An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-778


Filed: 7 March 2006


         v.                        Gaston County
                                No. 04 CRS 61036-37

    Appeal by defendant from judgment entered 2 March 2005 by Judge W. Robert Bell in Gaston County Superior Court. Heard in the Court of Appeals 16 January 2006.

    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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