{ "id": 8953793, "name": "STATE OF NORTH CAROLINA v. LAURENCE PERRY", "name_abbreviation": "State v. Perry", "decision_date": "2003-07-15", "docket_number": "No. COA02-1356", "first_page": "30", "last_page": "43", "citations": [ { "type": "official", "cite": "159 N.C. App. 30" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "221 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "761", "parenthetical": "citing State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976)" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "pin_cites": [ { "page": "369", "parenthetical": "citing State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "103 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "248 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623030 ], "year": 1958, "pin_cites": [ { "page": "344-45" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0342-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "459 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "340 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790122 ], "year": 1995, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0674-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "473 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "5", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867543 ], "year": 1996, "pin_cites": [ { "page": "194", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0190-01" ] }, { "cite": "519 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "519", "parenthetical": "quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934))" } ], "opinion_index": 0 }, { "cite": "351 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155889 ], "year": 1999, "pin_cites": [ { "page": "22", "parenthetical": "quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934))" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0014-01" ] }, { "cite": "145 L. Ed. 2d 326", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9559617, 9560769, 9560449, 9560072, 9560362, 9560139, 9560555, 9560208, 9559792, 9559696, 9559889, 9560663, 9559965, 9560287 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0973-01", "/us/528/0973-14", "/us/528/0973-11", "/us/528/0973-06", "/us/528/0973-10", "/us/528/0973-07", "/us/528/0973-12", "/us/528/0973-08", "/us/528/0973-03", "/us/528/0973-02", "/us/528/0973-04", "/us/528/0973-13", "/us/528/0973-05", "/us/528/0973-09" ] }, { "cite": "513 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "310" } ], "opinion_index": 0 }, { "cite": "350 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132105 ], "year": 1999, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0152-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "608" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "citing State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "year": 2002, "pin_cites": [ { "page": "154", "parenthetical": "citing State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "453 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "339 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558420 ], "year": 1995, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0562-01" ] } ], "analysis": { "cardinality": 1069, "char_count": 30381, "ocr_confidence": 0.753, "pagerank": { "raw": 6.665651525889828e-08, "percentile": 0.4059290715404643 }, "sha256": "130be84cf9704f25589456e6d72d1fe8943e34d5e2a6a091dc7c44eb7a0de3db", "simhash": "1:876b1c20572f13d2", "word_count": 4941 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and LEVINSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LAURENCE PERRY" ], "opinions": [ { "text": "TYSON, Judge.\nLaurence Perry (\u201cdefendant\u201d) appeals from his convictions of and sentence for involuntary manslaughter and practicing medicine without a license. We find no error.\nI. Background\nIn March of 1997, Helena Rose Kolitwenzew (\u201cRose\u201d) was six years old and was diagnosed with Type I Juvenile Diabetes. Rose\u2019s mother, Marion Kolitwenzew (\u201cMarion\u201d), was informed that her daughter would be insulin dependent for the rest of her life. Marion tried many methods of alternative medicine for her daughter including blue shark embryo injections in Mexico and acupuncture. On several prior occasions, Rose had to be taken to a medical facility to be treated for low blood sugar when her mother either did not administer her insulin or reduced her insulin level. Rose was being treated by Simon Becker who believed \u201cthat what Rosie had was a virus, that it was acting viral.\u201d During all of her alternative medicine treatments, Marion continued to take her daughter to a medical doctor.