Appeal by defendant from a judgment dated 11 January 2006 by
Judge W. David Lee in Rowan County Superior Court. Heard in the
Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin II, for the State.
J. Clark Fischer for defendant-appellant.
Lonnie Ray Carpenter, Sr. (defendant) appeals from a judgment
dated 11 January 2006, entered consistent with a jury verdict
finding defendant guilty of assault with a deadly weapon inflicting
serious injury. For the reasons below we hold defendant received
a trial free of error.
Facts and Procedural History
At trial, Pamela Reid testified that she and defendant were
involved in an ongoing seventeen-year romantic relationship but had
never married. On the morning of 26 September 2004, she and
defendant had an argument while lying in bed. After defendant
slapped her in the face, she kicked him off of the bed into her
dresser and proceeded to come off the bed to attack him. Reidstruck defendant with her fist, and he pushed her away from him,
defending himself. She came toward defendant a second time and
ended up getting nicked in the neck by a knife. Although she
kept a kitchen knife under her pillow, she did not use it in her
exchange with defendant. Reid did not see the knife in defendant's
hand and did not know where he had obtained it. She did not know
she had been cut until she saw the blood on her clothes. Her
fourteen-year-old daughter came into the bedroom, asked if she was
okay, and called 911. An ambulance transported Reid to Rowan
Regional Hospital. She was transferred by ambulance to Baptist
Hospital for exploratory surgery. She did not recall speaking to
police at the hospital. Since the incident, she and defendant had
talked about getting married[.]
Dr. Pertrand Fote testified that he treated Reid for a stab
wound to the neck in the emergency room of Rowan Regional Medical
Center on 26 September 2004. Based on her complaints of difficulty
breathing and swallowing, Dr. Fote contacted a trauma surgeon at
Baptist Hospital and arranged for her to be transferred there for
Salisbury Police Officer Mark Shue testified that he responded
to the scene of Reid's stabbing on the morning of 26 September
2004. As soon as he arrived, he was approached by defendant, who
was distraught and crying and smelled strongly of alcohol.
Without prompting, defendant said, I cut her. I cut her. Shue
handcuffed defendant and asked where the weapon was. Defendant
told Shue that it was in his pocket. Shue then found a smallfolding lock-blade knife in defendant's front pocket. The knife
was in the locked position with the blade folded into the handle.
Shue interviewed Reid at the hospital and observed a single
puncture type laceration in her throat area.
Defendant testified that on the morning of 26 September 2004,
Reid began striking him with her head while they were in bed
together. As he got out of the bed, Reid kicked him with both feet
and threw [him] across the room into the dresser[.] Aware that
she kept a knife under her pillow, defendant grabbed a pocketknife
from the top of the dresser and told Reid that he was not going to
allow her to hurt him. As he was putting on his clothes to leave,
Reid rushed defendant. He blocked her punches and pushed her
away from him. Reid came at defendant a second time but drew back
suddenly with a weird look on her face and touched her neck[.]
Seeing that she was bleeding, defendant brought her a towel and
suggested that she go to the hospital. He told Reid's daughter to
call 911 and was helping Reid get dressed when the police officer
arrived. Defendant told [the officer] we was having sex, things
went wrong and she accidentally got cut. He did not intend to cut
Reid and was upset to see her injured, because [w]e really and
truly loved each other and it hurt. On cross-examination,
defendant conceded that the blade of the pocketknife was folded
into the handle when he picked it up. He had opened the knife and
was holding it in his hand when it nicked Reid.
The State then recalled Officer Shue, who rebutted defendant's
account of their exchange on 26 September 2004, as follows: Q. Can you describe whether or not what he
described as telling you is accurate?
A. No, ma'am.
Q. Describe for the jury again what he told
you, the entirety of what he told you.
A. He was crying, strong odor of alcohol, and
he said, I cut her. I cut her. I cut her.
Basically just, you know, giving himself to
me. I cut her. I cut her. . . .
According to Shue, defendant made no mention of an accident.
The trial court instructed the jury on assault with a deadly
weapon with intent to kill inflicting serious injury and the lesser
included offenses of assault with a deadly weapon with intent to
kill, assault with a deadly weapon inflicting serious injury, and
assault with a deadly weapon. The court also instructed the jury
on the law of self-defense. The jury found defendant guilty of
assault with a deadly weapon inflicting serious injury. The trial
court subsequently entered a judgment consistent with the jury
verdict, sentencing defendant to an active prison term of thirty-
four to fifty months. Defendant appeals.
Defendant argues the trial court: (I) committed plain error
by allowing the State to cross-examine defendant regarding the
number of children defendant had fathered out of wedlock; and (II)
erred in denying defendant's motion to dismiss. We disagree.
