{ "id": 4161260, "name": "STATE OF NORTH CAROLINA, Plaintiff v. SAMUEL L. LOFTON, Defendant", "name_abbreviation": "State v. Lofton", "decision_date": "2008-10-21", "docket_number": "No. COA07-1530", "first_page": "364", "last_page": "375", "citations": [ { "type": "official", "cite": "193 N.C. App. 364" } ], "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": "627 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635389 ], "year": 2006, "pin_cites": [ { "page": "478", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0474-01" ] }, { "cite": "646 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638717, 12638718, 12638719 ], "year": 2007, "pin_cites": [ { "page": "110", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0105-01", "/se2d/646/0105-02", "/se2d/646/0105-03" ] }, { "cite": "611 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632628 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "209", "parenthetical": "citations and quotation marks omitted" }, { "page": "209" }, { "page": "210" }, { "page": "210", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0206-01" ] }, { "cite": "392 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "326 N.C. 777", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309817 ], "year": 1990, "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0777-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "177 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300951 ], "year": 2006, "pin_cites": [ { "page": "104", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0098-01" ] }, { "cite": "528 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155928 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0611-01" ] }, { "cite": "516 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "199", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220679 ], "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0573-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "897", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "315", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "578 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491553, 491785, 491498, 491756, 491566, 491448, 491418 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0065-05", "/nc/357/0065-03", "/nc/357/0065-04", "/nc/357/0065-07", "/nc/357/0065-01", "/nc/357/0065-06", "/nc/357/0065-02" ] }, { "cite": "570 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "904", "parenthetical": "discussing defendant's prior attacks on the victim" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250894 ], "year": 2002, "pin_cites": [ { "page": "590", "parenthetical": "discussing defendant's prior attacks on the victim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0581-01" ] }, { "cite": "361 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744653 ], "year": 2007, "pin_cites": [ { "page": "388", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0382-01" ] }, { "cite": "421 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "55", "parenthetical": "citation and quotation marks omitted" }, { "page": "55" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "280", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "471 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "615", "parenthetical": "citation and quotation marks omitted" }, { "page": "616", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "343 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798758 ], "year": 1996, "pin_cites": [ { "page": "330", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0313-01" ] }, { "cite": "169 N.C. App. 797", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8473865 ], "year": 2005, "pin_cites": [ { "page": "800", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0797-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "247", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "206-07", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "citations, quotation marks,- ellipses, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "citations, quotation marks,- ellipses, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "526 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "685" }, { "page": "685", "parenthetical": "citation'omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092342 ], "year": 2000, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0144-01" ] } ], "analysis": { "cardinality": 1034, "char_count": 24855, "ocr_confidence": 0.748, "pagerank": { "raw": 7.658484108850664e-08, "percentile": 0.4519773160520169 }, "sha256": "055c0a98bcb5cb3536e7dd76e24ab1cfb5cb5782246360b1034c0da59074ddbf", "simhash": "1:c2545e22ce320cf5", "word_count": 4224 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. SAMUEL L. LOFTON, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of felony aggravated assault on a handicapped person, felonious assault by strangulation, false imprisonment, and was found to have attained habitual felon status. Defendant appeals, claiming the trial court committed plain error when: (1) it allowed the victim to testify to previous incidents with defendant which were \u201cinadmissible under the North Carolina Rules of Evidence as more prejudicial than probative and as improper evidence of prior bad acts[,]\u201d and (2) it admitted evidence of the victim\u2019s mental condition which \u201chad no probative value, but was highly inflammatory and likely to arouse the jury\u2019s sympathies.