\nIn September 1999, Becker referred Marion and Rose to defendant, a naturopath. Defendant lived and worked in Polk County. On 20 September 1999, Marion took Rose for her first visit to defendant at his Polk County office. Marion listed her address in Transylvania County. Marion testified that defendant\u2019s office was set up with examination rooms similar to a doctor\u2019s office and that there were \u201cmedical instruments\u201d in the cabinets in the room. Defendant wore a white coat. Marion testified that, at that first meeting, defendant informed her that \u201che was a consultant for the Government on viruses.\u201d Defendant began rubbing olive oil on Rose\u2019s feet and marking them with a magic marker.\nDefendant started Rose on a vitamin C regimen to determine whether she was truly diabetic. On 4 October 1999, Marion again brought her daughter to defendant in Polk County who determined that Rose had a virus which caused Rose\u2019s blood sugars to be elevated. His treatment attempted to \u201cteach\u201d Rose\u2019s immune system to make the virus not affect the blood sugars. Defendant orally and in writing instructed:\nStart 10/4/99, Arnica liquid extract, take five drops on tongue, five times a day, follow with water. Take for five days and stop. For blockages in the blood supply of the kidneys (arteries) pus type blockage. She has lot of poisons in her body and moving to Mexico will be good for patient to receive the care she needs. Remove all other supplements and medications for four weeks except Beyond Chelation Packets. Begin 10/9/99, Beyond Chelation Packets, take one dose each morning with food for four weeks and stop. To reduce infection and raise the immune system. Resume treatments in Mexico afterwards. Prepare to stop insulin in approximately four weeks. Diet, a lot of peanut butter and legumes with regular medications.\nMarion testified that Defendant instructed her, through telephone conversations relayed by Janice, defendant\u2019s employee, to reduce Rose\u2019s insulin. On 19 October 1999, defendant instructed Marion to stop all insulin. Over the course of the next three days, defendant called the office \u201c20 to 50 times.\u201d Marion testified:\n[Rose] was vomiting. He told me not to take her blood sugar because we would go into shock because it would be so low, but I took her blood sugar and it was 477. He told me that this was a reaction, a shock reaction, it was just stress. I begged him to help me put her back on the insulin. I asked Janice, I told Janice, I said we need to put her back on the insulin, and Janice told me he can no longer see you if you\u2014 ... If you put her back on the insulin, if you don\u2019t follow his directions. He told me \u2014 I explained to him that I didn\u2019t think this was the right time to do this, this wasn\u2019t working, and that we needed to put her back on the insulin, and I was talking to him directly and he said to me that her system was weak and that she could beat this virus now. It was like a moon shock and it was a window of opportunity now, and if we didn\u2019t take it now, she would never be able to overcome it, and if she didn\u2019t overcome it now, that she would be on dialysis in three months. And he assured me that he knew what he was doing, that he had done this hundreds of times and that I would have my little girl back without insulin.\nOn 21 October 1999, Rose died from diabetic ketoacidosis.\nDefendant testified on his own behalf that he held himself out as a naturopath. He testified that it was hard to obtain information from Marion and he called her \u201cone of the most difficult parents that I have ever had to deal with.\u201d During multiple calls to defendant from Marion, defendant told Marion to \u201cgive insulin now\u201d to Rose. Defendant testified he \u201cnever told her to just quit insulin.\u201d He told her that he could not prescribe anything but that he could recommend.\nI told her not to [stop insulin]. I told her in the way that insulin is something that \u2014 especially type 1, is something that a person is just going to have to take the rest of their life. You\u2019re not going to be able to get her off. However, you can supplement that insulin with supplementations of vitamins and so forth, nutrition that will help the person, whoever they are, cope with having to take insulin as a type 1 diabetic.\nAt 7:50 pm on 20 October 1999, defendant called Marion in response to multiple calls from her. Defendant was shocked by how high Rose\u2019s blood sugar level was and was \u201cmore in, if you will, an argument with her why she\u2019s not giving Rosie insulin.\u201d Defendant was indicted and tried in Buncombe County.\nThe jury found defendant guilty of involuntary manslaughter and practicing medicine without a license. The trial court entered judgment and sentenced defendant to a consolidated active sentence of twelve to fifteen months. Defendant appeals.