STATE OF NORTH CAROLINA
v
.
Cabarrus County
Nos. 04 CRS 12012
04 CRS 12053
MATUSALEM RAMIREZ CRUZ
Attorney General Roy A. Cooper, III, by Assistant Attorney
General W. Wallace Finlator, Jr., for the State.
David Childers, for defendant.
Jackson, Judge.
On 12 July 2004, Matusalem Ramirez Cruz (“defendant”) was
indicted for one count each of second degree forcible rape and
second degree burglary. Following a trial by a jury, defendant was
found guilty of second degree rape and non-felonious breaking or
entering. Defendant was sentenced to a prison term of seventy-
three to ninety-seven months with the North Carolina Department of
Correction. Defendant appeals from his convictions.
On 7 March 2004, Lizbeth Dela Rosa (“Lizbeth”) had been out
dancing with her sister and her sister's husband, and returned to
her home with her six month old child around 2:45 a.m. Upon
entering her locked, dark home, she was immediately confronted by
defendant. Defendant came from the living room into the kitchenwhere Lizbeth was, and proceeded to hit her. He knocked her to the
floor, where he continued to hit her and beat her head against the
floor.
Lizbeth testified that she attempted to get away from
defendant, but was unable. She stated that at one point during the
assault she attempted to call the police, however defendant had
taken the batteries out of both of the home phones. Defendant then
dragged Lizbeth into the living room, where he began taking her
clothes off. Lizbeth testified that defendant asked her “why did
you go out with that skirt like that? You look ridiculous. Is it
because you want for other men to look at you?” Defendant
continued to hit her, and then removed a condom from his pants and
put it on. Lizbeth testified that before putting on the condom,
defendant stated “that he was going to make me get pregnant so no
other men would look at me.”
Defendant then had intercourse with Lizbeth, which she
testified was against her will. Lizbeth stated that she repeatedly
told defendant “no,” but that he did not listen. Following the
rape, Lizbeth was able to retrieve her child and then lock herself
into the back bedroom while defendant was in the bathroom. The
following morning Lizbeth heard defendant making a phone call.
While he was in the bathroom, she retrieved one of the home phones,
and attempted to call the police. The dispatcher was unable to
understand Lizbeth, so Lizbeth hung up. Lizbeth testified that
defendant then pleaded with her to run away with him. She refused,
and eventually allowed him to use her car to go to work. The police arrived shortly after defendant left, and found
Lizbeth locked in the back bedroom. When the police found her, she
was very upset, crying, and her face was red and swollen. Lizbeth
told police that defendant had broken into her home, attacked her,
and raped her. She stated that all of the home's doors had been
locked, but that defendant had previously lifted up the sliding
glass door to gain entrance even when the door was locked from the
inside. She told the officers, and later testified, that she and
defendant had been dating and living together in her home, but that
they had separated and defendant no long had permission to be in
her home. Lizbeth's sister, Teresa, also testified that Lizbeth
and defendant had broken up several months prior to the attack, and
that at that time, defendant no longer lived in the home or had any
possessions there. Both Lizbeth and Teresa testified that
defendant was a jealous man, not only of men in general, but
specifically of Teresa's husband.
At trial, defendant testified and admitted to being in
Lizbeth's home in the early morning hours of 7 March 2004. He
stated that he and Lizbeth had not broken up, and that at no time
had he moved out of the home. Defendant admitted to striking
Lizbeth upon her coming into the home, but he denied that the sex
between them was anything but consensual. He also admitted to
striking Lizbeth on an occasion several months prior to the instant
assault.
On appeal, defendant raises twenty-five assignments of error.
Defendant, however, has not presented any argument in his briefwith respect to seven of the assignments of error. Accordingly,
these assignments of error are deemed abandoned. See N.C. R. App.
P. 28(b)(6) (2006) (“Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.”).
Defendant first contends that certain evidence admitted
regarding his display of jealousy and an alleged physical
altercation with Lizbeth was irrelevant and unduly prejudicial. He
contends that the incidents were too remote in time to the incident
in issue for them to be relevant, and that the evidence constituted
impermissible character evidence. Defendant asserts that even if
the evidence was relevant and admissible, the danger of unfair
prejudice substantially outweighed its probative value.
Relevant evidence is any “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.” N.C. Gen. Stat. § 8C-1, Rule 401
(2003). Rule 404 of our rules of evidence provides that generally,
“[e]vidence of a person's character or a trait of his character is
not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion[.]” N.C. Gen. Stat.
§ 8C-1, Rule 404(a) (2003). Rule 404(b) provides:
Evidence 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) (2003). Evidence which is
admitted pursuant to Rule 404(b) must not be too dissimilar to, or
excessively remote in time from, the offense for which defendant is
being tried. State v. Artis, 325 N.C. 278, 299-300, 384 S.E.2d
470, 481-82 (1989), sentence vacated on other grounds, 494 U.S.