\u201d For the following reasons, we find that the trial court did not commit error.\nI. Background\nThe State\u2019s evidence tended to show: In approximately 1996, Vivian Downs (\u201cMs. Downs\u201d), the victim, suffered a stroke which paralyzed the entire right side of her body. As a result of the stroke, Ms. Downs cannot move her right arm and can only slightly move her leg. Ms. Downs can walk with assistance. Ms. Downs also suffers from arthritis.\nMs. Downs met defendant in 2001. Ms. Downs and defendant dated briefly. In May of 2001, Ms. Downs moved in with defendant. In 2005, defendant began hitting Ms. Downs after accusing her of sleeping with defendant\u2019s brother-in-law, while they were visiting him in Raleigh. Approximately a month after this incident, defendant struck Ms. Downs in the face. In early October 2005, defendant accused Ms. Downs of cheating on him with two lesbians and hit her in the face causing her to fall onto the floor; defendant then threw a sharp knife at Ms. Downs, which missed her and went underneath the sofa. Ms. Downs tried to hide her resulting bruises from family and friends.\nOn the evening of 10 October 2005, around 10:30 p.m., Ms. Downs was watching television in the master bedroom while defendant was watching television in another bedroom. Defendant hurried out of the bedroom and opened the front door. Ms. Downs had not heard anyone knock or ring the doorbell. Defendant then came back to the master bedroom and asked Ms. Downs, \u201cWhere is he at? Where is that M.F.?\u201d and struck her, causing her to fall across the bed. Ms. Downs asked defendant what was wrong with him. Defendant then told Ms. Downs, \u201cYou better tell me who it is.... When I come back, I\u2019m going to kill you.\u201d Ms. Downs then heard defendant go into the kitchen and open the utensil drawer where he retrieved a knife and hammer.\nMs. Downs tried to get away, but defendant grabbed her by the hair, pulled her, and kicked her to the hardwood floor. Ms. Downs\u2019 knees were bruised and her head was bleeding. Ms. Downs asked defendant to take her to the hospital and he told her, \u201cDie, bitch.\u201d Defendant then began to tear up the room, breaking things, and took the mattress off the bed, while Ms. Downs remained on the floor. Defendant continued to hit Ms. Downs in the head and stomach so hard that at one point she thought she had been knocked unconscious.\nMs. Downs remained on the floor for at least an hour. Ms. Downs once again tried to escape, but defendant caught her at the front door and dragged her back to the bedroom, while continuing to kick her. Defendant eventually put the mattress back on the bed, and Ms. Downs got off the floor. Defendant then punched Ms. Downs\u2019 breasts, grabbed her by the throat, put her in the closet, and started choking her. After choking her, defendant continued punching Ms. Downs in her breasts, causing them to turn red and blue.\nAround 6:30 a.m., Ms. Downs made an attempt to contact her daughter on the telephone for help, telling defendant that she needed to cancel the van service for disabled people she rides to work because it was Columbus Day. However, Ms. Downs\u2019 daughter did not understand what Ms. Downs was saying as Ms. Downs was attempting to talk in codes because defendant was watching her. Later, Ms. Downs\u2019 sister, Arleen Best (\u201cMrs. Best\u201d), called to tell Ms. Downs that her father was in the hospital. Mrs. Best\u2019s husband, Richard Best (\u201cMr. Best\u201d), came over to get Ms. Downs to take her to see her father and observed the house in disarray and bruises on Ms. Down\u2019s neck.\nAround 12:30 p.m., Ms. Downs left with Mr. Best, and she confessed to him that defendant had beaten her. Mr. Best took Ms. Downs to Cape Fear Valley Medical Center, and her medical examination documented two lesions on her scalp, a hematoma on her breast, and several bruises on various parts of her body. As a result of this incident, Ms. Downs was put on medication for anxiety to help her rest because she was having visions about defendant coming at her with a knife.