STATE OF NORTH CAROLINA
v. Vance County
No. 02 CRS 50479
WILLIAM RAY CLAYBORNE
Attorney General Roy Cooper, by Assistant Attorney General
Douglas W. Corkhill, for the State.
Terry W. Alford for defendant-appellant.
CALABRIA, Judge.
William Ray Clayborne (“defendant”) appeals the judgment
entered upon a jury verdict finding him guilty of stalking. We
find no error.
At trial, the State presented the testimony of Kimberly
Clayborne (“the victim”), defendant's ex-wife, who stated they were
married in 1996 and had one child together. Defendant and the
victim separated many times during their marriage with the last
separation occurring in June 2000. A domestic violence protective
order (“the order”) issued 5 April 2001 directed defendant not to
“assault, threaten, abuse, follow, harass by telephone, visit the
home or work place or other means, or interfere with [the victim].” The order remained in effect until 26 June 2002.
On 11 February 2002, the victim and defendant went to court
regarding a child visitation matter. The court continued the
visitation matter and, as the victim drove to work, defendant
followed her in his vehicle and honked his car horn. As defendant
continued to follow her, the victim feared that “something bad was
going to happen” and, turned into a hospital parking lot.
Defendant continued to follow her and “pulled in right behind [the
victim] very fast.” The victim turned to the right in the hospital
parking lot and defendant turned to the left. The victim quickly
leaned down to get a Polaroid camera in her vehicle but could not
find it. When the victim sat up, defendant “was coming right
towards [her].” Defendant proceeded to her windshield and,
pointing his finger, repeatedly stated “I'm going to get you.”
Subsequently, the victim left the parking lot and defendant
continued to follow her to a traffic light. While they were
stopped at the light, defendant exited his truck, pulled
“something” out from behind his seat, and it appeared put
“something” under his shirt. The light then turned green and the
victim drove away. The victim also testified that previously, in
October 2001, while she drove to class, she noticed defendant
riding in a vehicle next to her. Defendant “flail[ed] his arms up
and down out the window.” The victim testified defendant had some
paperwork in his hand and tore it into “little pieces.” As the
victim drove ahead, she noticed defendant waiting for her. The
vehicle in which defendant was riding then pulled up “veryclose[ly]” behind the victim and followed her. The victim
eventually called 9-1-1.
Defendant testified that after the court matter on 11 February
2002, he left the courthouse with his father, ate lunch, and called
a co-worker to help him with some tree work. He stated he spent
the entire afternoon doing tree work. Further, he testified he
only saw the victim at court and was never in the vicinity of the
hospital.
On 7 May 2002, defendant was convicted of misdemeanor stalking
in Vance County District Court. Defendant appealed for a trial de
novo in Superior Court. On 2 March 2005, after his trial, a jury
found defendant guilty of stalking. Defendant was sentenced to 150
days imprisonment in the North Carolina Department of Correction.
Defendant appeals.
I. Motion to Dismiss-Warrant:
Defendant first argues the trial court erred in denying his
motion to dismiss the warrant on the grounds N.C. Gen. Stat. § 14-
277.3 (2005) is unconstitutional both on its face and as applied to
him. However, at trial, defendant moved to dismiss the warrant
because “the warrant [wa]s vague and d[id] not allege what the
defendant did to violate the [stalking] statute.” Consequently,
the defendant did not challenge the constitutionality of the
statute and therefore, failed to preserve this issue for appellate
review. “Constitutional issues not raised and passed upon at trial
will not be considered for the first time on appeal.” State v.
Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (emphasisadded). Furthermore, this Court, in State v. Watson, 169 N.C. App.
331, 338, 610 S.E.2d 472, 477 (2005), held the statute was not
unconstitutionally vague and we rejected this same argument the
defendant makes in the instant case regarding application of the
statute. Id. at 338-39, 610 S.E.2d at 477-78. Accordingly, this
assignment of error is overruled.
II. Motion to Dismiss-Sufficiency of the Evidence:
Defendant next argues the trial court erred in denying his
motion to dismiss based upon insufficiency of the evidence.
Defendant contends the State failed to present sufficient evidence
the defendant engaged in the alleged conduct “on more than one
occasion.” We disagree.
A motion to dismiss should be denied if there is substantial
evidence “(1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant's being
the perpetrator of such offense.” State v. Barnes, 334 N.C. 67,
75, 430 S.E.2d 914, 918 (1993) (citation omitted). When reviewing
a motion to dismiss based on insufficiency of the evidence, this
Court must,
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve. . . .
