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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MELVIN CURTIS FAULKNER, Defendant
Filed: 19 December 2006
1. Evidence--prior crimes or bad acts_-purpose other than bad character
The trial court did not abuse its discretion in a prosecution of defendant for the second-
degree murder of his girlfriend's infant son by denying defendant's motion to suppress testimony
from his girlfriend's mother regarding a June 2001 incident in which the girlfriend took an
overdose of sleeping pills, defendant refused to call 911, defendant initially refused to give the
girlfriend's mother the street address when she called 911, and defendant told his girlfriend's
mother that he did not know what she took nor did he care whether she died, because: (1) the
defense was attempting to suggest that defendant's girlfriend may have been the perpetrator or
that the girlfriend's son died from an accidental fall; and (2) evidence concerning the relationship
between defendant and his girlfriend was probative for a purpose other than defendant's bad
character. N.C.G.S. § 8C-1, Rule 404(b).
2. Evidence_-expert testimony--normal caretaker reaction--rebuttal evidence--opening
the door to evidence
The trial court did not abuse its discretion in a prosecution of defendant for the second-
degree murder of his girlfriend's infant son case by overruling defendant's objection to the
testimony of a State expert as to normal caretaker reaction and a profile of caretaker behavior
after an injury to a child, because: (1) earlier testimony by defense experts had outlined some
criteria used in determining child abuse and suggested there was an overdiagnosis and rush to
judgment of child abuse; (2) in light of the defense testimony, the State expert's statements as to
the parameters used to determine child abuse, and specifically the profile of normal caretaker
behavior, had significant probative value as proper rebuttal evidence; and (3) even assuming
arguendo that the expert's testimony would not have been permissible if offered during the
State's direct case, the defense opened the door to the criteria used to determine if child abuse
had occurred including what is considered normal caretaker behavior in such situations.
N.C.G.S. § 8C-1, Rule 702
3. Evidence--suspicions--disapproval of relationship--plain error analysis
The trial court did not commit plain error in a second-degree murder case by allowing
testimony as to the suspicions of defendant's girlfriend regarding her child's death, her mother's
disapproval of her relationship with defendant, and the substance of one side of a phone
conversation defendant had with his father at the hospital while the child was being treated,
because: (1) the State presented a significant amount of evidence at trial that showed the building
tension in defendant's house in the weeks leading up to the child's death as a result of the
deteriorating relationship between defendant and his girlfriend as well as of defendant's picking
on the child; (2) defendant was alone at home with the child at the time the child's injuries were
sustained, and defendant's behavior with emergency personnel and at the hospital was somewhat
unusual; and (3) in light of the strength of the State's case against defendant, the challenged
statements were unlikely to have been determinative factors in the jury's verdict.
4. Appeal and Error--preservation of issues--failure to argue
Although defendant contends the trial court committed plain error in a second-degree
murder case by admitting testimony concerning comments from the child victim's grandmotherat the child's funeral, this assignment of error is dismissed, because: (1) defendant's brief failed
to offer any discussion of these comments or argument to support this assertion; and (2)
assignments of error not set out in appellant's brief or in support of which no reason or argument
is stated or authority cited will be taken as abandoned under N.C. R. App. P. 28(b)(6).
5. Evidence--opinion testimony--lay witnesses--medical condition
The trial court did not abuse its discretion or commit plain error in a second-degree
murder case by admitting the opinion testimony of lay witnesses as to the minor child victim's
medical condition allegedly in violation of N.C.G.S. § 8C-1, Rule 701, because: (1) as noted by
defendant himself, all of the testimony being challenged was also properly admitted through
other expert witnesses; (2) defendant made only the bare assertion that the testimony impacted
the jury verdict, and thus the portion of his assignment of error that alleged plain error is
dismissed; (3) the trial court implicitly accepted the qualifications of two emergency medical
personnel as expert witnesses, and defendant waived the right to raise this issue on appeal by
specifically failing to object at trial to their qualifications; and (4) even if defendant had properly
preserved his challenge to the testimony, the two individuals were qualified to render their
opinions as to the nature of the child's injuries and the possibility that they were caused by falling
out of a toddler bed, that they themselves examined, by virtue of their emergency medical
training and experience when the questions and answers related specifically to their area of
expertise and qualifications.
