Appeal by defendant from judgment entered 11 January 2007 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
J. Clark Fischer, for defendant-appellant.
Jesus Armando Andrade (defendant) appeals from judgment
entered after a jury found him to be guilty of first-degree murder
pursuant to N.C. Gen. Stat. § 14-17. We find no error.
The State's evidence showed that on the night of 12 August
2005, defendant drove a Dodge Neon automobile toward Darren Brown
(Brown) and Brad Steele (Steele) in the parking lot of a Food
Lion store located on Waughtown Street in Winston-Salem. The car
struck Steele, who died from his injuries on 19 August 2005.
Defendant is of Hispanic descent and attended Glenn High School
with Steele and Brown, who are both African-American. During testimony at trial, Brown, defendant, and prosecution
witness Allison Kannegieser described a rift that had developed
between African-American and Hispanic students at Glenn High School
during the 2004-2005 school year. Prior to Christmas break of
2004, a riot between Hispanic and African-American students
culminated in a big fight in the school bus parking lot. Both
Brown and defendant participated in the fight, with Brown on the
black side, and defendant on the Mexican side. The event left
a whole lot of tension between the two groups.
Approximately two weeks prior to 12 August 2005, Brown was
walking to Steele's house with some African-American friends and
was hit by a beer can thrown by a passing car occupied by defendant
and his Hispanic friends. When the car returned to engage Brown,
a fight ensued between ten Hispanic individuals and four African-
American individuals in the courtyard of Plantation Place
Apartments. Steele came out of his house to join the affray.
Although defendant and Brown did not personally exchange blows, the
incident marked the end of their friendship and left bad blood
On the night of 12 August 2005, defendant drove Kannegieser
from a party on East Devonshire Drive to a gas station located
Waughtown Street. Defendant's friend, Flaco, was in the backseat
of the car. On Sprague Street, they passed Steele and Brown, who
were walking to the gas station from Brown's house to buy cigars.
When Brown and Steele reached the gas station, defendant's
vehicle was there. Brown and Steele entered the store and greetedKannegieser. Brown came outside and exchanged heated words with
defendant, hoping to provoke a fight. Although defendant exited
his vehicle, he and Brown were persuaded not to fight by Steele,
Kannegieser, and a bystander, Allen Gary. Steele and Brown walked
away from the gas station, cutting through the Food Lion Parking
lot toward Sprague Street.
Defendant was visibly upset and Kannegieser asked him if she
could drive. Defendant refused. Exiting the gas station onto
Thomasville Road, defendant told Kannegieser, I'm gonna get 'em.
Defendant turned into the driveway leading to the Food Lion parking
lot. Seeing Brown and Steele ahead of him in the driveway,
defendant gunned it and drove toward them at a speed of at least
forty miles per hour. Brown heard squealing tires and turned
around to see defendant's vehicle coming at him real fast. He
turned and ran back toward the gas station. Steele ran straight
into the approaching car. The collision knocked him out of his
shoes and brought him onto the hood of the car, shattering the
front windshield. Defendant turned the car to shake [Steele] off
the car before coming to a stop and fleeing from the scene on
foot. Kannegieser ran back to the party on East Devonshire Drive
and tried to find a ride out of town prior to being apprehended by
Winston-Salem Police Officer Kevin Bell (Officer Bell)
interviewed Brown and Kannegieser in the early morning hours after
the incident. Officer David Richardson, an expert in accident
reconstruction, examined the scene of the collision on 13 August2005, and found no evidence of braking or steering prior to
impact. He also determined that defendant's brakes and steering
mechanism were functioning properly.
Before leaving Winston-Salem for Tennessee, defendant went to
the Advance Auto Parts Store on Patterson Avenue and told an
employee, Stephanie Hernandez, that he was on the run from
police, because he hit someone with a car [o]ff of Waughtown.
When Hernandez asked defendant why he hit the person, he replied,
[b]ecause he was talking sh-t.
Defendant worked for several weeks in Tennessee and was
arrested in Winston-Salem by United States Marshals on 31 October
2005. Defendant gave statements to Winston-Salem Police Detective
Mike Rowe (Detective Rowe) on 31 October 2005 and 1 November
2005. Defendant told Detective Rowe that he had applied his brakes
prior to striking Steele, but could not explain the absence of skid
marks at the site of the collision. Defendant also acknowledged
telling Kannegieser, I'm gonna get 'em[,] and confirmed Detective
Rowe's suspicion that Brown was the one that [he] really wanted to
At trial, defendant testified that he did not intend to hit
Brown or Steele with his car. Defendant became upset when
Kannegieser had spoken to Brown, because he was mad at Brown over
the incident at Plantation Place Apartments. Defendant did not see
Brown and Steele leave the gas station and was unaware that they
had walked into the Food Lion parking lot. When he told
Kannegieser, I'm going to get them[,] he meant that he intendedto fight Brown and Steele if he saw them again. Defendant decided
to use the Food Lion parking lot as a shortcut to avoid the
stoplight on Sprague Street. Defendant was still angry when he
turned into the driveway and stepped on it as he saw Brown and
Steele walking ahead of him. Although he drove straight at Brown
and Steele, he was just trying to scare them and assumed that
they would jump out of his way. He fled after hitting Steele
because he was scared and testified he did not want to go to jail.
