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  "name": "STATE OF NORTH CAROLINA v. BENJAMIN ALDRIDGE",
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    "judges": [
      "Judge SMITH concurs in the result with a separate opinion.",
      "Judge TIMMONS-GOODSON joins in Judge SMITH\u2019S concurring in the result opinion.",
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      "STATE OF NORTH CAROLINA v. BENJAMIN ALDRIDGE"
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      {
        "text": "WALKER, Judge.\nDefendant was convicted of first degree murder and sentenced to life imprisonment without parole. The State\u2019s evidence tended to show that on 17 May 1997 at about 4:34 a.m., sheriffs deputies responded to a burglary report at the victim\u2019s and defendant\u2019s residence. When the deputies arrived at the residence, defendant stated that someone had broken into his home and stabbed his wife, Gwendolyn Aldridge (victim).\nDeputy Roscoe Bailey testified that upon arrival at the residence at about 4:47 a.m. on 17 May 1997, defendant was standing outside and told Deputy Bailey that he needed help because someone had broken into his house and stabbed the victim. Defendant pointed to a basement door that appeared closed and undisturbed. Deputy Bailey followed defendant into the residence where he saw two knives at the foot of the steps and found the nude body of the victim lying face up in an upstairs bedroom. She had stab wounds and the area around her body was very bloody. Deputy Bailey also testified that when he arrived, he did not notice any activity in the area surrounding the residence.\nDeputy Gerald Hicks testified that when he arrived at the residence, he noticed the defendant was wearing brown shorts, no shirt or shoes, and had blood on his chest, hands, arms and legs. Further, Deputy Hicks testified that defendant led him to the bedroom where the victim was lying, and the defendant pointed to the two knives at the foot of the steps. Deputy Hicks was present when Detective Thomas Farmer interviewed the defendant, who repeatedly stated that he knew the sheriff and needed to speak with him.\nDeputy Kevin Fineberg testified that when he and Deputy Randy Smith arrived, they did a security check of the residence and found an exterior wooden door in the basement that was slightly open. However, the screen door on the outside of this wooden door appeared to be locked. Additionally, he did not observe any footprints in the grass area close to this door, although there was a heavy dew on the ground. Finally, Deputies Fineberg and Smith testified that they did not observe any signs of forced entry.\nDetective Farmer testified that when he observed the victim\u2019s body, there appeared to be hand prints on each of the victim\u2019s ankles. Detective Farmer also testified the defendant told him that around 8:30 p.m. on 16 May 1997, the defendant and victim were watching television and the defendant decided to go to bed. Defendant told the victim good night, left her in the bedroom watching television, and went to his bedroom and shut the door. Defendant stated that he and the victim slept in separate bedrooms since each snored heavily. Later, the telephone rang and the victim told him his daughter was calling to speak to him. Defendant spoke to his daughter and then returned to his bedroom and went to sleep. Around 4:00 a.m., the defendant awoke when he heard his wife screaming. The defendant thought he heard footsteps running down the hallway away from the victim\u2019s bedroom. The defendant followed the sounds of the footsteps to the kitchen area. He checked the back door and found it to be shut and locked. Defendant then went to the victim\u2019s bedroom where he found the victim had been stabbed and was slumped over the bed. He ran behind her, pulled her back, and laid her on the floor. Defendant then called 911. Defendant stated that the two knives at the foot of the steps were from the kitchen of the residence. Defendant stated that he and the victim always locked the doors to the residence at night, that all the doors were locked when he went to bed, and that he and the victim had never experienced problems with prowlers or suspicious people.\nAgent Andrew Cline of the North Carolina State Bureau of Investigation (SBI) testified he was a crime scene specialist, that he examined the residence, and that he found no signs of forced entry. In the kitchen, he noticed a knife block was missing two knives. The two knives located at the foot of the steps matched the kitchen set of knives. He found an unzipped purse containing an empty wallet and a bank envelope containing $200 cash on the dining room table. A set of keys was underneath the purse and a ladies\u2019 watch was also on the table.