not remain latched. On 31 October 1999, the
victim drove to the dealership after business hours and broke
another car's windows. Rhodes was working late in the evening in
his office when he heard glass shatter. Rhodes walked outside and
saw the victim leaving the lot in the car he had purchased. The
victim was arrested for damage to property. Defendant testified
she knew of this incident. The trial court excluded this
testimony, stating, I don't see how this event is relevant in this
B. Character Evidence
Generally, evidence of the victim's character is not
admissible to prove that the victim acted in conformity with his
character on a particular occasion. N.C. Gen. Stat. § 8C-1, Rule
404(a) (2005). This rule has exceptions. Rule 404(a)(2) provides
that evidence of a pertinent trait of character of the victim of
the crime offered by an accused is admissible. N.C. Gen. Stat. §
8C-1, Rule 404(a)(2) (2005). In State v. Winfrey, our Supreme Court discussed the two
exceptions under this rule.
Generally, evidence of a victim's violent
character is irrelevant, but when the accused
knows of the violent character of the victim,
such evidence is relevant and admissible to
show to the jury that defendant's apprehension
of death and bodily harm was reasonable.
Clearly, the reason for this exception is
that, a jury should, as far as is possible, be
placed in defendant's situation and possess
the same knowledge of danger and the necessity
for action, in order to decide if defendant
acted under reasonable apprehension of danger
to his person or his life.
The second of the recognized exceptions to the
general rule permits evidence of the violent
character of a victim because it tends to shed
some light upon who was the aggressor since a
violent man is more likely to be the aggressor
than is a peaceable man. The admission of
evidence of the violent character of a victim
which was unknown to the accused at the time
of the encounter has been carefully limited to
situations where all the evidence is
circumstantial or the nature of the
transaction is in doubt. The relevancy of
such evidence stems from the fact that in
order to sustain a plea of self-defense, it
must be made to appear to the jury that the
accused was not the aggressor.
298 N.C. 260, 262, 258 S.E.2d 346, 347 (1979) (internal quotations
and citation omitted) (emphasis supplied).
Proof of the victim's character may be made by testimony as
to reputation or by testimony in the form of an opinion. N.C.
Gen. Stat. § 8C-1, Rule 405(a) (2005). Proof may also be made by
specific instances of conduct where character or a trait of
character of a person is an essential element of a charge, claim,
or defense. N.C. Gen. Stat. § 8C-1, Rule 405(b) (2005). In self-defense cases, the victim's violent character is
relevant only as it relates to the reasonableness of defendant's
apprehension and use of force, which are essential elements of
self-defense. State v. Brown, 120 N.C. App. 276, 277-78, 462
S.E.2d 655, 656 (1995) (citing State v. Shoemaker, 80 N.C. App. 95,
101, 341 S.E.2d 603, 607, motion to dismiss allowed and disc. rev.
denied, 317 N.C. 340, 346 S.E.2d 145 (1986)).
Defendant presented evidence she killed the victim in self-
defense and tendered Rhodes as a witness. Rhodes's testimony
regarding the victim's violent behavior at the car dealership,
which was known by defendant, is relevant and admissible to show
whether her apprehension of death and bodily harm was reasonable.
Winfrey, 298 N.C. at 262, 258 S.E.2d at 347.
C. No Prejudicial Error
The State argues the trial court's exclusion of Rhodes's
testimony was not prejudicial because defendant testified to the
same incident on direct and redirect examination. See N.C. Gen.
Stat. § 15A-1443(a) (2005) (A defendant is prejudiced by errors
relating to rights arising other than under the Constitution of the
United States when there is a reasonable possibility that, had the
error in question not been committed, a different result would have
been reached at the trial out of which the appeal arises.). We
On direct, defendant testified that she recalled an incident
when the victim was arrested for damage to property. On redirect,
defendant testified as follows: Q: Do you recall an incident back in - on
Halloween of 1999?
A: Yes. Yes, I do.
