STATE OF NORTH CAROLINA,
v. Alamance County
JOSE ALUARO PEREZ GONZALEZ,
Defendant appeals from the judgment entered upon jury verdicts
finding him guilty of three counts of first-degree rape. Defendant
contends that the trial court erred by admitting evidence that
defendant (1) killed dogs and dumped them in a landfill, and (2)
was able to speak English. For the reasons that follow, we
conclude that defendant received a fair trial, free of plain or
Defendant argues that the preceding testimony was irrelevant,
having no tendency to prove any fact at issue in the trial.
Alternatively, he argues that if the evidence was relevant, (1) it
was improper character evidence which should have been excluded by
Rule 404, or (2) it was unduly prejudicial evidence which should
have been excluded under Rule 403. He argues that the evidence soprejudiced the jury against him that he could not have received a
fair trial. The State responds that the testimony was relevant as
circumstantial evidence because defendant's killing of the dogs was
essential to the livelihood of the family and because the testimony
gave context to Deborah O.'s statement that she wished defendant
A trial court errs when it admits irrelevant evidence. N.C. Gen. Stat. § 8C-1, Rule 402 (Evidence which is not relevant is not admissible.). 'Relevant evidence' means 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. Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986). Circumstantial evidence tending to connect an accused with the crime is relevant. State v. Whiteside, 325 N.C. 389, 397, 383 S.E.2d 911, 915 (1989). However, the inference to be drawn from the evidence must be reasonable. Id.
On the record before us, we perceive no tendency on the part of the foregoing testimony to prove any issue in the case. Though our Supreme Court has held that evidence that a robbery victim sent money to his wife and child tended to show how the victim handled his money, and was therefore relevant to explain the circumstances of the crime, State v. Barden, 356 N.C. 316, 348-49, 572 S.E.2d 108, 130 (2002), the State has not shown how a very tenuousinference that defendant cared for his family is relevant to the case sub judice, especially when defendant objected to the admission of the testimony. Furthermore, while the foregoing testimony does give the context of Deborah O.'s story of how she took defendant to the police station after she heard that he had raped her daughter, it is too far attenuated in time from the rape to be considered circumstantial evidence of the crime.
We conclude that this evidence was irrelevant, and was erroneously admitted. (See footnote 1) However, [t]he admission of irrelevant evidence is generally considered harmless error. State v. Melvin, 86 N.C. App. 291, 297, 357 S.E.2d 379, 383 (1987).
In the case sub judice, the State presented ample independent evidence of defendant's guilt at trial to support his convictions. See State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004) (holding that when there was ample evidence of defendant's guilt, the defendant was not prejudiced by the admission of irrelevant evidence). Further, this irrelevant testimony was very brief, and is not likely to have swayed the jury. We therefore conclude that there is no reasonable possibility that if the jury had not heard this brief irrelevant testimony it would have reached a different result. Accordingly, we hold that admission of the above-quoted testimony was harmless.
Defendant argues that the foregoing testimony was irrelevant,
having no tendency to prove any fact at issue in the trial.
Alternatively, he argues that if the evidence was relevant it was
improper character evidence. In its brief, the State does not
dispute that admission of this evidence was error; it contends only
that it did not amount to plain error. Therefore, we may assume,
without deciding, that admission of this evidence was error.
An objection is lost, and an error not properly preserved for review, when the same evidence [is] admitted [without objection] on a number of occasions throughout the trial. State v. Brooks, 72 N.C. App. 254, 258, 324 S.E.2d 854, 857 (emphasis in original) (citing State v. Zimmerman, 23 N.C. App. 396, 209 S.E.2d 350, cert. denied, 286 N.C. 420, 211 S.E.2d 800 (1975)), disc. review denied, 313 N.C. 331, 327 S.E.2d 901 (1985). In the case sub judice, the record contained considerable evidence of defendant's ability to speak English, which was not objected to at trial. The detective who arrested defendant testified that his interview with defendant was conducted in English. Furthermore, the jury heard a tape of that interview, which would permit the jurors to decide whether or not defendant spoke English.
However, even though defendant did not properly preserve the error, we will review for plain error as requested by defendant. N.C.R. App. P. 10(c)(4). In conducting plain error review, thisCourt must examine the entire record and determine if the . . . error had a probable impact on the jury's finding of guilt. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983).
The record in the case sub judice contains considerable evidence of defendant's guilt. Victim testified in great detail as to defendant's actions, and victim's testimony was corroborated by her mother, and by a police detective who interviewed defendant.
In light of all the evidence presented as to defendant's guilt, we conclude that even if this testimony had not been admitted, it is not probable that the jury would have found defendant not guilty. Accordingly, we hold that defendant received a fair trial, free of plain or prejudicial error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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