\nSBI Agent Bruce Jarvis testified that on the morning of 17 May 1997, he interviewed the defendant, who stated defendant repeated the events of 16 May 1997 to Agent Jarvis. The defendant and the victim had been married almost ten years. The defendant had been married twice previously. Defendant admitted he struck his first wife Carolyn Aldridge on one occasion when they were married. Defendant stated that he and his second wife, Elaine Coffey, fought and argued all the time, but he did not know if he ever hit her. Defendant denied ever assaulting his previous wives with a weapon. Defendant works for the Department of Corrections and supervises inmates who are housed at the Burke County Jail.\nDr. Donald Jason performed the autopsy of the victim and testified that he observed eleven stab wounds on the victim, including two stab wounds to the vaginal area which were the last ones inflicted. Additionally, there were no wounds on the victim which would indicate she was attempting to defend herself.\nDavid Spittle, a crime lab specialist with the SBI, testified that the two knives revealed the presence of blood, but that there was an insufficient amount to conduct any DNA analysis. Joyce Petzka, a fingerprint analyst with the SBI, testified there was insufficient fingerprint evidence on the knives to conduct a comparison with the defendant\u2019s fingerprints.\nGeoffrey Austin, the victim\u2019s son, testified that his mother was usually very talkative but when he spoke to her on the telephone on 16 May 1997, she \u201cseemed very quiet\u201d and \u201csomewhat withdrawn.\u201d\nBarbara Powell, a co-worker and friend of the victim, testified that on 16 May 1997, the victim \u201cseemed really pre-occupied, quiet, unusually quiet.\u201d\nJosephine Reep, a co-worker and friend of the victim; testified to statements the victim made to her concerning the victim\u2019s marriage to the defendant. Ms. Reep testified that she and the victim had a conversation in November or December 1996, during which the victim stated that the defendant told her that because of the bad neighborhood in which they lived, one day he might come home to find her dead with her throat cut and her body sliced up with a knife. The victim stated that the defendant wanted her to sell her home \u201cso he can get a hold of some of my money.\u201d Additionally, the victim told Ms. Reep that she no longer wanted to be married and that she wanted the defendant to leave the residence and that if the defendant had not left by May 1997, she planned to \u201cpush the issue.\u201d\nRobert Hurt, a co-worker of the defendant, testified that he overheard the defendant speaking to an inmate. The inmate was convicted of murdering his own girlfriend. Mr. Hurt testified that the defendant, on approximately twelve occasions, asked the inmate questions regarding how, when, and where the inmate committed his crime, and how and when it was reported to the authorities.\nDefendant\u2019s first wife, Carolyn Aldridge, testified that she was married to the defendant for approximately eleven years and that near the end of their marriage she was \u201csmacked\u201d four or five times by the defendant. Additionally, when she left the defendant in 1981, an argument between them turned violent and as she drove away with their two daughters, the defendant fired two shots from a pistol.\nDefendant\u2019s second wife, Elaine Coffey, testified they were married in 1983, and after about a week of marriage, the defendant \u201cgot really physically abusive. He would beat me, stomp me, choke me.\u201d Ms. Coffey left the defendant, but the two reconciled. After about two years of marriage, when she asked the defendant to leave the home she owned, he threw rocks at her and her children and threatened to \u201cblow [her] brains out\u201d and pointed a pistol at her. Ms. Coffey obtained a domestic violence order to keep the defendant away from her and they were later divorced. Defendant did not offer any evidence.\nDefendant first argues the trial court erred in refusing to conduct an inquiry into two incidents of possible juror misconduct.\nOn Monday of the second week of the trial, defense counsel reported to the trial court that upon his return to his office the previous Friday afternoon after court, he received the following message from his secretary:\nThohght you would like to know. This \u2014 a lady called. I asked for her name and she said the first name was Tina. She was reluctant at giving it, so it may not be her first name. She said Grace Ann Proffitt [Juror #2], one of your jurors, has been talking about the case with her mother-in-law, Geraldine Proffitt. Tina works at the same company that Geraldine does and overheard Geraldine talking to other ladies on the lunch break. She said that Geraldine said that [Juror #2] told her the day she came back from being picked as a juror that she thought [the defendant] was guilty just by the look on his face.\nDefendant requested an inquiry into the possible misconduct of Juror #2, and the trial court took the matter under advisement. Prior to the trial court giving the jury instructions, defendant again requested the trial court make an inquiry into Juror #2\u2019s possible misconduct. After hearing arguments from both the State and the defendant, the trial court made extensive findings and concluded in part that:\nNo credible, reliable, substantive or believable evidence has been presented to this court in order to justify the court bringing Juror #2 into open court and conducting an inquiry with respect to Juror #2. That to do so would serve no useful purpose but to embarrass Juror #2 and result in the necessity of the court then having to remove the said juror from this jury panel with prejudice most definitely resulting to the State and the defendant by such an inquiry and by such embarrassment.