6. Evidence_-admission of testimony--plain error analysis
The trial court did not commit plain error in a second-degree murder case by admitting
testimony that defendant's girlfriend screamed at him when the two were placed near each other
after their arrests, because: (1) in light of the other substantial evidence offered by the State, the
admission of this testimony did not rise to the level of plain error; (2) in light of the defense
theories at trial that either defendant's girlfriend inflicted the child's injuries, or they were
accidental, the evidence was probative to refute those suggestions; and (3) the degree of
prejudice did not substantially outweigh the probative value of the evidence.
Appeal by defendant from judgment entered 7 June 2005 by Judge
E. Lynn Johnson in Superior Court, Cumberland County. Heard in the
Court of Appeals 17 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Leslie C. Rawls for defendant-appellant.
The plain error rule applies when the appellate court is
convinced that absent the error the jury probably would havereached a different verdict.
(See footnote 1)
Here, Defendant argues that the
admission of testimony from several witnesses was plain error.
Because we find that the State's evidence as to Defendant's guilt
was substantial enough that the testimony in question was not
determinative of the jury's decision, we affirm Defendant's
conviction for second-degree murder.
On 7 June 2005, Defendant Melvin Curtis Faulkner was convicted
of second-degree murder in the death of 22-month-old Jakob
Waddington, the son of Defendant's girlfriend, Janet Perkins. At
trial, the evidence tended to show that Defendant and Ms. Perkins
met through an America Online chat room several months before she
moved to Fayetteville in March 2001 with her two children, Jakob
and his six-year-old sister. Ms. Perkins moved into Defendant's
house within three or four weeks of her arrival in Fayetteville.
Trial testimony indicated that Defendant's relationship with
Ms. Perkins was tumultuous; for example, shortly after Ms. Perkins
moved into Defendant's house, Defendant asked her to move out so he
could work things out with the mother of his child, who was
pregnant again, possibly with his child. But a week later
Defendant changed his mind, and Ms. Perkins moved back into his
house. Ms. Perkins testified that, at the beginning of the
relationship, Defendant was wonderful with Jakob, and that he
played with the boy and had a lot of interaction with him, although
he was not involved in parenting responsibilities. By the end of April 2001, however, Defendant and Ms. Perkins
began to have arguments related to Jakob, including Defendant's
suggestion that the boy should go to live with his father in Texas.
Also around this time, Jakob began having tantrums in which he
would bang his head on the floor. Jakob's doctor testified that
such head banging is not unusual in children, but they are not
injured by it, and it cannot produce fatal brain injury. Jakob was
slightly developmentally delayed.
Throughout June and July 2001, the couple's relationship
continued to deteriorate. In June, Ms. Perkins took an overdose of
sleeping pills and had her stomach pumped at the hospital, but she
denied that it was a suicide attempt. Around the beginning of
July, Ms. Perkins threatened to leave Defendant because of his
picking on Jakob; she packed belongings and left the house with
Jakob, but the two returned a short time later, after Defendant and
Ms. Perkins had spoken on the telephone.
According to testimony at Defendant's trial, Ms. Perkins put
Jakob down for his nap between 1:00 and 2:00 p.m. on 18 August
2001, and she then went to the store a short time later, taking
Defendant's car because of heavy rains and flooding. Ms. Perkins
stated that Jakob was fine at that time. While she was out, she
called Defendant, who mentioned during the course of their
conversation that he had found Jakob on the floor and put him back
in the bed. Defendant called her back a few minutes later, while
she was on her way home, and was upset because Ms. Perkins had
taken his car to the store, rather than her own. All told, Ms.Perkins estimated her trip to the store took approximately twenty
to thirty minutes; no one else was in the house during that time
other than Defendant and Jakob. She did not check on Jakob after
she arrived back at the house.
Around 5:00 p.m., Ms. Perkins went into Jakob's room to wake
him from his nap and found him on the floor on his stomach. When
she picked him up, his eyes rolled into the back of his head, and
his arms and legs went stiff. Ms. Perkins called 911, and an
ambulance arrived approximately fifteen minutes later and
transported Jakob to the hospital. He was transferred to Chapel
Hill, but he died later that night.
