Opinion
No. 07-815.
Filed March 18, 2008.
Swain County No. 02CRS880, 02CRS50432.
Appeal by defendant from judgment entered 13 December 2006 by Judge Dennis J. Winner in Superior Court, Swain County. Heard in the Court of Appeals 19 February 2008.
Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State. Thomas R. Sallenger for defendant.
A motion to dismiss is properly denied where there is substantial evidence of each essential element of the offense charged and of defendant's being the perpetrator of the offense. Here, Defendant argues that the trial court erred by failing to dismiss the charges of solicitation to commit murder, misdemeanor stalking, and carrying a concealed weapon. Because the record contains substantial evidence of each element of the charges, we affirm the denial of his motions to dismiss.
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
At trial, the State's evidence tended to show that Defendant Hemant Borkar and Tabitha Zimmerman met when they started medical school at the University of North Carolina at Chapel Hill in the fall of 1998. Defendant and Ms. Zimmerman were assigned to the same lab group and became study partners, often meeting at coffee shops or Defendant's home to study. A few months into medical school, Defendant invited Ms. Zimmerman to his home to study, cooked her dinner, placed roses on the table, and lit candles, giving Ms. Zimmerman the impression that Defendant was interested in her. Ms. Zimmerman became uncomfortable and testified that their friendship changed after that dinner.
Throughout their first two years of medical school, Ms. Zimmerman had a number of troubling interactions with Defendant. In the spring of 1999, Defendant was standing in the doorway of a lecture hall, and Ms. Zimmerman told Defendant to move. Defendant moved, but later told Ms. Zimmerman "[d]on't ever insult me like that in public again." During the fall of 1999, Defendant became angry at Ms. Zimmerman and they had an "altercation" when she took the seat he was planning to sit in. Also in the fall of 1999, Defendant attempted to give Ms. Zimmerman a bracelet and when she refused, he grabbed her waist and would not let go. In May 2000, Defendant and Ms. Zimmerman met to exchange books. During the exchange, Ms. Zimmerman grabbed his book bag to take the books back, and he responded by showing her his fist.
In the summer of 2000, Defendant told Ms. Zimmerman that he was able to access the school's computer system, and Ms. Zimmerman reported that information to the dean of student affairs, Dr. Georgette Dent. In November 2000, during their clinical rotations, Defendant approached Ms. Zimmerman and said, "You're such a goddam[sic] bitch." Ms. Zimmerman reported both the name-calling and fist-shaking incidents to Dr. Dent. The school then ensured that Defendant and Ms. Zimmerman were not in the same clinical rotations.
In early May 2002, after receiving the necessary permits, Defendant purchased three guns, a .357 magnum Taurus pistol revolver, a .45 caliber Taurus semi-automatic pistol, and a 12 gauge shotgun. After her last rotation in spring of 2002, Ms. Zimmerman returned to her parents' home in Bryson City, North Carolina.
On 10-13 May 2002, Defendant traveled to Bryson City, where he drove around town, spent the night in his Jeep on the Blue Ridge Parkway, hiked on the Smoky Mountain National Park trails, and had his windshield fixed after finding it cracked. Defendant returned to Bryson City on 29 May 2002 with directions to the Zimmerman residence. Defendant again went to Smoky Mountain National Park, but parked his Jeep at a church on Fontana Road, 300 yards from the Zimmerman residence. On 30 May, Defendant checked into a Bryson City motel and spent the day hiking and bird watching with his new binoculars. On 31 May, Defendant checked out of his hotel, checked his email at the library, and parked in the church parking lot off of Fontana Road, planning to go to the park. While in the parking lot, Defendant used his binoculars to view a moving van that was parked on Fontana Road. Thinking that the name on the van sounded like the last name of a classmate, he wrote down the name of the moving company and proceeded to the park. When he returned from his hike, Defendant again used his binoculars to view the moving van, and recognized one of the cars parked at the home as Ms. Zimmerman's. Defendant walked closer to the home and wrote down a description and tag numbers of all the cars parked there. Defendant then went back downtown to the library to check his email. While in the library, he saw Ms. Zimmerman. Defendant quickly got up, left the library, and drove back to Chapel Hill. Ms. Zimmerman called the Bryson City Police and the Swain County Sheriff's Department to report seeing Defendant. Additionally, a neighbor of the church where Defendant had parked had previously called the Sheriff's Department to report seeing a Jeep in the parking lot. When a deputy came to the church and saw a shotgun box through the window, he put out a "BOLO" alert containing a description of the Jeep and a photo of Defendant.