Q: Do you know what happened or did you find
out what happened?
A: Michael had gotten upset and went to a car
dealership and had busted out another car
Q: And - and was he charged with damaged
A: Yes, he was.
Q: And did he pay for the damages?
A: Yes, he did.
Q: During this period of time, did you - did
you leave Michael after that?
A: I left after that.
A: Because that wasn't generally what he done.
It was a little weird. I got afraid. I
though he needed a little cool-off period so I
left to try.
Q: And how long did you leave for, do you
A: Probably a couple of weeks.
Q: Do you know what he was mad about?
A: The trunk wasn't latching on the back of
the car. He was upset about that. I actually
didn't find out he busted out the windows till
the - the dealer - the man, the manager that
called me while he was gone with the child for
Halloween and they went trick or treating at
the mall. The manager had called and asked
where he was at, and I said he wasn't there.
He said do you know what he said -
PROSECUTOR: I'm going to object to what the
COURT: All right, overruled. I'll let it in.
A: Do you know what he just did, and I said
no. He said well I'm going to call the
police. He was just here busting out windows
and I got witnesses to the fact that he did
it. I tried to calm him down and said well,
we'll pay for the damages etc., etc. and I
said could I call him back.
And I called Michael and I asked him had
something happened and he said no, nothing had
happened. I said well the dealership man had
just called here threatening to call the
police. And at that point in time I don't
think he thought anyone saw him, said have
witnesses saying they saw you busting out
So I called the man back and said that we
would pay for it, and he said that he was
still going to call the police to have a
record of it.
DEFENSE COUNSEL: That's all the questions I
The jury in this case heard testimony from the following
defense witnesses: defendant; John Rowland, defendant's father;
Adele Rowland, defendant's mother; and Iris Bryant, defendant's
friend. All of these witnesses were either parents of or closely
associated with defendant. Rhodes, a car salesman, was the only
witness defendant tendered at trial not closely associated with
Rhodes witnessed the victim's violent acts first hand.
Rhodes's testimony would have provided the jury with the only
evidence from a neutral source
of the victim's violent character,
a crucial element of defendant's claim of self-defense. The trial
court erred in excluding Rhodes's testimony regarding the incidentat the car dealership
to show the victim's propensity for violent
behavior. This error was prejudicial in light of defendant's
assertion of self-defense, Rhodes being defendant's only neutral
witness, and defendant's testimony regarding the car dealership
incident possibly being viewed by the jury as self-serving.
D. Defendant's Testimony
 Defendant also argues the trial court erred in excluding
defendant's testimony regarding an incident between the victim and
defendant's former subordinate employee because it was admissible
evidence of the victim's violent nature. We agree.
The following exchange occurred on direct examination of
Q: Okay. Did you have any problems with your
work and Michael concerning your work at Wake
A: He had problems. He called quite a bit.
He got into a verbal argument with one of my
Q: What was that over?
A: It was over me. He said that we were
having an affair.
Q: What happened, or what was said, if you
A: I wasn't there. My employee paged me. I
came back to the hospital, and he said he was
PROSECUTOR: Object as to what the employee
COURT: All right. Sustained.
Q: Did you talk to the employee in person or
on the phone or --
A: In person.
Q: Without saying what he said, how did he
act? What was his mental state?
COURT: Well, overruled as to what was in his
mind. I'm sorry. Sustained as to what was in
. . . .
Q: How did he appear to you?
A: He was quite anxious because Michael had
told him he was going to shoot up his house.
PROSECUTOR: Objection. Move to strike.
COURT: All right. Sustained. Motion allowed.
Defendant preserved this argument for our review. North
Carolina Rule of Evidence 103 provides in pertinent:
(a) Effect of erroneous ruling. -- Error may
not be predicated upon a ruling which admits
or excludes evidence unless a substantial
right of the party is affected, and
. . . .