\nMs. Downs was interviewed at the emergency room on 10 October 2005 around 3:00 p.m. by Officer Kenneth Timms (\u201cOfficer Timms\u201d) of the Fayetteville Police Department. Ms. Downs told Officer Timms defendant had assaulted her and the details surrounding the assault. Defendant was taken into custody. While being, processed, defendant, without being questioned, told Officer Timms \u201cthe reason he hit [Ms. Downs] was because he thought she was cheating on him and there was a man in the house.\u201d\nOn or about 25 September 2006, the Cumberland County Grand Jury indicted defendant for felonious assault on a handicapped person (\u201cassault on a handicapped person\u201d), felonious assault by strangulation (\u201cassault by strangulation\u201d), false imprisonment, and communicating threats. This same day a special indictment was issued indicting defendant with habitual felon status.\nTrial began, and at the close of the State\u2019s evidence the trial court dismissed the charge of communicating threats due to a lack of evidence. On or about 18 July 2007, the jury found defendant guilty of assault on a handicapped person, assault by strangulation, and false imprisonment. Defendant was also found to have attained habitual felon status. Judge William C. Gore Jr. sentenced defendant to 73-97 months on the assault on a handicapped person conviction and a consecutive term of 73-97 months on the combined counts of assault by strangulation and false imprisonment. Defendant appeals, claiming the trial court committed plain error when: (1) it allowed the victim to testify to previous incidents with defendant which were \u201cinadmissible under the North Carolina Rules of Evidence as more prejudicial than probative and as improper evidence of prior bad acts[,]\u201d and (2) it allowed in evidence of the victim\u2019s mental condition which \u201chad no probative value, but was highly inflammatory and likely to arouse the jury\u2019s sympathies.\u201d For the following reasons, we find that the trial court did not commit plain error.\nII. Standard of Review\nDefendant concedes that he did not object at trial to Ms. Downs\u2019 testimony. Plain error analysis is the applicable standard of review when a criminal defendant has not objected to the admission of evidence at trial. State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000).\nThe plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations, quotation marks,- ellipses, and brackets omitted). \u201cTherefore, if after thoroughly examining the record, we are not persuaded that the jury probably would have reached a different result had the alleged error not occurred, we will not award defendant a new trial.\u201d Ridgeway at 147, 526 S.E.2d at 685 (citation'omitted).\nIII. Evidence of Prior Bad Acts\nDefendant first contends that the trial court committed plain error by permitting Ms. Downs to testify about prior incidents of the defendant assaulting her. Specifically, defendant contends that the prior acts to which Ms. Downs testified are only relevant to show that defendant \u201chad the propensity to commit an offense of the nature of the crimes charged in this case.\u201d\nMs. Downs testified about her relationship with the defendant:\nA. From the start, it was pretty good. That last, I\u2019d say, the latter part of \u2014 well, no, that whole year, 2005, things had changed. He had gotten really \u2014 he got \u2014 what can I say? He just got mean. He started hitting on me.\nQ. And what would prompt his abuse?\nA. Different things. One time he hit me. He accused me of [sic] his brother-in-law but he didn\u2019t hit me until like two or three weeks later.\nQ: What do you mean he accused you of\u2014\nA: We had went and spent the weekend with him in Raleigh, North Carolina, and then about two weeks later, he said that I went to bed with him. So I argued with him how am I going to be with another man and you\u2019re in the same house and his wife in the same house. I thought it was crazy. You got a problem. And so he hit me. At that point then I knew that \u2014 that was the. first time he ever hit me so I felt like if he did it once, he do it again. Things just escalated, you know. He never said I\u2019m sorry. He never apologized. He just said that I shouldn\u2019t have done that, you know, and things just escalated. I never knew what would set him off. He was always arguing, fussing about anything or nothing. And things aren\u2019t so \u2014 you know, I kept saying something was wrong but it\u2019s just hard to explain. I didn\u2019t really\u2014\nQ: Ms. Downs, when you said he hit you because he accused you of sleeping with his brother-in-law, when approximately was that?\nA: I\u2019m sorry?\nQ: When was that?