Opinion
No. 07-800.
Filed February 5, 2008.
Burke County, Nos. 06 CRS 4738, 06 CRS 4739.
Appeal by defendant from judgments entered on or about 15 February 2007 by Judge Dennis J. Winner in Superior Court, Burke County. Heard in the Court of Appeals 14 January 2008.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General Jane Hautin, for the State. Mary March W. Exum, for defendant-appellant.
On 3 July 2006, defendant Lee Allen Shuler was indicted for first degree burglary, robbery with a dangerous weapon, assault with a deadly weapon inflicting serious injury, first degree kidnapping, habitual misdemeanor assault, assault on a child under 12, and intimidating a witness. The case was tried 12 February 2007 through 14 February 2007 during the Criminal Session of Superior Court, Burke County.
The evidence presented at trial tended to show the following: On 18 June 2005, Sarena Garland was awakened by a knock on the door of her home at approximately 1:45 a.m. Garland opened the door to find the defendant, Lee Allen Shuler. Garland and Shuler were married, but had separated on 13 May 2003 and lived in separate residences. Garland and Shuler had two children, Michael and Leann. Michael was four and Leann was five on the date of trial. Upon Garland opening the door, defendant told her he wanted twenty dollars. Garland testified that she told him no and that he should "leave and stay away." Defendant argued with her, told her he needed the money, and eventually pulled out a baseball bat. Defendant told Garland if she refused to give him money, "that he was going to start on [her] car windows, come to [her] house windows, and if that didn't work he was coming in on [her]." Garland testified that she believed him and told him to wait so she could get the money and "give him $20 to get rid of him."
Garland walked into the kitchen to get the money. While she was in the kitchen, she heard Michael "scream at the top of his lungs[.]" Garland stated that she knew Michael was hurt and ran into the living room. Garland found Michael laying on the floor holding his leg and screaming. Defendant was standing nearby with a knife in his hand. Garland testified that defendant told her that "the next time he tells me to do something, I better do it right then. No hesitation." Michael then told Garland, "My daddy stabbed me." Garland took Michael to the bathroom and wrapped a towel around his leg. Then, Garland woke up Leann and put the children in the car to take them to the hospital. Defendant came up and told Garland she was not leaving without him, because she "was not going to take a warrant out on him. He was not going to jail on that." Garland drove defendant and the children to Frye Regional Hospital. In the emergency room, defendant did most of the talking. Defendant claimed that he was playing with Michael, and Michael had run into defendant's pocketknife. Garland did not contradict defendant or tell anybody that defendant had stabbed Michael. Doctors sutured Michael's wound and he was released at 3:30 a.m. After leaving the hospital, defendant reiterated to Garland that he did not want to go to jail and she "better not say anything or do anything to put him in jail for this." Garland explained at trial that she did not say anything because she was "frightened" of defendant because defendant had previously attacked her, causing bruising, knocking out her tooth and breaking her jaw. Upon arriving back at Garland's home, sometime before 4 a.m., defendant continued to warn Garland that she "better not take a warrant out on him." Garland repeatedly assured defendant "not to worry about it" and to "[j]ust forget about it and go on and everybody would be okay." Eventually, defendant left around 10:30 a.m.
Garland testified that once defendant had left, she called a friend of hers who was a magistrate. Based on that conversation, she called the district attorney on 20 June 2005. Garland was subpoenaed to testify regarding the matter on 9 May 2006 through 27 May 2006. On 19 May 2006, defendant called Garland on her cell phone and told her he was going to kill her. He stated that he was "going to come like a thief in the night." Garland saw defendant a day or two later in a Village Inn parking lot. Defendant warned her that she "better not testify against him." On another occasion, defendant approached Garland in the road near her friend's house and told her she "better drop the charges, not testify against him, and [she] had better not put him away for this." Finally, on 27 May 2006, Garland was at a gas station and defendant told her she "better F-ing drop it. I better not come to court and testify or he would kill me." Defendant also threatened to take Garland's children away from her.