\nII. Issues\nDefendant contends the trial court erred in (1) failing to dismiss for improper venue, (2) admitting into evidence a note from defendant\u2019s employee to Marion, (3) refusing to allow defendant to question Lieutenant Fredrickson whether the State would issue a license to an illegal business, (4) admitting testimony from an officer concerning what medical records stated, (5) admitting evidence regarding defendant\u2019s treatment of another patient, (6) admitting testimony and photographs regarding the appearance of the schools on defendant\u2019s diplomas, (7) refusing to admit character evidence of defendant\u2019s habit and character for being a law-abiding citizen and not holding himself out as a physician, (8) denying defendant\u2019s motion for mistrial because of statements regarding an SBI investigation, (9) denying defendant\u2019s motion to dismiss for insufficient evidence, and (10) failing to sustain objection to improper closing arguments.\nIII. Venue\nDefendant contends the trial court erred in denying defendant\u2019s motion to dismiss for improper venue.\nDefendant was indicted for both the felony of involuntary manslaughter and the misdemeanor of practicing medicine without a license in Buncombe County. Defendant had lived and worked in Polk County for more than fourteen years. The face-to-face visits between Rose, Marion, and defendant occurred only in Polk County. The listed address for Marion and Rose was in Transylvania County. The cell phone used by Marion was based in Transylvania County. During the last days of Rose\u2019s life, she and her mother had been staying in a camp ground inside of Buncombe County. Marion placed cell phone calls from Buncombe County to defendant in Polk County. He returned those calls to her Transylvania cell phone number while she was in Buncombe County. Rose was admitted to a hospital in Buncombe County where she died.\nN.C. Gen. Stat. \u00a7 15A-131(c) (2001) provides that \u201cvenue . . . lies in the county where the charged offense occurred.\u201d \u201cAn offense occurs in a county if any act or omission constituting part of the offense occurs within the territorial limits of the county.\u201d N.C. Gen. Stat. \u00a7 15A-131(e). When acts constituting the offense occur in multiple counties, each county has concurrent venue. N.C. Gen. Stat. \u00a7 15A-132(a) (2001). N.C. Gen. Stat. \u00a7 15A-132(b) (2001) provides \u201c[i]f charged offenses which may be joined in a single criminal pleading under G.S. 15A-926 occurred in more than one county, each county has concurrent venue as to all charged offenses.\u201d N.C. Gen. Stat. \u00a7 15A-926(a) (2001) provides for joinder when the offenses \u201care based on the same act or transaction or on a series of acts or transactions connected together constituting parts of a single scheme or plan.\u201d\nThe State argues that while Rose and Marion were located in Buncombe County, defendant called them, talked with them, and committed both violation of a statute and criminal negligence. Rose died in Buncombe County. These are sufficient \u201cacts or omissions constituting part of the offense\u201d of involuntary manslaughter. N.C. Gen. Stat. \u00a7 15A-131. Because the offenses are joinable offenses under N.C. Gen. Stat. \u00a7 15A-926(a), venue is proper in Buncombe County for both of the charged offenses. N.C. Gen. Stat. \u00a7 15A-131. This assignment of error is overruled.\nIV. Admission of Note to Marion\nDefendant contends the trial court erred in allowing Marion to testify to the contents of a \u201cnutriscription\u201d and admitting the \u201cnutriscription\u201d which Marion testified did not come from defendant but from an unknown employee of defendant. We disagree.\nThe State introduced a copy of a nutriscription from 4 October 1999 through Marion and over defendant\u2019s objection. The State introduced, without objection, the original \u201cnutrisciption\u201d and the medical records documenting it through Detective Constance. \u201cWhere evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995).\nBy failing to object to the later admission of the same evidence, defendant has waived any benefit of the original objection and failed to preserve the issue for appeal. This assignment of error is overruled.\nV. Evidence of Privilege License\nDefendant contends the trial court erred in failing to admit the offer of proof testimony of Lieutenant Fredrickson:\n[Defendant\u2019s Counsel]: Officer, based on your investigations that you testified about the issuance of license by the State of North Carolina, the State of North Carolina would not issue a license or a privilege license for an illegal business; would it?\nA: No.