An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-993


Filed: 6 June 2006


    v.                            Columbus County
                                No. 04 CRS 50247

    Appeal by defendant from judgment entered 23 March 2005 by Judge William C. Gore, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 22 May 2006.

    Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State.

    Brannon Strickland, PLLC, by Marlet M. Edwards, for defendant- appellant.

    GEER, Judge.

    Defendant James Walton Hammond, Jr. appeals from his conviction of assault with a deadly weapon. He primarily contends on appeal that the trial court erred in denying his motion for change of venue and in granting the State's motion in limine in part to exclude evidence that defendant made a report to the Department of Social Services ("DSS") regarding one of the State's witnesses. Because defendant has failed to establish that the trial court abused its discretion with respect to the motion to change venue or that he was prejudiced by the trial court's ruling limiting his ability to offer evidence of his report to DSS, we hold that defendant received a trial free of prejudicial error.


    The State's evidence at trial tended to show the following facts. Jimmy Ward, Ward's wife, and Ward's sister-in-law own property located in Columbus County, North Carolina. Ward and his wife live in South Carolina, and they typically visit the Columbus County property approximately one weekend every four to six weeks. At some point, Ward and his wife learned that defendant had moved into a garage apartment on the Columbus County property without their permission or agreement. They allowed defendant to stay there for a period of time. Although defendant did not pay them any rent, he did send them "a little bit of money."
    Sometime in November 2003, when Ward's wife went to the apartment, defendant pushed her backwards and cursed at her. Because of defendant's actions, Ward asked defendant to leave the property. Although Ward and his wife also sent defendant letters insisting that he vacate the apartment, defendant did not do so. Ward testified that a few days after he asked defendant to leave, defendant began making false charges against Ward and his family.
    On 21 January 2004, while defendant was away, Ward placed a padlock on the garage apartment. With the help of his friend, David Johnson, and his brother, Ray Ward, he also attempted to put a cable across the driveway to block defendant from reaching the apartment. While they were installing the cable and while Johnson was holding one end of it, defendant drove up in his car. He stopped when he reached the cable, looked at Johnson and Ward, stepped on the gas, and then drove his car through the cable beingheld by Johnson. If Johnson had not jumped back, he would have been hit by defendant's car. Johnson's hand was cut by the cable.
    Defendant was charged with assaulting Johnson with a deadly weapon. On 10 November 2004, a jury was unable to reach a unanimous verdict, and the trial court declared a mistrial. On 23 March 2005, following a second trial, a jury found defendant guilty of assault with a deadly weapon. On the same date, Judge Gore entered a judgment sentencing defendant to 75 days imprisonment, suspending the sentence, and placing defendant on supervised probation for 36 months. Defendant timely appealed.

    Defendant first argues that the trial court erred in denying his motion for a change of venue.   (See footnote 1)  The ruling on a motion for change of venue is within "'the discretion of the trial judge and his ruling . . . will not be disturbed on appeal unless a manifest abuse of discretion is shown.'" State v. Richardson, 308 N.C. 470, 477-78, 302 S.E.2d 799, 804 (1983) (quoting State v. Faircloth, 297 N.C. 100, 105, 253 S.E.2d 890, 893, cert. denied, 444 U.S. 874, 62 L. Ed. 2d 102, 100 S. Ct. 156 (1979) ). When moving for change of venue, a defendant has the burden of proving so great a prejudice that he cannot obtain a fair and impartial trial. Id. at 478, 302 S.E.2d at 804. In making this showing, he must demonstrate that"'it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.'" State v. Trull, 349 N.C. 428, 439, 509 S.E.2d 178, 186 (1998) (quoting State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347 (1983) ), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct. 95 (1999).
    Here, defendant does not contend there was any pretrial publicity. Rather, he simply argues he could not receive a fair trial in Columbus County because he had filed complaints and made other charges against local district attorneys, judges, and the news media. Defendant does not allege that any prospective jurors were aware he had brought these charges or were otherwise prejudiced. Defendant points only to the trial court's rulings against him as evidence that he did not receive a fair trial in Columbus County. Defendant did not, however, move to recuse the trial judge, and, in any event, it appears, based upon our review of the record, that the trial judge treated defendant fairly. Accordingly, we hold that defendant has failed to establish that the trial court abused its discretion in denying his motion to change venue.
    Defendant next contends the trial court erred in granting the State's motion in limine. During pre-trial motions, the State made a motion in limine seeking an order that defendant would be "precluded from mentioning a child abuse report." The Stateexplained: "It came out in the first trial that Mr. Hammond had filed some sort of report with the Department of Social Services against the property owner, Jimmy Ward."
    The State argued the report was unfounded, slanderous, irrelevant, and incompetent. Defendant argued the report was relevant because it served as the basis for the actions of Ward in using the cable to keep defendant off Ward's property. The trial court granted the motion in part and denied it in part, ruling that if Ward testified, then defendant could cross-examine Ward about the report to DSS. Otherwise, defendant could not mention it.
    On appeal, defendant argues that the DSS report was relevant because Ward retaliated against defendant with death threats and assaults. Defendant contends that those behaviors led him to fear Ward and that his conduct on 21 January 2004 was a result of that fear. Defendant's argument that he was completely precluded from introducing this evidence is incorrect. A deputy sheriff testified during the State's case that defendant told him "the reason the conflict had started was over a report [defendant] had filed with Social Services . . . ." Defendant subsequently testified that Ward had threatened his life, that Ward and his sons and nephew had assaulted him by "stomp[ing]" him, and that his apartment had been broken into and property stolen. With respect to the events on 21 January 2004, he testified further: "Since I have been kicked in the head _ since I'd been assaulted, a death threat, hospitalized, apartment broken into, I kinda was a little bit nervous seeing that [sic] gentlemen there. . . . I was afraid for my life gettinganother stomping . . . ."
    Defendant was thus not precluded from offering the evidence he contends was necessary for his defense. Accordingly, even assuming arguendo that the trial court erred in granting in part the State's motion in limine, any error was not prejudicial to defendant. See N.C. Gen. Stat. § 15A-1443(a) (2005) (stating "[a] defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises").
    Further, during defendant's cross-examination of Ward, he chose not to ask Ward about the DSS report even though the trial court had allowed him to do so. When Ward was re-called as a rebuttal witness, he testified that DSS had given him custody of his grandchildren and that he had never been investigated for child abuse. Defendant, however, again did not ask Ward any questions about the report to DSS. He cannot demonstrate prejudice from the trial court's ruling since the ruling granted him an opportunity to question Ward about the DSS report, but he chose not to do so. This assignment of error is, therefore, overruled.
    Finally, defendant contends the trial court erred in denying his motion to dismiss at the close of the State's evidence. This issue has not been properly preserved for appellate review. While defendant made a motion to dismiss at the close of the State's evidence, he failed to renew that motion after presenting evidence in his own defense. See N.C.R. App. P. 10(b)(3) ("However, if a defendant fails to move to dismiss the action or for judgment as incase of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged."); State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995). Accordingly, this assignment of error is overruled.
    Defendant's remaining assignments of error are not addressed in his brief to this Court and, therefore, are deemed abandoned. See N.C.R. App. P. 28(b)(6).

    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
    Defendant claims on appeal that the trial court did not specifically address defendant's handwritten motion for a change of venue. Our review of the transcript reveals that while the argument regarding that motion was not recorded, the trial court stated its ruling on the record and noted defendant's exception to that ruling for purposes of appeal.

*** Converted from WordPerfect ***