A jury found defendant to be guilty of the first-degree murder
of Steele and the attempted first-degree murder of Brown. After
arresting judgment on the attempted murder charge, the trial court
sentenced defendant to a term of life imprisonment without
possibility of parole. Defendant appeals.
Defendant argues the trial court erred by allowing the State
to present testimony of his alleged gang affiliation when the
evidence was irrelevant to any issue and the testimony prejudiced
III. Gang Affiliation
Defendant asserts that the trial court committed prejudicial
and plain error by allowing the State to adduce and present
evidence that he belonged to the La Banda Rubia 18 gang and wore
gang-related tattoos. Defendant contends that his gang tattoos
and markings had absolutely nothing to do with the charges and
had the unavoidable effect of prejudicing the jury against him[.] To the extent the trial court admitted the evidence of his
tattoos as proof of identity under Rule 404(b), defendant argues
that his identity as the driver of the Neon was not in question.
Defendant further avers that the evidence of his membership in a
Hispanic gang with a Spanish-language requirement[,] even if
minimally relevant, was unfairly prejudicial under Rule 403, in the
absence of any evidence linking the events of 12 August 2005 to
A. Failure to Object
In order to preserve an issue for appellate review, Rule
10(b)(1) of the North Carolina Rules of Appellate Procedure
requires a party to present a timely objection to the trial court
and obtain a ruling thereon. N.C.R. App. P. 10(b)(1) (2007).
Moreover, a party who fails to object to evidence when it is first
admitted waives objection to subsequent admissions of the same
evidence. State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256
(2000) (citing State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453,
459 (1989)), cert denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001).
B. Plain Error
Where a defendant fails to preserve an objection to the
admission of evidence pursuant to Appellate Rule 10(b)(1), we
review its admission only for plain error under Appellate Rule
10(c)(4). To meet the standard of plain error, the defendant must
show both a fundamental error by the trial court and a
reasonable probability that the error committed caused the jury
'to reach a different verdict than it would have reachedotherwise[.]' State v. Mason, 337 N.C. 165, 174, 446 S.E.2d 58,
63 (1994) (quoting State v. Walker, 316 N.C. 33, 40, 340 S.E.2d 80,
Defendant failed to object to Kannegieser's testimony that she
knew defendant because they hung out with the same gang called
Rubia 18[,] and that she had been a member of the gang for two
years since 2005. She also testified that defendant was already a
member at the time she joined. Kannegieser confirmed without
objection that Rubia 18 . . . [is] known as a Hispanic gang[,]
and offered the following description of defendant's tattoos:
Q. Did he have any tattoos or identifying
marks on him at the time that you knew
A. Yes, sir.
Q. Can you describe [them] for the jury,
A. He has rosary beads around his hand. I
think he had a tattoo on his arm that
said Rubia 18. He had a devil-angel
tattoo, I think. Another one. I'm not
sure. Different tattoos. He was a [sic]
The trial court sustained defendant's objection to the
admission of photographs of his tattoos for illustrative purposes.
Defendant also objected when the prosecutor asked Kannegieser
whether there were particular language requirements to become a
member of that gang[.] When the court overruled this objection,
Kannegieser affirmed that [e]veryone spoke Spanish. Yes. After releasing the jury for its evening recess, the court
heard additional arguments from counsel regarding the admissibility
of the photographs of defendant's tattoos and ruled as follows:
[T]he Court will find after looking at the
photographs, first of all, that [Kannegieser]
was given the opportunity to describe
[defendant's] and her membership in a gang for
purposes of motive, and the defense did not
object to that or a description of the tattoos
that would further indicate that membership.
The Court would find, however, that the
introduction of the actual photographs of the
tattoos would not meet the balancing test of
[Rule] 403 and would find they'd be more
prejudicial than probative on the issue of
identification or motive.
The trial court again sustained defendant's objection to the
Detective Rowe recounted his meeting with defendant after he
was apprehended by United States Marshals on 31 October 2005. Over
defendant's objection, Detective Rowe testified that defendant had
numerous tattoos and offered an accounting similar to that
provided by Kannegieser:
He had Ruiz name on his knuckles of his
hand. He had Rubia 18 on a tattoo on his
back, which . . . was related to a gang in
Winston-Salem. He had another tattoo on his
interior forearm that said angel and devil,
depending on which way you looked at the
He had some other dot-type tattoos on his
hands, which are typical of gang tattoos.