On 7 June 2000, Defendant returned to Bryson City. Officer David Southers noticed Defendant approximately three-quarters of a mile from the Zimmerman home and followed him. When Officer Southers stopped Defendant, Defendant told him that he had weapons in his vehicle. Defendant was then arrested for carrying a concealed weapon and misdemeanor stalking. Officers found the back seat of Defendant's vehicle folded down and found a shotgun directly behind and under the driver's seat on the floorboard. Officer Southers testified that "you could reach back and get [the shotgun]." Additionally, officers found a loaded .45 Taurus revolver, a loaded .357 Taurus revolver, and several boxes of ammunition for each weapon. Officers also found several documents in the vehicle, including a photograph of Ms. Zimmerman from the University of North Carolina at Chapel Hill website and Mapquest directions from Chapel Hill, North Carolina, to Fontana Road, Bryson City, the road on which the Zimmerman family lived.
After his arrest, Defendant was placed in the Swain County jail where he shared a cell with Joseph Barron. At trial, Mr. Barron admitted to receiving medical treatment for panic attacks, having past alcohol problems and a criminal record, and being incarcerated in Georgia at the time of his trial testimony. While sharing a cell, Mr. Barron asked Defendant about his charges and told Defendant that he was a patient of Ms. Zimmerman's father, Dr. Zimmerman. Mr. Barron testified that Defendant told him of his plans to kill Ms. Zimmerman and when Mr. Barron offered to kill her for Defendant, Defendant offered him $10,000. Before he left, Mr. Barron gave Defendant his address in Georgia and his email address. After Mr. Barron was released, he told Dr. Zimmerman and the Swain County Sheriff's Office that Defendant offered him $10,000 to kill Ms. Zimmerman and the rest of her family. On 14 June 2002, Defendant was arrested for solicitation to commit murder.
At trial, the jury found Defendant guilty of solicitation to commit murder, carrying a concealed weapon, and stalking. The trial court sentenced Defendant to a minimum of 72 months' and a maximum of 96 months' imprisonment.
On appeal, Defendant argues the trial court erred by (I) denying his motions to dismiss the charges of solicitation to commit murder, misdemeanor stalking, and carrying a concealed weapon, and (II) refusing to allow Mr. Barron's military and medical records into evidence.
I.
Defendant argues that the trial court erred by denying his motions to dismiss the charges of solicitation to commit murder, misdemeanor stalking, and carrying a concealed weapon, on the grounds that the evidence was insufficient to establish every element of the offenses. We disagree.
In reviewing a motion to dismiss in a criminal action, it is well established that
the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. . . . In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Defendant first argues that the trial court erred by denying his motion to dismiss the charge of solicitation to commit murder. Because solicitation is a specific intent crime, the State must prove that: (1) the defendant intended that the person he solicited murder the victim and (2) the defendant counseled, enticed, or induced another to murder the victim. State v. Furr, 292 N.C. 711, 720, 235 S.E.2d 193, 199, cert. denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977).
In this case, the State's primary source of evidence of Defendant's solicitation was the testimony of Mr. Barron, Defendant's cellmate for approximately a week and a half at the Swain County jail. Mr. Barron testified that Defendant told him about his history with Ms. Zimmerman and that he had been watching the Zimmerman house and was going to kill Ms. Zimmerman. Mr. Barron stated that Defendant told him if he couldn't kill Ms. Zimmerman, he would hire someone else to do it. Mr. Barron testified that he then told Defendant he would kill Ms. Zimmerman, and Defendant offered him $10,000 to do so. Mr. Barron also stated that he gave Defendant his postal and email addresses.
Although Mr. Barron admitted to receiving medical treatment for panic attacks, having past alcohol problems, having a criminal record, and being incarcerated in Georgia at the time of his trial testimony, any contradictions and discrepancies in the evidence were for the jury to resolve. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. Mr. Barron's testimony regarding Defendant's offer to pay him $10,000 to kill Ms. Zimmerman was substantial evidence that Defendant intended to kill her and attempted to induce Mr. Barron to commit the murder. Considering the evidence in the light most favorable to the State, we cannot conclude that the trial court erred by denying Defendant's motion to dismiss the charge of solicitation to commit murder. Defendant also argues the trial court erred by denying his motion to dismiss the charge of misdemeanor stalking. Pursuant to our General Statutes, a person commits the offense of stalking
if the person willfully on more than one occasion follows or is in the presence of, or otherwise harasses, another person without legal purpose and with the intent to do any of the following:
(1) Place that person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.
