Opinion
No. COA02-459
Filed 5 August 2003 This case not for publication
Appeal by defendant from judgment entered 29 June 2001 by Judge Abraham P. Jones in the Caswell County Superior Court. Heard in the Court of Appeals on 11 March 2003.
Attorney General Roy G. Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Michael J. Reece, for defendant appellant.
Caswell County Nos. 01 CRS 0467 00 CRS 2163.
Howard McCann ("defendant") appeals from the judgment entered consistent with the jury verdict finding him guilty of domestic criminal trespass and injury to personal property. The evidence for the State tends to show that the victim, Ms. Betty Taylor, and defendant have previously been involved in an abusive relationship. Ms. Taylor testified that she and defendant lived together from August 1998 to April 2000.
On 1 September 2000, at 2:49 a.m., Officer Frank Rose, Deputy Sheriff of Caswell County Sheriff's Department, was summoned to 6900 Old Highway 86 North, the residence of Ms. Betty Taylor. There, Deputy Rose spoke to Ms. Taylor and found her "upset and scared" because defendant came to her residence against her express and repeated wishes. Ms. Taylor said that defendant had driven his four-wheeler into her yard and had beaten on the door, demanding to be let in and threatening Ms. Taylor with bodily harm. Deputy Rose observed four-wheeler tracks near Ms. Taylor's porch. Deputy Rose observed defendant standing in the middle of his mother's driveway across the road.
Deputy Rose was familiar with defendant. When approached by Deputy Rose, defendant appeared to have been drinking. His speech was slurred and he smelled of alcohol. Deputy Rose and his partner determined that defendant was unfit to be on the highway and took defendant to the intox section of the Caswell County Sheriff's Department to allow him to safely regain his sobriety.
Ms. Taylor testified that on 22 February 2001, defendant came to her house at 3:30 a.m. Ms. Taylor and her boyfriend, Steven Wade, saw a vehicle in the driveway with its lights off. Ms. Taylor testified that she saw defendant walk from her vehicle back to his vehicle and quietly drive away, still with his lights off. Ms. Taylor and her boyfriend went outside and found that the tires on Ms. Taylor's car had been punctured. Mr. Wade testified that the tires could not be inflated. He also testified that he had purchased the tires ten days earlier at a employee-discounted rate of $180.96. The full retail price of the tires was $332.00.
Additional witnesses testified as to the nature of the relationship between Ms. Taylor and defendant as well as to defendant's being in Virginia in the early morning of 22 February 2001 when Ms. Taylor's tires were damaged. The jury found defendant guilty of injury to personal property and domestic criminal trespass. Defendant appeals based on three assignments of error.
I.
Defendant first assigns error to the trial court's ruling to allow defendant's witness to be cross-examined concerning defendant's prior convictions for violent crimes. At trial, Rick Ricchiuto testified for the defendant. The relevant portion of the direct examination is as follows:
Q. Did you ever observe any violence on behalf of Mr. McCann to Ms. Taylor?
A. No, sir.
Q. At any period of time have you known him to be violent to Ms. Taylor?
A. No, sir.
Q. Did you have ever see [sic] any evidence of injuries to Ms. Taylor during this period of time?
A. No, sir. None what receiver [sic].
On cross examination, the prosecution questioned Ricchiuto as to his knowledge about defendant's prior convictions for violent crimes. Defendant objected. The trial court ruled that the testimony from Mr. Ricchiuto had placed the defendant's character at issue and had opened the door for evidence of specific prior acts of violence. We agree.
Rule 404(a)(1) of the North Carolina Rules of Evidence states:
(A) Character Evidence Generally. Evidence 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, except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same[.]
N.C.R. Evid. 404(a)(1) (2003).
