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-
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
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
), cert. denied
, 528 U.S. 835, 145 L. Ed. 2d 80, 120 S. Ct.
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
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
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
Defendant's remaining assignments of error are not addressed
in his brief to this Court and, therefore, are deemed abandoned.
N.C.R. App. P. 28(b)(6).
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).