(2) Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment, and that in fact causes that person substantial emotional distress.
N.C. Gen. Stat. § 14-277.3 (2005).
Here, the State presented evidence that Defendant was in Bryson City on three different occasions in May and June 2002. Defendant was in Bryson City on 10-13 May, 26-31 May, and 7 June. After his first visit to Bryson City, Defendant testified that he "made it a point" to tell Ms. Zimmerman at their graduation that he had been to Bryson City. Defendant also testified that he used the Internet to obtain directions to the Zimmerman household because "if I was going to come to Bryson City or this area, then I wanted to find out where she lived." Additionally, Defendant testified that on 29 May, he was looking for the Zimmerman house and saw the Zimmerman mailbox, which is how he knew where they lived.
Defendant argues that there was insufficient evidence of his intent to cause Ms. Zimmerman emotional distress because since he did not attempt to contact or speak with her, she could not have known about his actions. However, Defendant admitted at trial that he "made it a point" to tell Ms. Zimmerman that he had visited Bryson City when he saw her at their graduation on 19 May. Additionally, Defendant placed himself in situations where Ms. Zimmerman could have easily seen him. Defendant testified that he stood in front of the Zimmerman house on 31 May, and stayed for ten to fifteen minutes "writing down the information of the vehicles that were present in their front yard." Although Defendant testified that his encounter with Ms. Zimmerman at the library was unplanned, the jury could reasonably conclude that he intended for Ms. Zimmerman to see him and to cause her distress.
Considering the evidence in the light most favorable to the State, we cannot conclude that the trial court erred by denying Defendant's motion to dismiss the charge of misdemeanor stalking.
Finally, Defendant argues the trial court erred by denying his motion to dismiss the charge of carrying a concealed weapon. To obtain a conviction for carrying a concealed weapon, the State must prove: (1) the defendant carried a deadly weapon, (2) the weapon was concealed about his person, meaning that he had ready access to it, and (3) the defendant acted willfully and intentionally in carrying and concealing the weapon. N.C. Gen. Stat. § 14-269 (2005); State v. Gainey, 273 N.C. 620, 622, 160 S.E.2d 685, 686 (1968).
Defendant argues that the State did not prove that the weapon was concealed about his person. We disagree. The State presented testimony from Officer Southers and Officer Tony Sutton, two of the officers who assisted with Defendant's arrest and the search of his vehicle. Regarding the concealment of the weapons, Officer Sutton testified that both the shotgun and pistol were not visible through the privacy glass of the vehicle. Additionally, one of the handguns was found in a bag and the other handgun was found in a closed box.
Regarding the location of the weapons in Defendant's vehicle, Officer Southers testified that "[d]irectly behind the driver under that seat . . . there was a right pump twelve gauge shotgun . . . [lying] across the back floorboard." Although Officer Southers could not specify the direction the shotgun barrel was pointing, he stated that from the driver's seat, "you could reach back and get it." Officer Southers also testified that he found a handgun behind the driver's seat in a bag. When asked if a person sitting in the driver's seat could reach the handgun, Officer Southers stated, "[i]t might be possible, but it would be pretty tough." Officer Sutton agreed that the shotgun could be "gotten out" from the driver's seat. Additionally, Officer Sutton testified that he found a loaded .357 magnum Taurus pistol revolver, with the safety off, in a closed box on the passenger side of the car. Officer Sutton stated that if he were in the driver's seat, he would have reached for the .357 magnum Taurus pistol over the shotgun because "[i]t was loaded and easier to get to."
Although Defendant insists that the guns could not be reached from the driver's seat of his vehicle, the testimony of Officers Southers and Sutton provides substantial evidence that Defendant had ready access to the .357 magnum Taurus pistol and the shotgun from the driver's seat. Accordingly, we cannot conclude that the trial court erred by denying Defendant's motion to dismiss the charge of carrying a concealed weapon.
II.