The trial court admitted Detective Rowe's testimony for purposes
of identification. Because defendant failed to object to Kannegieser's initial
testimony regarding his membership in the Hispanic gang or her
description of his gang-related tattoos, he waived his subsequent
objections to Detective Rowe's testimony on this subject. Hunt,
325 N.C. at 196, 381 S.E.2d at 459. Accordingly, review is limited
to plain error under Appellate Rule 10(c). N.C.R. App. P. 10(c)(4)
(2007); Davis, 353 N.C. at 19, 539 S.E.2d at 256.
To the extent defendant separately preserved an objection to
Kannegieser's testimony that the gang had a Spanish-language
requirement, we hold that any error in the admission of this
incidental detail was harmless under N.C. Gen. Stat. § 15A-1443(a).
State v. Hall, 134 N.C. App. 417, 423, 517 S.E.2d 907, 912 (1999),
appeal dismissed and disc. rev. denied, 351 N.C. 364, 542 S.E.2d
647 (2000), cert. denied, 531 U.S. 1085, 148 L. Ed. 2d 686 (2001).
In criminal cases, [e]very circumstance that is calculated to
throw any light upon the supposed crime is admissible. The weight
of such evidence is for the jury. State v. Parker, 354 N.C. 268,
288, 553 S.E.2d 885, 899 (2001) (quotations omitted), cert. denied,
535 U.S. 1114, 153 L. Ed. 2d 162 (2002); see also N.C. Gen. Stat.
§ 8C-1, Rule 401 (2005) (defining relevance as 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).
C. Rule 404(b)
Under Rule 404(b), evidence of a defendant's other crimes,
wrongs, or acts may not be admitted to prove his general characteror propensity to engage in certain conduct. However, such evidence
is admissible for other purposes, such as proof of motive, . . .
intent, . . . identity, or absence of . . . accident. N.C. Gen.
Stat. § 8C-1, Rule 404(b) (2005). Moreover, Rule 404(b) is a
'rule of inclusion' authorizing the admission of evidence of a
defendant's other acts unless 'its only probative value is to show
that the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged.' State v. Hoffman,
349 N.C. 167, 183, 505 S.E.2d 80, 90 (1998) (emphasis in original)
(quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54
(1990)), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999).
D. Rule 403
Rule 403 of the North Carolina Rules of Evidence provides that
otherwise admissible evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice. N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Whether to
exclude evidence under Rule 403 is a matter generally left to the
sound discretion of the trial court, which we leave undisturbed
unless the trial court's ruling is manifestly unsupported by reason
or is so arbitrary it could not have been the result of a reasoned
decision[.] State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74
(2002) (citations omitted), cert. denied, 537 U.S. 1133, 154 L. Ed.
2d 823 (2003).
E. Plain Error
We find no plain error here. In light of defendant's prior
involvement in past violence between Hispanic and African-Americanstudents at Glenn High School and later at the Plantation Place
Apartments, the evidence of his membership in a Hispanic gang was
admissible under Rule 404(b) for the purpose of establishing his
motive and intent in driving his car toward Brown and Steele on 12
August 2005. State v. Wynne, 329 N.C. 507, 515-16, 406 S.E.2d 812,
815-16 (1991); State v. Moose, 310 N.C. 482, 492-93, 313 S.E.2d
507, 514-15 (1984); see also State v. Mason, 337 N.C. 165, 175-76,
446 S.E.2d 58, 63-64 (1994) (allowing evidence of gang membership
as proof of retaliatory motive for killing).
This evidence was further admissible to prove the aggravating
factor charged in the two indictments: that defendant committed
his offenses against Brown and Steele because of their race.
Similarly, we find the evidence of defendant's tattoos probative of
his membership in the gang, as claimed by Kannegieser, as well as
defendant's conscious sense of an ethnic affiliation.
The State was required to prove beyond a reasonable doubt to
the jury that defendant was motivated by racial animus in order to
establish the aggravating factor alleged by the indictment. N.C.
Gen. Stat. § 15A-1340.16(a)-(a1) (2005). The essential elements of
first-degree murder and attempted murder required the State to
prove that defendant acted with premeditation, deliberation, and a
specific intent to kill. State v. Jones, 303 N.C. 500, 505, 279
S.E.2d 835, 838-39 (1981). Given the State's burden of proof, as
well as the other evidence of defendant's involvement in the race-
based fights at Glenn High School and Plantation Place Apartments,
we find no abuse of the trial court's discretion under Rule 403. We note that Detective Rowe's observation of defendant's tattoos on
31 October 2005 was probative of defendant's identity as the
perpetrator of Steele's murder, insofar as the tattoos matched the
description provided by Kannegieser. This assignment of error is
The trial court did not err in admitting the challenged
evidence. Defendant has failed to show any unobjected to and
unpreserved error constituted plain error under Appellate Rule
10(c)(4). Defendant received a fair trial free from the
prejudicial errors he preserved, assigned, and argued. We find no
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***