An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-419


Filed: 7 February 2006


     v .                              Onslow County
                                      No. 03 CRS 55735

    Appeal by defendant from judgment entered 12 November 2004 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 7 December 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

    McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant appellant.

    MCCULLOUGH, Judge.

    Defendant appeals from judgment entered after a jury verdict of guilty on the charge of second-degree murder. We find no error.

    On 13 July 2004 an Onslow County Grand Jury indicted defendant for the offense of unlawfully, willfully, feloniously and of malice aforethought killing and murdering George L. Smith (Mr. Smith). The State tried defendant on 8 November 2004 in Onslow County Superior Court.
    The State presented evidence at trial which tended to show the following: Defendant and Mr. Smith were engaged in a close personal relationship. On 7 July 2003, Mr. Smith was dropped off at hishouse after work by a coworker who witnessed defendant screaming, cursing and shoving Mr. Smith. Later that same evening, Larry Rhodes (Mr. Rhodes) dropped by for a visit, where defendant stated that Mr. Smith had been stabbed and needed to be taken to the hospital; however, Mr. Rhodes believed this to be a joke. On 9 July 2003, at approximately 6:30 a.m., EMS was dispatched to defendant's and Mr. Smith's residence. When EMS arrived, Mr. Smith was lying on the floor and was not breathing. In attempting to resuscitate Mr. Smith, they observed a bandage over a small cut to his abdomen. EMS personnel were unable to revive Mr. Smith. The autopsy revealed that Mr. Smith suffered a stab wound to his abdomen which entered his peritoneal cavity and small bowel and caused a vein laceration. The stab wound was approximately 3 inches deep and opined to require more force to inflict then a mere poke such as walking into a knife. The autopsy further revealed that bleeding from the wound was slow and internal and that the cause of death was likely shock from blood loss. At trial, the State presented photographs taken during the autopsy to help illustrate the testimony of Dr. Garrett, the doctor performing the autopsy. Defendant objected to State's exhibit number 38 as being repetitious. However, there was no objection to any of the other photographs nor was there an objection at the time the photographs were published to the jury.
    A witness at trial, Elaine Clibbons (Ms. Clibbons), was asked how she knew defendant. Ms. Clibbons responded, “She was locked up with my sister at Onslow County Jail.” There was no objection or motion to strike made by defendant. During jury deliberations, thejury sent a note asking when and for what defendant had previously been jailed. After consulting with the attorneys, the judge responded to the jurors as follows:
        We are all aware that there was some mention made of that, but for you, for the Court to answer this question, that would be you considering matters that are not in evidence. You're only to consider matters that are in evidence, and that's the evidence that you heard from the witness stand as it came from the witness stand. You are not to consider or speculate on things that are not in evidence in this case, so with that comment, I'm going to now send y'all back to the jury room.