At Defendant's trial, medical personnel testified that Jakob's
pupils were unequal and slow to react to light, evidence of a
serious head injury, and that there was a raised and visibly
noticeable hematoma on the left side of Jakob's head. His stiff
arms and legs, called posturing, indicated brain swelling from a
head injury. One emergency responder testified that, in response
to the question of what had happened to Jakob, Defendant appeared
nervous, with the color drained from his face, and did not respond;
Ms. Perkins answered that she believed Jakob had fallen out of his
bed. Jakob's bed was eight inches to a foot off the floor, and
testimony at trial suggested that a fall from such a height was
inconsistent with and could not have caused the type of head injury
suffered by Jakob.
Additional testimony was offered at trial as to Defendant's
and Ms. Perkins' demeanor at the hospital and the types oftreatment offered to Jakob. Five medical experts testified for the
State that the cause of Jakob's death was brain swelling caused by
blunt force trauma to the head. According to one expert, Jakob
would have been immediately symptomatic from the injuries and would
have been rendered completely unresponsive, unable to eat, walk, or
communicate. None of the State experts believed the injuries could
have been accidental, barring an incident such as a fall from a
third-story window. However, Defendant offered testimony from
three expert witnesses who theorized that Jakob might have died
from a stroke or series of strokes, a blockage of veins in the
brain, or dissection or clotting of the carotid artery, although
such cases would not have accounted for his external bruises.
At the conclusion of the trial, the jury returned a verdict
finding Defendant guilty of second-degree murder. The trial court
sentenced Defendant to a term of 125 to 159 months' imprisonment.
Defendant now appeals that verdict, arguing that the trial court
(I) erred by allowing impermissible character evidence; (II) erred
by allowing impermissible profile evidence as to normal caretaker
reaction, which was irrelevant and prejudicial; (III) committed
plain error by allowing irrelevant and highly prejudicial evidence
as to one side of a telephone conversation between Defendant and
his father and as to Ms. Perkins' suspicions about Defendant's role
in Jakob's death; (IV) committed plain error by admitting testimony
about comments made by Jakob's grandmother about Defendant at
Jakob's funeral; (V) erred by allowing lay witnesses to offer
expert opinions; and (VI) committed plain error by allowingtestimony as to Ms. Perkins' attitude towards Defendant after both
 First, Defendant argues that the trial court erred by
denying his motion to suppress testimony from Ms. Perkins' mother,
Peggy Acker, regarding the June 2001 incident in which Ms. Perkins
took an overdose of sleeping pills. Defendant contends that the
testimony was offered solely as evidence of his character and
therefore should have been disallowed under North Carolina Rule of
Evidence 404. See
N.C. Gen. Stat. § 8C-1, Rule 404 (2005)
(character evidence not generally admissible to prove conduct).
(See footnote 2)
The standard of review in determining whether a trial court
properly denied a motion to suppress evidence is whether the
findings of fact are supported by competent evidence, and whether
the conclusions of law are in turn supported by those findings of
fact. State v. Cockerham
, 155 N.C. App. 729, 736, 574 S.E.2d 694,
699, disc. review denied
, 357 N.C. 166, 580 S.E.2d 702 (2003); seealso State v. Smith
, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835
(2003) (stating that a trial court's findings of fact regarding a
motion to suppress are conclusive on appeal if supported by
competent evidence, even if there is other, conflicting evidence);
State v. Logner
, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94
(2001) (noting that an appellate court will not overturn a trial
court's conclusions of law as to a motion to suppress if they are
supported by its factual findings). Indeed, [w]hether to exclude
evidence of other crimes or bad acts is a matter within the sound
discretion of the trial court. State v. Woolridge
, 147 N.C. App.
685, 692, 557 S.E.2d 158, 162 (2001), rev'd on other grounds
N.C. 544, 592 S.E.2d 191 (2003). A trial court will be held to
have abused its discretion only upon a showing that its ruling was
manifestly unsupported by reason and could not have been the result
of a reasoned decision. State v. Riddick
, 315 N.C. 749, 756, 340
S.E.2d 55, 59 (1986).
North Carolina Rule of Evidence 404(b) provides in pertinent
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) (2005). Th[e] list of proper
purposes is neither exclusive nor exhaustive. State v. Church
N.C. App. 647, 653, 394 S.E.2d 468, 472 (1990) (citing State v.
