Opinion
No. COA10-1490
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgment entered 29 July 2010 by Judge William R. Pittman in Vance County Superior Court. Heard in the Court of Appeals 25 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Daniel D. Addison, for the State. J. Clark Fischer for defendant-appellant.
Vance County No. 08 CRS 54898.
Defendant Garland Dunston appeals from a judgment entered 29 July 2010 after a jury found him guilty of assault with a deadly weapon inflicting serious injury. After careful review, we find no error.
Background
The State's evidence at trial tended to establish that on 27 November 2008 defendant attended a dinner at the home of Doria Day in Vance County, North Carolina. The victim, Eldon Harris, was also present with his girlfriend, Shantel Holder, and two of his children. Harris and defendant had known each other since high school and defendant was dating Harris' ex-wife.
At trial, Harris stated that Day was his cousin and he was attending the dinner at her home in order to see his family members, including his grandmother. Harris testified that defendant was already present when he arrived. Defendant told Harris that he should not be there and insinuated that he was going to start an altercation. Harris' mother, Annie McLaughlin, saw defendant and Harris "pass[] a few words." McLaughlin then asked defendant to leave the house since it was a "private family dinner." Defendant then left the house and Harris left approximately 15 minutes later carrying his young son in a baby carrier. Harris testified that before he reached his car he saw defendant standing across the street with another man. Defendant quickly approached Harris and hit him in the mouth, forcing Harris to drop the baby carrier to the ground. Defendant then cut Harris' throat with a box cutter and bit Harris' face above the eye when Harris attempted to "grab" defendant. Defendant told Harris: "`You going to die today.'" Harris collapsed on the ground and was immediately taken to the hospital by his mother. Harris stated at trial that he was unarmed at the time of the affray.
McLaughlin testified that she saw defendant cut Harris' throat, but she did not see a weapon in Harris' hand. She then ran over to defendant and began "beating [defendant] on his back." According to McLaughlin, defendant stated: "`I told you I was going to kill you, you punk bitch.'"
Officer Craig Steelman of the Henderson Police Department testified that he investigated the scene and was given a bloodstained box cutter by an unidentified individual. Officer Steelman also interviewed defendant who told him that he had a verbal altercation with Harris and that Harris followed him out of the house and hit him in the head with a pistol. Officer Steelman did not see an injury on defendant's head, but stated that defendant's shirt was stained with blood.
Sherod Evans ("Sherod") testified on behalf of defendant at trial and stated that when Harris encountered defendant at Day's house Harris "just went off" and his mother asked him to leave. Defendant responded that he would leave instead of Harris. Defendant then left and McLaughlin told Harris to wait 15 minutes before leaving. Melvin Evans ("Melvin"), Sherod's uncle, volunteered to walk Harris out. Melvin testified that when they exited the house, they encountered defendant. Harris and defendant "had words" and Melvin then took the baby Harris was carrying and went back into the house. He did not see the altercation between Harris and defendant.
Defendant was ultimately charged with assault with a deadly weapon inflicting serious injury and assault with a deadly weapon with intent to kill inflicting serious injury. The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to 38 to 55 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court erred in admitting the testimony of defendant's ex-girlfriend, Kenya Williams, because this evidence violated Rules 404(b) and 403 of the North Carolina Rules of Evidence. We disagree.
The trial court allowed the State to present Williams' testimony in order to establish defendant's motive, intent, state of mind, knowledge, and absence of mistake or accident.
Rule 404(b) provides that evidence of "other crimes, wrongs, or acts" is not admissible "to prove the character of a person in order to show that he acted in conformity therewith[;]" however, such evidence is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009).
Rule 404(b) is "a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if 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. Locklear, 363 N.C. 438, 447, 681 S.E.2d 293, 301-02 (2009) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). "[T]he use of evidence under Rule 404(b) is guided by two constraints: similarity and temporal proximity." State v. Bowman, 188 N.C. App. 635, 640, 656 S.E.2d 638, 644 (2008) (citation and quotation marks omitted).
A prior act or crime is sufficiently similar to warrant admissibility under Rule 404(b) if there are some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes. It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre. However, the similarities must tend to support a reasonable inference that the same person committed both the earlier and later acts.
State v. Sokolowski, 351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999) (internal citations and quotation marks omitted).
Williams testified that in January 2000, she planned to go shopping with a male co-worker, Connell Dortch. Williams stated that defendant was "jealous." When Dortch came to Williams' apartment to pick her up, defendant was also present and carrying a gun. After a brief interaction with Williams and defendant, Dortch ran from the apartment. Defendant then shot Williams in the stomach and in the leg.
