State v. Nunez

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-1061

Filed 15 October 2025

Edgecombe County, No. 21CRS051740-320

STATE OF NORTH CAROLINA

v.

JOSEPH NUNEZ

Appeal by defendant from judgment entered 29 March 2023 by Judge

William D. Wolfe in Edgecombe County Superior Court. Heard in the Court of

Appeals 24 September 2025.

Attorney General Jeff Jackson, by Director of Major Litigation Brian D. Rabinovitz, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for the defendant-appellant.

TYSON, Judge.

Joseph Nunez (“Defendant”) appeals from judgment entered on a jury’s verdict

of guilty, convicting him of second-degree murder. Our review discerns no error.

I. Background

Defendant was released from the Nash County Detention Center (“NCDC”) STATE V. NUNEZ

Opinion of the Court

after being incarcerated for eight months on 3 October 2021. Defendant was issued

a debit card with his remaining inmate trust account fund balance of $100.08 upon

his release.

Defendant met his girlfriend, Michelle Nevel (“Nevel”), at a convenience store

in Rocky Mount after she got off work. Defendant and Nevel purchased alcohol using

Defendant’s NCDC-issued debit card. Nevel also called Tom Alford (“Alford”) to meet

them at the convenience store to purchase $20 worth of crack cocaine from him.

Defendant and Nevel had asked Alford to drive them to other convenience stores to

get money from Defendant’s NCDC-issued debit card, but he was unsuccessful in

accessing the funds.

Before Alford dropped Defendant and Nevel back at the original convenience

store, they asked Alford about Morris Joyner (“Joyner”). Joyner was staying at

Alford’s house at the time. Alford told Defendant and Nevel that Joyner was not

around. When Alford returned home that afternoon, he told Joyner Defendant and

Nevel had asked about him, and Defendant did not have any money from his NCDC-

issued debit card.

Later that evening, Joyner called his daughter to pick him up from Alford’s

house. Joyner was outside in Alford’s backyard waiting for his daughter, Alford was

inside watching TV and using his continuous positive airway pressure (CPAP)

machine.

After purchasing the alcohol and cocaine earlier in the day, Defendant and

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Nevel went to a friend’s home and drank the alcohol. Defendant and Nevel decided

to walk home from the friend’s house. Their route home took them past Alford’s house

and Defendant wanted to stop by. Nevel waited in front of the house while Defendant

went around to the backyard. After a short period of time, Defendant called for Nevel

to also come to the backyard.

Defendant told Nevel he had given Joyner his NCDC-issued debit card, leading

her to presume Defendant owed Joyner money and this was his means of paying

Joyner back. Nevel testified Defendant and Joyner were engaging in normal

conversation, but another witness told Defendant and Joyner they needed to leave

Alford’s house.

Defendant told Joyner he wanted his debit card back, but Joyner declined and

told Defendant, “You’re gonna make me beat your ass.” Defendant offered to go with

Joyner to an ATM to get money to pay him back if Joyner returned his card. Joyner

countered by hitting Defendant in the face.

A fight ensued, and Defendant was seen on top of Joyner punching him. Nevel

attempted to break up the fight. Nevel says she eventually tried to get Alford’s

attention, while he was inside the house, to aid in breaking up the fight. Alford came

outside, grabbed a weapon from the back of his vehicle and hit Defendant in the face

with it, knocking Defendant out for a moment. Alford checked on Joyner before

hitting Defendant again, this time in the leg, as he was coming back to consciousness.

Alford testified after Defendant came to, Defendant was still trying to continue to hit

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Joyner. Defendant and Nevel left Alford’s house.

Alford said his son had alerted him to the altercation between Defendant and

Joyner, not Nevel, like she had testified. According to Alford, when he came out the

back door of the house and saw Defendant was on top of Joyner. Alford testified

Joyner was lying on his back and was not fighting back. While Defendant was passed

out from Alford hitting him, Alford called his neighbor, Vincent Silver, to take Joyner

to the hospital. Silver testified when he arrived at Alford’s house to help, he located

Joyner on the ground under the edge of the picnic table. Joyner was making a

gurgling sound. Silver put Joyner in the bed of his truck and took him to the hospital

where he was pronounced dead.

Law enforcement officers were alerted after they questioned Silver at the

hospital regarding Joyner’s condition. Silver spoke with Alford on the phone, who

told Silver he did not want the “commotion” of having police officers at his house. As

a result, when Silver initially spoke with the officers, he told them he had picked up

Joyner by the side of the road near the park. Police officers asked him to show them

where he claimed to have picked up Joyner near the park. Silver realized he had to

tell the truth, so later that night, he told Detective Joshua Talley he had picked up

Joyner outside at Alford’s house.

