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1. Appeal and Error_preservation of issues_exclusion of evidence_argued on different
basis at trial
Defendant did not preserve for appellate review the question of whether a prior assault
by the victim was admissible to rebut evidence of good character where she argued relevancy at
trial.
2. Evidence_prior assault by victim_exclusion as prejudicial
The trial court did not abuse its discretion by not allowing defendant to testify about a
prior assault on defendant by the victim in this case based on the potential prejudicial effect. The
trial court's ruling resulted from a process of reasoned calculation, weighing the benefits and
costs of the testimony. While the court used the term “certainly outweigh” rather than
“substantially outweigh,” and the better practice is to use the words of the statute, the record is
clear that the court understood and conducted the balancing process required by Rule 403.
Attorney General Roy A. Cooper, III, by Special Counsel
Caroline Farmer, for the State.
Mary McCullers Reece, for defendant-appellant.
JACKSON, Judge.
Farah N. Mabrey (“defendant”) and Benjamin Rice (“Rice”) were
married for approximately nine years and had three children
together. Since their divorce in 2002, defendant and Rice arranged
to meet twice per month at 7:00 p.m. in a specific Food Lion
parking lot to exchange custody of their children. In early 2004,
Rice married his second wife, Karen Rice. On 7 May 2004, Rice arrived early to the parking lot and
parked in the usual location of the custody exchange. At 7:05
p.m., Rice saw defendant enter the parking lot and watched as she
drove past Rice and proceeded to the other side of the parking lot.
Rice testified that he was upset by defendant's actions because
“[s]he looked right at me and just went right past me. You know,
she just didn't park right there where I was at. It's not just
because it was inconvenient or anything; it's just she was doing it
out of spite.” Defendant, meanwhile, claimed she never saw Rice
and that she drove to the parking space where they were supposed to
meet. However, immediately after the incident, she told the police
that Rice “parked on the other side of the shopping center just to
be rude.”
Rice drove to the other side of the shopping center to meet
with defendant and their children. Once there, Rice and defendant
began arguing about why defendant had not parked beside Rice.
Defendant and Rice also argued over a new pair of eyeglasses for
one of their children. Specifically, defendant insisted that Rice
owed her $50.00 for the glasses, but Rice stated that he could not
pay defendant anything other than his court-mandated child support
or else he would be in violation of the court order. Defendant
responded by saying, “Well, I'll just take it out your ass.” At
trial, defendant denied discussing eyeglasses for the children that
day.
Rice testified that as he helped the children into his truck,
defendant pushed the truck door into the back of Rice's legs. Defendant, who was over seven months pregnant at the time, claimed
that she simply put her hands in front of her to stop the door from
hitting her after Rice had “swung open the door.” She contended it
was a reflexive motion to protect herself. Defendant, however,
also claimed that the door never hit her. Rice warned her that if
she hit him again he would call the police. According to Rice,
defendant then pushed him in the back three or four times and
repeatedly invited him to “[c]all the cops.” As Rice explained,
“[S]he did it again and again, and I just went around the truck and
I called the cops, and I waited for them to get there.” At trial,
defendant denied pushing Rice into the truck several times with her
hands. Defendant insisted that any physical contact between her
and Rice was the result of her trying to protect herself from the
possible threat of contact from Rice after Rice “stepped up.”
While Rice was calling the police, defendant removed the
children from Rice's truck and left with them. Approximately ten
minutes later, Officer Marcus A. Bethea (“Officer Bethea”) of the
Raleigh Police Department arrived at the Food Lion parking lot and
informed Rice that defendant was with another police officer at a
nearby Exxon gas station. Rice requested that Officer Bethea
arrest defendant, but Officer Bethea refused because Rice had no
visible injuries.
Rice's wife, whom Rice had called after he called the police,
met Rice at the Exxon station and brought a copy of the separation
agreement. When Rice's wife arrived, defendant was yelling at
Rice, and the police officers “were telling her to be quiet.” Defendant admitted to police that she pushed Rice, but stated that
she did so only because he pushed her first with his car door.
Defendant had no visible injuries. Defendant also stated that Rice
“wanted to yell at me and curse at me for no reason, so I just took
my kids and left.” Conversely, Rice told police officers that
as always, [defendant] wanted to argue about
something. She told me that I owed her $50
for an insurance co-payment for my kids to get
glasses. I told her I didn't have any money
for her right now and that I didn't want to
discuss some silly shit like that. She got
upset and began cursing back at me. We both
stood here and argued.
After police sorted out the situation, Rice's wife took Rice's
two daughters and Rice took his son. The police informed Rice and
his wife that they would keep defendant at the Exxon station for a
few minutes after Rice and his wife departed the station to help
avoid further conflict. As Rice and his wife left the station,
defendant “was yelling at the police officers.” Officer Bethea
testified that throughout the encounter, defendant had been “very
upset,” had used a “very harsh tone of voice,” and had appeared
unreasonable and unwilling to resolve the situation. Defendant
insisted that she was upset only because of certain remarks and
facial expressions, such as “little smirks, like ha-ha, or
whatever,” that Rice allegedly directed at her at the Exxon
station.