\nDefendant contends the evidence was relevant to show that his practice was not illegal. Defendant was allowed to admit into evidence the following exchange between defendant\u2019s counsel and Lieutenant Fredrickson:\nQ. What knowledge do you have as to what Laurence Perry had to produce to the State of North Carolina to get a privilege license?\nA. We were interested in what \u2014 that same question, what you would have to have and we asked what the privilege license was. It was just a formality that any business had to have.\nQ. Any legal business; isn\u2019t that correct? You couldn\u2019t get a privilege license to practice some business that\u2019s against the law; could you?\nA. I don\u2019t know. I wouldn\u2019t think so.\nTo be reversible error, defendant must show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a). Presuming error in failing to admit the evidence, defendant has failed to prove prejudice in light of the other similar admitted evidence. This assignment of error is overruled.\nVI. Detective Constance\u2019s Testimony\nDefendant contends the trial court allowed Detective Constance to testify that \u201cthere are numerous phone consultations\u201d in the progress notes.\nThe testimony came while Detective Constance was reading to the jury parts of Rose\u2019s medical records seized from defendant. Detective Constance noted that there were \u201cnumerous phone consultations\u201d in response to the question \u201cIn the progress notes, do the progress notes record when [Marion] would call in and report Rosie\u2019s condition?\u201d\nDetective Constance was looking at the medical records and indicated that the medical records showed \u201cnumerous\u201d phone calls. The medical records were admitted into evidence and published to the jury without any objection. Defendant failed to preserve the objection or to show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a). This assignment of error is overruled.\nVIL Treatment of Martin\nDefendant contends the trial court erred in admitting the testimony of Mary Martin and of Tekeela S\u00faber regarding defendant\u2019s treatment of Mrs. Martin\u2019s daughter for type 1 juvenile diabetes starting in 1996. Mrs. Martin testified that during the initial examination of her daughter, defendant put marks on her feet, and \u201cgave her a magnet to put on her back.\u201d Defendant presented only a general objection to the testimony which was overruled. Ms. S\u00faber was a registered nurse working with Mrs. Martin and Dr. Boniface to treat the daughter\u2019s juvenile diabetes. Ms. S\u00faber testified, \u201cI called [the Martins] because her blood sugars were elevated and Dr. Boniface told me to tell [them] to put her back on insulin.\u201d\nRule 404(b) of the N.C. Rules of Evidence allows for the admission of evidence of prior acts to show defendant\u2019s plan, motive, intent, knowledge, and absence of mistake. N.C. Gen. Stat. \u00a7 8C-1, 404(b). It is a rule of inclusion and defendant\u2019s prior acts should be excluded if their \u201conly probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). The rule of inclusion of evidence under Rule 404(b) is \u201cconstrained by the requirements of similarity and temporal proximity.\u201d State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002) (citing State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001)).\nMrs. Martin testified to multiple aspects of defendant\u2019s treatment of her daughter for juvenile diabeties including his belief that her diabetes was a viras, his plan to stop her insulin, and incremental decreases in her insulin. Mrs. Martin\u2019s daughter\u2019s blood sugar rose as a result of the treatment plan. Defendant\u2019s treatment of Martin\u2019s daughter was similar to the evidence the State presented of defendant\u2019s treatment and actions with regard to Rose.\nFurther, defendant has failed to show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a). These assignments of error are overruled.\nVIII. Schools Defendant Attended\nDefendant contends the trial court erred in admitting evidence regarding the physical locations of the addresses of the universities listed on defendant\u2019s diplomas and resume. Defendant contends the evidence is not relevant and even if relevant, it should have been excluded under Rule 403 of the N.C. Rules of Evidence. We disagree.\nEvidence is relevant if it has any tendency to make the existence of a fact in issue more or less probable. N.C. Gen. Stat. \u00a7 8C-1, Rule 401. Relevant evidence may be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403. Whether evidence should be excluded under Rule 403 is discretionary with the trial court and will not be overturned absent a showing of abuse of that discretion. 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).