, 317 N.C. 396, 412 n.2, 346 S.E.2d 626, 635 n.2 (1986)). According to our Supreme Court, Rule 404(b) is
a clear general rule of inclusion
evidence of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only
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. Coffey
, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Thus, so long as evidence of a defendant's prior acts makes the
existence of any fact at issue, other than the character of the
accused, more or less probable, that evidence is admissible under
Rule 404(b). Id
Nevertheless, any Rule 404(b) evidence should be carefully
scrutinized in order to adequately safeguard against the improper
introduction of character evidence against the accused. See State
, 356 N.C. 150, 153-55, 567 S.E.2d 120, 122-23 (2002)
(citing cases and text expounding upon the rationale for
limitation), cert. denied
, 126 S. Ct. 1784, 164 L. Ed. 2d 528
(2006). A trial court should consider whether the evidence is
offered for a proper purpose, whether it is relevant, and whether
its probative value is substantially outweighed by its potential
for unfair prejudice to the defendant. Huddleston v. United
, 485 U.S. 681, 691-92, 99 L. Ed. 2d 771, 784 (1988). Of
course, [e]vidence which is probative of the State's case
necessarily will have a prejudicial effect upon the defendant; the
question is one of degree. Coffey
, 326 N.C. at 281, 389 S.E.2d at
Here, the testimony in question was summarized and read intothe record by the trial court:
Ms. Acker described going to the defendant's
house in early June after receiving a call
from Janet that she needed assistance. When
Ms. Acker arrived, she realized Janet needed
medical attention and asked the defendant to
call 911. The defendant refused. He then
indicated where the phone was located. The
defendant also initially refused to give Ms.
Acker the street address. The defendant told
Ms. Acker he did not know what Janet had taken
and, quote, I don't care if she dies, end
After hearing from the State and defense counsel on the motion to
suppress, the trial court found that the testimony would not
constitute impermissible character evidence but was instead
factual information dealing with the dynamics of the two
personalities involved, that is Ms. Perkins and [Defendant]. They
are factual declarations by [Defendant].
He further found that
because the state is relying upon a circumstantial evidence case
in this case, those dynamics were relevant and probative as to
assessing the two [personalities], and the factual statement
related to Defendant's perception and relationship with Ms.
Perkins at that time.
The trial court therefore denied the motion
to suppress and allowed the testimony.
In State v. Carrilo
, 149 N.C. App. 543, 562 S.E.2d 47 (2002),
in which the defendant had been convicted of the first-degree
murder of his girlfriend's eight-month-old child, this Court
considered the denial of a motion to suppress evidence of the
defendant's prior instances of violence toward the mother of the
child. Noting that the evidence was offered to show why the
mother did not take any action against defendant when he firstbegan assaulting her son; to identify defendant, rather than [the
mother], as the perpetrator; and to dispel defendant's contention
that the injuries were accidentally inflicted, this Court found no
abuse of discretion by the trial court. Id.
at 551, 562 S.E.2d at
We find Carrilo
to be directly analogous to the instant case
and likewise conclude that the trial court here did not abuse its
discretion in allowing the evidence as to Defendant's conduct
during Ms. Perkins' overdose of sleeping pills in June 2001. Given
the defense's attempts to suggest that Ms. Perkins may have been
the perpetrator or that Jakob died from an accidental fall,
evidence concerning the relationship between Defendant and Ms.
Perkins was probative for a purpose other than his bad character.
The trial court made appropriate findings of fact based on
competent evidence, and therefore we will not disturb its
conclusions of law. This assignment of error is accordingly
 Second, Defendant argues that the trial court erred by
overruling his objection to the testimony of a State expert as to
normal caretaker reaction and a profile of caretaker behavior
after an injury to a child. Defendant contends the testimony was
irrelevant and prejudicial and fell outside the parameters of
permissible expert testimony, as established by N.C. Gen. Stat. §
8C-1, Rule 702 (2005). We disagree.
As this Court has previously held, According to Rule 702 of the North Carolina
Rules of Evidence, expert witness testimony is
admissible if it will appreciably help the
jury. While applying this test, the trial
court must balance the probative value of the
testimony against its potential for prejudice,
confusion, or delay. The trial court has wide
discretion in determining whether expert
testimony is admissible.
State v. Owen
, 133 N.C. App. 543, 549, 516 S.E.2d 159, 164
(internal quotations and citation omitted), disc. review denied
351 N.C. 117, 540 S.E.2d 744 (1999). Thus, a trial court's ruling
on the qualifications of an expert or the admissibility of an
expert's opinion will not be reversed on appeal absent a showing of
abuse of discretion. Howerton v. Arai Helmet, Ltd.