When the police finally allowed defendant to leave the
station, defendant screeched her tires, “peeling her tires out as
she left the parking lot.” Defendant denied pulling out of the
station so fast that her tires squealed. Shortly thereafter,Officer Bethea responded to another call regarding Rice and
defendant, and Officer Bethea was required to facilitate another
custody exchange. Officer Bethea noted that defendant's demeanor
at this second incident was no different from her demeanor at the
Exxon station.
On 7 May 2004, defendant was charged with simple assault, and
on 23 November 2004, defendant was convicted in district court.
Defendant appealed to superior court, and on 4 October 2005, a jury
found defendant guilty as charged. The trial court sentenced
defendant to forty-five days in the custody of the Wake County
Sheriff, and the court suspended the sentence and placed defendant
on supervised probation for twelve months.
On appeal, defendant challenges the trial court's refusal to
permit the introduction of evidence that Rice had assaulted
defendant on a previous occasion. Specifically, defendant contends
that the evidence was (1) relevant to defendant's claim of self-
defense; (2) admissible to rebut evidence of Rice's good character
presented during the State's case; and (3) more probative than
prejudicial.
[1] As a preliminary matter, we note that defendant has failed
to preserve her second assignment of error for appellate review.
In this assignment of error, defendant argues that the evidence of
the prior assault was admissible to rebut evidence of Rice's good
character presented during the State's case. Specifically,
defendant contends that the State opened the door to Rice's
character, and thus, defendant should have been permitted totestify as to specific acts committed by Rice that would shed a
contrary light on Rice's character.
During direct examination of Rice, the following colloquy took
place:
PROSECUTOR: And up until this point did you
ever put your hands on the defendant?
RICE: Huh-uh.
PROSECUTOR: Why didn't you if she was pushing
you up against your truck?
RICE: That's _ I don't do things like that. I
mean, that's not my nature.
Defendant did not object to Rice's testimony. Later, when
defendant stated during direct examination that Rice had pushed her
two years prior, the State objected and the jury was excused from
the courtroom. When asked what he intended with the particular
line of questioning, defense counsel stated,
Your Honor, I'm only wanting to establish
the facts that occurred at the Food Lion. The
only line _ or the only testimony that I would
_ or the only questions that I would ask the
defendant would be questions that would be
relevant to her mental state at the time of
the incident and to the facts at the time of
the incident. . . .
. . . .
. . . The only type of question that I
would have asked would have been, After that,
what _ how did that incident affect your
mental state at this time. That would have
been the only _ that would have been the only
type of question that I would have asked and
not go into detail as to what happened but if
that incident had any influence on her _ her
mental state at that time.
. . . .
. . . Your Honor, I'd just like to say
that one incident that is possibly very
similar to this incident could _ could
possibly affect one's mental state. It's
possibly having a deja-vu type situation where
you may be apprehensive about the prior
incident no matter how far back it was
reoccuring again, especially with the children
at hand. . . . I believe that that particular
incident is relevant to show her mental state
at that particular time if it was similar to
the one prior.
(Emphases added).
At no point did defendant argue that she was introducing the
evidence to rebut the State's evidence of Rice's good character,
much less did defendant ever argue that the State opened the door
to Rice's character. Defendant, instead, confined her argument to
relevancy, insisting that evidence of the assault two years prior
was relevant to show defendant's mental state at the time of
incident in question. Rule 10(b)(1) of the North Carolina Rules of
Appellate Procedure provides that “[i]n 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) (2006) (emphasis added). As defendant did not
contend before the trial court that such evidence was admissible as
to Rice's character based upon the State's opening the door to his
character, this issue has not been preserved for our review. See
State v. Williams, 355 N.C. 501, 565, 565 S.E.2d 609, 646 (2002)
(noting that although defendant objected to certain evidence as
inadmissible pursuant to Rule 608 and as inadmissible hearsay, hedid not object on those specific grounds at trial, and thus,
“defendant did not preserve these specific arguments for appellate
review.”), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
Accordingly, defendant has failed to preserve this issue for
appellate review.
[2] In her first assignment of error, defendant contends that
the evidence that Rice assaulted defendant on a previous occasion
was relevant to defendant's claim of self-defense. In her third
assignment of error, defendant contends that the probative value of
the evidence of the prior assaults was not substantially outweighed
by the potential prejudicial effect, and thus, the trial court
improperly excluded the evidence pursuant to Rule 403 of the Rules
of Evidence. The trial court based its decision to exclude the
evidence solely pursuant to Rule 403, and the court did not make
any conclusion with respect to whether the evidence of the prior
assault was relevant and otherwise admissible. For the following
reasons, we hold that the trial court did not err in excluding the
evidence pursuant to Rule 403, and accordingly, we decline to reach
the issues raised in defendant's first assignment of error.
Relevant evidence, defined as “evidence having 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 the evidence,” generally is admissible. N.C. Gen.
Stat. . 8C-1, Rules 401, 402 (2005). With respect to evidence of
prior bad acts, such as the evidence at issue in the instant case,
“[e]vidence of other crimes, wrongs, or acts is not admissible toprove 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).