\nThe State attempted to show the physical locations of the universities which defendant\u2019s resume and diplomas showed he attended and which bestowed upon him his title of \u201cdoctor.\u201d The State argues that the evidence tends to show that defendant was holding himself out as a medical doctor. Defendant has failed to show that the trial court abused its discretion in admitting the evidence. This assignment of error is overruled.\nIX. Character Evidence of Defendant\nDefendant contends the trial court erred in refusing to admit the testimony of Nancy Bahmueller, Carolyn Teague, and Joe Kownslar all of whom testified during an offer of proof that: (1) they knew the defendant between two and four years; (2) defendant never told them to stop taking medicines that physicians had prescribed; (3) defendant never told them to stop seeing other healthcare providers; (4) defendant did not hold himself out as a doctor; and, (5) defendant held himself out as a naturopath. At trial, defendant\u2019s theory for admissibility was that the State \u201copened the door\u201d to specific instances by presenting evidence regarding defendant\u2019s dealings with and treatment of the Martins. Defendant asserts the right to refute the evidence. On appeal, defendant argues the evidence is admissible under Rule 404(a)(1) or Rule 406. Neither of these were argued before the trial court. \u201cBecause defendant failed to make this argument at trial, he cannot1 \u201cswap horses between courts in order to get a better mount in [this Court].\u201d \u2019 \u201d State v. Hamilton, 351 N.C. 14, 22, 519 S.E.2d 514, 519 (1999) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934))). Defendant has failed to properly preserve the issue for appellate review on the grounds asserted. This assignment of error is overruled.\nX. Motion for Mistrial\nDefendant contends the trial court erred in denying his motion for a mistrial based on Detective Constance\u2019s testimony regarding his familiarity of a signature based on a law enforcement investigation.\nA motion for mistrial is discretionary with the trial court and will not be overturned absent a showing of an abuse of discretion. State v. Powell, 340 N.C. 674, 692, 459 S.E.2d 219, 228 (1995). Defendant contends the trial court abused its discretion because no curative instruction was given and \u201cthe mountains of prejudicial and irrelevant evidence admitted.\u201d\nDetective Constance was testifying to his knowledge of the signature of Gregory Cappenger who signed one of defendant\u2019s diplomas. Detective Constance stated, \u201cI worked with or assisted and reviewed a case with the Federal Bureau of Investigation \u2014 .\u201d Defendant objected and the trial court sustained the objection. Defendant failed to move to strike or request a curative instruction. Defendant waited until seven other witnesses had testified and until the next morning before making his motion for a mistrial based on Detective Constance\u2019s statement which was objected to and sustained.\nDuring the hearing on the motion for a mistrial, the trial court asked, \u201cOut of curiosity, if you felt it was so prejudicial, why did [you] not make some statement about it immediately?\u201d Neither the State nor the trial court remembered the explicit testimony which was the basis of the motion other than that defendant objected, the trial court sustained the objection, and the State did not continue the examination on that basis. The trial court concluded that \u201cthe court cannot find that the event which has been described by the defendant, even if it did occur in the manner in which the defendant has described, constituted an error or legal defect in the proceeding inside or outside the courtroom resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d The trial court denied the motion for a mistrial.\nDefendant has failed to show that the trial court abused its discretion in denying the motion for a mistrial. This assignment of error is overruled.\nXI. Insufficient, Evidence\nDefendant contends the trial court erred in denying its motion to dismiss for insufficient evidence made and renewed at the end of the State\u2019s evidence and the end of all evidence. We disagree.\nA motion to dismiss should be denied if, taking the evidence in a light most favorable to the State, substantial evidence exists of each essential element of the offense charged and of defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted). \u201cIf there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court\u2019s duty to submit the case to the jury.\u201d State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958).\nA review of the record shows that the State presented sufficient evidence of the elements of both charges to survive defendant\u2019s motion to dismiss. The trial court properly denied defendant\u2019s motions. This assignment of error is overruled.