Defendant argues that Williams' testimony was improperly introduced to show that defendant had a propensity to commit violent acts. We disagree and hold that Williams' testimony was properly admitted to establish a motive for the alleged attack on Harris. State v. Stager, 329 N.C. 278, 306-07, 406 S.E.2d 876, 892 (1991) ("[T]he State may . . . introduce [other crimes] evidence if it is relevant to establish a pattern of behavior on the part of the defendant tending to show that the defendant acted pursuant to a particular motive.").
There was very little evidence in this case to establish why defendant cut Harris' throat. The jury could infer that defendant harbored ill feelings and jealousy due to the fact that Harris used to be married to defendant's girlfriend. See State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990) ("`Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if . . . necessary to complete the story of the crime for the jury.'" (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985))). We hold that Williams' testimony supports jealousy as a motive for defendant's use of violence against Harris.
In State v. Lloyd, 354 N.C. 76, 89-90, 552 S.E.2d 596, 609 (2001) our Supreme Court held that evidence that the defendant previously shot a man who was romantically involved with the defendant's ex-girlfriend was admissible to show defendant's motive for shooting his current girlfriend who was living with another man. The Court held that the evidence showed that the defendant's motive for harming his girlfriend was jealousy. Id. at 90, 552 S.E.2d at 609. As in Lloyd, the jury in the present case could have determined that defendant attacked Harris out of jealousy because Harris used to be married to the woman with whom defendant was romantically involved.
Defendant points out that he was accused of shooting his girlfriend in 2000 and that the present case pertains to harming a man who was previously in a relationship with his girlfriend. We are not persuaded that this distinction makes the two acts dissimilar such that the prior act is rendered inadmissible. The defendant in Lloyd was similarly accused of attacking individuals with whom he had different relationships, one being a man involved with defendant's girlfriend and the other being a girlfriend who was involved with another man. The motive for attacking those individuals was the same. Furthermore, the crimes presented in order to show motive do not have to be exactly the same as the crime charged in order to be admissible. See State v. Curmon, 171 N.C. App. 697, 706, 615 S.E.2d 417, 424 (2005) ("While these were not the precise type of crimes for which defendant was charged, it shows an alarming trend of defendant's escalating acts of violence towards the couple due to his jealousy over their relationship.").
With regard to temporal proximity, the prior bad act occurred approximately eight years prior to the attack on Harris. It has been held that "[r]emoteness in time is less significant when the prior conduct is used to show . . . motive[.]" Id. at 706, 615 S.E.2d at 424. "Remoteness in time generally affects only the weight to be given such evidence, not its admissibility." Lloyd 354 N.C. at 91, 552 S.E.2d at 610. Moreover, "[c]ertain occurrences, such as imprisonment, may toll the length of time for remoteness purposes, if the defendant has been involuntarily prevented from continuing to engage in the relevant conduct." State v. Gray, ___ N.C. App. ___, ___, 709 S.E.2d 477, 488 (2011). Here, the trial court found as fact that the attack on Harris occurred about a year and a half after defendant was released from prison where he was incarcerated for shooting Williams. We hold that while eight years presents a significant gap in time between the two acts, taken in context, it was not so remote as to render Williams' testimony inadmissible. In sum, we hold that Williams' testimony was admissible pursuant to Rule 404(b) as it provided evidence of defendant's motive for attacking Harris on 27 November 2008.
We note that the trial court determined that Williams' testimony was admissible for other purposes in accord with Rule 404(b); however, having held that the evidence related to defendant's motive, we need not address whether the evidence was admissible for these other purposes. See State v. Haskins, 104 N.C. App. 675, 683, 411 S.E.2d 376, 383 (1991) ("Although it is error to admit other crimes evidence for a purpose not supported in the evidence, the error cannot prejudice defendant when the same other crimes evidence is admitted for a purpose which is supported in the evidence."), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992).
Defendant argues that even if the evidence was admissible pursuant to Rule 404(b), it should have been excluded because it was unduly prejudicial. Rule 403 provides that relevant 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). "Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and its ruling may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996). "Necessarily, evidence which is probative in the State's case will have a prejudicial effect on the defendant; the question is one of degree." State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994). In Curmon, this Court held that the trial court did not abuse its discretion in admitting evidence of defendant's prior crimes and "the trial court guarded against the possibility of prejudice by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan." Curmon 171 N.C. App. at 706, 615 S.E.2d at 424. The trial court in this case gave similar instructions prior to Williams' testimony. Upon review of Williams' testimony, we hold that the trial court did not abuse its discretion in admitting the testimony as it is not unduly prejudicial.
No Error.
Judges STROUD and HUNTER, Robert, N. concur.
Report per Rule 30(e).