An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA05-330


Filed: 17 January 2006


         v.                             Watauga County
                                     No. 03 CRS 50100

    Appeal by defendant from judgment entered 30 September 2004 by Judge James U. Downs in Watauga County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

    J. Clark Fischer for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was found guilty of assault with a deadly weapon inflicting serious injury and was sentenced to an active prison term of forty-six to sixty-five months. Because we find that he received a fair trial free from prejudicial error, we affirm the judgment of the trial court.
     The State adduced evidence tending to show that defendant shot Sherman Davis in the head with a .44 caliber black powder handgun during a party at the residence of Deborah Downs (Deborah) on the evening of 13 January 2003. Also in the residence were Deborah's daughter, Margaret Downs (Margaret), and her friends Alexis Kelly, Kimberly Moore, Ronnie Hicks, and Joann Coe. Margaret, Kelly, Moore, and Hicks testified that defendant angrily confronted Davisin the kitchen for allowing defendant's dog to get out of the house. Defendant then retrieved his gun from Deborah's bedroom, pointed the gun at Davis' head, and shot him from a distance of a few feet. Davis testified that as he was retrieving a compact disc (CD) from a radio in the kitchen, he turned around and saw defendant pointing a gun at him. Davis then heard a loud noise and felt a sharp pain and “heat [on] this side of [his] head” as he fell to the ground. Each of these eyewitnesses also gave statements to police which corroborated their trial testimonies. However, Margaret, Kelly, Moore and Hicks acknowledged that they had been awake for two or three days using methamphetamine at the time of the shooting and had taken pictures of themselves playing with defendant's guns, which he kept in the bedroom.
    Immediately after the shooting, defendant walked to the house of Deborah's neighbor, Kenneth Ward, and told him, “[C]all 911, I shot a man.” Defendant then made a series of inculpatory statements to members of law enforcement. As he was sitting in a patrol car at the scene, defendant told Boone Police Officer Danny Houck, “[Y]eah, I'm guilty I shot him, he hit me and made my teeth fall out.” Defendant also told Investigator Shane Robbins that Davis had “knocked his teeth out” and that he “didn't mean to shoot [Davis].” Finally, he made the following statement while at the sheriff's office in the presence of Chief Deputy Paula Townsend:
        Margaret was going to shoot [Davis] . . . , [defendant] said [Davis] jumped Margaret and then punched [defendant] in the mouth and knocked his false teeth out . . . . [Defendant] said that it was his gun, it waslying on a chair and he picked it up. Margaret had it and when he looked down it was in his hands.

Defendant also reiterated that he was sorry and “didn't mean for it to happen[.]”
    State Bureau of Investigation Agent Charles McClelland, Jr., an expert in gunshot residue analysis, reviewed the gunshot residue kits performed on the hands of Margaret Downs and defendant. He found no significant concentration of residue on Margaret's hands and opined that the result was “not consistent with her firing a weapon.” The test of defendant's hands revealed gunshot residue consistent with “the discharge of a firearm, handling of a discharged firearm or being in close proximity to a discharged firearm.”
    In his testimony at trial, defendant denied shooting Davis. He claimed that, after arriving at the party, he sat in the living room with Coe until he heard Margaret and Davis “arguing pretty heavy” in the kitchen. When he walked into the kitchen, he saw Margaret pick up the gun, which “was laying in a chair between the kitchen and the living room[.]” Although he acknowledged owning the gun, defendant kept the gun in Deborah's bedroom and had not removed it from this location. When he saw that Margaret was going to shoot Davis with his gun, defendant “grabbed it and pushed it, the gun went off and it shot [Davis].” He described his role in the incident to the jury as follows:
        I had my hand on the gun, I tried to push it away. I wasn't trying to shoot the man I was trying to save his life, and it just went off, I didn't have my fingers on the trigger.