(2) Offer of proof. -- In case the ruling is
one excluding evidence, the substance of the
evidence was made known to the court by offer
or was apparent from the context within which
questions were asked. Once the court makes a
definitive ruling on the record admitting or
excluding evidence, either at or before trial,
a party need not renew an objection or offer
of proof to preserve a claim of error for
N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2005) (emphasis supplied).
An offer of proof is not necessary to preserve an issue for
appellate review if the substance of the excluded testimony is
apparent from the context within which the question was asked. Id.; State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443
(2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001)
(Substance of the excluded testimony [must be] apparent from the
context within which the question was asked.). It is well
established that an exception to the exclusion of evidence cannot
be sustained where the record fails to show what the witness'
testimony would have been had he been permitted to testify. State
v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985).
Here, the transcript clearly reveals the substance of the
excluded testimony. Defendant testified that the victim told her
former employee that he was going to shoot up his house. The
court granted the State's motion to strike this testimony.
Defendant was not required to make an offer of proof under Rule 103
because the substance of the excluded testimony was established and
Defendant did not argue in response to the State's motion and
the trial court's ruling the specific grounds for admitting the
testimony. However, the specific grounds were apparent from the
context. N.C. R. App. P. 10(b)(1) (2005). Defendant proceeded on
a theory of self-defense in shooting the victim. She offered
evidence throughout the trial of the victim's violent nature to
show that her fear of the victim was reasonable. This testimony
was clearly another example of the victim's violent nature to show
the reasonableness of defendant's fear. The grounds under which
defendant sought to have this evidence admitted are apparent in the
record from the context of trial and the exchange. This issue wasproperly preserved under Rule 103(a)(2) of the North Carolina Rules
of Evidence and Rule 10(b)(1) of the North Carolina Rules of
Defendant's testimony that her employee told her that the
victim threatened to shoot up his house should have been admitted
as further evidence of the victim's violent character to show her
fear of the victim was reasonable. Winfrey, 298 N.C. at 262, 258
S.E.2d at 347.
The State's argument that this evidence is inadmissible
hearsay is without merit. Rule 803 sets forth exceptions to the
hearsay rule. The Rule provides:
The following are not excluded by the hearsay
rule, even though the declarant is available
as a witness:
. . . .
(3) Then Existing Mental, Emotional, or
Physical Condition. _ A statement of the
declarant's then existing state of mind,
emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental
feeling, pain, and bodily health) . . . .
N.C. Gen. Stat. § 8C-1, Rule 803 (2005). The statement from the
victim to defendant's former employee falls under this exception to
the hearsay rule. The statement was a statement of the victim's
plan or intent to engage in a future act. See State v. McElrath,
322 N.C. 1, 17, 366 S.E.2d 442, 451 (1988) (telephone message
written by a neighbor from the victim to his roommate that the
victim was traveling to North Carolina with the defendant was
admissible under Rule 803(3) because it was a statement of the
victim's then-existing intent to do an act in the future);Braxton, 352 N.C. at 190-91, 531 S.E.2d at 447 (Moore's statement
to McCombs that he was going to approach defendant about
straightening out the victim's debt was admissible as evidence of
Moore's then-existing intent to engage in a future act.).
The statement from defendant's former employee to defendant is
not hearsay and was not offered in evidence to prove the truth of
the matter asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005).
The statement was offered by the defense as evidence of the
victim's violent character to show defendant's apprehension of
death and bodily harm was reasonable. Winfrey, 298 N.C. at 262,
258 S.E.2d at 347. The statement was not offered to show that the
victim and defendant's former employee had a confrontation where
the victim actually threatened to kill defendant's former employee.
It was instead offered for the jury to determine whether
defendant's fear of the victim was reasonable under the
circumstances. See State v. Faucette, 326 N.C. 676, 682-83, 392
S.E.2d 71, 74 (1990) (a murder victim's statement to her son that
she did not want the defendant to come to her house because he had
failed to pay her child support was not hearsay because it was not
offered to prove the truth of the matter asserted, but to show the
victim's frustration and impatience with the defendant.).
