State v. Wilson, No. COA05-729 (N.C. App. 7/18/2006)

Decision Date18 July 2006
Docket NumberNo. COA05-729,COA05-729
PartiesSTATE OF NORTH CAROLINA v. LARRY TYRONE WILSON, Defendant.
CourtNorth Carolina Court of Appeals

Carlton, Rhodes & Carlton, by Gary C. Rhodes, for defendant-appellant.

GEER, Judge.

Defendant Larry Tyrone Wilson appeals from his convictions for assault on a female, malicious conduct by a prisoner, and habitual misdemeanor assault ("HMA") and his sentencing as a habitual felon. On appeal, defendant argues that the trial court erred by admitting into evidence the victim's statements to police and a videotape showing defendant's behavior after his arrest, by denying his motion to dismiss the charges, by sentencing him for HMA, and by committing a variety of other sentencing errors. Because we are unable to adequately review defendant's arguments pertaining to his HMA conviction based on the current record, we remand to the trial court for further proceedings on that issue. With respect to the rest of defendant's trial, however, we find no prejudicial error.

Facts

The State's evidence at trial tended to show the following facts. In the early morning hours of 3 July 2003, Lieutenant Wilson Weaver of the Winston-Salem Police Department responded to a call regarding an assault in progress at a rooming house. Lieutenant Weaver observed a woman, Stacy Marie Coles, walking rapidly away from defendant, who was trying to catch up with her. Ms. Coles appeared to be frightened.

Lieutenant Weaver concluded he had located the people involved in the assault and called for assistance. While waiting for additional officers, Lieutenant Weaver asked defendant what was going on, and defendant responded that he and Ms. Coles had been having "a little argument." Ms. Coles stayed about 30 feet away during this exchange, and Lieutenant Weaver did not speak to her.

Corporal Carl McClaney was the first officer to arrive in response to Lieutenant Weaver's call for assistance. After parking his patrol vehicle, Corporal McClaney approached Ms. Coles, who still appeared frightened. Ms. Coles said in a loud voice that everything was fine and that defendant had done nothing wrong. Immediately afterward, however, Ms. Coles whispered to Corporal McClaney that "she was terrified of [defendant] and needed to get away." Ms. Coles then quietly explained that defendant had assaulted her and showed Corporal McClaney several scratches on her neck. Corporal Lesa Butner and Officer Brian Raber then arrived at the scene and arrested defendant. After defendant was placed in the rear of Officer Raber's patrol vehicle, Corporal Butner went to speak with Ms. Coles. At that point, defendant turned sideways in the rear of the patrol car, elevated both his feet, and kicked out the right-side rear window.

The officers opened the rear doors of the patrol car, and Officer Ralph Mason pulled defendant — kicking and screaming _ out by his shoulders and laid him on the sidewalk. After defendant spit in Officer Mason's face, the officers applied a "spit sock," which was described at trial as a "netting material that goes over the head to attempt to stop saliva from being spit out." The spit sock was not completely effective, as defendant soon succeeded in spitting into the faces of both Officer Mason and Officer David Walsh.

Defendant continued to be, according to the officers, "extremely combative." As the officers moved defendant into the rear of Officer Walsh's car, defendant stated: "You can't hold me down. I'll kick another window out," and "You don't have [(expletive omitted)] on me because she'll deny everything. She'll say nothing happened." Officer Walsh took defendant to the detention facility where a videotape of defendant's arrival showed him in the midst of a raging monologue.

After Officer Walsh left the scene with defendant, Officer Raber spoke with Ms. Coles, whose jaw was swollen and neck reddened. Ms. Coles explained that she had returned home that day, and defendant had choked her unconscious while they were outside. She woke up inside, where defendant appeared to be calming down, but, after she refused his invitation to take a walk, he again became enraged and began choking her. Before Ms. Coles lost consciousness for a second time, defendant dragged her down the front steps of the house and back outside. After Ms. Coles finished describing what had happened, Corporal Butner accompanied her into an ambulance where photographs were taken of her injuries.

