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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-673


Filed: 20 March 2007


v .                         Edgecombe County
                            No. 05CRS51773

    Appeal by Defendant from judgment dated 8 February 2006 by Judge Clifton W. Everett, Jr. in Superior Court, Edgecombe County. Heard in the Court of Appeals 24 January 2007.

    Attorney General Roy Cooper, by Director of Victims and Citizens Services Section William M. Polk, for the State.

    McAfee Law, P.A., by Robert J. McAfee, for Defendant.

    McGEE, Judge.

    Herman Jean Richardson (Defendant) was convicted of one count of malicious maiming of Nanette Givens (Givens). The trial court sentenced Defendant to a minimum of 133 months and a maximum of 169 months in prison. Defendant appeals.
    Givens testified that when she returned home from work on 6 May 2005, Defendant was there. She took a shower, drank a glass of wine, and went to bed. Defendant told her that he was going out and left the house. Defendant returned to the house at approximately 2:00 a.m. Givens testified that she "could tell he had been drinking." Defendant got into bed with Givens and was "fondling over [her]." Defendant then put his hand around Givens's throat and pulled her mouth downward. Defendant asked Givens whatshe had in her mouth, what she was hiding, and "where was it at." Givens was gasping for breath and tried to get away from Defendant. Defendant let go of Givens, and she ran to the bathroom and saw that her tongue was "hanging out of [her] mouth." Defendant told Givens not to report the incident to the police, but Givens drove herself to the Pinetops police station. Givens was unable to speak, so she reported what happened by writing down an account of the events for the police.
    Givens was taken to the emergency room. Because of the amount of blood in her throat, Givens was having trouble breathing, and doctors performed a tracheotomy. Givens's tongue had to be reconstructed by a plastic surgeon. She spent fourteen days in the hospital. She was unable to eat or swallow, and was fed by a feeding tube. Doctors advised her that she might not be able to speak again. Givens testified that, as a result of the assault, her sense of taste was diminished and she spoke differently than before the assault. She testified that she still had problems eating, swallowing, and sleeping. While testifying, Givens showed the jury the condition of her tongue.
    On direct examination, the State asked Givens about a prior incident involving Defendant. Givens testified that in 2001, while Defendant was drinking and using drugs, he beat her on her face and choked her. Givens went before a magistrate to request that a warrant be issued and also filed a complaint alleging domestic violence. Givens testified that she forgave Defendant after he promised not to hit her again, and the State dropped the chargesagainst Defendant.
    Officer William Moore (Officer Moore) of the Edgecombe County Sheriff's Department testified that he interviewed Givens at the emergency room about what had happened. Officer Moore testified that because of Givens's inability to speak, he had to ask only "yes" or "no" questions, and had to ask her to write down notes. Givens told Officer Moore that Defendant tried to have sex with her and put his hand down her throat looking for drugs inside her mouth.
    Dr. Darron Hitt (Dr. Hitt), a plastic surgeon who treated Givens, testified as an expert in reconstructive and plastic surgery, and general surgery. Dr. Hitt treated Givens on 6 May 2005. When Dr. Hitt was contacted, the emergency room doctors had performed a tracheotomy to provide Givens with an airway. After Givens was stabilized, Dr. Hitt assessed the damage to her tongue and began operating to repair the damage. He testified that the damage to her tongue was extensive, and that "a portion of the bottom of the tongue was still present on the floor of the mouth [and] [t]he interior surface of the tongue was ripped away." Dr. Hitt testified that the injuries he observed to Givens's tongue could have been caused by someone reaching into her mouth and pulling down on her tongue. He also stated that "it would take a significant amount of force [to cause Givens's injuries] because you'd have to traverse muscular layers all [the way] across the tongue and then for the distance of the surface of the tongue." Dr. Hitt stated at the time of Givens's discharge from thehospital, it was unclear what function would return to the left side of her tongue, but that she was able to move the right side of her tongue. Throughout the following two months, Givens regained the ability to eat and speak, but continued to experience numbness on the left side of her tongue, a diminished sense of taste, and lack of full movement on her left side.
    The State then stated it had no further questions for Dr. Hitt. The trial court asked the parties to approach the bench, and an unrecorded bench conference took place. Thereafter, the State resumed questioning Dr. Hitt, and Dr. Hitt testified that Givens's ability to move her tongue would likely improve over time, but that her sense of taste and the feeling of numbness she experienced would not improve because "the nerve was completely pulled out of the tongue." Further, Givens would always have a scar on her tongue where the laceration occurred. The State then rested.
    Outside of the presence of the jury, Defendant stated the contents of the unrecorded bench conference for the record. Defendant argued that when the State ceased questioning Dr. Hitt, the State had presented no evidence of permanent injury. During the bench conference, the trial court inquired of the State whether it planned to elicit testimony about the permanency of Givens's injuries. Defendant objected on the basis that the trial court improperly expressed an opinion from the bench. Defendant then moved to dismiss the charge based on insufficiency of the evidence. The trial court denied Defendant's motion.
    Defendant testified that on 6 May 2005, he was living withGivens. Defendant admitted that he had three prior convictions for assault on a female, one prior conviction for assault on a government official, and multiple convictions for driving while intoxicated. Defendant testified that when Givens returned from work on 6 May 2005, she drank two bottles of wine, took a shower, and then decided to go to sleep. Defendant fell asleep on the couch and at approximately 2:00 a.m., he went into the bedroom where Givens was sleeping. Defendant testified that he and Givens were talking and "playing" in bed. The conversation turned to money, and then Givens tried to get out of bed. Defendant grabbed Givens to prevent her from getting up. Defendant testified that he put his hand on her face and when she started yelling, "[his] hand [went] inside her mouth." Givens bit down and Defendant pulled his hand back, and his fingernails ripped Givens's tongue. Defendant testified that he got a towel for Givens and tried to take her to the hospital, but Givens worried that the police would arrest Defendant, so she drove herself to the hospital. Defendant testified that he remained in the house overnight and went to work the following morning. When Defendant learned that the sheriff's department was looking for him, Defendant turned himself in. Defendant presented no other evidence.
    At the close of all the evidence, Defendant renewed his motion to dismiss the charge. The trial court denied Defendant's motion.     Defendant first argues the trial court committed plain error by admitting evidence of Defendant's 2001 arrest for assaulting Givens. Defendant contends the only purpose for introducing thisevidence was to impugn Defendant's character, and that under N.C. Gen. Stat. § 8C-1, Rule 404(b), no proper purpose existed for the introduction of the evidence. Because Defendant did not object to this testimony at trial, we review this contention for plain error. N.C.R. App. P. 10(c)(4).
        [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial[.]"