In his first argument on appeal, defendant claims the trial
court committed plain error by failing to intercede
cross-examination when the State elicited his acknowledgment thathe had children with five different women and had never been
married. Defendant concedes that he failed to raise a timely
objection to the State's inquiry. He argues, however, that the
evidence of his other relationships was irrelevant and was so
inflammatory as to taint the jury's deliberations, due to the
stigma attached to 'deadbeat dads' and illegitimacy.
Having failed to object at trial, defendant correctly
identifies the standard of review on appeal as plain error. See
N.C. R. App. P. 10(c)(4). Plain error will be found in those rare
cases where a defendant can show error so fundamental as to
'seriously affect the fairness, integrity or public reputation of
judicial proceedings or where it can be fairly said the . . .
mistake had a probable impact on the jury's finding that the
defendant was guilty.' State v. Scott
, 343 N.C. 313, 339, 471
S.E.2d 605, 620-21 (1996) (quoting State v. Odom
, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983) (quotations omitted)).
[T]he scope of cross-examination rests largely within the
trial court's discretion and is not ground for reversal unless the
cross-examination is shown to have improperly influenced the
verdict. State v. Woods
, 345 N.C. 294, 307, 480 S.E.2d 647, 653
(citing State v. Carver
, 286 N.C. 179, 209 S.E.2d 785 (1974)),
, 522 U.S. 875, 139 L. Ed. 2d 132 (1997). Here,
defendant portrayed himself to the jury as a loving and devoted
partner to Reid with matrimonial ambitions. By inquiring more
generally into his marital history, the State apparently sought to
undermine defendant's characterization of his relationship withReid and to suggest that he discussed marriage with Reid only after
the assault, in order to influence her testimony.
Our Supreme Court has declined to find plain error where the
State's cross-examination of a defendant revealed that the
defendant had a live-in relationship with two women, that he had
three illegitimate children and that he paid no support for the
children or their mothers. State v. Murray
, 310 N.C. 541, 551,
313 S.E.2d 523, 530 (1984), overruled on other grounds by State v.
, 322 N.C. 506, 369 S.E.2d 813 (1988). In Murray
defendant was on trial for first degree capital murder, armed
robbery and larceny. He was convicted of all three offenses and
sentenced to life imprisonment. After reviewing the evidence, the
Court concluded that there was no reasonable probability that the
testimony concerning his relationship with women and his
illegitimate children 'tilted the scales' in favor of his
at 552, 313 S.E.2d at 530 (citing State v. Black
308 N.C. 736, 303 S.E.2d 804 (1983)).
We likewise find no plain error here
At the time of
defendant's cross-examination, the jury was already aware that he
had nine children, that none of his children were Reid's, and that
he and Reid had been in a romantic relationship for seventeen years
without marrying. Although the jury did learn that defendant had
his children with five different women and had never been married,
the State adduced no evidence that he was a 'deadbeat dad' or
otherwise failed to support his offspring. Defendant testified
that three of his children were living with him, and he had takenin his youngest child's mother after she was laid off from her job.
Therefore, we believe the State's cross-examination of defendant
carried less risk of unfair prejudice than in Murray
that the prosecutor's questions were improper and that the
trial court erred in not intervening ex mero motu
to limit the
scope of the prosecutor's cross-examination of defendant, we
conclude that the court's error did not amount to plain error and
did not result in manifest injustice. Scott
, 343 N.C. at 339, 471
S.E.2d at 621. This assignment of error is overruled.
Defendant next claims that the court erred in denying his
motion to dismiss at the conclusion of the evidence, absent
evidence that he intentionally assaulted Reid. As shown below,
however, defendant confined his motion to dismiss at trial to
challenging the evidence of his intent to kill Reid. At the
conclusion of the State's case in chief, defense counsel made a
motion to dismiss, as follows:
THE COURT: . . . [Counsel], I understand you
have a motion.
[DEFENSE COUNSEL]: I do, Your Honor. I won't
waste the court's time arguing about the
assault with a deadly weapon inflicting
serious injury, but I will argue that there is
insufficient evidence to continue on the issue
of intent to kill. The only evidence is that
there was an injury. . . . We think that it
is an insufficient basis upon which to
continue on the intent to kill.
The court denied the motion. After the State's rebuttal, defense
counsel renew[ed her] motion to dismiss at the close of all the
evidence regarding intent to kill. In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context. N.C. R. App. P. 10(b)(1). Defendant presented
the trial court with a challenge to the sufficiency of the State's
evidence of his intent to kill. Moreover, he expressly declined to
waste the court's time arguing about the assault with a deadly
weapon inflicting serious injury[.] Inasmuch as the jury found
him guilty only of assault with a deadly weapon inflicting serious
injury, his assignment of error is not properly before this Court.
See generally State v. Benson
, 323 N.C. 318, 321-22, 372 S.E.2d
517, 519 (1988) (Defendant may not swap horses after trial in
order to obtain a thoroughbred upon appeal.); State v. Baldwin
117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied
, 341 N.C.
653, 462 S.E.2d 518 (1995).
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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