On 4 August 2003, defendant was indicted for first degree kidnapping, assault on a female, HMA, and two counts of malicious conduct by a prisoner. Defendant was separately indicted as having achieved the status of a habitual felon. The State ultimately dismissed the charge of first degree kidnapping. On 30 October 2003, a jury found defendant guilty of assault on a female and both counts of malicious conduct by a prisoner. Defendant pled guilty to being a habitual felon. The record on appeal does not contain any specific resolution of the HMA charge, whether by stipulation or conviction.

The trial court sentenced defendant within the presumptive range to 107 to 138 months imprisonment for assault on a female and HMA. The trial court then sentenced defendant as a habitual felon to a consecutive sentence within the presumptive range of 151 to 191 months imprisonment for both malicious conduct by a prisoner convictions. Defendant timely appealed to this Court.

I

Defendant first argues that the trial court erred by admitting the testimony of Officer Raber, Corporal McClaney, and Corporal Butner regarding Ms. Coles' statements at the scene. Specifically, defendant contends: (1) that Ms. Coles' statements were hearsay, and, therefore, inadmissible as substantive evidence; (2) to the extent the statements were admitted as only non-substantive corroborative testimony, the trial court erred by allowing Officer Raber and Corporal McClaney to testify prior to Ms. Coles; and (3) that the trial court erred in failing to adequately instruct the jury, with respect to this testimony, as to the distinctions between substantive, corroborative, and impeachment evidence.

Regarding Corporal McClaney's testimony that Ms. Coles whispered she was terrified of defendant and needed to get away, a statement that is otherwise hearsay is nevertheless admissible if it is "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . ." N.C.R. Evid. 803(3). Our Supreme Court has previously held that statements of fear and terror by a victim regarding her assailant fall within the scope of this hearsay exception, and, consequently, Ms. Coles' statements regarding her then existing state of mind were properly admitted. See State v. Locklear, 320 N.C. 754, 759-60, 360 S.E.2d 682, 685 (1987) (statements by rape victim to medical personal that she was "afraid" and "scared" of rapist admissible under N.C.R. Evid. 803(3)). With respect to (1) Officer Raber's testimony that Ms. Coles said she had been choked into unconsciousness and dragged outside, (2) Corporal McClaney's testimony that Ms. Coles said she had been assaulted, and (3) Corporal Butner's testimony regarding Ms. Coles' descriptions of her injuries, even if these statements would otherwise be hearsay, a "prior consistent statement of a witness is admissible to corroborate the testimony of the witness . . . ." State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836 (1991). "'In order to be admissible as corroborative evidence, a witness' prior consistent statements merely must tend to add weight or credibility to the witness' testimony. Further, it is well established that such corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates.'" State v. Walters, 357 N.C. 68, 89, 588 S.E.2d 344, 356 (quoting State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320, 124 S. Ct. 442 (2003).

Here, Ms. Coles testified at trial that the photographs taken at the scene accurately showed bruises on her chest, neck, and back. Ms. Coles also testified that defendant gave her the bruise on her chest, that the bruise on her back was from their "little tussle," and that the bruise on her neck was from defendant "grabbing [her] neck." The officers' testimony, therefore, corroborated Ms. Coles' account of her physical altercation with defendant and was admissible as offering evidence of prior consistent statements. The fact that Officer Raber and Corporal McClaney testified prior to Ms. Coles' testimony at trial is of no consequence. See State v. Joyce, 97 N.C. App. 464, 470, 389 S.E.2d 136, 140 (holding that whether corroborative statements are admitted before or after testimony they corroborate is "immaterial" because trial court has discretion regarding order of evidence), disc. review denied, 326 N.C. 803, 393 S.E.2d 902 (1990).

Finally, regarding defendant's argument that the trial court erred by failing to adequately instruct the jury as to the distinctions between substantive, corroborative, and impeachment evidence, "[t]he admission of evidence which is relevant and competent for a limited purpose will not be held error in the absence of a request by the defendant for a limiting instruction. Such an instruction is not required unless specifically requested by counsel." State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876, 894 (1991) (internal quotation marks and citation omitted). Defendant did not request such an instruction at trial and, therefore, it was not error...

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