Officers went to canvas Alford’s neighborhood to locate the scene of the crime.

While doing so, the officers saw Defendant and Nevel. Defendant was obviously

injured and bleeding extensively. Emergency medical services (“EMS”) was called to

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the scene. Defendant told officers he had injured himself by falling off his skateboard,

while trying to do tricks. Defendant initially declined any services from EMS, but he

was eventually transported to the hospital by EMS. Defendant suffered a severe

laceration on his forehead, a broken wrist, a broken ankle, and contusions on his leg.

At trial, the State called Randall Falls, D.O., the forensic pathologist who had

performed the autopsy of Joyner. Dr Falls was stipulated as an expert in forensic

pathology. Dr. Falls testified Joyner died as a result of multiple blunt force injuries,

including intracranial and sub-scalp hemorrhages; multiple contusions, abrasions,

and lacerations to the upper body and face with associated facial fractures; a fracture

of the left hyoid bone; and atlanto-occipital disarticulation, where the base of the skull

had separated from the first cervical vertebra. During the autopsy, Joyner’s personal

effects were collected as evidence. Defendant’s NCDC-issued debit card was found

inside of Joyner’s wallet.

During cross-examination, Defendant’s counsel questioned Dr. Falls using a

toxicology report tending to show Joyner’s body had a blood alcohol concentration of

.22 and positive for the presence of cocaine and cocaine metabolites. Although

Defendant did not move to admit the report into evidence, the trial court later ruled

Defendant had presented evidence because the State had not presented or referenced

the report on direct examination, and Dr. Falls had read from it on cross-examination

after Defendant’s counsel had provided him a copy and had asked questions about

the report’s contents. Based upon that ruling, the court determined Defendant had

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“presented evidence” and denied Defendant the right to deliver both the opening and

closing arguments to the jury.

At the close of evidence, the trial court instructed the jury on potential verdicts

of second-degree murder, voluntary manslaughter, involuntary manslaughter and

not guilty. The jury returned a verdict of guilty and convicting Defendant of second-

degree murder. The trial court sentenced Defendant in the presumptive range as a

prior record level II offender with three prior record points to an active term of 250 to

312 months’ imprisonment. Defendant timely appealed.

II. Jurisdiction

This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)

(2023).

III. Issues

Defendant argues the trial court erred by denying him the right to make the

first and last closing arguments and committed plain error by permitting the State

to elicit testimony from a witness regarding Defendant’s prior incarceration,

constituting impermissible character evidence.

IV. Closing Argument

Defendant argues the trial court erred by denying him the right to make the

first and last closing arguments. “In order to preserve an issue for appellate review,

a party must have presented to the trial court a timely request, objection, or motion,

stating the specific grounds for the ruling the party desired the court to make if the

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specific grounds were not apparent from the context.” N.C. R. App. P. 10. “It is also

necessary for the complaining party to obtain a ruling upon the party’s request,

objection, or motion.” Id.

“[I]ssues and theories of a case not raised below will not be considered on

appeal.” Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C.

298, 309, 554 S.E.2d 634, 641 (2001). “This Court will not consider arguments based

upon matters not presented to or adjudicated by the trial court. Even alleged errors

arising under the Constitution of the United States are waived if defendant does not

raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600

(citations and quotation marks omitted), cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382

(2003).

After the State argued Defendant had presented evidence by providing and

eliciting testimony regarding the contents of the toxicology report during the State’s

case in chief. Defendant responded and argued he had not introduced the toxicology

report into evidence. The trial court disagreed and ruled Defendant presented

evidence by providing a copy of the toxicology report to Dr. Falls and asking Dr. Falls

to read from the report to the jury, while he was on the witness stand.

After the Court’s ruling, Defendant’s counsel was permitted to reopen

Defendant’s case-in-chief and introduced the toxicology report, without objection from

the State. Defendant failed to object to the court’s ruling he had presented evidence,

Defendant introduced the report after the Court ruled, and did not object before either

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the State’s or his closing arguments. N.C. R. App. P. 10(a)(1). Defendant failed to

preserve this issue for appellate review. Defendant’s argument is overruled and

dismissed.