\nXII. Closing Arguments\nDefendant contends the trial court erred in overruling his objection to the State\u2019s closing argument. We disagree.\n\u201cDuring a closing argument to the jury an attorney may not . . . make arguments on the basis of matters outside the record . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1230. Control of the arguments of counsel rests in the discretion of the trial court. This Court \u201cordinarily will not review the exercise of the trial judge\u2019s discretion in this regard unless the impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.\u201d State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979) (citing State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976)). \u201c[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero mo tu an argument which defense counsel apparently did not believe was prejudicial when he heard it.\u201d Id.\nAlthough closing arguments were not recorded, defendant noted in the record:\nduring the State\u2019s closing argument, Mr. Hasty [counsel for the State] \u2014 that Mr. Hasty held up some medical records of Dr. Biddle which were not in evidence. He held them up in front of the jury and he read from them in front of the jury showing that what he was reading, that I objected to this, and I want the record to reflect that that \u2014 those documents had not been put in evidence and that the matter that he read had not been put into evidence.\nThe State responded that the argument was proper \u201cbecause the defense referred to them in their argument.\u201d\nDuring the testimony of Marion, defendant\u2019s counsel specifically asked Marion about Rose\u2019s medical records from Dr. Biddle and read those records into the record through questioning of Marion. The actual medical record was not admitted into evidence. Defendant did not disagree with State\u2019s argument that the defense referenced the records during its closing arguments. The contents of the medical records and the existence of the medical records from Dr. Biddle were in evidence. The State did not go outside the scope of the evidence when it read from the records during closing arguments.\nDefendant also noted that he objected when the State did the same thing with notes from Officer Frederickson. The trial court responded, \u201cI did not hear anything referred to in the closing argument though that was not testified to by Officer Frederickson.\u201d Defendant does not contradict or argue against the trial court\u2019s statement that everything the State referred to in closing was in evidence through the testimony of Officer Frederickson. The trial court did not abuse its discretion in overruling defendant\u2019s objections to the State\u2019s closing arguments. This assignment of error is overruled.\nXTTT. Conclusion\nThe trial court did not err in denying defendant\u2019s motion to dismiss for improper venue. We hold the trial was free from prejudicial error that defendant assigned and argued.\nNo Error.\nJudges MARTIN and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.", "James N. Freeman, Jr. for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAURENCE PERRY\nNo. COA02-1356\n(Filed 15 July 2003)\n1. Criminal Law\u2014 venue \u2014 concurrent\u2014joinable offenses\nThe trial court did not err in an involuntary manslaughter and practicing medicine without a license case by denying defendant\u2019s motion to dismiss based on improper venue, because: (1) N.C.G.S. \u00a7 15A-132(b) provides that when acts constituting the offense occur in multiple counties, each county has concurrent venue; (2) N.C.G.S. \u00a7 15A-132(b) also provides that if charged offenses which may be joined in a single criminal pleading under N.C.G.S. \u00a7 15A-926 occurred in more than one county, each county has concurrent venue as to all charged offenses; and (3) the offenses in this case are joinable offenses under N.C.G.S. \u00a7 16A-926(a).\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to object to later admission of same evidence\nAlthough defendant contends the trial court erred in an involuntary manslaughter and practicing medicine without a license case by admitting into evidence a note from defendant natur-opath\u2019s employee to the child victim\u2019s mother, this assignment of error is overruled because defendant failed to preserve this issue for appeal by failing to object to the later admission of the same evidence.\n3. Evidence\u2014 refusal of questioning concerning business license \u2014 failure to prove prejudice\nEven if it is presumed that the trial court erred in an involuntary manslaughter and practicing medicine without a license case by refusing to allow defendant naturopath to question a police lieutenant about whether the State would issue a license to an illegal business, this assignment of error is overruled because defendant failed to prove prejudice in light of other similar admitted evidence.