STATE OF NORTH CAROLINA
v
.
Edgecombe County
No. 05CRS51773
HERMAN JEAN RICHARDSON
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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