Defendant further insisted that Davis did not hit him at the party and that he had never argued or had any problem with Davis. Although he remembered talking to Sheriff Shook about the shooting, he “was so tore up over the man being shot” that he was “not exactly sure what [he] said.” At the time he made the statement, defendant was “trying to protect Margaret” from being charged with a crime. He conceded on cross-examination, however, that he never told law enforcement about Margaret's attempt to shoot Davis or his own efforts to prevent the shooting.
    On appeal, defendant first challenges the trial court's denial of his pretrial motion to sequester the State's witnesses. In his written motion, defendant noted the lapse of time between the shooting and trial and asserted a “possibility that a witness, unconsciously or otherwise, may tailor his testimony to fit the majority view or rely less on his own recollection and more on an unobserved or unremembered fact offered by another.” Defendant also raised his motion in court immediately before trial as follows:
            [DEFENSE COUNSEL]: . . . I have a motion to sequester the State's witnesses, it is as simple as that, just to make sure we get fresh unbiased testimony here as we go along. I am prepared to comply with that same requirement.

            THE COURT: Why does sequestration guarantee fresh unbiased testimony?

            [DEFENSE COUNSEL]: I didn't say guarantee it, but I am trying to get as close to it as I could, Your Honor.
            THE COURT: In my discretion, I deny that[.]”

Defendant now asserts the court abused its discretion by denying the motion “with no articulated rationale,” in light of the “significant drug use and the personal relationships between the civilian eyewitnesses, as well as the defense contention that Margaret Downs was the person who actually assaulted Davis.”
    “'A ruling on a motion to sequester witnesses rests within the sound discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing that the [action] was so arbitrary that it could not have been the result of a reasoned decision.'” State v. Roache, 358 N.C. 243, 276-77, 595 S.E.2d 381, 404 (2004) (quoting State v. Hyde, 352 N.C. 37, 43, 530 S.E.2d 281, 286 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001) (quoting State v. Call, 349 N.C. 382, 400, 508 S.E.2d 496, 507-08 (1998))). Although defendant now suggests several grounds for concern about possible collusion between the State's witnesses, he failed to present any of these issues to the trial court. When defendant argued his motion, “defendant gave no specific reason to suspect that the State's witnesses would tailor their testimony to fit within a general consensus[,]” State v. Anthony, 354 N.C. 372, 396, 555 S.E.2d 557, 575 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002), he cited only a general desire for “fresh, unbiased testimony[.]” Moreover, “[d]efendant has not pointed to any instance in the record where a witness conformed his or her testimony to that of anotherwitness[.]” Id. Accordingly, we cannot say the trial court's decision to deny the motion was manifestly unreasonable or otherwise an abuse of its broad discretion. Id.
    Defendant next claims the trial court erred in overruling his objection to the following testimony of Ronnie Hicks, depicting defendant's prior assault upon another person:
                Q.    (Approaches witness) I will hand you what has been marked as State's Exhibit 1, and ask you if you recognize it?

        A.    Yes, I recognize that gun.

        Q.    What is that, sir?

                A.    It is a black caliber pistol, a 44 caliber pistol.

        Q.             Is that the gun you saw on January 13, 2003 that the Defendant had in his hand?

        A.             Yes, and I saw it two nights prior to that when he pulled it out on someone else.

        [DEFENSE COUNSEL]: Objection.

