Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 03 CRS 58253-54
PAUL ANTHONY EWING
Appeal by defendant from judgment entered 20 October 2005 by
Judge Larry G. Ford in Rowan County Superior Court. Heard in the
Court of Appeals 26 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Tina A. Krasner, for the State.
Miles & Montgomery, by Lisa Miles, for defendant appellant.
The State presented evidence tending to show that at
approximately 8:00 to 9:00 p.m. on 18 October 2003, Paul Ewing
(defendant) came to the Saturday Night Lounge, a pool hall and
bar, and showed the proprietor, Earl Burnett, some party stuff.
Burnett gave defendant $150 to purchase some for him. Around the
bar's closing time, defendant telephoned Burnett from outside the
bar. Burnett agreed to take defendant to retrieve his truck. Upon
arriving where defendant's truck was located, defendant got out of
Burnett's vehicle. Instead of getting into his truck, defendant
propped his foot up against a building. Burnett exited his truck,
approached defendant and said, Paul, let's go[.] Defendant
lunged at Burnett and cut Burnett three times in the throat with abox cutter. Defendant then dragged Burnett behind the building and
hit Burnett in the face with an object. Burnett lost consciousness.
Upon regaining consciousness, Burnett managed to get back into his
truck and drive back to the Saturday Night Lounge. From there he
was transported by ambulance to a hospital. He told police officers
that Paul Ewing assaulted him. He went from the emergency room
to the hospital's intensive care unit. He underwent surgery to
repair multiple facial fractures. The physicians also inserted a
tube in his throat to permit him to breathe.
A police officer who responded to the call from the Saturday
Night Lounge testified that when he arrived, Burnett's face and
clothing were covered with blood. Based upon information provided
by Burnett, police officers searched premises where the assault was
believed to have occurred. Among other things, the officers found
on the ground of the premises of Lambert's Alignment a Nextel
cellular telephone, a pack of Winston cigarettes, a black cigarette
lighter, a packet of headache powder, and a package of breath
mints. Burnett identified all but the cellular telephone as items
that were in his pockets. Law enforcement officers also searched
defendant's residence and found a box cutter in a bedroom, and a
knife or box cutter and black wallet on an awning. The wallet did
not have any money in it. Burnett identified the black wallet as
his. Burnett testified he had almost $2,000 in cash in the wallet.
The telephone number displayed on the cellular telephone matched
the number given to officers by defendant as his number. The
cellular telephone showed an outgoing call to the number of theSaturday Night Lounge had been made at 1:57 a.m. on 19 October
Defendant's ex-girlfriend also found a check on the back porch
of defendant's residence. Burnett identified the check as one he
cashed for a customer that evening and placed in his wallet.
Defendant testified that Burnett asked him to obtain an ounce
of cocaine for him. He quoted Burnett a price of $2,000. Burnett
consented to the price. Defendant went to his supplier and
obtained the cocaine. He called Burnett to meet him at Lambert's
Alignment to pick up the cocaine. About ten minutes later Burnett
arrived in a burgundy pickup truck.
Burnett walked over to
defendant's truck and defendant handed Burnett the cocaine.
Burnett took the cocaine and walked away without paying for it.
Defendant got out of his truck and tried to get the bag of cocaine
back. Burnett yanked the bag away from defendant, turned around
and swung at defendant, who weighed more than twice as much as
Burnett. Defendant retaliated and the two men fought. Defendant
hit Burnett ten times and he also kicked Burnett in the ribs. He
acknowledged that he knocked Burnett unconscious but he denied that
he cut Burnett with a knife. After Burnett passed out and he saw
another person approaching, he panicked and fled the scene. He
returned later to look for the bag of cocaine. He found Burnett's
wallet on the ground. He picked it up and took it home with him.
Defendant was found guilty of assault with a deadly weapon
inflicting serious injury and robbery with a dangerous weapon.
Defendant contends the trial court committed plain error by
allowing an officer to testify that he arrested defendant on
outstanding warrants not related to the present charges.
Alternatively, he argues he was denied effective assistance of
counsel by counsel's failure to object to the evidence. We
By assigning plain error, defendant concedes that he did not
object to admission of the evidence in the trial court. See State
v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983).
burden is therefore upon defendant to show (i) that a different
result probably would have been reached but for the error or (ii)
that the error was so fundamental as to result in a miscarriage of
justice or denial of a fair trial. State v. Bishop, 346 N.C. 365,
385, 488 S.E.2d 769, 779 (1997).
To prevail on a claim of
ineffective assistance of counsel, a defendant must show (1)
counsel's performance was seriously deficient; and (2) his defense
was so prejudiced by counsel's deficient performance that it is
reasonably probable that had the errors not been made, the outcome
of the proceeding would have been different. State v. Braswell,
312 N.C. 553, 562-63, 324 S.E.2d 241, 248-49 (1985).
In State v. Riley, 159 N.C. App. 546, 552, 583 S.E.2d 379, 384
(2003), the defendant contended the court committed plain error by
admitting evidence the defendant was arrested on outstanding
warrants charging unrelated crimes. This Court stated that plainerror did not exist because of overwhelming evidence establishing
the defendant's guilt. Id. Likewise, the evidence of defendant's
guilt in the case at bar is overwhelming. By his own admission,
defendant beat up Burnett, who was more than twice defendant's age
and weighed half as much as defendant, and abandoned Burnett in an
unconscious state. Defendant failed to present any evidence to
show that Burnett was armed with a weapon. Given this overwhelming
evidence of guilt, we conclude it is improbable that a different
outcome would have occurred had counsel objected and the evidence
not been admitted. Therefore, we disagree with defendant's
Defendant contends the trial court erred by excluding
defendant's testimony that Burnett was known to carry a gun and
have a reputation for aggressive behavior. For the purpose of
addressing this contention we assume the court erred.
Notwithstanding the error, a defendant is not entitled to a
new trial based on trial errors unless such errors were material
and prejudicial. State v. Alston
, 307 N.C. 321, 339, 298 S.E.2d
631, 644 (1983).
[T]he exclusion of testimony cannot be held
prejudicial when the same witness is thereafter allowed to testify
to the same import, or when the evidence is thereafter admitted, or
when the party offering the evidence has the full benefit of the
fact sought to be established thereby by other evidence. State v.
, 342 N.C. 847, 853, 467 S.E.2d 404, 408 (1996).
Here, defendant testified without objection that he had seenBurnett in an intoxicated state and that he had seen Burnett behave
aggressively as he did on the night of this incident. Therefore,
we disagree with defendant's contention.
Defendant received a fair trial, free of prejudicial or plain
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***