\nA: I can\u2019t remember the month. I can\u2019t remember. I just know that after that, maybe a month later, he hit me again and it escalated.\nQ: Where did he hit you?\nA: In the face.\nMs. Downs continued to testify about another prior incident in which defendant struck her:\nQ: Okay. Let me take your attention to the first part of October in 2005. What happened with regard to you and the defendant in the first part of that week?\nA: Well, for the past \u2014 that\u2014for those couple of weeks, he had been real mean and one day I came home from work and he had accused me of being with these two lesbians and he hit me.\nQ: Where did he hit you?\nA: In the face. And he knocked me \u2014 I fell on the floor, you know. He did that as soon as I got home from work. I just got in the door good. He started fussing with me. I said what\u2019s wrong with you, you know. And then at one point, I was in the kitchen and he was fussing at me about what \u2014 well, I can\u2019t remember. He used to fuss all the time and he said something and I retaliated and I said something back.\nQ. What did he say? What did you say?\nA. I can\u2019t remember. It\u2019s been so much. I can\u2019t remember. But he was fussing with me and sometimes I would say something. Sometimes I just couldn\u2019t stand it and I said, you know, I\u2019m grown too. I don\u2019t have to put up with your abuse. I would say something. I would say something that would strike a nerve and he\u2019d hit me. That particular day, he hit me in the face and I went towards the living room. (Witness crying.)\nMS. ROTHSTEIN: Your Honor, if we could just have a moment.\nTHE COURT: Yes, ma\u2019am.\nTHE WITNESS: And then he threw a knife at me. He threw a sharp knife at me and it missed me by that much. I said you could have hit me in my eye but it missed and went underneath the sofa, but again I didn\u2019t tell anybody.\nA. Analysis\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 401. \u201cEvidence which is not relevant is not admissible[,]\u201d and \u201c[a]ll relevant evidence is admissible . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 402. Even when relevant,\n[e]vidence 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.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b).\nThus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.\nState v. Bagley, 321 N.C. 201, 206-07, 362 S.E.2d 244, 247 (1987) (citation and quotation marks omitted), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nWhere evidence of prior conduct is relevant to an issue other than for determining the defendant\u2019s propensity to commit the charged offense, the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. \u00a7 8C-1, Rule 403. . . . Finally, once a trial court has determined the evidence is admissible under Rule 404(b), the court must still decide whether there exists a danger that unfair prejudice substantially out-, weighs the probative value of the evidence.\nState v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005) (citations and quotation marks omitted).\nB. Relevancy\nOur Supreme Court has determined that \u201ctestimony about [a] defendant\u2019s misconduct toward his wife was proper under Rule 404(b) to prove motive, opportunity, intent, preparation, absence of mistake or accident with regard to the subsequent . . . attack upon her.\u201d State v. Scott, 343 N.C. 313, 330, 471 S.E.2d 605, 615 (1996) (citation and quotation marks omitted). \u201cSpecifically, evidence of frequent quarrels, separations, reconciliations, and ill-treatment is admissible as bearing on intent, malice, motive, premeditation, and deliberation.\u201d Id. at 331, 471 S.E.2d at 616 (citation omitted). \u201cThe existence of a motive is, however, a circumstance tending to make it more probable that the person in question did the act, hence evidence of motive is always admissible where the doing of the act is in dispute.\u201d State v. Coffey, 326 N.C. 268, 280, 389 S.E.2d 48, 55 (1990) (citation and quotation marks omitted), cert. denied, 421 S.E.2d 360 (N.C. 1992).\nHere, defendant pled not guilty to all charges. Furthermore, during the cross examination of Ms. Tina Powell (\u201cMs. Powell\u201d), the daughter of Ms. Downs, defendant attempted to show that Ms. Downs was the cause of her own injuries, rather than defendant, by extensively questioning Ms. Powell about various incidents when Ms. Downs had injured herself, including burning herself while cooking, falling out of bed, and slamming a door on her foot and falling. As defendant disputed committing any crimes against Ms. Downs, the evidence of motive is admissible. See id.