State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, McCaskill v. United States, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
    N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides, in 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.

"Evidence of another offense is admissible under Rule 404(b) so long as it is relevant to any fact or issue other than the character of the accused." State v. Simpson, 327 N.C. 178, 185, 393 S.E.2d 771, 775 (1990). To prove a charge of malicious maiming, the State must show malice aforethought. N.C. Gen. Stat.§ 14-30 (2005). Our Supreme Court has held that where evidence of a defendant's prior assault on the victim is admissible to show malice, the evidence is properly admitted under N.C.G.S. § 8C-1, Rule 404(b). See, e.g., State v. Scott, 343 N.C. 313, 331, 471 S.E.2d 605, 616 (1996); State v. Bryant, 337 N.C. 298, 308, 446 S.E.2d 71, 77 (1994).
    In the present case, we note that Defendant took the stand in his defense, and admitted prior convictions for assault on a female and for assault on a government official. Further, because the State was required to show both malice and intent to murder, maim, or disfigure, we find this evidence was offered for a proper purpose pursuant to N.C.G.S. § 8C-1, Rule 404(b). Defendant has not shown plain error. We overrule this assignment of error.
    Defendant also argues that the trial court erred by inquiring about whether the State was going to question Dr. Hitt as to the permanency of Givens's injuries. We disagree.
    N.C. Gen. Stat. § 15A-1222 (2005) prohibits the trial court from expressing "any opinion in the presence of the jury on any question of fact to be decided by the jury." This prohibition applies to all stages of the trial. Id. Defendant contends the questions asked by the State following the bench conference were questions by the trial court by proxy and "merely effected the opinion of the trial court that the evidence was insufficient to sustain a charge involving permanent injury." We disagree.
    In State v. Lowe, 60 N.C. App. 549, 550, 299 S.E.2d 466, 467 (1983), the defendant was charged with felonious breaking orentering and felonious larceny. While the prosecuting witness was testifying, the trial court asked her several questions, including a question about the value of the allegedly stolen property. Id. at 551-52, 299 S.E.2d at 468. The testimony given in response to the trial court's questions was the only evidence as to the value of the property. Id. at 552, 299 S.E.2d at 468. This Court held that the questions were not improper, stating that "[a] judge may ask questions, however, that elicit testimony which proves an element of the State's case so long as he does not comment on the strength of the evidence or the credibility of the witness." Id.
    Additionally, in State v. Wise, ___ N.C. App. ___, ___, 630 S.E.2d 732, 736-37 (2006), the trial court discussed with counsel the fact that the State had not presented evidence of one of the elements of the crime charged. The trial court permitted the State to reopen its case and present additional evidence. Id. at ___, 630 S.E.2d at 737. This Court rejected the defendant's argument that the trial court, by doing so, had abandoned its neutral role, and we held that the defendant was not entitled to a new trial. Id. at ___, 630 S.E.2d at 737.
    In the present case, as the trial court pointed out when addressing Defendant's objection, the allegedly objectionable remarks by the trial court were not made in the presence of the jury. In fact, none of the statements made by the trial court during the bench conference were heard by the jury. Further, even if we treat the remarks made in the bench conference as the equivalent of questions asked by the trial court in the presence ofthe jury, under Lowe and Wise, we still do not conclude the trial court erred.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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