Opinion
No. COA11-62
Filed 6 September 2011 This case not for publication
Appeal by defendant from judgment entered on or about 23 August 2010 by Judge Wayland J. Sermons, Jr., in Superior Court, Wilson County. Heard in the Court of Appeals 29 August 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Newton G. Pritchett, Jr., for the State. Ryan McKaig, for defendant-appellant.
Wilson County No. 10CRS050520.
Genise Sampson ("defendant") appeals from a judgment consistent with jury verdicts finding her guilty of two counts of malicious conduct by a prisoner. For the following reasons, we find no error.
I. Background
On the night of 5 February 2010, several officers of the Wilson Police Department executed a search warrant of a house located at 136 Ash Street in Wilson, North Carolina. The officers knocked and announced their presence and when they did not receive an answer, broke through the back door which was barricaded. Defendant, who was inside, approached uniformed officer Rob Snider after he entered the house and struck him in the eye. Defendant was yelling profanities as the other officers entered the house.
Sergeant Marcum testified that, "[m]ost of us are familiar with Miss Sampson through our official duties[.]" He further testified that defendant, "was not the subject or suspect in the investigation." Shortly after this exchange, officers ordered defendant, "numerous times . . . just to go ahead and leave the area." Defendant eventually went out to the backyard, but continued to be confrontational with the officers. After defendant refused another instruction to leave, she was arrested by Sergeant Marcum for impeding a police investigation.
Officer Russell Causey transported defendant to the magistrate's office. While in the magistrate's office, defendant refused to stay seated and continued to speak profanely. The magistrate instructed Officer Causey to take defendant to jail. In the process of escorting defendant to the jail, defendant called Officer Causey "a bastard" and spat on his face.
Officer Causey immediately returned to the magistrate's office and informed Patrol Sergeant Kelly Lamm that defendant had spat on him. Sergeant Lamm observed spit on the right side of Officer Causey's face. Officer Causey then transferred custody of defendant to Sergeant Lamm, who took defendant to a holding area.
While in the holding area, defendant escaped from Sergeant Lamm's grasp and spat onto Sergeant Lamm's face and uniform; Officer Causey saw this incident.
Defendant testified at trial that she had been drinking on the night of 5 February 2010, but was not intoxicated. Defendant also denied spitting on any of the officers.
A jury found defendant guilty of two counts of malicious conduct by a prisoner. The trial court consolidated the offenses and sentenced defendant to 33 to 40 months imprisonment. Pursuant to the North Carolina Rules of Appellate Procedure 4(a)(1), defendant properly gave oral notice of appeal in open court on 23 August 2010.
II. Jury Instructions
Defendant first contends that the trial court erred in denying her request to instruct the jury on voluntary intoxication. Defendant asserts the crime she was charged with, malicious conduct by a prisoner, "is a specific intent crime, [and] voluntary intoxication is an affirmative defense to its commission." We disagree.
When reviewing jury instructions we have held that,
[w]e review jury instructions contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed. The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by the instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.
State v. Johnson, 193 N.C. App. 412, 417, 667 S.E.2d 313, 316 (2008) (citations and quotation marks omitted).
Our Supreme Court has held, "Although voluntary intoxication is no excuse for crime, where a specific intent is an essential element of the offense charged, the fact of intoxication may negate the existence of that intent." State v. Bunn, 283 N.C. 444, 458, 196 S.E.2d 777, 786 (1973) (citation omitted). Voluntary intoxication, however, provides no such defense against crimes necessitating only general intent: "In State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992), we held that intoxication does not negate a general intent. It was not necessary for the court to charge on intent or intoxication as a defense." State v. Jones, 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994), cert. denied, 515 U.S. 1169, 132 L.Ed. 2d 873 (1995). Here, "[t]he underlying offense in this case [malicious conduct by a prisoner] is a general intent crime." State v. Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905 (2003). Therefore, even if defendant's voluntary intoxication were established, the trial court was not required to charge on intoxication as a defense. Accordingly, the trial court properly denied defendant's request for a jury instruction on the defense of voluntary intoxication.
III. Prejudicial Error
Defendant next contends the trial court erred in overruling her objection to testimony that: (1) police officers were familiar with her through their official duties; and (2) she hit Officer Snider. Defendant contends this testimony had no relevance other than tending to show that she had a criminal history and was a person of bad character. She argues the testimony was not admissible under N.C. Gen. Stat. § 8C-1, Rule 404. We have held that, "The test for prejudicial error is whether a different result would have been reached if the error had not been committed. N.C.G.S. § 15A-1443(a) (1988)." State v. Black, 111 N.C. App. 284, 290, 432 S.E.2d 710, 715 (1993). We have further held that, "the proper standard of review for reviewing a trial court's decision to admit or exclude evidence is abuse of discretion." State v. Early, 194 N.C. App. 594, 599, 670 S.E.2d 594, 599 (2009) (citation omitted).