\nAt trial, Ms. Downs testified that defendant had twice previously hit her because he believed she was cheating. This testimony regarding defendant\u2019s previous motive to hit Ms. Downs makes it more probable that defendant committed the charged crimes against Ms. Downs as once again defendant believed she was cheating on him, in accord with defendant\u2019s own words to Officer Timms. N.C. Gen. Stat. \u00a7 8C-1, Rule 401; Coffey at 280, 389 S.E.2d at 55. Therefore, we conclude that Ms. Downs\u2019 testimony regarding prior violent incidents was relevant. See N.C. Gen. Stat. \u00a7 8C-1, Rule 401.\nC. Similarity and Remoteness\n\u201cThe determination of similarity and remoteness is made on a case-by-case basis, and the required degree of similarity is that which results in the jury\u2019s \u2018reasonable inference\u2019 that the defendant committed both the prior and present acts.\u201d Stevenson at 800, 611 S.E.2d at 209. Our Supreme Court has stated that \u201c[u]nder Rule 404(b) a prior act or crime is \u2018similar\u2019 if there are some unusual facts present in both crimes.\u201d State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007) (citation, quotation marks, and ellipses omitted). Here notable similarities exist between the offenses for which defendant was convicted and the prior incidents about which Ms. Downs testified. First, all three incidents involved defendant accusing Ms. Downs of cheating on him before striking her. Second, one of the prior incidents and the current incident involved the use of a weapon. Third, the prior incidents and the crimes defendant was charged with involved him violently hitting Ms. Downs on the head or face. W\u00e9 conclude that these similarities allowed the jury to make a \u201creasonable inference\u201d that defendant committed both the prior and present acts. Stevenson at 800, 611 S.E.2d at 210.\nWith regard to remoteness, we have determined that \u201c[Remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.\u201d Stevenson at 801, 611 S.E.2d at 210 (citation and quotation marks omitted). Ms. Downs testified that the prior incidents occurred in 2005, less than a year before the incidents for which defendant was charged. \u201cOne year is sufficiently close in time as to be relevant.\u201d State v. Strickland, 153 N.C. App. 581, 590, 570 S.E.2d 898, 904 (2002) (discussing defendant\u2019s prior attacks on the victim), cert. denied, 357 N.C. 65, 578 S.E.2d 594 (2003). Therefore, we conclude that these prior incidents were sufficiently similar and close in time to be admitted.\nD. Probative Value Versus Prejudicial Effect\n\u201c[R]elevant.. . evidence may be excluded if 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. \u201cWhether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d State v. Stager, 329 N.C. 278, 315, 406 S.E.2d 876, 897 (1991) (citation omitted). Furthermore, \u201c[t]he party who asserts that evidence was improperly admitted usually has the burden to show the error and that he was prejudiced by its admission.\u201d State v. Anthony, 133 N.C. App. 573, 579, 516 S.E.2d 195, 199 (1999) (citation omitted), aff\u2019d, 351 N.C. 611, 528 S.E.2d 321 (2000). Defendant has not shown that the trial court abused its discretion in admitting the evidence of defendant\u2019s prior assaults against Ms. Downs because any prejudicial effect of the evidence of defendant\u2019s prior assaults against Ms. Downs are outweighed by their probative value in establishing defendant\u2019s motive in assaulting Ms. Downs. We conclude that Ms. Downs\u2019 testimony regarding prior violent incidents by defendant was properly admitted, and this argument is overruled.\nIV. Evidence of the Victim\u2019s Mental Condition\nDefendant next contends that the trial court committed plain error by permiting Ms. Downs to testify regarding \u201cher mental condition, including her dreams, after the alleged incident.\u201d Defendant asserted Ms. Downs\u2019 \u201ctestimony was inadmissible victim impact statements and therefore irrelevant\u201d and quoted the following from the trial:\nQ: And, Ms. Downs, what are your, if any, long-term injuries as a result of the attack by the defendant?\nA. Well, at first, I said that I wasn\u2019t going to let Mr. Lofton ruin my life. I kept praying and I prayed and everybody was trying to get me to go to counseling and I said, No, I don\u2019t need a counselor because I felt like I didn\u2019t do anything wrong. I don\u2019t have a problem. I don\u2019t go around hitting people and abusing people so why should I go. Everybody said I should go. I said, no, I\u2019m just going to try to go on with my life. You know, but eventually it came back to haunt me. Because I got sick. The doctor put me on medication for anxiety to help me rest, but I\u2019m going to have to go back because it\u2019s not working. I have dreams where I see visions where I see \u2014 you know, I\u2019ll see his hands \u2014 supposed to be him coming at me with a knife and then I\u2019ll jump up and then I can\u2019t breathe.