Opinion
No. COA08-1342.
Filed June 16, 2009.
Guilford County No. 07 CRS 95428.
Appeal by defendant from judgment entered 13 June 2008 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 8 June 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Kathryn Jones Cooper, for the State. Leslie C. Rawls, for defendant-appellant.
John Henry Morgan ("defendant") appeals from judgment entered upon his conviction for assault with a deadly weapon inflicting serious injury and contends that the trial court erred in allowing testimony of prior bad acts in violation of Rule 404(b) of the North Carolina Rules of Evidence. For the reasons set forth below, we hold no error.
On 3 March 2008, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. At trial, the State's evidence tended to show that on 20 July 2007, Arno Neuhold ("Neuhold") had parked his car in the back yard of the house of his former girlfriend, Carol Sexton ("Sexton") in Greensboro, North Carolina. Neuhold previously had lived at the house with Sexton, and knew defendant's wife, Jane Harrington Morgan ("Morgan"), who lived nearby. Morgan and defendant started dating while Neuhold lived with Sexton; Neuhold had seen defendant, but never had met him prior to 20 July 2007. Sexton was in the process of moving out of the house and was out of town on the night in question, but she allowed Neuhold to use the backyard to work on his car.
Neuhold worked on the car all day and into the evening until approximately 8:30 or 9:00 p.m. Since the house had no furniture, and because it was a hot night, Neuhold decided to sleep in his car with the windows rolled down. About an hour later, he heard defendant approach the car yelling and cursing. Defendant yelled to Neuhold, "Get out of here," "I don't want you around here," and "You need to leave." Neuhold tried to explain that his car would not drive, but defendant said he did not care, and told Neuhold that he would cut him. Neuhold rolled up the windows of his car to prevent defendant from reaching in, but defendant picked up a brick and threatened to break the windows. Because he did not want his windows broken, Neuhold rolled the window down again, and attempted to talk to defendant. Defendant then told Neuhold that he was going to find "the rustiest, dirtiest knife" he could, and went to the garage approximately twenty feet from Neuhold's car. Neuhold had hoped that defendant had gone away, but defendant came back a few minutes later with a "box-cutter" razor knife. Neuhold attempted to get out of the car, but each time Neuhold tried, defendant reached in with the knife and tried to cut him. The passenger side was against some trees, and Neuhold was unable to exit the car on that side.
While Neuhold was attempting to escape from the car, he heard Morgan, yelling at defendant. Her yelling temporarily distracted defendant, allowing Neuhold to get away. Neuhold thought that he would have only one chance to get out of the car, so he opened the door and tried to protect himself by holding his arm across his neck. Defendant cut Neuhold's arm as Neuhold got out of the car. Neuhold pushed the door against defendant and ran around the corner of the house. As he ran away, Neuhold noticed that he was bleeding badly from the cut. He heard Morgan say that she was going to call the police, and she yelled at defendant to leave Neuhold alone. Defendant staggered around the yard and said that he was going to "get" Neuhold.
Nehold ran around the house, and two neighbors who had heard the yelling came to his aid. The neighbors bandaged Neuhold's wounds and called 911 for an ambulance. When the ambulance arrived, Neuhold was taken to a hospital and treated.
The cut on Neuhold's wrist was approximately three inches long, and the tendons were almost completely severed. Neuhold gave a description of his assailant to a police officer, as well as defendant's address. Defendant subsequently was arrested at his home. In addition to identifying defendant as his attacker to police officers, Neuhold identified defendant at trial as the man who had assaulted and cut him. Also at trial, Morgan testified on defendant's behalf. She related that on 20 July 2007 she and defendant met each other at a local bar, Pepper's Den, at approximately 5:00 p.m. They stayed drinking and talking to friends until approximately 8:45 p.m. before heading home. Defendant and Morgan arrived home at approximately 9:00 p.m. Morgan testified that defendant was drunk and that he stumbled to the bedroom and laid down. She stated defendant did not go out of the house that evening. Sometime later, Morgan heard a knock on the door from police officers who asked to speak with defendant and search the house for weapons. Morgan testified that she and defendant did not fight while they were at Pepper's Den, nor did she yell that she would call the police at any point that night.
The State presented evidence in rebuttal through the testimony of Rebecca Barr ("Ms. Barr"), the owner and manager of Pepper's Den. She recalled that on 20 July 2007, defendant and Morgan were at Pepper's Den and that they got into an argument with each other.
Ms. Barr's son, Chad Barr ("Mr. Barr"), also testified, over defendant's objection, that he had attempted to break up the argument. Mr. Barr testified that (1) Morgan got upset and threw her ring at defendant while yelling and cursing at him; (2) defendant initially did not react to Morgan's actions; and (3) another bar patron remarked to defendant that Morgan was the best thing that ever happened to defendant. According to Mr. Barr, defendant became angry and tried to grab the bar patron. Mr. Barr then came around the bar to intervene. Mr. Barr grabbed defendant's arm and moved defendant towards the door. Defendant said to Mr. Barr, "I'll cut you, you son of a bitch." Defendant then reached into his pocket with his free arm, and Mr. Barr slammed defendant up against the wall. Defendant apologized and left. Mr. Barr did not see defendant pull anything out of his pocket.
After deliberating, the jury returned a verdict of guilty of assault with a deadly weapon inflicting serious injury, a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury. The trial court determined defendant to be a prior record level V offender and entered judgment sentencing defendant to a term of a minimum of fifty-three months and a maximum of seventy-three months imprisonment. Defendant appeals.
On appeal, defendant argues that the trial court erred in overruling defendant's objection and allowing the testimony of Mr. Barr regarding alleged assaultive conduct by defendant occurring prior to the incident giving rise to the charged offense. Defendant contends that the only purpose for the evidence was to show that he had the propensity to commit the offense charged. We disagree.
Rule 404(b) of the North Carolina Rules of Evidence provides:
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. It may, however, be 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) (2007). Rule 404(b) is a rule of inclusion rather than exclusion. See, e.g., State v. Agee, 326 N.C. 542, 549-50, 391 S.E.2d 171, 175 (1990). We previously have held that
[t]his rule 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. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397 (2000) (citing State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)), disc. rev. denied, 353 N.C. 396, 547 S.E.2d 427 (2001) (emphasis omitted).
Furthermore, our Supreme Court has explained that
[e]vidence, 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 linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174-75 (1990) ( quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).
The decision of a trial court to admit or exclude evidence of prior bad acts will not be overturned absent an abuse of discretion. State v. Carrilo, 149 N.C. App. 543, 550-51, 562 S.E.2d 47, 52 (2002) (citations omitted). Abuse of discretion may be shown where a trial court's ruling is "manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
Here, Mr. Barr's testimony was offered in rebuttal, and it served to impeach by contradicting Morgan's assertion that she and defendant did not fight while they were at Pepper's Den. Furthermore, Mr. Barr's testimony relating to defendant's conduct at the bar tends to show defendant's state of mind leading up to the incident giving rise to the charged offense. The evidence is part of the sequence of events of the evening, and its relevance is further indicated by the close proximity in time of the two events. See Agee, 326 N.C. at 548, 391 S.E.2d at 174-75. Therefore, we hold that the trial court did not abuse its discretion in admitting Mr. Barr's testimony. Defendant's assignment of error is overruled.
No error.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).