        [TRIAL COURT]: Overruled.
(Emphasis added.) Defendant avers that Hicks' reference to a prior occasion when he saw defendant pull the gun on another person was probative only of a general disposition to commit firearms assaults and, therefore, was inadmissible under N.C.R. Evid. 404(b). He further contends that this evidence was unfairly prejudicial, portraying him to the jury as a man prone to gun violence.
    As quoted above, defendant raised only a general objection to Hicks' testimony in the trial court. “'A general objection, when overruled, is ordinarily not adequate unless the evidence,considered as a whole, makes it clear that there is no purpose to be served from admitting the evidence.'” State v. Williams, 355 N.C. 501, 576, 565 S.E.2d 609, 652 (2002) (quoting State v. Jones, 342 N.C. 523, 535-36, 467 S.E.2d 12, 20 (1996) (citation omitted)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Therefore, in order to prevail on appeal, defendant must show “that there was no proper purpose for which the evidence could be admitted.” State v. Young, 317 N.C. 396, 412, 346 S.E.2d 626, 635 (1986) (citation omitted). He must also demonstrate “a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]” See N.C. Gen. Stat. § 15A-1443(a) (2003).
    We find Hicks' testimony of his prior observation of defendant with the gun depicted in the photograph probative of the basis for his identification of the gun used in the shooting, thereby providing a foundation for admissibility of State's Exhibit 1. This exhibit was subsequently admitted into evidence by the trial court. Given the State's burden of adducing “sufficient evidence of the correctness of such an exhibit to render it competent to be introduced into evidence[,]” State v. Sanders, 288 N.C. 285, 297, 218 S.E.2d 352, 361 (1975), cert. denied, 423 U.S. 1091, 47 L. Ed. 2d 102 (1976)), Hicks' explanation of how he recognized the gun depicted in the photograph was relevant to a fact at issue. See N.C.R. Evid. 401 (defining “relevant evidence” as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probablethan it would be without the evidence”).
    Moreover, although Rule 404(b) prohibits the use of “[e]vidence of other crimes, wrongs or acts . . . to prove the character of a person in order to show that he acted in conformity therewith[,]” the Rule specifically provides for the use of such evidence to show “absence of . . . accident.” Our courts have held that “'[w]here, as here, an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged.” State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596, 608 (2001) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)). Defendant offered evidence tending to show that the shooting was accidental. Over the State's objection, he both sought and obtained a jury instruction on accident, which included a charge that “[t]he [S]tate must satisfy you beyond a reasonable doubt that the defendant's injury was not accidental before you return a verdict of guilty.” Accordingly, the evidence was admissible for a proper purpose under Rule 404(b).
    We further conclude that defendant cannot satisfy his burden of establishing any prejudice arising from the introduction of the challenged evidence. Subsequent to Hicks' testimony, defendant allowed Watauga County Sheriff's Detective Troy Cook to read the following portion of Margaret Downs' statement to the jury, without objection:
        [Margaret] knew [defendant] was going to pull a gun, he is quick to do that a few days earlier he pulled a gun on a man named Barry [who] is Joann's boy friend [sic].
This evidence of defendant's prior assault upon Barry was both more precise and more damaging than Hick's general remark about a prior incident in which defendant pulled a gun. Assuming, arguendo, that defendant's general objection to Hick's testimony was sufficient under the 2003 amendment to N.C.R. Evid. 103(a)(2) to create a line objection to any subsequent introductions of the same evidence, but see State v. Baublitz, __ N.C. App. __, __, 616 S.E.2d 615, 619 (2005) (declaring the amendment unconstitutional due to its conflict with N.C.R. App. P. 10(b), but reviewing defendant's assignment of error pursuant to N.C.R. App. P. 2), we find nothing in the record to demonstrate that Margaret's statement referred to the same incident. Inasmuch as defendant did not explain the basis for his general objection to Hicks' testimony, he cannot show that he ever objected to the evidence that he pointed a gun at “Barry” or to the evidence that defendant was “quick to do that[.]” Having allowed into evidence substantially similar but more damaging evidence, he cannot show any prejudice arising from Hicks' remark. Cf. State v. Kyle, 333 N.C. 687, 697, 430 S.E.2d 412, 417 (1993) (“The failure to object to the later admission of similar evidence is deemed to waive any benefit of the prior objection and precludes assigning error on the earlier admission.”). We further note that eyewitnesses, including the victim, testified that they saw defendant point the gun directly at Davis' head and shoot him at a distance of a few feet. Defendant made statements to Downs' neighbor and members of law enforcement admitting responsibility for the shooting. Defendant's testimonyto the contrary was undermined by the results of the gunpowder residue kits. To the extent the jury did not deem the testimonies of Hicks, Davis, Margaret, Kelly, and Moore sufficiently credible to allow a conviction, we find no reasonable possibility that Hicks' brief, unexplained comment about defendant pointing the gun at another person on a different occasion would have tipped the balance against the defense. See N.C. Gen. Stat. § 15A-1443(a).
    The record on appeal includes additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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