Mr. Ricchiuto's testimony opened the door for questions concerning Mr. Taylor's reputation for violence. In State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984), the court held that when a party presents evidence to raise an inference favorable to that party, the other party is entitled to bring evidence to rebut that inference. Bullard, 312 N.C. at 157-58, 322 S.E.2d at 386. The questions defendant's counsel chose to ask Mr. Ricchiuto were intended to raise an inference that the defendant is not a violent man. This put his character at issue such that he opened the door to the State's evidence to the contrary.
Testimony as to specific instances of conduct is not admissible to prove the defendant acted in conformity therewith but may be admissible for other purposes including motive and intent to cause harm. N.C.R. Evid. 404(b). According to State v. Parker, 354 N.C. 268, 553 S.E.2d 885, (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002), "[e]vidence showing other crimes, wrongs, or acts and a propensity to commit them is admissible if it is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried." Parker, 354 N.C. at 286, 553 S.E.2d at 898 (2001), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). If the evidence of the defendant's prior convictions is relevant for any purpose other than to show action in conformity therewith, the evidence should be considered admissible.
The prior convictions introduced by the State were admitted to rebut Mr. Ricchiuto's testimony and establish defendant's intent to cause harm. In Parker, defendant was charged with kidnapping an elderly woman to illegally obtain her money. Evidence of defendant's prior disruptive conduct and convictions for obtaining property by false pretenses were held to show proof of motive by demonstrating defendant's need for money. Parker at 287, 553 S.E.2d at 899. In the case now before us, the prior convictions raised by the prosecution included felony abduction, felony larceny, breaking and entering, assault on an officer, and malicious bodily injury. These crimes are probative of defendant's intent to cause harm. According to Rule 404(b), this is a permissible reason for offering evidence of other crimes.
Additionally, Rule 405 of the North Carolina Rules of Evidence states:
Rule 405. Methods of Proving Character.
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. . . .
N.C.R. Evid. 405(a) (2003). In State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, (1987), a witness testified as to the peaceful nature of the defendant. The trial court allowed the prosecutor to cross-examine the witness as to specific prior acts of the defendant to rebut that testimony. Gappins, 320 N.C. at 67, 357 S.E.2d at 657. The trial court held that "[q]uestions seeking an explanation on redirect examination of matters brought out . . . on cross examination are proper. The answers are admissible even though they might have been inadmissible if the State had opened the line of inquiry in the first instance." Id. Therefore, both statutory law and case law provide that the State could ask questions regarding specific instances of defendant's conduct to rebut Mr. Ricchiuto's opinion of defendant's character.
The defendant takes the position that the testimony by Mr. Ricchiuto merely presented a different version of the facts and did not constitute evidence as to defendant's reputation for nonviolence. However, the questions were not specific as to date or time. For example, the witness was asked if he had "ever observe[d]" violence by defendant. Also, Mr. Ricchiuto was asked, "[a]t any period of time have you known [defendant] to be violent to Ms. Taylor?" In State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585 (2001), our Supreme Court held that the door had been opened for rebuttal when the witness was asked "[h]ad you ever known [defendant] to be violent?" Anthony, 354 N.C. at 415, 555 S.E.2d at 585. The examination of Mr. Ricchiuto was intended to raise the inference that defendant had never been violent towards Ms. Taylor at any time. The impression created in the minds of the jury from the questions and responses was not limited to incidents in which Ms. Taylor was the victim. The focus of the interrogation was whether or not defendant had a history of violent behavior. The State was correctly allowed to rebut this presumption with evidence that otherwise would have been inadmissible.
Even if this Court were to accept defendant's argument, State v. Hall, 134 N.C. App. 417, 427, 517 S.E.2d 907, 914 (1999), disc. review denied, 351 N.C. 364, 542 S.E.2d 647 (2000), sets forth that "[t]he admission of relevant evidence is left to the sound discretion of the trial court." Hall, 134 N.C. App. at 427, 517 S.E.2d at 914. Additionally, it is only appropriate to overturn a lower court's evidentiary ruling if it can be shown that the ruling was "so arbitrary that it could not have been the result of a reasoned decision." State v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997). The trial court's decision to allow cross- examination of Mr. Ricchiuto concerning specific instances of defendant's conduct was correct, and even if incorrect, it would not have been so arbitrary as to be overturned. We discern no error.