There was no further mention of defendant's pervious incarceration.
    Although defendant did not testify at trial, on several occasions she made conflicting statements about the cause of Mr. Smith's death. These statements were admitted at trial. On the evening of 7 July 2003 defendant stated that Mr. Smith had been stabbed but that it was an accident. The following day defendant called Mr. Smith's workplace and stated that he had hit himself in the stomach while trying to hammer something and was hurt. When EMS questioned defendant regarding the wound to his abdomen, she stated that Mr. Smith cut himself opening a can. Defendant further made a statement to an investigating detective that she and Mr. Smith had never had a fight, she did not hurt him or stab him, but rather that he had been trying to open a can and the knife slipped and cut him. Later in the day on 9 July 2003, defendant was taken to the Sheriff's Office for further questioning. On this ride to the office, defendant voluntarily offered a statement in which she claimed to know nothing about the stab wound until 8 July 2003 when she was told by Mr. Smith that he hurt himself opening a can. Defendant identified the knife at the Sheriff's Office and continued to maintain that Mr. Smith was injured while opening a can. When questioned as to why there were no dented cans found by investigators, defendant mentioned the possibility that Mr. Smith died from alcohol poisoning. Defendant was then informed that Mr. Smith died from a stab wound and that there was no way he could have stabbed himself. Defendant then began to cry and explained that Mr. Smith approached her in a “playing mood” with a pocketknife in the kitchen while she was preparing dinner at which time she stuck her knife out at Mr. Smith and he walked into the knife which hit him in the stomach. Defendant then made a written statement to police in which she stated that, on the night of 7 July 2003, she and Mr. Smith were at home and were not arguing or mad. Mr. Smith approached her in the kitchen with his pocketknife. She told him to stop and waved her knife towards him. Defendant further stated that Mr. Smith then ran up to her to hug her and was stabbed by her knife. Defendant later reiterated to detectives that there was no fight or struggle, but that her earlier statements were untrue. Her final statement was that she and Mr. Smith were in the kitchen where he was in a “playful feeling, tugging mood.” She waved a knife at him and stated she had a knife, and Mr. Smith in turn waved a knife at her too. He then hugged her and grabbed her and that is when he was stabbed with the knife. She stated that it was an accident. Defendant continued to assert to detectives that she and Mr. Smith “never had any fights or anything.”     At trial, numerous neighbors and colleagues of Mr. Smith testified to statements which tended to contradict defendant's characterization of her relationship with Mr. Smith. Further testimony was offered of statements made by Mr. Smith to his colleagues concerning wounds inflicted by defendant. Michelle Crane (Ms. Crane), a neighbor of Mr. Smith, testified that she observed Mr. Smith with swollen lips and eyes and scars on his hands and face. When Ms. Crane asked Mr. Smith what happened, he responded that defendant had jumped on him during an argument. Defendant objected to the admission of the out-of-court statement of Mr. Smith; however, the trial judge overruled the objection. At the bench, the trial judge and counsel agreed to put this line of objection on the record at a later time when the jury was not present. James Brown (Mr. Brown), a colleague of Mr. Smith's, testified that around 7 July 2003 he observed scratches and cuts on Mr. Smith's neck, face and hands. The cut on the hand was severe and therefore Mr. Brown inquired into Mr. Smith's ability to work that day and further asked how it happened. Mr. Smith stated that defendant cut him. Curtis Lawson (Mr. Lawson) further testified that he also noticed scratches on Mr. Smith's hands and face which Mr. Smith told him resulted from defendant's “mess[ing] up his hands.” Linda Doyle (Ms. Doyle) and April Floyd (Ms. Floyd) also testified to observing scratches and cuts which they were told by Mr. Smith were a result of defendant's cutting him. Each witness testified that they advised Mr. Smith to leave defendant. The State further admitted a photograph of a prior cut to Mr. Smith's handthrough Ms. Doyle which was later passed around to the jury. Defendant made a motion to exclude this line of testimony on the grounds of hearsay and inadmissible prior bad acts but the trial judge denied the motion to exclude.
    At the close of the State's evidence, defendant made a motion to dismiss as to the overall charge of murder. The trial judge denied the motion letting all charges go forward to the jury. Defendant offered no evidence and renewed the motion to dismiss which was again denied. The jury returned a verdict of guilty on the charge of second-degree murder.
    Defendant now appeals.
    On appeal, defendant first contends that the trial court erred in admitting autopsy photographs and passing them to the jury. We disagree.
    Where defendant only objected to autopsy photograph number 38, this Court must review this assignment of error under the plain error rule. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides, in pertinent part, that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion . . . .” N.C.R. App. P. 10(b)(1) (2005). Under the plain error rule, errors or defects affecting substantial rights may be addressed even though they were not brought to the attention of the trial court. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plainerror rule is to be applied only to instructional errors or errors involving the admissibility of evidence. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999), cert. denied, 353 N.C. 382, 547 S.E.2d 443 (2001). Plain error is defined as “'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused[.]'” Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation omitted).