Rule 404(a) of the North Carolina Rules of Evidence provides that, "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]" N.C. Gen. Stat. § 8C-1, Rule 404(a) (2009). N.C. Gen. Stat. § 8C-1, Rule 404(b) states that, "[e]vidence 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." N.C. Gen. Stat. § 8C-1, Rule 404(b). Such evidence, however, may, "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." Id. Rule 404(b) is a rule of inclusion, "subject to but one exception requiring . . . exclusion [of such evidence] 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, 279, 389 S.E.2d 48, 54 (1990) (emphasis in original).
The North Carolina Supreme Court has held that evidence of a chain of circumstances is also admissible under Rule 404(b):
"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 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) (citation omitted). Agee further holds, "[s]uch evidence is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts." Id. at 547, 391 S.E.2d at 174 (quotation marks omitted).
Defendant first challenges Sergeant Marcum's following testimony on direct examination:
[THE STATE:] And did you — did she have any contact with you at that point when you made contact with her?
[SARGENT MARCUM:] She was in the residence being loud, just kind of rambling on, no direct contact. I did tell her on several occasions to settle down; we'd have her out of the way in a few minutes. As we proceeded to do our investigation the people that are not directly related to the investigation we tried to obtain their information and release them from the scene as soon as possible. That's basically what I was trying to explain to her but she was continuing to ramble on and just be loud not really listening to the officers telling her to settle down and that we'd have her on her way.
Q You said you wanted to obtain information from people not involved and let them go.
A That's correct.
Q Were you able to do that with Miss Sampson?
A Yes, we were. Most of us are familiar with Miss Sampson through our official duties becoming familiar with her.
[DEFENSE COUNSEL] Objection, Your Honor.
THE COURT: Overruled.
[SARGENT MARCUM:] And in that we already had an idea we're trying to confirm what her address and stuff was, made sure that she not [sic] have any illegal contraband on her and after doing so she was directed that she was free to leave the residence and to go ahead and depart the residence along with the other occupants that were not being held as part of the investigation.
Defendant also challenges the following testimony of Officer Snider:
[THE STATE:] Please explain for the jury what happened.
[OFFICER SNIDER:] When the door came open all the officers were continuing to give our loud voice commands and announce our presence that we were there for a search warrant and execute it. When the door came open I was the first officer in and immediately I was approached by a female right at the back door at close quarters and at that point it was when I realized that the female was Miss Sampson.
Q You said you were executing your duties. Were you dressed in your uniform?
A Yes, sir.
Q Was Sergeant Lamm also —
A Yes.
Q — in uniform.
So what happened when Miss Sampson came into contact with you?
A Immediately when I came in the back door I encountered Miss Sampson and noticed there were a lot of other subjects inside the residence also. Immediately coming in contact with Miss Sampson she swung her right hand and hit me across my left eye.
[DEFENSE COUNSEL:] Objection, Your Honor, that's not in the document. Can't charge her with that. Motion to strike.
THE COURT: Overruled.
[THE STATE:] Thank you, Your Honor.
BY [THE STATE:]
Q So she swung at you and hit you on your eye?
A Yes, sir.
Q What did you do at that point? How was she behaving?
A At that point I pushed her out of the way because there's at least five to six other subjects inside the residence and when we execute search warrants we want to try to get everybody — I mean subjects were running into other rooms, things like that.
They could have had weapons. I pushed her out of the way and proceeded on inside the residence.
Defendant argues that Sergeant Marcum's testimony, "created the inevitable inference that [she] is a lawbreaker who has been arrested by the police on numerous occasions." She further argues that Officer Snider's testimony, "only served to allege a bad act by [defendant] that was not charged and was irrelevant to the present case."
Here, the testimony of Sargent Marcum and Officer Snider served the purpose of establishing the chain of circumstances leading up to defendant's arrest for resisting, obstructing and delaying an investigation. The officers' testimony gives context to the circumstances surrounding defendant's subsequent behavior after being taken before the magistrate. Therefore, we hold that the trial court properly admitted this evidence in order to provide a complete picture for the jury.
Further, if we assume arguendo the testimony was improperly admitted, our standard of review becomes whether a reasonable possibility exists that the evidence, if excluded, would have altered the result of the trial: "The burden is on the appellant not only to show error but also to show that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial." State v. Galloway, 304 N.C. 485, 496, 284 S.E.2d 509, 516 (1981) (citations and quotation marks omitted). In light of Officer Causey's and Sergeant Lamm's testimony, we conclude defendant has failed to show that in the absence of this evidence, "a different result would have been reached at the trial." See id. Therefore, defendant's argument is unpersuasive.
NO ERROR.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).