\nThat such information is rank hearsay, which the Defendant has presented to this Court with respect to the said motion, cannot serve as any basis for any inquiry with respect to the said juror.\nThere is absolutely no credible, reliable evidence for the court to even make an assumption that Juror # 2, Grace Proffitt, has not complied with or followed the court\u2019s instructions which the court gave to her and told her that applied to all recess periods and instructed her to follow.\nWhether alleged misconduct has affected the impartiality of a particular juror is a discretionary determination for the trial court. See State v. Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897 (1985). Misconduct must be determined by the facts and circumstances of each case. Id. The trial court has the responsibility to make such investigations as may be appropriate, including examination of jurors when warranted, to determine whether misconduct has occurred and, if so, whether such conduct has resulted in prejudice to the defendant. See State v. Williams, 330 N.C. 579, 583, 411 S.E.2d 814, 817 (1992). \u201cThe circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.\u201d State v. Johnson, 295 N.C. 227, 234-35, 244 S.E.2d 391, 396 (1978) (quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915)). The trial court\u2019s ruling on the question of juror misconduct will not be disturbed on appeal unless it is clearly an abuse of discretion. See State v. Sneeden, 274 N.C. 498, 504, 164 S.E.2d 190, 195 (1968). A denial of motions made because of alleged juror misconduct is equivalent to a finding that no prejudicial misconduct has been shown. See State v. Jackson, 77 N.C. App. 491, 502-03, 335 S.E.2d 903, 910 (1985). An examination of the juror involved in alleged misconduct is not always required, especially where the allegation is nebulous or where the witness did not overhear the juror or third party talk about the case. See Jackson, 77 N.C. App. at 503, 335 S.E.2d at 910-11.\nThus, based solely on an anonymous telephone call, the trial court did not abuse its discretion in failing to inquire further as to whether Juror #2 may have violated its instructions.\nDefendant\u2019s assignment of error also relates to the trial court\u2019s refusal to conduct an inquiry of a juror \u201cwho informed the clerk during the trial that he recognized two potential witnesses in the audience.\u201d When the defendant requested this inquiry, the trial court also took the matter under advisement. Defendant did not later obtain a ruling on the matter.\nPursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure, the complaining party must \u201cobtain a ruling upon the party\u2019s request, objection or motion\u201d in order to preserve a question for appellate review. Defendant failed to obtain a ruling on the request and thus did not preserve the question for appellate review.\nNext, defendant argues the trial court erred in admitting testimony of defendant\u2019s two former wives concerning his behavior towards them during their marriages. Defendant contends the evidence was too remote in time and did not bear any similar circumstances to the alleged offense.\nCharacter evidence may be admissible for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. See N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999). The list of permissible purposes is not exclusive and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant\u2019s propensity to commit the crime. See State v. Hipps, 348 N.C. 377, 404, 501 S.E.2d 625, 641 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999). Even if admissible under Rule 404(b), the probative value of evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under Rule 403. See State v. Everhardt, 96 N.C. App. 1, 18, 384 S.E.2d 562, 572 (1989), affirmed, 326 N.C. 777, 392 S.E.2d 391 (1990). The test of admissibility examines whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of Rule 403. See State v. Wilson, 106 N.C. App. 342, 348, 416 S.E.2d 603, 607 (1992); State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996). Remoteness for purposes of 404(b) must be considered in light of the specific facts of each case and the purposes for which the evidence is being offered. See Hipps, 348 N.C. at 405, 501 S.E.2d at 642. Remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident. Id. It is not necessary that the similarities between the two situations rise to the level of the unique and bizarre. See State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts. Id. Evidence of prior behavior following a rejection in a romantic relationship is admissible to prove motive and identity. See State v. Parker, 113 N.C. App. 216, 224, 438 S.E.2d 745, 750-51 (1994).