    The admissibility of relevant photographs is constrained by section 8C-1, Rule 403 of the General Statutes. Rule 403 provides that “[a]lthough relevant, evidence may be excluded 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.” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). “Photographs of homicide victims are admissible at trial even if they are 'gory, gruesome, horrible, or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury.'” State v. Thompson, 328 N.C. 477, 491, 402 S.E.2d 386, 394 (1991).
    In the instant case, the State introduced photographs of the autopsy which were taken and shown in chronological order to illustrate the nature of the wounds received by Mr. Smith. Further, only nine photographs of the autopsy were shown to the jury. Itcannot be said that this amounted to prejudicial error resulting to defendant. Therefore this assignment of error is overruled.
    Next, defendant contends that testimony of a prior imprisonment unfairly prejudiced her and was inadmissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). We disagree.
    At trial, defendant also failed to object to the admission of the testimony as well as the instruction given to the jury pursuant to their question during deliberations, and therefore this error too must be reviewed under the plain error rule. Plain error arises when the error is “'so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'” Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation omitted). Defendant, therefore, “must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Even assuming arguendo that it was error for the trial judge to allow admission of evidence stating that defendant was previously imprisoned, the error was not prejudicial where the judge instructed the jury not to consider when or why defendant was in jail.
    Ms. Clibbons testified that she knew defendant because defendant had spent time in jail with her sister. This testimony was elicited in response to the inquiry as to how the witness knew defendant and for that purpose only. Moreover, the trial judge instructed the jury that they were not to consider when or whydefendant was previously in jail. Further, defendant failed to show that but for the testimony, the jury probably would have reached a different result. There was substantial evidence tending to show that Mr. Smith received a wound to his abdomen due to the actions of defendant and was not taken to the hospital. Two days later when EMS was called Mr. Smith was unable to be revived and died due to slow internal bleeding from the wound which resulted in shock from the blood loss. Therefore, this assignment of error is overruled.
    Defendant further contends that the trial court erred in admitting the statements of Mr. Smith regarding prior injuries received where the statements were hearsay and improper Rule 404(b) evidence. We disagree.
    Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). However, under Rule 803(3) evidence of “[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition” is admissible as an exception to the rule prohibiting admission of hearsay. N.C. Gen. Stat. § 8C-1, Rule 803(3) (2005). “'Evidence tending to show the victim's state of mind is admissible so long as the victim's state of mind is relevant to the case at hand[,]'” and more than a mere recitation of the facts. State v. Brown, 350 N.C. 193, 201, 513 S.E.2d 57, 62 (1999) (citation omitted). Moreover, statements of a victim concerning his relationship status with defendant isadmissible to contradict an assertion by defendant that the relationship was a good and loving one. Id.
    At trial, the State offered the statements made by Mr. Smith to colleagues and neighbors under the residual hearsay exception; however, this Court finds that the analysis of whether the statements fit within the residual exception is unnecessary where the statements were proclamations of Mr. Smith's then-existing state of mind and physical condition. Mr. Smith made statements to colleagues and neighbors regarding injuries he received through attacks by defendant. The statements went directly to the state of Mr. Smith's relationship with defendant and were more than a mere recitation of the facts. See id. (finding that statements about the victim's financial and marital problems with defendant were statements of mental condition and not mere recitations of fact). Moreover, these statements were in direct contradiction to numerous assertions made by defendant in the investigation of the death of Mr. Smith that the two of them never fought, and that she did not hurt him, and were therefore admissible as such. See Brown, 350 N.C. at 201-02, 513 S.E.2d at 62-63 (“'Discrediting a witness by proving, through other evidence, that the facts were otherwise than [s]he testified, is an obvious and customary process that needs little comment. If the challenged fact is material, the contradicting evidence is just as much substantive evidence as the testimony under attack, and no special rules are required.”).
    In addition, defendant contends that the evidence was admitted in violation of Rule 404(b) of the Rules of Evidence. Rule 404(b)provides, “[e]vidence 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).
    In the instant case, evidence was offered tending to show that defendant claimed that the injury of Mr. Smith was an accident, in essence claiming that she never intended to hurt him. Accordingly, where defendant claimed mistake, it was proper for the trial court to admit testimony which tended to show absence of mistake through evidence of previous injuries inflicted upon Mr. Smith by defendant. Moreover, defendant was charged with murder requiring a showing of malicious intent on the part of defendant. This testimony and evidence, in addition to showing absence of mistake, tended to show a malicious intent on the part of defendant to harm Mr. Smith. Therefore this assignment of error is overruled.
    Accordingly, defendant has not shown that the actions of the trial court resulted in prejudicial error to her nor that in the absence of defendant's enumerated errors, a different result would have likely occurred. Further, we find no merit in the remaining assignments of error and therefore they are overruled.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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