\n4. Evidence\u2014 medical records \u2014 failure to object\nThe trial court did not err in an involuntary manslaughter and practicing medicine without a license case by allowing a detective to testify that there were numerous phone consultations in defendant naturopath\u2019s progress notes that were included in the child victim\u2019s medical records, because: (1) the medical records were admitted into evidence and published to the jury without objection; and (2) defendant failed to preserve the objection or to show that there is a reasonable possibility that a different result would have been reached absent any alleged error.\n5. Evidence\u2014 prior acts \u2014 treatment of another patient\nThe trial court did not err in an involuntary manslaughter and practicing medicine without a license case by admitting evidence regarding defendant naturopath\u2019s treatment of another patient, because: (1) N.C.G.S. \u00a7 8C-1, Rule 404(b) allows for the admission of evidence of prior acts to show defendant\u2019s plan, motive, intent, knowledge, and absence of mistake; (2) defendant\u2019s treatment of the other patient was similar to the evidence the State presented of defendant\u2019s treatment and actions with regard to the child victim in this case; and (3) defendant failed to show that there was a reasonable possibility that a different result would have been reached absent the alleged error.\n6. Evidence\u2014 physical location of universities \u2014 relevancy\nThe trial court did not abuse its discretion in an involuntary manslaughter and practicing medicine without a license case by admitting evidence regarding the physical locations of the addresses of the universities listed on defendant\u2019s diplomas and resume, because the State was attempting to show that defendant naturopath was holding himself out as a medical doctor.\n7. Appeal and Error\u2014 preservation of issues \u2014 failure to preserve issue on grounds asserted\nAlthough defendant contends the trial court erred in an involuntary manslaughter and practicing medicine without a license case by refusing to admit character evidence of defendant natur-opath\u2019s habit and character for being a law-abiding citizen and not holding himself out as a physician, this assignment of error is overruled because defendant failed to properly preserve the issue for appellate review on the grounds asserted.\n8. Criminal Law\u2014 motion for mistrial \u2014 failure to move to strike or request curative instruction\nThe trial court did not err in an involuntary manslaughter and practicing medicine without a license case by denying defendant naturopath\u2019s motion for a mistrial based on a detective\u2019s testimony regarding his familiarity with a signature based on a law enforcement investigation, because: (1) defendant failed to move to strike or request a curative instruction; (2) defendant waited until seven other witnesses had testified and until the next morning before making his motion based on the detective\u2019s statement which was objected to and sustained; and (3) defendant failed to show that the trial court abused its discretion by denying the motion.\n9. Homicide; Physicians and Surgeons\u2014 involuntary manslaughter \u2014 practicing medicine without a license \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant naturopath\u2019s motion to dismiss the charges of involuntary manslaughter and practicing medicine without a license, because the State presented sufficient evidence of the elements of both charges.\n10. Criminal Law\u2014 prosecutor\u2019s argument \u2014 medical records\u2014 note\nThe trial court did not abuse its discretion in an involuntary manslaughter and practicing medicine without a license case by overruling defendant naturopath\u2019s objections to the State\u2019s closing argument regarding the reading from the child victim\u2019s medical records from another doctor and the notes from an officer, because: (1) the defense referenced the medical records during its closing arguments; (2) the contents of the medical records and the existence of the medical records from the other doctor were in evidence; and (3) everything the State referenced to in closing regarding the notes from an officer was in evidence through the testimony of the officer.\nAppeal by defendant from judgment entered 15 April 2002 by Judge James L. Baker in Buncombe County Superior Court. Heard in the Court of Appeals 11 June 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.\nJames N. Freeman, Jr. for defendant." }, "file_name": "0030-01", "first_page_order": 60, "last_page_order": 73 }