\nVictim impact evidence includes \u201c[a] description of the nature and extent of any physical, psychological, or emotional injury suffered by the victim as a result of the offense committed by the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-833(a)(l) (2005). \u201c[V]ictim-impact evidence is generally inadmissible during the guilt/innocence phase of a trial.\u201d State v. Davis, 177 N.C. App. 98, 104, 627 S.E.2d 474, 478 (2006) (citation omitted). However, we do not regard Ms. Downs\u2019 testimony regarding her mental condition as victim impact evidence.\nDefendant was charged with assault on a handicapped person. N.C. Gen. Stat. \u00a7 14-32.1 reads in pertinent part,\nA person commits an aggravated assault or assault and battery upon a handicapped person if, in the course of the assault or assault and battery, that person:\n(1) Uses a deadly weapon or other means of force likely to inflict serious injury or serious damage to a handicapped person; or\n(2) Inflicts serious injury or serious damage to a handicapped person; or\n(3) Intends to kill a handicapped person.\nN.C. Gen. Stat. \u00a7 14-32.1(e) (2005). \u201c[SJerious injury, within the meaning and intent of that term as used in N.C.G.S. \u00a7 14-32, includes serious mental injury caused by an assault with a deadly weapon.\u201d State v. Everhardt, 326 N.C. 777, 780, 392 S.E.2d 391, 393 (1990). Because \u201cserious injury\u201d may include serious mental injury, see id., we deem Ms. Downs\u2019 testimony regarding her mental state to support an element of one of the crimes with which defendant was charged, and it is therefore relevant. See N.C. Gen. Stat. \u00a7\u00a7 8C-1, Rule 401, 14-32.1. This argument is overruled.\nV. Conclusion\nFor the foregoing reasons, we conclude that the trial court did not err in admitting evidence as to defendant\u2019s prior bad acts and Ms. Downs\u2019 mental condition. Therefore, we find no error.\nNO ERROR.\nJudges McGEE and McCULLOUGH concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General LaToya B. Powell, for the State.", "Leslie C. Rawls, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. SAMUEL L. LOFTON, Defendant\nNo. COA07-1530\n(Filed 21 October 2008)\n1. Evidence\u2014 prior crimes or bad acts \u2014 assault\u2014motive\u2014 similarities \u2014 remoteness\nThe trial court did not commit plain error in a felony aggravated assault on a handicapped person, felonious assault by strangulation, false imprisonment, and habitual felon case by permitting the victim to testify about prior incidents of defendant assaulting her because: (1) the evidence was admissible to show motive since defendant disputed committing any crimes against the victim; (2) the testimony regarding defendant\u2019s previous motive to hit the victim was relevant since it made it more probable that defendant committed the charged crimes against the victim when he again accused her of cheating on him; (3) similarities existed between the offenses when all three incidents involved defendant accusing the victim of cheating on him before striking her, one of the prior incidents and the current incident involved the use of a weapon, and the prior incidents and the current crime involved defendant violently hitting the victim on the head or face; (4) the victim testified that the prior incidents occurred less than a year before the incidents for which defendant was charged; and (5) any prejudicial effect of the evidence was outweighed by their probative value in establishing defendant\u2019s motive in assaulting the victim.\n2. Evidence\u2014 victim\u2019s mental condition \u2014 victim impact evidence\nThe trial court did not commit plain error in a felony aggravated assault on a handicapped person case by permitting the victim to testify regarding her mental condition, including her dreams, after the alleged incident because: (1) the victim\u2019s testimony regarding her mental condition was not victim impact evidence; and (2) \u201cserious injury\u201d under N.C.G.S. \u00a7 14-32 for the charge of assault on a handicapped person includes serious mental injury caused by an assault with a deadly weapon, and the victim\u2019s testimony regarding her mental state supported an element of that crime.\nAppeal by defendant from judgments entered on or about 18 July 2007 by Judge William C. Gore, Jr. in Superior Court, Cumberland County. Heard in the Court of Appeals 19 August 2008.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General LaToya B. Powell, for the State.\nLeslie C. Rawls, for defendant-appellant." }, "file_name": "0364-01", "first_page_order": 396, "last_page_order": 407 }