State v. Phillips

• Decision Date: 21 May 2013
• Docket Number: No. COA12–852.,COA12–852.
• Citation: 742 S.E.2d 338
• Parties: STATE of North Carolina v. Anacin William PHILLIPS.
• Court: North Carolina Court of Appeals

742 S.E.2d 338

STATE of North Carolina

v.Anacin William PHILLIPS.

No. COA12–852.

Court of Appeals of North Carolina.

May 21, 2013.

Appeal by defendant from judgment entered 29 September 2011 by Judge Arnold O. Jones, II, in Craven County Superior Court. Heard in the Court of Appeals 13 November 2012.

Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.

Kevin P. Bradley for defendant-appellant.

BRYANT, Judge.

Where the trial court's use of the term “victim” during the jury instructions did not prejudice defendant by improperly expressing an opinion before the jury, we find no error. Where the trial court erred by concluding that defendant's prior conviction in violation of a Ohio revised code section prohibiting “Intentional shooting, cutting, or stabbing,” was substantially similar to the North Carolina offense “Felonious assault with deadly weapon with intent to kill or inflicting serious injury,” and as a result attributing to defendant a prior record level IV for felony sentencing purposes, we reverse and remand. Where the record shows that defendant was afforded notice and an opportunity to be heard on the imposition of court costs, we find no error.

On 20 July 2009, defendant was indicted on charges of assault with a deadly weapon with intent to kill inflicting serious injury and kidnapping. Defendant was also indicted as both a violent habitual felon and habitual felon. A trial commenced during the 26 September 2011 session of Craven County Superior Court, the Honorable Arnold Jones, Judge presiding.

The State's evidence tended to show that in May 2009 defendant, sixty-four years old at the time of trial, and Diane ¹, fifty-one years old, had been dating for almost a year. Diane spent as many as five nights a week with defendant at his residence located at 1031 Queen Street in New Bern. Emagene Broy and Albert Brown also lived at the residence.

On the evening of 6 May 2009, at approximately 8:00 p.m., Diane entered defendant's residence and then his bedroom. Diane testified that defendant usually returned home around 9:00 p.m., but on this night, he did not come home until close to midnight. When he entered the bedroom, Diane smelled a strong odor of alcohol and believed that defendant was impaired. Defendant sat near the foot of the bed and used a knife to cut a piece of cheese. Diane described the knife as a “hunting knife” having a black handle and a three to four inch blade. Defendant was muttering to himself. Diane testified that she said, “let me go to sleep. I don't want to hear that drunk BS.”

Q. ... [W]hat did he say back to you at that time?

...

A. He [ ] said “shut the hell up.”

...

He was calling me a b* *ch and he got up and walked towards me with the knife in his hand....

Diane testified that defendant sat down next to her, pinned her with his elbow, and proceeded to “beat me in my face. Just beat me and beat me. I was bleeding and bleeding, and he kept just beating me.” Diane testified that before he released her, defendant used his knife to cut her clothes and rip them away from her body. When defendant moved to the far side of the bed, Diane jumped and ran to the bedroom door and out into the living room.

In the living room, Emagene Broy and Albert Brown were laying on separate couches watching television. Diane ran into the room without any clothes on; defendant followed her holding a knife. Diane begged defendant to “please stop.... [P]lease just let me get my clothes and go.” Defendant told Broy and Brown that no one was to move or call the police. Brown noticed that Diane was bleeding from her hands. As Broy started to get up to retrieve a towel, defendant, while holding a knife and standing over Brown who was on the couch, said, “don't get the b-i-t-c (sic) nothing. She doesn't need nothing on.... I'm going to kill the b-i-t-c-h.” “I'm going to kill you.”

Diane ran from the house, but defendant caught her and pulled her back onto the front porch. There, defendant stabbed Diane in the chest. Diane ran off of the porch and through a nearby field until she collapsed. Brown called law enforcement officers, and a police officer found Diane lying naked in a pool of blood near a service drive to Craven Terrace apartments near Miller Street at 4:40 a.m.

