Opinion
No. COA02-228
Filed 17 September 2002 This case not for publication
Appeal by defendant from judgments entered 22 August 2001 by Judge Clifton W. Everett, Jr. in Superior Court, Dare County. Heard in the Court of Appeals 26 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General Kevin L. Anderson, for the State. Alexy, Merrell, Wills Wills, L.L.P., by James R. Wills, III, for defendant-appellant.
Dare County No. 01-CRS-3061 01-CRS-3062.
Defendant appeals from judgments sentencing him to consecutive terms of thirty-four to fifty months on convictions by a jury of two counts of assault with a deadly weapon inflicting serious injury.
The State presented evidence tending to show that on 21 May 2001, Tommy Evans and Kim Evans were married but separated. Kim Evans was living with defendant in defendant's mobile home.
Tommy Evans testified that he saw defendant and Kim Evans at the house of a mutual friend on 21 May 2001. Defendant told Tommy Evans and Kim Evans to go to defendant's house and try to reconcile. They went to defendant's house and had sexual intercourse. After falling asleep, they were awakened by the sound of defendant returning home. Defendant went on a rampage, repeatedly striking Kim Evans with his fists and kicking her. Defendant hit Tommy Evans with his fists, a bar stool and a glass jug, cutting Tommy Evans' shoulder. Defendant then suddenly left. Tommy Evans picked up Kim Evans from the floor and the two of them walked to his residence, where his roommate called for emergency assistance. The two of them were taken by ambulance for medical treatment. Tommy Evans received sutures and staples to treat lacerations in his shoulder and back.
Kim Evans testified that she and defendant attended a party together that evening and that she decided to return home alone. Tommy Evans, against her wishes, followed her home and into the bedroom. They were in the bedroom when defendant returned home. Defendant found Tommy Evans in the bedroom with her and ordered Tommy Evans to leave the house. The two men engaged in a scuffle. During the scuffle she was accidentally struck by a bar stool. Defendant then left the residence. She and Tommy Evans walked to another house. The two of them were transported by ambulance for medical treatment. She received treatment for a lacerated forehead, a broken thumb, and a broken finger.
Corporal Mark Evans of the Kill Devil Hills Police Department testified that he returned a call from defendant on 21 May 2001. Defendant told him to get an ambulance to defendant's house because defendant had "caught Tommy in bed with Kim and . . . he had beat the F out of them and I needed to get an ambulance over there, that there was a lot of blood." Defendant also stated that he thought they might be dead.
Detective Gene R. Johnson, Jr. of the Kill Devil Hills Police Department testified that he reported to the Outer Banks Medical Center on 21 May 2001 and found Tommy Evans receiving treatment for heavy bleeding from a lacerated shoulder and Kim Evans receiving treatment for severe head injuries. Tommy Evans told him the following: Tommy Evans met defendant at a friend's house on 21 May 2001. Defendant encouraged Tommy Evans and Kim Evans to go to defendant's house and reconcile for the sake of their child. Tommy Evans and Kim Evans were in bed together when they heard defendant come into the house. Kim Evans jumped out of bed and met defendant in the hall outside the bedroom door. Defendant hit Kim Evans with his fist and then he punched Tommy Evans. Defendant grabbed Tommy Evans by the hair and pulled him into the hallway. Defendant swung a five gallon glass jug at Tommy Evans, striking him on the back and shoulder. The jug broke, lacerating Tommy Evans across the upper back and shoulder. After defendant left, Tommy Evans and Kim Evans walked to Tommy Evans' house and asked his roommate to call for help.
Detective Johnson also testified that defendant gave him a statement in which defendant indicated he returned home and saw Kim Evans coming down the hall naked and then he saw Tommy Evans. Defendant said he "got mad and lost it because they had been f-ing in his bed." Defendant hit Tommy Evans and Kim Evans with his fists and hit Tommy Evans with a large bottle. Defendant stopped when he saw blood and realized that he might have killed them. Defendant then left and called 911.