Defendant also argues that the trial court erred by refusing to admit Mr. Barron's military and medical records. We disagree.
In his brief, Defendant argues that the failure to admit the Navy record and medical record deprived him of various rights, including his ability to present evidence pursuant to Rules of Evidence 401, 404, 405, and 608. However, to preserve a question for appellate review, "a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(b)(1). "[W]here a theory argued on appeal was not raised before the trial court, `the law does not permit parties to swap horses between courts in order to get a better mount. . . .'" State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (citing Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)), cert. denied, 350 N.C. 848, 539 S.E.2d 647 (1999).
In this case, defense counsel attempted to impeach Mr. Barron with a record from the Department of the Navy and argued that it should be admitted as extrinsic evidence under Rule 403. Defense counsel also made a motion to admit Mr. Barron's mental health medical record, but did not provide any specific rule under which the medical record was admissible. Because defense counsel raised only Rule 403 as the basis for admissibility of the Navy record and did not provide any specific grounds to admit the medical record, Defendant cannot argue for the first time on appeal new grounds for admissibility that he did not present to the trial court. Id. at 195, 473 S.E.2d at 6.
Under common law, a witness's credibility may be impeached on cross-examination by questioning him about evidence that appears to be inconsistent with his testimony. State v. Kimble, 140 N.C. App. 153, 167, 535 S.E.2d 882, 891 (2000). However, contradiction of collateral facts by extrinsic evidence is not permitted. Id. Although it is often unclear which matters are "collateral" and which are "material," collateral matters are "those which are irrelevant to the issues in the case; they involve immaterial matters and irrelevant facts inquired about to test observation and memory." State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994).
Under Rule 402 of our Rules of Evidence, evidence must be relevant to be admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Rule 401 defines relevant evidence as "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. . . ." Id., Rule 401. Rule 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Id., Rule 403. Whether evidence should be excluded as unduly prejudicial or confusing rests within the sound discretion of the trial court. Madden v. Carolina Door Controls, Inc., 117 N.C. App. 56, 62, 449 S.E.2d 769, 773 (1994) (internal quotation omitted). The trial court's ruling may only be reversed for an abuse of discretion that is so arbitrary, it could not have been the result of a reasoned decision. Id.
At trial, Mr. Barron testified that he was in the Navy and participated in the Gulf War in 1992. Defense counsel attempted to impeach Mr. Barron with a record from the Department of the Navy stating that it had "no records of any service in the U.S. Navy or Navy Reserve for Joseph Alan Barron." Defense counsel argued the Navy record should be admitted for impeachment purposes under Rule 403 to show not only that Mr. Barron was untruthful and not credible, but also to show "his [in]ability to separate fantasy from reality." However, the trial court found the Navy record inadmissible because it was extrinsic evidence being used to prove a collateral matter and because it was irrelevant due to the remoteness in time.
Mr. Barron's Navy record was a collateral matter because it was an immaterial matter "inquired about to test observation and memory." Najewicz, 112 N.C. at 289, 436 S.E.2d at 138. As a collateral matter, Mr. Barron's statements could not be contradicted with extrinsic evidence. Kimble, 140 N.C. App. at 167, 535 S.E.2d at 891. Therefore, the trial court correctly limited the State to only asking Mr. Barron whether he was in the Navy. Accordingly, we find no error.
At trial, defense counsel also made a motion to admit into evidence Mr. Barron's mental health medical record from 2001, which contained information regarding the services provided to him and his diagnosis. The trial court found the medical record inadmissible under Rules 401 and 403 because it did not have "any real probative value for either side and there is a chance of it being confusing and prejudicial."
Although the primary purpose of impeachment is to reduce or discount the credibility of a witness, and any circumstance tending to show a defect in the witness's perception, memory, narration, or veracity is relevant to that purpose, State v. Looney, 294 N.C. 1, 15, 240 S.E.2d 612, 620 (1978), whether evidence should be excluded as unduly prejudicial or confusing rests within the sound discretion of the trial court. Madden, 117 N.C. App. at 62, 449 S.E.2d at, 773. After reviewing the medical record, the trial court noted that the record "could easily be misinterpreted by anybody, including me," and "[i]t's hard to tell what they mean in just reading the flat record." Because the trial court did not admit the medical record due to possible confusion, we cannot conclude that the trial court abused its discretion. Accordingly, we find no error.
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).