\nThe determination to exclude evidence on these grounds is left to the sound discretion of the trial court. See State v. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296, 310, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999). \u201cA trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.\u201d State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986); State v. Mickey, 347 N.C. 508, 518, 495 S.E.2d 669, 676, cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998) (citation omitted).\nThe trial court, after voir dire examinations of Carolyn Aldridge and Elaine Coffey, entered extensive findings and made the following conclusions in part:\nThat the said evidence is relevant and probative with respect to situations that develop at the time of a break-up of a marriage between the Defendant . . . and a wife. That the said evidence indicates and reveals that at the time of the break-up of every marriage that the Defendant . . . has acted violently and in this case criminally and in the other two cases criminally upon receiving information from his spouse as to the said break-up.\nThat the evidence in question in this case reveals and indicates the identity of the perpetrator of the said acts inflicted upon the body of the decedent....\n[T]hat remoteness in time does not under the law of North Carolina exclude evidence or make the said evidence excludable. That any remoteness or space of time deals with the weight of the evidence sought to be admitted and that the question of the weight of any evidence is a question to be determined by the jury and not by the Court....\nThat the Supreme Court of North Carolina in State v. Hipps noted, \u201cremoteness in time is less significant where the prior crime used is to show intent, motive, knowledge or lack of accident.\u201d That all of these facts are present in the case now before this Court....\nThat the evidence in question indicates similar circumstances as a result of the separation by the Defendant from two prior wives which have a direct connection and relevance to the present state of affairs at the time of the occasion in question in this case ....\nThe evidence from defendant\u2019s two former wives tended to show that as the marriages deteriorated, defendant responded violently. There was evidence that the victim planned to separate from the defendant about the time of the murder. The trial court properly concluded the testimonies of Carolyn Aldridge and Elaine Coffey were relevant in establishing the identity of the perpetrator of the murder. Defendant has failed to show the trial court abused its discretion in admitting this evidence, and this assignment of error is overruled.\nNext, defendant argues the trial court erred in admitting statements which the victim made to Josephine Reep. Defendant contends this evidence should have been excluded pursuant to Rules 804(b)(5), 803(3) and 403 of the North Carolina Rules of Evidence.\nThe State filed a notice of intent to use the victim\u2019s statements on 16 November 1998. On 7 December 1998, the defendant filed a motion in limine to exclude any evidence of alleged hearsay statements made by the victim. The trial court deferred ruling on the motion until trial. After a voir dire examination of Ms. Reep, the trial court entered findings and conclusions and denied defendant\u2019s motion.\nHearsay is a \u201cstatement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,\u201d and is inadmissible unless it is subject to a recognized exception. N.C. Gen. Stat. \u00a7 8C-1, Rule 801 (1999); see also N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (1999). Rule 803(3) excepts from the hearsay rule:\nA statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant\u2019s will.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 803(3) (1999).\nThe state of mind exception allows for the introduction of hearsay evidence which tends to \u201cindicate the victim\u2019s mental condition by showing the victim\u2019s fears, feelings, impressions or experiences,\u201d so long as the possible prejudicial effect of such evidence does not outweigh its probative value under Rule 403. State v. Corpening, 129 N.C. App. 60, 66, 497 S.E.2d 303, 308, disc. review denied, 348 N.C. 503, 510 S.E.2d 659 (1998) (quoting State v. Walker, 332 N.C. 520, 535, 422 S.E.2d 716, 725 (1992), cert. denied, 508 U.S. 919, 124 L. Ed. 2d 271 (1993)). Rule 803(3) does not refer to the victim\u2019s state of mind at the time of death, but refers to the victim\u2019s state of mind at the time the statements were made. See State v. McHone, 334 N.C. 627, 637, 435 S.E.2d 296, 302 (1993), cert. denied, 511 U.S. 1046, 128 L. Ed. 2d 220 (1994).\nIn McHone, our Supreme Court held that hearsay testimony was admissible under Rule 803(3) where witnesses testified to the victim\u2019s statements, made at least six months prior to the murder, regarding her fear of the defendant. The hearsay statements recited threats made to the victim by the defendant and the victim\u2019s fear that defendant would kill her. Defendant argued that the prejudicial effect outweighed the probative value since the statements were made six months prior to the murder. The McHone court disagreed and held, \u201cthe evidence tended to show a stormy relationship over a period of years leading up to the murders in this case, and the fact that the last incident testified to occurred six months prior to the murders does not deprive the evidence of its probative value.