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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-588

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

STATE OF NORTH CAROLINA

    v.                        Forsyth County
                            Nos.    05 CRS 060185
JESUS ARMANDO ANDRADE                06 CRS 1348

    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.

    TYSON, Judge.

    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.

I. Background

    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” between them.
    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 police.
    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 go after.”
    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.
II. Issue

    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 the jury.
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 gang activity.
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, 84 (1986)).
    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 him?

        A.    Yes, sir.

        Q.    Can you describe [them] for the jury, please?

        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] artist.

    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 photographs.
    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 tattoo.

        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 overruled.
IV. Conclusion

    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 error.
    No Error.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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