II.
In the early hours of 22 February 2001, Ms. Taylor and her boyfriend, Steven Wade, saw defendant standing near Ms. Taylor's car. When Ms. Taylor and Mr. Wade went out to the car after defendant left, the tires had been punctured. The tires had been purchased by Mr. Wade ten days previously for the discounted price of $180.96. The full retail value of the tires was $332.00.
Defendant assigns error to the trial court's failure to instruct the jury as to a lesser offense, a Class 2 misdemeanor for damage to property worth less than $200.00 market value. The jury was only instructed as to a Class 1 misdemeanor for damage to property worth more than $200.00 market value.
Defendant failed to properly preserve this issue for appeal by failing to object to the jury instructions during trial. According to North Carolina Rule of Appellate Procedure 10(b)(2), a party must object to a jury charge before the jury leaves for deliberation. N.C. R.App.P. 10(b)(2) (2003). The defendant failed to do this. Additionally, failure to object to instructions of a lesser included offense constitutes invited error. State v. Blue, 115 N.C. App. 108, 112, 443 S.E.2d 748, 750 (1994). Invited error does not prejudice the party whose conduct results in error. State v. Gainey, 355 N.C. 73, 108, 558 S.E.2d 463, 485 (2002), cert. denied, ___ U.S. ___, 154 L.Ed.2d 165 (2002).
Despite defendant's failure to properly preserve the issue, he has requested that this Court review this assignment for plain error. The plain error standard of review provides that the ruling must stand unless "(i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied, 529 U.S. 1024, 146 L.Ed.2d 321 (2000).
Defendant incorrectly relies upon Heath v. Mosley, 286 N.C. 197, 209 S.E.2d 740 (1974), to support his contention that the discounted price paid for the tires is probative of the market value. Heath states that "[m]arket value is defined as the price property will bring `when it is offered by one who desires, but is not compelled to sell it, and is purchased by one who is under no necessity to buy it.'" Heath v. Mosley, 286 N.C. 197, 201, 209 S.E.2d 740, 743 (1974) (quoting Light Co. v. Sloan, 227 N.C. 151, 154, 41 S.E.2d 361, 364 (1947)). The price at which the tires were offered was $332.00. The lower price paid by Mr. Wade was an employee discount that was not the price at which the tires were offered to the general public. A discount such as this has no bearing upon the determination of the actual value of the tires.
Because there is no question that the tires had a market value of $332.00 and not $180.96, including the jury instruction for a lesser offense would have made no difference in the outcome of the trial. We discern no error.
III.
During the testimony of Mr. Wade, the attorney for the prosecution questioned him as to the events of 22 February 2001. The following exchange took place:
Q: Now when you went outside did you see anything?
A: I saw a vehicle going up the rode [sic].
Q: Okay. Could you describe the vehicle?
A: It was a ford pick up [sic] truck with a blue tailgate.
Q: And do you remember seeing anything else when you went outside?
A: Well, the first thing you do is go check your cars, and like this is not the first time that it ever happened [sic].
Defendant argues that allowing the statement "and like this is not the first time that it ever happened" was prejudicial and, in conjunction with the admittance of defendant's prior convictions, constitutes error such that defendant is entitled to a new trial.
Defendant cites no authority to support any aspect of this assignment of error. The Rules of Appellate Procedure state, "[t]he body of the argument shall contain citations of the authorities upon which the appellant relies." N.C. R.App.P. 28(b)(6) (2003). If there are no such citations of authority, the argument is deemed abandoned. State v. Thompson, 110 N.C. App. 217, 222, 429 S.E.2d 590, 592 (1993). Therefore, we dismiss this assignment of error.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).