\u201d McHone, 334 N.C. at 637-38, 435 S.E.2d at 302.\nHere, Ms. Reep testified to statements made by the victim approximately six months prior to the murder, which consisted of the following: she and the defendant were not getting along well; she no longer wanted to be married; if the defendant had not left by May 1997, she would \u201cpush the issue\u201d for him to leave; and the defendant told her that one day he would come home and find her dead with her throat cut and her body sliced up with a knife; and the victim believed the defendant wanted her to sell her house so he could get some of her money. Under these circumstances, the trial court did not err in admitting the statements of the victim. See State v. Murillo, 349 N.C. 573, 587, 509 S.E.2d 752, 759 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999) (holding that victim\u2019s hearsay statements indicating that she intended to end the marriage reflected her state of mind and were admissible under Rule 803(3)); see also State v. Holder, 331 N.C. 462, 485, 418 S.E.2d 197, 210 (1992) (where the Court upheld admitted hearsay statements under the state of mind exception since they \u201ctended to show the nature of the victim\u2019s relationship with defendant and the impact of defendant\u2019s behavior on the victim\u2019s state of mind prior to the murder\u201d).\nNext, defendant contends the trial court erred in admitting testimony concerning the victim\u2019s mental state on the day before her death. Defendant contends the testimonies of Geoff Austin and Barbara Powell, about the victim\u2019s emotional state, were \u201cbeyond the bounds of competent testimony.\u201d\nOpinion testimony, including lay opinion testimony, is admissible concerning the state of a person\u2019s appearance or emotions on a given occasion. See State v. Burke, 343 N.C. 129, 153, 469 S.E.2d 901, 913, cert. denied, 519 U.S. 1013, 136 L. Ed. 2d 409 (1996) (holding that witness testimony that victim was \u201ctense\u201d and \u201cscared of something\u201d was admissible since it tended to show victim\u2019s state of mind at the time).\nAustin, the victim\u2019s son, testified that his mother \u201cseemed very quiet\u201d and \u201csomewhat withdrawn\u201d when he spoke to her on the telephone the night before her death. Powell, the victim\u2019s friend and co-worker, testified that the victim seemed \u201cpre-occupied\u201d and \u201cunusually quiet\u201d on the day before her death. Both witnesses\u2019 testimonies tended to show the victim\u2019s state of mind and therefore defendant\u2019s argument is without merit.\nNext, defendant argues the trial court erred in denying defendant\u2019s motion to dismiss at the close of the State\u2019s evidence and again at the close of all evidence.\nOn a defendant\u2019s motion to dismiss for insufficiency of the evidence, the trial court must consider \u201cwhether there is substantial evidence of each essential element of the offense charged, or of a lesser included offense of that charged.\u201d State v. Robbins, 309 N.C. 771, 774, 309 S.E.2d 188, 190 (1983). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference. State v. Wright, 127 N.C. App. 592, 596-97, 492 S.E.2d 365, 368 (1997), disc. review denied, 347 N.C. 584, 502 S.E.2d 616 (1998). Further, if the trial court determines that a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence, it must deny the defendant\u2019s motion even though the evidence may also support reasonable inferences of the defendant\u2019s innocence. Id. at 597, 492 S.E.2d at 368.\nThe State\u2019s evidence showed that the victim was stabbed eleven times with knives from the kitchen of the residence. There were no signs of forced entry, notwithstanding defendant\u2019s statement to the contrary about hearing footsteps in the residence. Money and other valuables were found on the kitchen table. There was evidence that the victim wanted the defendant to leave the residence and that she no longer wanted to be married. Additionally, the defendant on numerous occasions inquired as to the particulars of how an inmate murdered his girlfriend. Although the State\u2019s case centered around circumstantial evidence, a careful review of the record reveals that this evidence points to the defendant as the killer. Therefore, the evidence taken in the light most favorable to the State was sufficient to withstand defendant\u2019s motions to dismiss.\nWe have carefully reviewed defendant\u2019s remaining assignments of error and find them to be without merit.\nIn sum, defendant received a fair trial free from prejudicial error.\nNo error.\nJudge SMITH concurs in the result with a separate opinion.\nJudge TIMMONS-GOODSON joins in Judge SMITH\u2019S concurring in the result opinion.",
        "type": "majority",
        "author": "WALKER, Judge."
