Opinion
No. COA10-1291
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgments entered 10 December 2009 by Judge Wayland J. Sermons, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 14 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State. Mark Montgomery, for defendant-appellant.
New Hanover County Nos. 07 CRS 62600-02, 07 CRS 62604, 07 CRS 62606.
Nicholas Lee Lofton ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of one count of robbery with a dangerous weapon, two counts of first degree kidnapping, one count of first degree burglary, two counts of assault on a child under 12, one count of malicious castration, two counts of first degree sexual offense, and one count of attempted first degree sexual offense. We find no error.
I. Background
In May 2006, Aahmad Carr ("Carr") was arrested in connection with drug-related offenses. While he was incarcerated, Carr called Miles Melvin ("Melvin") and requested that, inter alia, Melvin retrieve twenty thousand dollars in cash from Carr's automobile and deliver it to Carr's mother for his legal defense. Melvin retrieved the cash. However, he waited two months to deliver it to Carr's mother, spending half of the money on drugs, gambling, and living expenses in the interim. As a result, Carr's mother only received ten thousand dollars of Carr's money.
When Carr learned that Melvin had failed to deliver all of the money to his mother, he became upset. He discussed Melvin's theft with defendant, who was also in jail at that time. Fellow inmate Carl Scott ("Scott") overheard defendant tell Carr that he would go and see Melvin about the money after defendant was released from jail.
After his release, defendant confronted Melvin about Carr's money on multiple occasions. The final confrontation occurred on 4 October 2007, when defendant and Melvin were in a convenience store together. Defendant was wearing a black flight jacket, black jeans, and boots, and his hair was arranged in dreadlocks. He asked Melvin, "Why you still ain't taking care of [Carr]?" Melvin did not respond to defendant, but simply snickered and walked out of the store.
In the early morning hours of the following day, Melvin and his girlfriend, Joyce Elijah ("Ms. Elijah"), were awakened by a loud crashing sound. Three masked, armed men entered their home. One of the men was wearing a black flight jacket and his hair was in dreadlocks. The men placed duct tape over Melvin's eyes. They then began to assault Melvin and demanded that he tell them "where the money was at." Melvin was punched, kicked, burned with pliers on his neck, penis, and anus, and cut with a box cutter on his hands and feet. Ms. Elijah's clothing was removed, duct tape was placed over her eyes, and a gun was placed in her mouth and her vagina. Ms. Elijah was forced to perform fellatio on the men and on Melvin. Melvin's eleven-year-old daughter attempted to intervene, but she was forced back into her bedroom after being threatened with a knife. In the bedroom, one of the men placed duct tape over her eyes and the eyes of her nine-year-old sister. Eventually, the men tied Melvin and Ms. Elijah together and left the premises.
After Melvin worked himself free, he went to a neighbor's home and had the neighbor contact law enforcement. Melvin then drove his family to the hospital. At the hospital, Melvin was treated for a broken rib, lacerations to his hands and feet, and second degree burns on his neck, anus, and penis. Ms. Elijah was treated for a laceration to her vaginal canal and an injury to her cervix. When law enforcement arrived, both Melvin and Ms. Elijah identified defendant as one of their assailants and indicated specifically that they recognized defendant's voice.
Defendant was subsequently arrested and indicted for one count of robbery with a dangerous weapon, two counts of first degree kidnapping, one count of first degree burglary, two counts of assault on a child under twelve, one count of malicious castration, two counts of first degree sexual offense, and one count of attempted first degree sexual offense. Beginning 7 December 2009, defendant was tried by a jury in New Hanover County Superior Court.
Prior to trial, the State made a motion to allow the admission of evidence regarding defendant's prior incarceration with Carr. The trial court, over defendant's objection, granted the motion but specifically forbade the State from presenting any evidence regarding the reason defendant was incarcerated. During the trial, the State presented jail records which indicated that defendant and Carr were housed in the same section of the jail for approximately two months. In addition, Scott testified about the conversation he overheard between Carr and defendant while the three of them were incarcerated together.
On 10 December 2009, the jury returned verdicts finding defendant guilty of all charges. The trial court sentenced defendant to a total minimum term of 1008 months to a total maximum term of 1267 months in the North Carolina Department of Correction. Defendant appeals.
II. Evidence of Prior Incarceration
Defendant's sole argument on appeal is that the trial court erred by allowing the jury to hear evidence of defendant's prior incarceration. Specifically, defendant contends that the evidence of his prior incarceration was neither relevant under Rule 401 nor more relevant than prejudicial under Rule 403. We disagree.