1023, 108 L. Ed. 2d 604 (1990). “When 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.” Id. at 299, 384 S.E.2d at 481. Moreover, when the prior
similar acts “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. The admission of evidence under Rule 404(b) rests
within the discretion of the trial court and will be overturned
only upon a showing of an abuse of discretion. State v. Hyatt, 355
N.C. 642, 662, 566 S.E.2d 61, 74 (2002), cert. denied, 537 U.S.
1133, 154 L. Ed. 2d 823 (2003). All evidence that is relevant and
otherwise admissible, is still subject to Rule 403, which excludes
evidence when the “probative value is substantially outweighed by
the danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403
(2003); State v. Murillo, 349 N.C. 573, 586, 509 S.E.2d 752, 759
(1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
At defendant's trial, Lizbeth's sister, Teresa, testified over
defendant's objection, regarding an incident which occurred in
November of 2003. Defendant argues the admission of this testimonyconstitutes reversible error, in that it was irrelevant and unduly
prejudicial.
At trial, Teresa testified that in November of 2003, defendant
and Lizbeth were at her home, when defendant saw a photograph of
Teresa's child with her husband and became angry. Lizbeth
previously had testified that defendant was jealous of Teresa's
husband, and Teresa reiterated this fact during her testimony.
Teresa stated that on the day in November, defendant saw the
photograph of her child, and became angry when he saw that her
child looked very similar to his child with Lizbeth. Teresa
testified that upon seeing the photograph, defendant stormed out of
the house followed by Lizbeth in tears. Teresa stated that
following this incident, she and her husband went to Lizbeth's home
in January of 2004 in order to resolve any issues of jealousy which
defendant may have regarding Lizbeth and Teresa's husband. Teresa
testified that during this visit, defendant told her that he and
Lizbeth had broken up, and that he no longer lived in the home.
She stated that defendant told her that he had moved all of his
belongings out of the home.
Defendant contends this evidence was admitted for the sole
purpose of proving that he acted in conformity with his alleged
jealous nature, and that there was no proper purpose for which this
evidence could have been admitted. However, as the trial court
stated, this evidence “is relevant evidence because it lays the
foundation for [Teresa's] explanation as to why she wanted to take
her husband to go see the defendant and her sister at their home inJanuary of 2004 after this incident that occurred in November of
2003.” The trial court determined that the evidence was not unduly
prejudicial per Rule 403. We agree with the trial court's
determination. By the time this evidence was presented, the trial
court had heard testimony from Lizbeth that defendant was a jealous
man, and that he was jealous not only of her brother-in-law, but of
all men who looked at her. The trial court also had heard
testimony from Lizbeth concerning her separation from defendant and
the fact that he no longer resided in her home. In addition,
during defendant's testimony, he offered his own explanation for
why he told Teresa and her husband that he no longer lived in the
home.
Based upon the evidence before the trial court, we hold the
admission of Teresa's testimony regarding the November 2003
incidence of jealousy was properly admitted. The testimony laid a
foundation for her subsequent testimony regarding a conversation
she had with defendant, in which he stated that he and Lizbeth had
separated and he no longer resided in the home. This evidence was
relevant and not unduly prejudicial as argued by defendant.
Defendant's assignment of error is overruled.
Defendant next contends the trial court erred in admitting
testimony regarding an incident which occurred 23 April 2003,
almost one year prior to the incident at issue.
While cross-examining defendant, the State asked defendant if
he and Lizbeth were getting along well on 23 April 2003, and then
proceeded to ask questions concerning an altercation which tookplace between defendant and Lizbeth on this date. Defendant
objected based on relevancy, particularly based upon the remoteness
in time from the incident for which defendant was being tried.
Defendant testified that while he and Lizbeth were driving through
the parking lot of the K-Mart shopping center, she became
aggressive with him and bit him on the ear. He denied hitting her
on this occasion.
On rebuttal, the State presented, without objection from
defendant, the testimony of a witness to this altercation. Rodney
Short (“Short”) testified that on 23 April 2003, he was driving
through the parking lot and was directly behind defendant and
Lizbeth. He stated that he saw defendant hit Lizbeth in the head
several times with his fists.
North Carolina General Statutes, section 15A-1226 (2003)
provides that “[e]ach party has the right to introduce rebuttal
evidence concerning matters elicited in the evidence in chief of
another party.” N.C. Gen. Stat. § 15A-1226(a) (2003). During his
testimony, defendant testified that he did not strike Lizbeth while
driving in the K-Mart parking lot on 23 April 2003. Thus, the
State was permitted to introduce evidence which tended to rebut
defendant's testimony.
We hold that Short's testimony was not only permissible
rebuttal testimony, but also that it was permissible evidence under
Rule 404(b) of defendant's intent to commit rape. Defendant was
being tried for second degree rape, which is a violent assault upon
an individual. During his testimony, defendant denied rapingLizbeth, and claimed that the two had consensual sex on 7 March
2004. Short's testimony, along with that of Lizbeth and defendant,
demonstrated that defendant and Lizbeth's relationship was
characterized by defendant's assaultive behavior towards her.
