State v. Gordon

410 S.E.2d 4, 104 N.C. App. 455, 1991 N.C. App. LEXIS 1060
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 1991
DocketNo. 9028SC1360
StatusPublished
Cited by6 cases

This text of 410 S.E.2d 4 (State v. Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gordon, 410 S.E.2d 4, 104 N.C. App. 455, 1991 N.C. App. LEXIS 1060 (N.C. Ct. App. 1991).

Opinion

WYNN, Judge.

The State’s evidence tended to show that defendant and the victim, Suzanne Jackson, argued about defendant’s boyfriend on 10 September 1989. The next evening, defendant was sitting in or on a friend’s car in her apartment complex parking lot about thirty feet from Jackson’s front door when Jackson came outside. Defendant yelled remarks to her but did not approach her. Thereafter, Jackson walked towards defendant and said “if you want to fight, we’ll fight.” In response, defendant jumped out of the car, ran across the street, and apparently obtained a gun from the hand of her uncle who was standing outside at the time of the incident. In the meantime, Jackson’s husband urged her to go inside, and, while the couple walked toward their front door, defendant followed them and shot Jackson in the arm.

Defendant presented evidence at trial which formed the basis for her contention that she acted in self-defense. Contrary to Jackson’s testimony that she did not have anything in her hand, four of defendant’s witnesses testified that the victim had something in her hand that looked like a knife prior to the scooting. Defendant’s witnesses also stated that the victim chased defendant around the car with the knife.

The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. The trial judge sentenced defendant to [457]*457a term of eight years, five years greater than the presumptive sentence. To this court, defendant appealed.

I

Defendant first assigns error to the trial judge’s instructions to the jury on self-defense. She alleges that the instruction given by the trial judge was inadequate, misleading, and erroneous as a matter of law. We disagree.

Although it is not clear from the record, defendant contends that during the charge conference, she requested an instruction on self-defense. The trial judge apparently indicated he would give the pattern jury instructions. However, in his instructions to the jury, the trial judge instructed on self-defense, but did not give the pattern instructions. Following his instructions to the jury, the trial judge asked counsel if they objected to the “pattern” instructions he had just given the jury. Both attorneys stated they had no objections.

Under N.C.R. App. P. 10(b)(2), “[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict . . . .” See State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Norfleet, 65 N.C. App. 355, 309 S.E.2d 260 (1983). There are, however, two exceptions to this requirement. The first exception applies when the trial judge fails to give any instruction on the requested issue. State v. Ross, 322 N.C. 261, 367 S.E.2d 889 (1988). In Ross, the trial judge agreed to give a requested instruction on defendant’s decision not to testify, but the trial judge neglected to give the promised instruction. There, our Supreme Court held that “a request for an instruction at the charge conference is sufficient compliance with [Rule 10(b)(2)] to warrant our full review on appeal where the requested instruction is subsequently promised but not given, notwithstanding any failure to bring the error to the trial judge’s attention at the end of the instructions.” Id. at 265, 367 S.E.2d at 891. The second exception allows a party to seek relief on appeal without making the proper objection if the instructions complained of constitute plain error. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990). Plain error means “something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States [458]*458v. McCaskill, 676 F.2d 995, 1002, (4th Cir.), cert. denied, 459 U.S. 1018 (1982)).

In the instant case, defendant’s counsel failed to object to the jury charge, even though the trial judge gave him ample opportunity outside the hearing of the jury. Defendant’s reliance on the Ross exception is misplaced since the trial judge did give a self-defense instruction; Ross concerns the failure of the trial judge to give any instruction at all. Additionally, because the trial judge stated the law on self-defense in a manner very similar to the pattern instruction, it is clear that no plain error exists with respect to his instructions. We, therefore, find that defendant’s assignment of error on this point is without merit.

II

In her next assignments of error, defendant contends that she is entitled to a new trial because the trial court erroneously admitted irrelevant “other crimes” evidence about defendant and her relatives and because the prosecution asked improper questions about those crimes. We disagree.

From the outset, we note that with respect to the evidence about her uncle, defendant has waived her right to preserve this issue on appeal because she neither objected nor moved to strike this evidence. Defendant also cannot appeal inclusion of the evidence relating to her boyfriend because the same information was admitted without objection elsewhere. See N.C.R. App. P. 10(b)(1). Additionally, defendant has failed to argue that there was plain error to excuse her failure to object at trial. N.C.R. App. P. 10(c)(4).

We will now examine the “other crimes” evidence which defendant properly preserved for appellate review. At trial, Suzanne Jackson made several remarks on direct examination about defendant “doing that stuff.” The trial judge, however, did not allow the witness to define the “stuff.” Later in the trial, the prosecutor asked defendant’s sister the following question: “As a matter of fact, there are not too many days when Alice isn’t on cocaine, is there?” The trial judge overruled defendant’s objection to this question.

Evidence relating to a defendant’s “other crimes” or prior bad acts is governed by Rule 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he [459]*459acted 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.R. Evid. 404(b). Our Supreme Court has interpreted Rule 404(b) as “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 in the original).

In this case, Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Richardson
Court of Appeals of North Carolina, 2020
State v. Keel
776 S.E.2d 898 (Court of Appeals of North Carolina, 2015)
State v. ESPINOZA-VALENZUELA
692 S.E.2d 145 (Court of Appeals of North Carolina, 2010)
In Re the Appeal of Morris U.S.A.
436 S.E.2d 828 (Supreme Court of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
410 S.E.2d 4, 104 N.C. App. 455, 1991 N.C. App. LEXIS 1060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gordon-ncctapp-1991.