Defendant was convicted of misdemeanor breaking or entering, assault with a deadly weapon, assault on a child under 12, false imprisonment, habitual misdemeanor assault, and intimidating a witness. The trial court arrested judgment on the two assault charges. The trial court sentenced defendant to consecutive terms of eleven to fourteen months imprisonment for the habitual misdemeanor assault and intimidating a witness convictions, followed by two consecutive terms of 120 days imprisonment for the breaking or entering and false imprisonment convictions. Defendant appeals.
Defendant first argues that the trial court erred by allowing a baseball bat, allegedly used by him to threaten Garland, to be admitted into evidence without any inquiry into its authenticity. We are not persuaded.
Our Supreme Court has stated that:
Before real evidence may be received into evidence, the party offering the evidence must first satisfy a two-pronged test. The item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change. Determining the standard of certainty required to show that the item offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court's sound discretion. A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered. Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility.
State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736 (internal citations and internal quotations omitted), cert. denied, 528 U.S. 941, 145 L.Ed. 2d 274 (1999).
Here, Garland testified that the bat offered into evidence at trial was the same bat defendant brought to her home. Garland further testified that defendant left it at her house and she put it in her closet. Garland kept the bat until she gave it to the assistant district attorney on 12 February 2007. There was no contention at trial that the bat had been altered or undergone any material change, nor was any reason given to question its authenticity. See id. Defendant's concerns regarding the span of time that the bat remained in Garland's custody goes only to the weight to be given to the evidence, and not its admissibility. See id. Accordingly, we conclude the trial court did not abuse its discretion by admitting the evidence.
Defendant next argues that the trial court erred by allowing Garland to testify regarding prior violent acts perpetrated by the defendant upon her, in violation of Rule of Evidence 404(b). Defendant contends that the sole purpose of the evidence was to "impugn [his] character . . . [and] show that he had a propensity for violence." We disagree.
The balance struck by the trial court regarding the admissibility of evidence will not be disturbed on appeal absent a clear showing the court abused its discretion by admitting, or excluding, the contested evidence. A trial court abuses its discretion when its decision lacks any basis in reason." City of Charlotte v. Ertel, 170 N.C. App. 346, 348, 612 S.E.2d 438, 441 (2005) (internal citation and quotations omitted). 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)(2005). Our Court has stated 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) (quoting 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). Here, Garland testified that on 29 March 2004, "[Defendant]attacked me. He bruised me up, knocked my tooth out and broke my jaw, and he did this in front of my children." Garland's testimony was admissible to explain her fear of the defendant and why she did not contradict his statements at the hospital. See State v. Jones, 342 N.C. 457, 463, 466 S.E.2d 696, 698 (1996) (determining testimony regarding prior assault committed by the defendant was admissible to explain why witness "was so afraid of [the defendant] that she waited three years" to report him for murder), cert denied, 518 U.S. 1010, 135 L.Ed. 2d 1058 (1996); State v. Bynum, 111 N.C. App. 845, 846-50, 433 S.E.2d 776, 780-81 (allowing testimony of prior incident where the defendant threatened victim with a knife was admissible to show victim's fear of the defendant and her hesitancy to report abuse), disc. rev. denied, 335 N.C. 239, 439 S.E.2d 153 (1993); State v. Barnes, 77 N.C. App. 212, 216, 334 S.E.2d 456, 458 (1985) (allowing testimony that victim was afraid of the defendant because he was "mean" was not elicited to show the bad character of the defendant, but to explain why the victim had not told her mother about a sexual assault), disc. rev. denied, 315 N.C. 392, 338 S.E.2d 881 (1986). Furthermore, we note that the trial court guarded against the possibility of unfair prejudice by instructing the jury to consider such evidence for the limited purposes of determining whether the alleged attack placed Garland in fear of the defendant. The trial court did not abuse its discretion in allowing Garland to testify about the prior abuse she had endured. Accordingly, we find no error.
No error.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e)