      },
      {
        "text": "Judge Smith\nconcurring in result.\nI disagree with that portion of the majority opinion addressing N.C.G.S. \u00a7 8C-1, Rule 404(b) (1999) (Rule 404(b)). In relevant part, Rule 404(b) states:\nEvidence 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 as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nAs noted by the majority, \u201csuch evidence is admissible as long as it is relevant to any fact or issue other than the defendant\u2019s propensity to commit the crime\" (emphasis added). I believe the evidence at issue herein elicited from defendant\u2019s ex-wives is relevant only to defendant\u2019s propensity to commit the crime, and I therefore disagree with that portion of the majority opinion which holds such evidence is admissible.\nThe trial court\u2019s findings stated that the evidence offered by defendant\u2019s ex-wives \u201cindicates and reveals that at the time of the break-up of every marriage that the [defendant . . . has acted violently . . . upon receiving information from his spouse as to the said break-up.\u201d Defendant\u2019s first wife, Carolyn Aldridge, testified that near the end of their marriage in 1981 defendant \u201csmacked\u201d her four or five times and fired two shots from a pistol in her direction. Defendant\u2019s second wife, Elaine Coffey, testified that approximately two years after their 1983 marriage, defendant threw rocks at her and pointed a pistol at her when asked to leave her home.\nThe victim in this case, defendant\u2019s third wife, was stabbed eleven times on 17 May 1997. Simply put, the incidents involving defendant\u2019s ex-wives are not \u201csufficiently similar\u201d to the murder in question as to be relevant to any factor other than defendant\u2019s propensity towards violence. State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991) (test of admissibility is whether prior incidents are \u201csufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1999)). Further, the incidents occurred over twelve years before the commission of the murder at issue, thus bringing into question whether the prejudicial effect of the ex-wives\u2019 testimony outweighs its probative value. See id.\nWalker, J. cites State v. Parker, 113 N.C. App. 216, 224, 438 S.E.2d 745, 750-51 (1994) for the proposition that \u201c[e]vidence of prior behavior following a rejection in a romantic relationship is admissible to prove motive and identity.\u201d However, in that case, Ms. Thomas, the witness offering the evidence in question, and Ms. Welborn, the murder victim,\nhad rejected defendant in a relationship, [after which] defendant kept both women under constant surveillance; threatened to kill both women; threatened to commit suicide over both women; ran both women off the road with his vehicle; pulled weapons on both women; . . . stabbed Ms. Thomas,\nid. at 225, 438 S.E.2d at 751; and shot and killed Ms. Welborn. The incident with Ms. Thomas took place five years before Ms. Welborn was murdered. Id. In the instant case, the incidents involving defendant\u2019s ex-wives and the victim took place over twelve years apart, and there are no similarities between the incidents other than defendant\u2019s general violent tendencies on learning of a break-up. Though the majority attempts to use the ex-wives\u2019 testimony to show identity, I believe the similarities are completely insufficient for this purpose.\nNotwithstanding, I do not believe the trial court\u2019s error was so prejudicial to defendant that a different result would have been reached had the error not occurred. See N.C.G.S. \u00a7 15A-1443(a) (1999) (in order for error to be prejudicial, there must be a \u201creasonable possibility that, had the error in question not been committed, a different result would have been reached\u201d); see also State v. Jolly, 332 N.C. 351, 363, 420 S.E.2d 661, 668 (1992) (though improper to admit evidence under Rule 404, error was not prejudicial to defendant). I therefore concur in the result.\nJudge Timmons-Goodson joins in the concurring opinion.",
        "type": "concurrence",
        "author": "Judge Smith"
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Robert C. Montgomery, for the State.",