V. Inadmissible Character Evidence

Defendant argues the trial court committed plain error by permitting the State

to elicit testimony regarding Defendant’s prior incarceration. He asserts this

purported error constitutes impermissible character evidence. Defendant concedes

he did not preserve this argument. He seeks plain error review. See N.C. R. App. P.

10(a)(4) (“In criminal cases, an issue that was not preserved by objection noted at

trial and that is not deemed preserved . . . nevertheless may be made the basis of an

issue presented on appeal when the judicial action questioned is specifically and

distinctly contended to amount to plain error.”).

A. Standard of Review

Our Supreme Court has held plain error:

is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings[.]

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations, internal

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quotation marks, and brackets omitted).

“Unpreserved error in criminal cases . . . is reviewed only for plain error.” State

v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (citations omitted). For a

defendant to prove plain error, he must show a fundamental error occurred and

establish prejudice. See Id. at 518, 723 S.E.2d at 334.

Defendant bears the burden of showing the unpreserved error “rises to the

level of plain error.” Id. at 516, 723 S.E.2d at 333. Defendant must also show he

suffered prejudice, by “the error ha[ving] a probable impact on the jury’s finding that

the defendant was guilty.” Id. (citations and quotation marks omitted).

B. Rule 404(b)

Rule 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 a 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) (2023).

The Supreme Court of North Carolina has repeatedly interpreted Rule 404(b)

to be a rule of inclusion, and not exclusion. State v. Beckelheimer, 366 N.C. 127, 131,

726 S.E.2d 156, 159 (2012). This inclusion of Rule 404(b) testimony or evidence is

constrained by the requirements of similarity and temporal proximity of the evidence

to the alleged acts. State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123

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(2002).

Admission of evidence under Rule 404(b) is “subject to but one exception

requiring the exclusion of 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. Lyons, 340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995) (citation

omitted).

Our Supreme Court has also held “[t]he list of permissible purposes for

admission of ‘other crimes’ evidence is not exclusive, and such evidence is admissible

as long as it is relevant to any fact or issue other than the defendant’s propensity to

commit the crime.” State v. Hipps, 348 N.C. 377, 404, 501 S.E.2d 625, 641 (1998)

(citations omitted).

In State v. Hobson, this Court held testimony of defendant’s former girlfriend

concerning her relationship with defendant, including an alleged past assault, was

relevant to show the victim was in reasonable fear of defendant, in a prosecution for

misdemeanor stalking. State v. Hobson, 261 N.C. App. 60, 63, 819 S.E.2d 397, 400

(2018). The defendant’s former girlfriend testified to sending a text message to the

victim about the assault and warning the victim to be careful, and stating the former

girlfriend herself was afraid of defendant. Id.

C. Analysis

Nevel testified Defendant had previously been incarcerated for assaulting her.

Defendant asserts this testimony constituted improper character evidence. The

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context of her testimony shows otherwise. The State’s questions were directed at

explaining Nevel’s state of mind and apprehension while testifying, rather than to

establish Defendant’s violent disposition. As this Court recognized in Hobson,

testimony regarding prior assaults may be admitted to show a witness’s fear of the

defendant in the context of trial testimony. Id.

In State v. Burke, our Supreme Court upheld the admission of testimony about

a witness’s fear of the defendant as relevant to the jury’s assessment of credibility.

State v. Burke, 343 N.C. 129, 152, 469 S.E. 2d 901, 912 (1996). Here, Nevel’s

testimony falls within these permissible purposes under Rule 404(b).

Defendant has not demonstrated error, much less plain error. Presuming,

without deciding, the admission of this testimony was improper, Defendant cannot

show Nevel’s testimony constituted prejudicial error. See N.C. Gen. Stat. § 15A-

1443(a) (2023). The State presented substantial evidence of Defendant’s guilt,

including eyewitness testimony, physical evidence, and the medical examiner’s

findings. Defendant has not demonstrated, absent Nevel’s testimony on the prior

assault, the jury would have reached a different result. Defendant’s argument is

overruled.

VI. Conclusion

Defendant failed to preserve his challenge to the denial of his request for first

and last closing arguments after providing evidence. Defendant has failed to

demonstrate plain error in the admission of testimony about his prior incarceration.

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Presuming, without deciding, the testimony was improper, Defendant cannot show

prejudicial error. See N.C. Gen. Stat. § 15A-1443(a) (2023).

Defendant received a fair trial free from prejudicial errors he preserved and

argued. We discern no error in the jury’s verdict or in the judgment entered thereon.

It is so ordered.

NO ERROR.

Judges CARPENTER and STADING concur.

Report per Rule 30(e).

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