Opinion
No. 05-86.
Filed 4 October 2005.
Forsyth County No. 04CRS051647.
Appeal by defendant from judgment entered 29 September 2004 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 19 September 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Iain M. Stauffer, for the State. M. Alexander Charns for defendant-appellant.
Curtis Alan Wright ("defendant") was found guilty of assault with a deadly weapon with intent to kill inflicting serious injury on 23 June 2004. He was sentenced to a minimum term of 145 months and a maximum term of 183 months. Within ten days after entry of judgment, he filed a motion for appropriate relief challenging the sentence imposed by the court. The trial court allowed the motion for appropriate relief and on 29 September 2004, imposed a new sentence of a minimum term of 116 months and a maximum term of 149 months. For the reasons stated herein, we find no error.
The evidence of the State tends to show that on 10 February 2004, defendant and his wife, Ebonie Richardson ("Ms. Richardson"), engaged in an argument about money that Ms. Richardson discovered was missing from a hiding place. Defendant admitted that he had taken the money and purchased crack cocaine with it. Angered by this revelation, Ms. Richardson grabbed items, such as gel and hair curlers, out of the bathroom cabinet and threw them at defendant. Some of the gel soiled a window and defendant told Ms. Richardson to clean it. As Ms. Richardson knelt down to clean the window, defendant came from behind her, lifted her chin, and held a steak knife to her throat. Ms. Richardson pushed the knife away and turned around to face defendant. Defendant stabbed Ms. Richardson in the stomach twice with the knife. Defendant refused Ms. Richardson's request to call 911 for help and unplugged the TTY device (both defendant and Ms. Richardson are hearing impaired) from their telephone. Defendant relented and called for help after Ms. Richardson promised to tell police that she inflicted the wounds on herself. Ms. Richardson underwent two emergency surgeries and spent one week in the hospital as a result of the assault.
Defendant did not present any evidence.
Defendant brings forward two assignments of error.
First, he contends that the court erred by admitting evidence of a prior assault committed by defendant on another woman with whom he shared a residence. The woman, Ms. Tara Eugenia Barnes, testified that on 22 December 1995 she confronted defendant about some money that was missing from a pocket of her pants. Defendant admitted that he had taken her money and purchased crack cocaine. He told her that she could find the money under his bed. She looked under the bed and as she turned around, defendant stabbed her in the rib cage and in the face with a steak knife. Defendant then placed a pillow over her face to suffocate her. She played dead and after he released the pillow, she jumped off the bed and ran into her bathroom. She pled for defendant to let her go. Defendant walked away from the door and she ran out to a neighbor's house to call the police. Defendant made no effort to treat her wounds or to contact emergency personnel.
Rule of Evidence 404(b) 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) (2003). Our Supreme Court has stated that 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. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis omitted). The list of purposes for which the evidence is admissible is not exclusive as long as the evidence is relevant to any fact or issue other than the defendant's propensity to commit the crime. State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2003).
The trial court in the case at bar admitted the evidence to show intent, motive and/or plan. "[E]vidence of prior crimes that tends to establish a particular mental state may be admitted into evidence." State v. Morgan, 359 N.C. 131, 159, 604 S.E.2d 886, 903 (2004). In the prior incident, defendant stabbed the victim after the victim confronted him about the disappearance of money belonging to the victim. After he confessed to taking the money and using it to purchase crack cocaine, he used a ruse to cause the victim to bend over. He approached the victim from behind and he stabbed her with a steak knife. He attempted to suffocate her with a pillow and he offered no medical assistance to her after committing the assault.
In the present case, defendant stabbed Ms. Richardson after she confronted him about the disappearance of money kept in a secret hiding place. He admitted that he had purchased crack cocaine with the money. He attacked Ms. Richardson from behind after he directed her to clean the gel from the window. Using a steak knife, he stabbed her in the mid section. He disconnected the TTY device so the victim could not call for emergency medical assistance.
The evidence in the prior case tended to show that defendant had a motive to kill, and attempted to kill, his female roommate. Evidence that defendant attempted to kill another person under remarkably similar circumstances has a tendency to make it more probable that he intended to kill Ms. Richardson. We hold the court properly admitted the evidence to show motive and intent.
By his remaining assignment of error, defendant contends the court improperly imposed a sentence in the aggravated range without any aggravating factors having been found by a jury. Assault with a deadly weapon with intent to kill inflicting serious injury is classified as a Class C felony. N.C. Gen. Stat. § 14-32(a) (2003). The presumptive range of minimum sentences for a Class C felony at defendant's prior record level of III is 93-116 months. N.C. Gen. Stat. § 15A-1340.17(c) (2003). Thus, the minimum term of 116 months imposed by the court is within the presumptive range. Consequently, the court was not required to make findings of aggravating factors even though the sentence was also at the lowest end of the aggravated range of sentences. See State v. Allah, N.C. App. ___, ___, 607 S.E.2d 311, 316-17 (2005). Since defendant's sentence is still within the presumptive range, this assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).