(See footnote 1)
Pursuant to Rule 403 of the Rules of Evidence, however,
“[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. . 8C-1, Rule
403 (2005). Thus, even assuming arguendo that the evidence of Rice
pushing defendant two years prior to defendant's trial survives
Rules 401 and Rule 404(b), “it still must withstand the balancing
test of Rule 403, pursuant to which 'evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice.'” State v. Locklear, 180 N.C. App. 115, 122, 636
S.E.2d 284, 289 (2006) (quoting N.C. Gen. Stat. § 8C-1, Rule 403
(2005)). It is well-established that “[a] trial court's rulingsunder Rule 403 are reviewed for an abuse of discretion. This Court
will find an abuse of discretion only where a trial court's ruling
is manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision.” State v.
Theer, 181 N.C. App. 349, 359-60, 639 S.E.2d 655, 662.63 (2007)
(internal quotation marks and citations omitted).
In making its determination with respect to the Rule 403
balancing test, a trial court must analyze the “similarity and
temporal proximity” between the acts. State v. Artis, 325 N.C. 278,
299, 384 S.E.2d 470, 481 (1989), vacated on other grounds, 494 U.S.
1023, 108 L. Ed. 2d 604 (1990). Thus,
[w]hen the features of the earlier act are
dissimilar from those of the offense with
which the defendant is currently charged, such
evidence lacks probative value. When
otherwise similar offenses are distanced by
significant stretches of time, commonalities
become less striking, and the probative value
of the analogy attaches less to the acts than
to the character of the actor.
Id.
After hearing and considering arguments by the prosecutor and
defense counsel with respect to the evidence of the prior assault,
the trial court sustained the State's objection to the testimony,
stating,
Well, as to any similarity between the
matter at issue and a matter that the witness
stated occurred two years ago, the
similarities are not sufficiently strong so as
to allow the jury to properly hear that. The
witness's testimony is that she instinctively
put her hand up to keep the door from coming
close to hitting her because of her pregnant
condition, and she said that the door didn't
even hit her hand. So as a result, that isnot similar to a situation two years ago where
she says that the prosecuting witness
allegedly assaulted her. So I would not find
them to be sufficiently similar so as to allow
the jury to hear something that remote in
time, coupled with the fact that, again, the
similarity being at best minimal. Any
prejudicial effect would certainly outweigh
any probative value. So as a result, I will
not allow any questioning as to that two years
ago.
The trial court's ruling was the process of reasoned decision,
weighing the relative benefits and costs of such testimony. The
temporal proximity between the incidents was particularly
significant because (1) defendant had known Rice for thirteen
years; (2) defendant and Rice had met to exchange custody twice per
month for a year and a half; and (3) the incident two years prior
was the only other instance of alleged assaultive behavior by Rice.
Additionally, the prior assault and incident at issue were not
sufficiently similar as to warrant significant probative value.
Defendant alleged that Rice pushed defendant two years prior to
trial. Here, Rice had not pushed defendant, but rather, opened a
car door toward defendant and allegedly “was in [her] face.”
Because of the minimal probative value of the evidence, the trial
court properly concluded that the probative value of defendant's
testimony concerning the prior assault was substantially outweighed
by the danger of unfair prejudice.
We note, however, that the trial court did not specifically
state that the probative value of the evidence “substantially
outweighed” the potential prejudicial effect. Rather, the court
stated that the “prejudicial effect would certainly outweigh anyprobative value.” Although the better practice would be to employ
the words used in the statute, the trial court's use of the phrase
“certainly outweigh” is sufficiently close to the phrase
“substantially outweigh” to make clear that the court conducted the
appropriate balancing test mandated by the Rule. See State v.
Harris, 149 N.C. App. 398, 405, 562 S.E.2d 547, 551 (2002) (“The
trial court in the present case made no specific finding that the
probative value of evidence . . . outweighed its prejudicial
effect. However, as long as the procedure followed by the trial
court demonstrates that a Rule 403 balancing test was conducted, a
specific finding is not required.”); see also State v. McAllister,
132 N.C. App. 300, 302, 511 S.E.2d 660, 662 (“Despite the language
used by the trial court in making the ruling, it is clear from an
examination of the record that the trial court understood the
standard to be applied under Rule 609 and that the trial court
believed the evidence was not necessary for a fair determination of
the issue of guilt or innocence.” (emphasis added)), aff'd, 351
N.C. 44, 519 S.E.2d 524 (1999) (per curiam). Because the record is
clear that the trial court understood and conducted the required
balancing pursuant to Rule 403, we find no error in the specific
language employed by the trial court.
In sum, it cannot be said that the trial court's ruling was
“arbitrary” or “manifestly unsupported by reason.” Therefore, the
trial court did not abuse its discretion in precluding defendant
from testifying as to the prior assault based on the potential
prejudicial effect when compared with the probative value of such
evidence. Accordingly, defendant's third assignment of error isoverruled, and we need not reach defendant's remaining assignment
of error.
No Error.
Judges HUNTER and TYSON concur.
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