, 358 N.C. 440,
458, 597 S.E.2d 674, 686 (2004)
; see also State v. Anderson
N.C. 22, 28, 366 S.E.2d 459, 463, cert. denied
, 488 U.S. 975, 102
L. Ed. 2d 548 (1988); Riddick
, 315 N.C. at 756, 340 S.E.2d at 59
(an abuse of discretion is found only when the trial court ruling
was manifestly unsupported by reason and could not have been the
result of a reasoned decision).
In the instant case, Dr. Sharon Cooper, a developmental and
forensic pediatrician, testified as a rebuttal witness for the
Among other things, Dr. Cooper outlined three parameters
used by medical personnel to determine whether a child's injuries
are accidental or inflicted, namely -- the consistency of the
history given by the caretaker, the extent to which the caretaker's
explanation is consistent with the extent of the injuries, and the
behavior of the caretaker. The objected-to exchange was
transcribed as follows: Q: . . . What is the normal caretaker
reaction after an injury to a child or
does it vary, that type of thing?
. . .
A: Very often, when a child has been
accidentally injured, and it's obvious
that they're injured, for example
unconscious, unable to respond to them or
having seizures, if it's an immediate
onset of the accident and then you see
these kinds of findings, caregivers who
are present and witness an accident,
right away try to seek help for the
child. On the other hand, the forensic
pediatric literature is very clear that
when children are injured intentionally,
when there is an inflicted injury, it is
very common, it's almost the rule more so
than the exception, that the individual
who has injured the child will leave them
and not seek care for them. . . .
. . .
A: Oftentimes the caregiver is not concerned
about what has happened to the child.
They're much more concerned about how it
impacts upon them, but not so much about
what has happened to the child.
The trial court overruled defense counsel's objections to the
questions and allowed answers as to a caretaker profile.
The law wisely permits evidence not otherwise admissible to
be offered to explain or rebut evidence elicited by the defendant
himself. State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585
(2001) (internal quotations and citations omitted), cert. denied,
536 U.S. 930, 153 L. Ed. 2d 791 (2002). Thus, [w]here one party
introduces evidence as to a particular fact or transaction, the
other party is entitled to introduce evidence in explanation or
rebuttal thereof, even though such latter evidence would be
incompetent or irrelevant had it been offered initially. Id.
Here, earlier testimony offered by medical experts for thedefense had outlined some criteria used in determining child abuse;
one expert had also suggested that there was an overdiagnosis and
perhaps rush to judgment of child abuse because of a belief that
child abuse is underreported and because everybody is completely
discombobulated by the death of a child . . . because children are
not supposed to die. In light of this defense testimony, Dr.
Cooper's statements as to the parameters used to determine child
abuse, and specifically the profile of normal caretaker behavior,
had significant probative value as proper rebuttal evidence.
Even assuming arguendo that Dr. Cooper's testimony would have
been impermissible if offered during the State's direct case, the
defense opened the door to the criteria used to determine if child
abuse has occurred, including what is considered normal caretaker
behavior in such situations. Accordingly, we find the trial
court's decision to allow this testimony was reasonable and was
therefore not an abuse of its discretion. This assignment of error
 Third, Defendant argues the trial court committed
prejudicial error and plain error by allowing testimony as to Ms.
Perkins' suspicions of Defendant regarding Jakob's death, her
mother's disapproval of Ms. Perkins' relationship with Defendant,
and the substance of one side of a phone conversation Defendant had
with his father at the hospital while Jakob was being treated.
Regarding Defendant's assertion as to prejudicial error, we
note that under the rules of this Court, 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. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
N.C. R. App. P. 10(b)(1). Here, Defendant made no objection at
trial to any of the testimony challenged in this assignment of
error; indeed, on several occasions, the objected-to statements
were made under cross-examination by defense counsel. We therefore
dismiss the portion of Defendant's assignment of error that asserts
the trial court committed prejudicial error.
Nevertheless, our appellate rules state that
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
N.C. R. App. P. 10(c)(4). Thus, a defendant may challenge a trial
court's admission of evidence under a plain error standard even if
no objection was made at trial. However, [t]he plain error rule
applies only in truly exceptional cases, such that the appellate
court would be convinced that absent the error the jury probably
would have reached a different verdict. State v. Cummings, 352
N.C. 600, 636, 536 S.E.2d 36, 60-61 (2000) (citation and quotation
omitted), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001).
