STATE OF NORTH CAROLINA
v. Gaston County
No. 04 CRS 61036-37
MISTY WHITE LONG
Attorney General Roy Cooper, by Assistant Attorney General
David P. Brenskelle, for the State.
John T. Hall, for defendant-appellant.
ELMORE, Judge.
The sole issue is whether the court erred by admitting
evidence of prior misconduct by defendant.
This appeal comes before us following defendant's conviction
on a bill of indictment charging her with the offense of malicious
conduct by a prisoner in violation of N.C. Gen. Stat. § 14-258.4.
The indictment alleged that on 4 July 2004 defendant “did knowingly
cause to be used as a projectile bodily fluid at Jailer Julie B.
Stillwell,” who was performing her duties as an employee of the
Gaston County Sheriff's Department at the time defendant committed
the act in the Gaston County jail.
The State presented evidence tending to show that on 4 July
2004, defendant was arrested at a private residence on a charge ofbeing drunk and disruptive. She was transported to the Gaston
County jail by the arresting officer, Jason Davis of the Dallas
Police Department. Upon arrival at the jail, defendant refused to
provide Officer Davis with requested personal information and used
foul and profane language toward Officer Davis. With another
officer's assistance, Officer Davis forced defendant into a holding
cell. Deputy Julie Stillwell of the Gaston County Sheriff's
Department entered the holding cell for the purpose of removing
handcuffs from defendant. As Deputy Stillwell attempted to remove
the handcuffs, defendant stepped back toward her and attempted to
“head butt” Deputy Stillwell. The officer warned defendant that if
she refused to obey her commands, “she would be taken to the
floor.” When defendant continued to resist, Deputy Stillwell and
another officer wrestled defendant face down to the floor.
Defendant's nose began to bleed. The two officers raised defendant
off the floor to check her nose and render assistance as needed.
Defendant turned and spit a mixture of saliva and blood into Deputy
Stillwell's face. Other officers placed a “spit mask” on
defendant's face and seated her in a restraint chair. Defendant
subsequently kicked Deputy Stillwell in the lower part of her leg.
Over defendant's objection, Officers Ronald Cobb and Jerri
Green of the Gaston County Sheriff's Department testified that on
20 June 2004, defendant was brought to the Gaston County jail for
booking on a charge of being intoxicated and disruptive. The
officers at the jail placed defendant into a restraint chair as
soon as she arrived. Defendant was “[v]ery disruptive, angry,cursing, yelling, screaming.” The officers also placed a spit mask
on defendant because she tried to spit on an officer.
Defendant contends the court erred by admitting evidence of
the 20 June 2004 incident. Rule 404(b) of our Rule of Evidence
provides:
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). This rule has been
interpreted to be “a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a defendant, subject to
but one exception requiring its exclusion if its only probative
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) (emphasis ommitted). To be admissible, evidence of other
crimes, wrongs or acts “must be offered for a proper purpose, must
be relevant, must have probative value that is not substantially
outweighed by the danger of unfair prejudice to the defendant, and,
if requested, must be coupled with a limiting instruction.” State
v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991),
disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992).
After presenting voir dire testimony of Officers Cobb and
Green regarding the 20 June 2004 incident, the State requested thecourt to admit the evidence for the purposes of showing intent,
common scheme or plan, identity, and motive. Defendant argued to
the court that the evidence only showed that defendant had the
propensity to commit the offenses. The court ruled the evidence to
be admissible based upon similarities of the circumstances between
the two incidents.
Defendant contends the court's findings of fact are inadequate
because they fail to state the purpose for which the evidence was
admitted. He further argues the evidence “could not logically have
been offered as 'proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake, entrapment or
accident' as required by” N.C. Gen. Stat. § 8C-1, Rule 404(b). He
also argues that even if the evidence was relevant and admissible
for a proper purpose, its probative value was substantially
outweighed by the danger of unfair prejudice.
Addressing defendant's first contention, we hold the court's
failure to expressly state in its order the purposes for which the
evidence was admitted, if error, is harmless because the court in
its charge to the jury stated that the evidence was received solely
for the purpose of showing plan, scheme, system or design, or the
absence of mistake or accident. The court instructed the jury to
limit its consideration of the evidence to those purposes.
With regard to defendant's second argument, we note that
evidence is relevant if it has “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 theevidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005). To convict a
defendant of malicious conduct by a prisoner, the State must prove
that the defendant acted knowingly and willfully. State v.
Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 906 (2003).
Evidence that the defendant spat at another officer under similar
circumstances in the very same jail just two weeks earlier tends to
make it more probable that defendant acted knowingly and willfully
and that defendant's spitting at Deputy Stillwell was not
accidental or by mistake.
Finally, the determination under Rule 403 of whether to
exclude evidence on the ground that its the probative value is
outweighed by unfair prejudice or confusion of the issues is
addressed to the sound discretion of the trial judge. State v.
Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). A
discretionary decision will not be disturbed by an appellate court
unless it is shown that the decision is manifestly unsupported by
reason. State v. Parker, 315 N.C. 249, 258-59, 337 S.E.2d 497,
502-03 (1985). This showing is not made.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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