Initially, we note that while defendant opposed the State's pretrial motion to present this evidence and objected at least once to the evidence at trial, he did not object to this evidence on every occasion. In particular, defendant did not object based upon either Rule 401 or Rule 403 when the county jail record relating to defendant's incarceration was introduced into evidence or when Scott testified that he was incarcerated with Carr and defendant. Thus, defendant has failed to preserve this issue for appellate review. See State v. Patterson, 194 N.C. App. 608, 615, 671 S.E.2d 357, 361 (2009)("Our Courts have long held that a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.") (internal quotations, brackets, and citation omitted); State v. Augustine, 359 N.C. 709, 720, 616 S.E.2d 515, 525 (2005)("It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.") (internal quotations, brackets, and citation omitted).
Defendant acknowledges that this error may not have been preserved at trial and in the alternative, he "specifically and distinctly contend[s]" that the admission of this evidence "amount[s] to plain error." N.C.R. App. P. 10(a)(4) (2010). Plain error is "a fundamental error so prejudicial that justice cannot have been done." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). "In order to prevail under a plain error analysis, defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result." State v. Smith, ___ N.C. App. ___, ___, 687 S.E.2d 525, 529 (2010) (internal quotations and citation omitted).
A. Relevance
Defendant first argues that evidence of his prior incarceration was not relevant. Relevant evidence is "evidence having 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 (2009). "We have interpreted Rule 401 broadly and have explained on a number of occasions that in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible." State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994). Evidence which is
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 (1990) (citation omitted).
In the instant case, the evidence regarding defendant's incarceration was necessary to complete the story of defendant's attack on Melvin and Ms. Elijah. The State had already presented evidence that Carr had been incarcerated more than a year prior to the attack, that he was still incarcerated through the time of trial, and that Melvin had stolen money from him while Carr was incarcerated. Later, the State presented evidence that defendant learned of Melvin's theft while he was incarcerated with Carr, and that defendant promised to do something about the theft after his release. Ultimately, the evidence that Carr told defendant of Melvin's theft while the two were incarcerated together was relevant to establish why defendant sought out Melvin several months after his release. Thus, the trial court did not violate Rule 401 by allowing the jury to hear evidence of defendant's prior incarceration. This argument is overruled.
B. Danger of Unfair Prejudice
Defendant next argues that the admission of evidence of his prior incarceration violated Rule 403, which states that "[a]lthough 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. . . ." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). This determination "is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision." State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202 (2001).
Defendant contends that the trial court abused its discretion by allowing evidence of defendant's prior incarceration. Defendant cites our Supreme Court's per curiam opinion in State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002) (reversing this Court's decision and adopting Judge Wynn's dissent in State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5 (2002)) in support of his argument. In adopting Judge Wynn's dissent in Wilkerson, our Supreme Court held that "admitting the bare fact of a defendant's prior conviction . . . violates . . . Rule 403, as the bare fact of a prior conviction is inherently prejudicial such that any probative value of the conviction is substantially outweighed by the danger of unfair prejudice." 148 N.C. App. at 327-28, 559 S.E.2d at 16 (Wynn, J. dissenting). Defendant contends that this holding applies in equal force to evidence of a defendant's prior incarceration.
In the instant case, even setting aside the inherent differences between a criminal conviction and incarceration, the State did not attempt to introduce into evidence the "bare fact" of defendant's prior incarceration. Instead, defendant's incarceration was introduced because it was contextually necessary to demonstrate why defendant thought Melvin had the money which formed the motive for the robbery. Moreover, the trial court went to great lengths to ensure that the reasons for defendant's incarceration were not presented to the jury by forbidding the State from discussing those reasons and by redacting defendant's jail records to only reflect that defendant was incarcerated with Carr during the relevant time period. While there is obviously some stigma attached to being incarcerated, "`[n]ecessarily, 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. Wilson, 345 N.C. 119, 127, 478 S.E.2d 507, 512-13 (1996) (quoting State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994)). In light of the significance of the communications between defendant and Carr and the trial court's efforts to limit the evidence to only that which was most relevant to the State's case, we cannot say that the trial court's decision was "so arbitrary that it could not have resulted from a reasoned decision." Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202. This argument is overruled.
III. Conclusion
The trial court did not commit any error, plain or otherwise, in allowing evidence of defendant's prior incarceration. Defendant received a fair trial, free from error.
No error.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).