Defendant testified that he did not give Tommy Evans permission to be in his house, nor did he tell Tommy Evans and Kim Evans to go to his house and reconcile. When defendant returned home that evening, Kim Evans met him and said she could not get Tommy Evans to leave the house. Defendant told Tommy Evans to leave and Tommy Evans "started giving [defendant] a lot of mouth and all." Defendant attempted to physically remove Tommy Evans from the house. The two of them struggled. Defendant grabbed a bar stool away from Tommy Evans and struck him with it, knocking him down onto some glass bottles. Defendant also accidentally struck Kim Evans with the bar stool. When he saw Tommy Evans get off the floor "with blood flying," he stopped fighting and decided to get help for them.
Defendant presents three assignments of error on appeal. He first argues the trial court erred by instructing the jury that the deadly weapons employed by defendant were his fist and the bar stool, when the indictment charged that the weapons were his fists and a large broken glass bottle.
Defendant did not object to the trial court's instructions or otherwise raise the issue at trial. In order to obtain appellate review of this issue, he must specifically and distinctly contend by assignment of error and argument in his brief that the alleged instructional error amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 906, 904 (1999); State v. Truesdale, 340 N.C. 229, 232-33, 456 S.E.2d 299, 301 (1995). Defendant has failed to do so. Defendant's first assignment of error is therefore dismissed.
Second, he contends the trial court erred by refusing his request for an instruction on self defense. He also contends the court erred by failing to submit an instruction on defense of habitation. Defendant did not request an instruction on defense of habitation at trial. Although defendant did request an instruction on self defense during the charge conference, he declined to object to the instructions given by the trial court or to request additional instructions when he was offered the opportunity by the court at the conclusion of the jury charge. By not objecting, defendant waived appellate review of the court's refusal to submit instructions. State v. Gay, 334 N.C. 467, 486, 434 S.E.2d 840, 851 (1993). Again, in order to overcome the waiver of appellate review, defendant must have assigned plain error to the trial court's failure to submit the instructions and argued in his brief that the court committed plain error. Nobles, 350 N.C. at 514-15, 515 S.E.2d at 904; Truesdale, 340 N.C. at 232-33, 456 S.E.2d at 301.
Even if we could consider the issue of the court's refusal to submit self defense to the jury, we conclude the trial court did not err. To be entitled to an instruction on self defense, there must be evidence that (1) the defendant was free from fault in bringing about the difficulty or affray and (2) it was necessary, or reasonably appeared to be necessary, for the defendant to kill or inflict serious bodily injury in order to protect himself from death or serious bodily injury. State v. Spaulding, 298 N.C. 149, 154, 257 S.E.2d 391, 394-95 (1979). To be free from fault, the defendant must not have precipitated the fight by assaulting the victim or inciting in the victim the reaction leading to the fight. Id. at 154, 257 S.E.2d at 395. Defendant's own testimony shows that he initiated the confrontation and physical contact that resulted in the fight. There is no evidence that defendant believed that it was necessary, or that it reasonably appeared necessary, to inflict serious bodily injury upon Tommy Evans in order to protect himself from death or serious bodily injury.
By his third assignment of error, defendant contends the trial court erred by admitting hearsay testimony, offered for corroborative purposes, by the police officers concerning the statements made to them by Tommy Evans, Kim Evans and defendant. He argues that these statements should have been excluded because they contained additional matters not articulated during trial testimony.
Once again, defendant did not object to the admission of the evidence. He has not contended that the court committed plain error. Even if defendant had properly raised the issue, we conclude the court did not err. Information contained in a witness' prior statement but not referred to in the witness' trial testimony may still be admitted for corroborative purposes if it tends to add weight or credibility to the trial testimony. State v. Jennings, 333 N.C. 579, 602, 430 S.E.2d 188, 198, cert. denied, 510 U.S. 1028, 126 L.Ed.2d 602 (1993). Prior inconsistent statements may also be admitted to impeach the testimony at trial. State v. Riccard, 142 N.C. App. 298, 303, 542 S.E.2d 320, 323, cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001).
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).