Therefore, the test for 'plain error' places a much heavier burden
upon the defendant than [that on] defendants who have preservedtheir rights by timely objection. Id., 536 S.E.2d at 61. To meet
this burden, a defendant must convince the appellate court, using
support from the record, that the claimed error is so fundamental,
so basic, so prejudicial, or so lacking in its elements that
justice could not have been done. State v. Fleming, 350 N.C. 109,
132, 512 S.E.2d 720, 736, cert. denied, 528 U.S. 941, 145 L. Ed. 2d
274 (1999). For those reasons, then, the bare assertion of plain
error in an assignment of error, without accompanying explanation,
analysis, or specific contentions in a defendant's brief, is
insufficient to show plain error. Cummings, 352 N.C. at 637, 536
S.E.2d at 61.
In his brief, Defendant states the standard of review for this
assignment of error to be that for balancing prejudicial effect
against probative value, which would be an abuse of discretion
standard, not the plain error standard. Even looking past this
violation of the appellate rules, see N.C. R. App. P. 28(b)(6)
([t]he [appellant's brief] argument shall contain a concise
statement of the applicable standard(s) of review for each question
presented . . .), we find that the admission of this testimony did
not rise to the level of plain error, such that it tilted the
scales and caused the jury to convict Defendant. See Cummings,
352 N.C. at 636, 536 S.E.2d at 61.
The State offered a significant amount of evidence at trial
that showed the building tension in Defendant's house in the weeks
leading up to Jakob's death, as a result of the deteriorating
relationship between Defendant and Ms. Perkins, as well as ofDefendant's picking on Jakob. Other evidence showed that
Defendant was alone at home with Jakob at the time the child's
injuries were sustained, and that his behavior with emergency
personnel and at the hospital was somewhat unusual. In light of
the strength of the State's case against Defendant, the challenged
statements, particularly about Ms. Perkins' suspicions in the
months after Jakob's death and her mother's dislike of Defendant,
were unlikely to have been determinative factors in the jury's
verdict. Moreover, the testimony about the phone conversation
included Defendant's denial to his father of any involvement in or
responsibility for Jakob's injuries - information which could be
considered exculpatory rather than harmful. We therefore overrule
this assignment of error.
 Fourth, Defendant contends that the trial court committed
plain error when it admitted testimony concerning Jakob's
grandmother's comments about Defendant at Jakob's funeral.
However, Defendant's brief fails to offer any discussion of these
comments or argument to support this assertion. According to the
rules of this Court, [a]ssignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned. N.C. R.
App. P. 28(b)(6); see also Cummings, 352 N.C. at 636-37, 536 S.E.2d
at 61 (requiring a defendant to offer some explanation, analysis,
or specific contention in his brief to support a bare assertion
of plain error, or else waiving appellate review). We thereforefind that Defendant abandoned his fourth assignment of error as to
the testimony about Jakob's grandmother's comments about Defendant
at Jakob's funeral.
 Fifth, Defendant argues that the trial court erred by
admitting the opinion testimony of lay witnesses as to Jakob's
medical condition, in violation of North Carolina Rule of Evidence
701, and that the admission of testimony in instances in which
Defendant did not object at trial rose to the level of plain error.
However, as noted by Defendant himself, all of the testimony being
challenged was also properly admitted through other expert
witnesses; each of the doctors who testified for the State
explained the nature of Jakob's injuries and their belief that they
could not have been caused by falling off of his bed. As such, we
find that the admission of this evidence through testimony by lay
witnesses was not prejudicial and thus cannot rise to the level of
plain error. Defendant makes only the bare assertion that the
testimony impacted the jury verdict. Accordingly, we dismiss the
portion of his assignment of error that alleges plain error.
We review the admission of opinion testimony by expert and lay
witnesses under an abuse of discretion standard. Anderson, 322
N.C. at 28, 366 S.E.2d at 463; State v. Washington, 141 N.C. App.
354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C.
396, 547 S.E.2d 427 (2001). In North Carolina, [w]hile the better
practice may be to make a formal tender of a witness as an expert,
such a tender is not required. State v. White, 340 N.C. 264, 293,457 S.E.2d 841, 858, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436
(1995). Further, absent a request by a party, the trial court is
not required to make a formal finding as to a witness'
qualification to testify as an expert witness. Such a finding has
been held to be implicit in the court's admission of the testimony
in question. Id. at 293-94, 457 S.E.2d at 858 (internal citation
omitted). A party must make a specific objection to the content of
the testimony or the qualifications of a witness as an expert in a
particular field; a general objection will not preserve the matter
for appellate review. Riddick, 315 N.C. at 758, 340 S.E.2d at 60.