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.
Id. at 75-76, 430 S.E.2d at 918-19 (internal citations andquotations omitted) (emphasis in original). The test for
sufficiency of the evidence is the same whether the evidence is
direct or circumstantial or both. Id. at 75, 430 S.E.2d at 918-19.
N.C. Gen. Stat. § 14-277.3 (2005) states
[a] person commits the offense of stalking if
the person willfully on more than one occasion
follows or is in the presence of, or otherwise
harasses, another person without legal purpose
and with the intent to do any of the
following:
(1) Place that person in reasonable fear
either for the person's safety or the safety
of the person's immediate family or close
personal associates.
(2) Cause that person to suffer substantial emotional
distress by placing that person in fear of death, bodily
injury, or continued harassment, and that in fact causes
that person substantial emotional distress.
(emphasis added).
In the instant case, the victim testified defendant followed
her in his car “very close[ly].” Further, the victim feared
“something bad was going to happen” and tried to elude defendant by
pulling into a hospital parking lot. Once in the lot, the victim
and defendant turned in opposite directions. However, five minutes
later, the defendant reappeared in front of her vehicle, made a
finger pointing gesture, and threatened he “was going to get” her.
We hold the State presented sufficient evidence the defendant
followed the victim “on more than one occasion.” This assignment
of error is overruled.
III. Rule of Evidence 404(b):
Defendant next argues the trial court erred in admitting the
victim's testimony regarding the October 2001 incident under Rule404(b) of the North Carolina Rules of Evidence. Defendant contends
the testimony was irrelevant and highly prejudicial. We disagree.
Rule 404(b) provides, in relevant part,
[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). Our Supreme Court held Rule
404(b) is a rule of inclusion. Lloyd, 354 N.C. at 88, 552 S.E.2d
at 608 (citing State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990)). Although evidence may tend to show other crimes,
wrongs, or acts by the defendant and his propensity to commit them,
that evidence is admissible under Rule 404(b) so long as it is also
“relevant for some purpose other than to show that defendant has
the propensity for the type of conduct for which he is being
tried.” State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91
(1986) (emphasis in original). In addition to the requirement that
the evidence be offered for a proper purpose under Rule 404(b),
“the admissibility of evidence under [Rule 404(b)] is guided by two
further constraints -- similarity and temporal proximity [of the
acts].” Lloyd, 354 N.C. at 88, 552 S.E.2d at 608 (citation and
internal quotation marks omitted).
In the instant case, after conducting a voir dire hearing, the
trial court admitted evidence of the October 2001 incident for the
proper purpose of showing defendant's preparation, plan, scheme
and/or intent. Pursuant to Lloyd, supra, the followingsimilarities existed between the incidents: (1) each involved the
victim and defendant; (2) the defendant followed the victim as she
traveled in her vehicle; and (3) the defendant harassed the victim
from his vehicle. Furthermore, the October 2001 incident occurred
approximately four months before the incident in the case sub
judice. Therefore, because the State illustrated a proper purpose
as well as evidence of the similarity and temporal proximity
between the acts, we conclude the trial court properly admitted
evidence of the October 2001 incident.
Defendant also argues the testimony regarding the October 2001
incident was highly prejudicial. The admission or exclusion of
evidence under Rule 403 “is within the sound discretion of the
trial court, and the trial court's ruling should not be overturned
on appeal unless the ruling was manifestly unsupported by reason or
[was] so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d
281, 293 (2000) (citation and internal quotation marks omitted),
cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001). Here, the
trial court excluded the victim's testimony regarding all of the
other prior incidents between herself and the defendant except the
October 2001 incident. Further, the trial court conducted a
balancing test and concluded “the evidence [wa]s relevant and that
its probative value [wa]s not substantially outweighed by the
danger of unfair prejudice[.]” Therefore, we conclude trial court
did not abuse its discretion in admitting the victim's testimony of
the October 2001 incident. Further, our review of the record and trial transcripts
reveals the judgment contains a clerical error. It reflects the
trial court signed the judgment on 1 March 2005. However, the
other documents in the record and the trial transcript show the
judgment was signed on 2 March 2005. Accordingly, we remand for
correction of this clerical error. State v. Murray, 154 N.C. App.
631, 639, 572 S.E.2d 845, 850 (2002).
No error in the trial. Remanded for correction of clerical
error in the judgment.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***