Diane was admitted to the emergency department at Craven Regional Medical Center at 5:04 a.m. on 7 May 2009. Her blood pressure was “73 over 47.” An emergency room nurse who treated Diane testified that based on her blood pressure, Diane was “crashing” and “[had] a tendency to die at that particular time.” An x-ray revealed that Diane suffered from a collapsed lung. A chest tube was inserted and approximately 510 milliliters of blood returned through the tube prompting hospital staff to give Diane approximately “320 cc's of blood” by transfusion. Once stabilized, Diane was transferred to the trauma unit at Pitt Memorial Hospital. At Pitt Memorial Hospital, Diane presented with multiple lacerations to her face, hand, and left chest, and a collapsed lung. She was treated and released four days later.

Defendant did not present any evidence.

The jury returned a guilty verdict on the charge of assault with a deadly weapon with intent to kill inflicting serious injury and not guilty on the charge of kidnapping. The State dismissed the charge of attaining habitual felon status, and the trial court dismissed the charge of attaining violent habitual felon status. Defendant was sentenced to a term of 133 to 169 months and ordered to pay court costs of $9,094.50. Defendant appeals._________________________

On appeal, defendant raises the following issues: whether the trial court erred in (I) expressing an opinion about the evidence in front of the jury; (II) calculating defendant's prior record level; and (III) imposing court costs.

I

Defendant argues that the trial court violated N.C. Gen.Stat. § 15A–1232 by expressing an opinion as to an issue of fact while instructing the jury. Specifically, defendant contends that the trial court committed error by referring to Diane as “the victim” when instructing the jury on the charge of assault with a deadly weapon with intent to kill inflicting serious injury. We disagree.

Standard of Review

We note that defendant failed to raise an objection to the jury instructions before the trial court but on appeal argues that the issue is preserved as a matter of law. Defendant cites State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989), and State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005), for the proposition that this issue is properly preserved. However, both Young and Duke involve the trial court's comment regarding a defendant's confession, not a reference to the prosecuting witness as a victim. Further, defendant argues that our Supreme Court's opinion in State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994) (holding no error in trial court's reference to the prosecuting witness as the victim), was reviewed for plain error only “because of concession by the defendant-appellant in that case.” We disagree.

On many occasions, our Court has applied plain error review to the issue defendant raises. See e.g., State v. Carter, ––– N.C.App. ––––, 718 S.E.2d 687 (2011), rev'd on other grounds,––– N.C. ––––, 739 S.E.2d 548 (2013); State v. Cabe, 136 N.C.App. 510, 524 S.E.2d 828 (2000); State v. Anthony, 133 N.C.App. 573, 516 S.E.2d 195 (1999); and State v. Richardson, 112 N.C.App. 58, 434 S.E.2d 657 (1993). See also, State v. Jackson, 202 N.C.App. 564, 688 S.E.2d 766 (2010) (finding no plain error in the trial court's failure to intervene ex mero motu upon prosecutor's reference to the prosecuting witness as a “victim”). We are unable to find and defendant fails to point us to any cases in which this Court has reviewed this precise issue regarding the trial court's reference to the prosecuting witness as “the victim” for anything other than plain error where defendant failed to object and properly preserve the issue for review. Therefore, where our courts have repeatedly stated that the use of the word “victim” in jury instructions is not an expression of opinion, we will not allow defendant, after failing to object at trial, to bring forth this objection on appeal, couched as a statutory violation, and thereby obtain review as if the issue was preserved. Therefore, we review this issue for plain error.

Analysis

Pursuant to our General Statutes, section 15A–1232, “[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.” N.C. Gen.Stat. § 15A–1232 (2011).

Whether a trial court's comment constitutes an improper expression of opinion is determined by its probable meaning to the jury, not by the judge's motive. Furthermore, a totality of the circumstances test is utilized under which defendant has the burden of showing prejudice. Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.

State v. Mucci, 163 N.C.App. 615, 620, 594 S.E.2d 411, 415 (2004) (citations and quotations omitted).

Defendant cites Richardson, 112 N.C.App. 58, 434 S.E.2d 657, where the defendant was charged with first degree sexual offense, first degree rape, taking indecent liberties with a minor, and crime against nature. Id. at 60, 434 S.E.2d at 659. In instructing the jury, the trial court referred to the prosecuting witnesses as “victims” only in discussing the rape and sexual offense charges but not in respect to the charges of taking indecent liberties with a minor and crime against natureId. at 67, 434 S.E.2d at 663. The jury returned guilty verdicts only on the charges of taking indecent liberties with a minor and crime against nature. The defendant argued on appeal that the trial court erred by...