Defendant admitted to hitting Lizbeth not only on 7 March 2004, but
also several months prior. Similarly, Detective Moreau testified
that Lizbeth told him that defendant had assaulted her in the past.
Therefore, we hold the trial court did not abuse its discretion in
admitting this testimony, and the testimony was not unduly
prejudicial. Defendant's assignment of error is overruled.
Defendant next argues on appeal that the trial court erred in
denying his motion to dismiss the charge of second degree burglary
based upon an insufficiency of the evidence.
We note that defendant initially appealed from, and assigned
error to, the denial of his motion to dismiss the charges of both
second degree rape and second degree burglary. However, on appeal,
defendant has presented argument only as to the denial of his
motion to dismiss the burglary charge. Thus, defendant is deemed
to have abandoned his appeal from the denial of his motion to
dismiss the charge of second degree rape. N.C. R. App. P. 10(a)
(2006) (“the scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal”).
“In ruling on a defendant's motion to dismiss, the trial court
must determine whether the State has presented substantial evidence
(1) of each essential element of the offense and (2) of thedefendant's being the perpetrator.” State v. Boyd, __ N.C. App.
__, __, 628 S.E.2d 796, 804 (2006) (citing State v. Robinson, 355
N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006,
154 L. Ed. 2d 404 (2002)). “'Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.'” Id. (quoting State v. Matias, 354 N.C. 549, 552,
556 S.E.2d 269, 270 (2001)). “When considering a motion to
dismiss, the trial court must view all of the evidence presented
'in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor.'” Id. (quoting State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.
1135, 132 L. Ed. 2d 818 (1995)).
Contradictions and discrepancies in the testimony or evidence
are for the jury to resolve and will not warrant dismissal. State
v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). Moreover,
determinations of the credibility of witnesses are issues for the
jury to resolve, and they do not fall within the role of the trial
court or the appellate courts. See Hyatt, 355 N.C. at 666, 566
S.E.2d at 77. When a trial court is considering a defendant's
motion to dismiss based upon an insufficiency of the evidence
presented, the trial court “is concerned only with the sufficiency
of the evidence to carry the case to the jury and not with its
weight.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980). Defendant initially was charged with second-degree burglary,
and following the presentation of evidence, the jury also was
instructed as to the lesser included offenses of felonious breaking
or entering, and non-felonious breaking or entering. On appeal,
defendant contends there was insufficient evidence to support his
conviction for non-felonious breaking or entering. In order for
defendant's charge of second degree burglary to survive a motion to
dismiss, the State was required to present substantial evidence
that defendant committed an unlawful “(1) . . . breaking (2) and
entering (3) in the nighttime (4) into a dwelling house or sleeping
apartment (5) of another (6) with the intent to commit a felony
therein.” State v. Key, __ N.C. App. __, __, 636 S.E.2d 816, 821
(2006) (quoting State v. Rick, 342 N.C. 91, 101, 463 S.E.2d 182,
188 (1995)); see also N.C. Gen. Stat. § 14-51 (2003). Second
degree burglary does not require that the dwelling actually be
occupied at the time of the breaking and entering. Id.; N.C. Gen.
Stat. § 14-51. Non-felonious, or misdemeanor, breaking or entering
requires proof of only the wrongful breaking or entry into a
building or dwelling. State v. Freeman, 307 N.C. 445, 451, 298
S.E.2d 376, 380 (1983); N.C. Gen. Stat. § 14-54(b) (2003). It is
not necessary to prove both breaking and entering, only one or the
other. N.C. Gen. Stat. § 14-54(b); cf. State v. Brown, __ N.C.
App. __, __, 626 S.E.2d 307, 312 (“the offense of felonious
breaking or entering requires that the State only prove that either
breaking or entering took place”) (citing State v. Myrick, 306 N.C.110, 114, 291 S.E.2d 577, 579 (1982)), disc. review denied, 360
N.C. 538, 634 S.E.2d 221 (2006).
During defendant's trial, both Lizbeth and her sister Teresa
testified that Lizbeth and defendant broke up in December of 2003,
and that after that time defendant no longer lived in the home.
Lizbeth stated multiple times that on the night of the attack,
defendant did not have her consent or permission to be in the home.
She stated that after they broke up, defendant no longer lived in
or had any possessions in the home. She testified that on the
night of 6 March 2004, all of the doors were locked when she left,
and that the only way defendant could have gained entrance into the
home was by lifting the sliding glass door up off and out of its
track.
While defendant testified that on the date of the attack he
and Lizbeth were still dating, and thus he had permission to be in
the home, this contradiction in the evidence was for the jury to
resolve. Thus, we hold the State presented sufficient evidence
that defendant did not have permission to be in Lizbeth's home on
the night of the attack, and that he gained entry into the home by
breaking and entering through the sliding glass door. As there was
sufficient evidence presented to support defendant's conviction for
non-felonious breaking or entering, defendant's assignment of error
is overruled.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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