      "C. Frank Goldsmith, Jr. for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BENJAMIN ALDRIDGE\nNo. COA99-957\n(Filed 29 August 2000)\n1. Jury\u2014 allegations of juror misconduct \u2014 anonymous telephone call\nThe trial court did not abuse its discretion in a first-degree murder case by refusing to conduct an inquiry into an alleged incident of possible juror misconduct based solely on an anonymous telephone call, because an examination of the juror involved in alleged misconduct is not always required, especially where the allegation is nebulous or where the witness did not overhear the juror or third party talk about the case.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to obtain a ruling\nThe trial court did not abuse its discretion in a first-degree murder case by refusing to conduct an inquiry into an alleged incident of possible juror misconduct based on a juror informing the clerk during trial that he recognized two potential witnesses in the audience, because defendant failed to obtain a ruling on the request for an inquiry as required by N.C. R. App. P. 10(b)(1), and therefore, did not preserve this, question for appellate review.\n3. Evidence\u2014 hearsay \u2014 state of mind exception\nThe trial court did not err in a first-degree murder case by admitting statements which the victim made to another person six months prior to the murder about the victim\u2019s deteriorating relationship with defendant and her intent to end their marriage, because the state of mind exception under N.C.G.S. \u00a7 8C-1, Rule 803(3) allows for the introduction of hearsay evidence which tends to indicate the victim\u2019s mental condition by showing the victim\u2019s fears, feelings, impressions, or experiences at the time the statements were made, so long as the possible prejudicial effect does not outweigh its probative value under N.C.G.S. \u00a7 8C-1, Rule 403.\n4. Evidence\u2014 opinion testimony \u2014 victim\u2019s state of mind\nThe trial court did not err in a first-degree murder case by admitting the testimony of two witnesses concerning the victim\u2019s mental state on the day before her death because opinion testimony, including lay opinion testimony, is admissible concerning the state of a person\u2019s appearance or emotions on a given occasion.\n5. Homicide\u2014 first-degree murder \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a first-degree murder case by denying defendant\u2019s motions to dismiss at the close of the State\u2019s evidence and at the close of all evidence, because there was sufficient evidence to show that defendant husband was the killer, including evidence that: (1) the victim was stabbed eleven times with knives from the kitchen of the residence; (2) there were no signs of forced entry; (3) money and other valuables were found on the kitchen table; (4) there was evidence that the victim wanted defendant to leave the residence and that she no longer wanted to be married; and (5) defendant on numerous occasions inquired as to the particulars of how an inmate murdered his girlfriend.\n6. Evidence\u2014 prior crimes or acts \u2014 propensity to commit crime\nAlthough the trial court erred in a first-degree murder case by admitting testimony of defendant\u2019s two former wives concerning his behavior towards them during their marriages based on the fact the evidence was only relevant to show defendant\u2019s propensity to commit the crime in this case, in violation of N.C.G.S. \u00a7 8C-1, Rule 404(b), the error was not prejudicial because a different result would not have been reached had the error not occurred. (Concurring in result opinion by Judge Smith with which Judge Tinunons-Goodson joined.)\nJudge Smith concurring in result.\nJudge Timmons-Goodson joins in the concurring opinion.\nAppeal by defendant from judgment entered 17 December 1998 by Judge Zoro J. Guice, Jr. in McDowell County Superior Court. Heard in the Court of Appeals 18 May 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Robert C. Montgomery, for the State.\nC. Frank Goldsmith, Jr. for defendant-appellant."
  },
  "file_name": "0706-01",
  "first_page_order": 738,
  "last_page_order": 752
}