Here, Defendant contends that testimony by emergency medical
personnel Wayne Averitt and Tina Joyner as to Jakob's medical
condition and the possible cause of his injury exceeded the scope
of permissible lay opinion testimony. However, at trial, defense
counsel made only general objections to the testimony ; by
overruling the objections, the trial court implicitly accepted Mr.
Averitt's and Ms. Joyner's qualifications as expert witnesses. By
failing to specifically object at trial to their qualifications,
Defendant waived the right to raise this issue on appeal.
Moreover, even if Defendant had properly preserved his
challenge to the testimony, we find that Mr. Averitt and Ms. Joyner
were qualified to render their opinions as to the nature of Jakob's
injuries and the possibility that they were caused by falling out
of a toddler bed that they themselves examined. By virtue of their
emergency medical training and experience, both were equipped with
scientific, technical, or other specialized knowledge that wouldassist the trier of fact to understand the evidence or to
determine a fact in issue. N.C. Gen. Stat. § 8C-1, Rule 702
(2005). The questions and answers related specifically to their
area of expertise and qualifications. Cf. State v. Shuford, 337
N.C. 641, 649-50, 447 S.E.2d 742, 747 (1994) (requiring defendant
to make some showing of qualifications of emergency medical
technician as either an expert or lay witness before he could
testify as to the distance from which victim was shot).
Accordingly, this assignment of error is overruled.
 Sixth, Defendant argues that the trial court committed
plain error by admitting testimony that Ms. Perkins screamed at
Defendant when the two were placed near each other after their
(See footnote 3)
We find this argument to be without merit.
Ms. Perkins testified as to her emotional outburst at the
police station, stating that she had screamed, Why did you do
this? Why did you do this to me? Why did you do this to my son?
Why did you do this to my family?
In light of the other
substantial evidence offered by the State, the admission of this
testimony by Ms. Perkins did not rise to the level of plain error,
such that it tilted the scales and convinced the jury to convict
Defendant. See Cummings
, 352 N.C. at 636, 536 S.E.2d at 61.Moreover, in light of the defense theories at trial that either Ms.
Perkins inflicted Jakob's injuries, or they were accidental, this
evidence was probative to refute those suggestions. Given that
[e]vidence which is probative of the State's case necessarily will
have a prejudicial effect upon the defendant; the question is one
of degree, Coffey
, 326 N.C. at 281, 389 S.E.2d at 56
, and the
obviously heightened emotional state of Ms. Perkins when she had
the outburst, the degree of prejudice here was not sufficient to
substantially outweigh the probative value of the evidence in
question. Accordingly, we overrule this assignment of error.
In sum, we uphold Defendant's conviction for second-degree
murder in the death of Jakob Waddington.
Judges McGEE and McCULLOUGH concur.
State v. Cummings
, 352 N.C. 600, 636, 536 S.E.2d 36, 61
(2000) (citation and quotation omitted), cert. denied
, 532 U.S.
997, 149 L. Ed. 2d 641 (2001).
We note that, at trial, Defendant's counsel told the trial
court that he did not believe the testimony was Rule 404(b)
evidence of other crimes, wrongs, or acts, but was instead Rule
404(a) evidence of Defendant's having a character trait of being
cold-hearted and callous, being used to show that Defendant
acted in conformity with that character on the particular
occasion of Jakob's death.
However, Defendant's brief to this
Court cites to Rule 404(b) as the basis for disallowing the
Because the assignment of error references only Rule
404, without specifying which section, we address the merits of
Defendant's argument and do not find that he has attempted to
swap horses on appeal. See
Weil v. Herring
, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934)
; see also
N.C. R. App. P. 10(a)
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal.).
Nevertheless, we deem his argument as to Rule 404(a) to be
abandoned since none was presented in his brief.
We note that here again, Defendant misstated in his brief
the appropriate standard of review for this assignment of error;
as noted in his brief, defense counsel objected to this testimony
at trial, such that trial court's overruling the objection was
preserved for appellate review under an abuse of discretion
standard. Nevertheless, under either standard, we find no error
in the trial court's admission of this testimony.
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