The trial court erred in excluding Rhodes's testimony
regarding the victim's violent behavior at the car dealership and
defendant's testimony regarding the victim's threat to defendant's
former employee that he was going to shoot up the employee's
IV. Evidence of Defendant's Prior Conduct
 Defendant asserts the trial court erred in admitting
evidence that she once shot a dog and argues this evidence was
irrelevant and prejudicial.
Defendant filed a pretrial motion to exclude the evidence of
the incident in which she shot a dog. Defendant argued this
evidence constitutes impermissible character evidence. The State
argued the incident is relevant to demonstrate defendant's ability
to use a gun and the fact that she had used a gun in the past. The
trial court denied defendant's motion and allowed the evidence to
Defendant straightforwardly admitted to shooting the victim
with the pistol plainly visible upon the officers' arrival at the
scene. Whether or not defendant knew how to use a pistol was not
Defendant testified regarding the incident:
Q: And do you recall making a statement at the
time that you shot at a dog?
Q: Tell the jury about that.
A: We had a dog named Rambo. We had raised
him from a puppy with my daughter. One day
the neighbor and her husband came over and we
went for daily walk with our children. And I
heard the truck when it pulled up. And then I
heard screaming and hollering and I heard the
dog growling. And when I opened the door, she
was in the screen door and her husband had ran
back to the truck. The dog was biting her.
Chased him off [sic]. He went to chase the
other neighbors next door. Randy got her home
because he didn't know how bad the bites were,
and I went around back to get him because hewas still chasing everybody, trying to bite,
and I shot him.
Q: You shot the dog?
A: Yes, sir.
Q: Did you mean to shoot to kill him?
A: Yes, I meant to put him down, yes.
Q: And did he go down?
A: Yeah, I didn't kill him though.
Defendant testified on redirect examination that the dog was
alive after she shot and her husband, the victim, later shot and
killed the dog. Defendant further testified that she shot the dog
to protect other neighbors from being bitten. Defendant argues
this testimony was irrelevant and prejudicial, and serves no
purpose but to disparage her in the eyes of the jury.
Relevant evidence is evidence having 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 (2005).
On the record before us, we fail to see how this evidence was
relevant to any issue in the case. Whether defendant was
knowledgeable about firearms or had experience shooting them does
not make it more or less probable that she shot her husband in
Defendant admitted that she shot the victim with a pistol.
Defendant is entitled to a new trial based on the trial court's
exclusion of testimony of the victim's violent character. If the
State seeks to establish the relevancy of defendant's shooting thedog upon any retrial, this evidence is equally relevant to show the
victim also shot and killed the dog and the victim's knowledge and
use of firearms and his ability to kill for the reasonableness of
defendant's fear of the victim.
The trial court erred in excluding Rhodes's testimony of the
victim's violent conduct at the car dealership and defendant's
testimony regarding the victim's death threats to defendant's co-
worker. The exclusion of this testimony prejudiced defendant's
assertion of self-defense and her knowledge of the victim's violent
character. We hold the exclusion of this evidence was preserved
for appellate review and was prejudicial to defendant's assertion
On this record, we fail to see the relevance of evidence
admitted over defendant's motion to excluded evidence that
defendant had shot her dog. If relevance is established, it would
appear equally relevant that the victim also shot and killed the
dog. We reverse and remand for a new trial.
Judge JACKSON concurs.
Judge GEER dissents by separate opinion.
GEER, Judge, dissenting.
Because I believe defendant received a trial free of
prejudicial error, I respectfully dissent. With respect to the exclusion of the testimony of Virgil
Rhodes regarding the victim's damaging a car, I would hold that any
error was harmless based upon my review of the record. First,
defendant was allowed to testify fully regarding the incident, the
victim's being charged in connection with the incident, and the
effect of the incident on her. While defendant argues _ and the
majority agrees _ that Rhodes would have provided the only evidence
from a neutral source of the victim's violent nature, the car
dealership incident was not seriously disputed by the State and
defendant introduced extensive testimony from other witnesses
regarding the victim's physically violent character. Neither
defendant nor the majority opinion demonstrates, in light of the
substantial evidence admitted of the victim's violence towards
defendant, how the exclusion of the Rhodes testimony, regarding
violence to a car, gives rise to "a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises." N.C. Gen. Stat. § 15A-1443(a) (2005).
Notably, at the time of the initial ruling regarding Rhodes,
the trial court indicated to defense counsel that he could ask the
court to reconsider the issue later in the trial. Nevertheless,
even though the court ultimately allowed defendant to testify
regarding the incident, counsel did not then ask the court to
permit the testimony of Rhodes to corroborate defendant.
I would observe, in addition, that the trial court precluded
the testimony of Rhodes because the conduct involved propertydamage and no threat to any person _ a decision I believe to be
consistent with Rule 404 of the Rules of Evidence. Rule 404(a)(2)
allows "[e]vidence of a pertinent trait of character of the victim
of the crime." (Emphasis added.) I believe that the trial court
could properly determine that the victim's willingness to damage a
car was not "pertinent" to whether defendant's apprehension of
death or bodily harm was reasonable.
I also cannot agree with the majority's conclusion that the
trial court erred in excluding defendant's testimony that one of
her employees had told her that the victim threatened "to shoot up"
the employee's house. The majority holds that this statement was
admissible because it falls within the exception to the hearsay
rule set out in N.C.R. Evid. Rule 803(3) and because it was not
offered to prove the truth of the matter asserted. While this may
be true, defendant did not argue these bases for admission at trial
and has not argued them on appeal. See N.C.R. App. P. 10(b)(1)
("In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context.").
The majority's discussion of the offer of proof requirements
in N.C.R. Evid. 103(a)(2) is beside the point. The issue is not
whether the nature of the intended testimony was apparent from the
record, but rather whether defendant's trial counsel sufficiently
identified for the trial judge a basis under the Rules of Evidencefor admitting the testimony. Once the State objected, defendant
never argued to the trial court any basis at all for the admission
of the testimony. Counsel simply stood silent in response to the
State's objection. Silence does not comply with N.C.R. App. P.
Even if defendant had made some response at trial, the fact
remains that he has not made any argument on appeal to address the
State's hearsay contention. The basis for the majority opinion was
not the subject of an assignment of error and cannot by any stretch
be gleaned from defendant's appellate brief. Our Supreme Court has
made plain that these arguments may not, therefore, form a basis
for granting a new trial. See Viar v. N.C. Dep't of Transp., 359
N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It is not the role of
the appellate courts . . . to create an appeal for an appellant.").
Simply stated, the majority has created a basis for appeal for
Finally, I disagree with the majority opinion's holding
regarding the admission of testimony that defendant shot a dog. I
believe the majority has misunderstood the State's argument as to
the evidence's relevance. The State was not focusing simply on
whether defendant knew how to use a gun, but rather was arguing
that because the victim knew that defendant could _ and would _ use
a gun to kill, the victim would not have charged defendant while
she was pointing a gun at him and had already fired once. The
State argued in closing:
If we have any such thing as common
sense, say she's going to stand there with a.38 and we know she knows how to use it.
She's already shot a dog, said she intended to
kill it. She's taken target practice. He
knows she knows how to use that gun, which is
another important thing when he's standing
over here. He knows she's just not some
person scared and she doesn't know how to use
that gun. He's seen her shoot and he know
[sic] she carries it every day. She bought it
and carried it in that book bag. He knows
that she can use that gun.
(Emphasis added.) Thus, the State used the victim's knowledge of
the dog shooting to suggest that defendant's version of what
occurred was not credible. I believe the testimony was admissible
for this purpose: to suggest that the victim would not have charged
For the foregoing reasons, I dissent from the majority's
decision to grant a new trial. I would hold that defendant
received a trial free of prejudicial error.
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