{
  "id": 8523561,
  "name": "STATE OF NORTH CAROLINA v. SIMON DAVID BOONE",
  "name_abbreviation": "State v. Boone",
  "decision_date": "1986-03-18",
  "docket_number": "No. 853SC1123",
  "first_page": "746",
  "last_page": "749",
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  "last_updated": "2023-07-14T14:35:53.333939+00:00",
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  "casebody": {
    "judges": [
      "Judges Wells and Martin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SIMON DAVID BOONE"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nBy his first assignment of error defendant contends the trial court erred in denying his motion in limine to exclude the actual contents of the obscene statements attributed to defendant. Defendant argues that the statements should have been excluded under G.S. 8C-1, Rule 403 because the statements\u2019 \u201cprobative value is substantially outweighed by the danger of unfair prejudice. . . .\u201d G.S. 8C-1, Rule 403.\nThe essential elements of a G.S. 14-196(a)(3) violation are \u201c(1) repeatedly telephoning another person, (2) with the intent or purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number.\u201d State v. Camp, 59 N.C. App. 38, 42, 295 S.E. 2d 766, 768 (1982). The actual contents of the statements attributed to defendant are relevant to show whether the intent of the telephone calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls. \u201cRelevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.\u201d 1 H. Brandis, Brandis on North Carolina Evidence Sec. 80 (2d ed. 1982). We hold that the trial court did not err in allowing witnesses to testify about the actual contents of the annoying telephone calls.\nBy his next assignment of error brought forward on appeal defendant contends the trial court committed reversible error in admitting testimony regarding the total number of telephone calls made from defendant\u2019s telephone. Defendant made a general objection to three questions concerning the total number of telephone calls made from defendant\u2019s telephone during particular periods of time. Prior to these objections, defendant allowed Detective Wetherington to testify to the total number of telephone calls made from defendant\u2019s telephone at two other times. Defendant also failed to object when the PIN register tapes documenting each call made from defendant\u2019s telephone were passed to the jury. \u201c[WJhere evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.\u201d State v. Murray, 310 N.C. 541, 551, 313 S.E. 2d 523, 530 (1984). Defendant\u2019s assignment of error is overruled.\nBy his fourth assignment of error defendant contends the trial court erred in admitting testimony regarding prior obscene telephone calls made by defendant. Assuming without deciding that the evidence of prior obscene telephone calls was inadmissible under G.S. 8C-1, Rule 404(b), the admission of the evidence was not prejudicial in the light of the overwhelming evidence of defendant\u2019s guilt. See State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed. 2d 112 (1974).\nBy his final assignment of error, defendant urges us to dismiss the 29 March 1984 and 5 April 1984 counts because the arrest warrants charged repeated calls to Susan Byrd on or about these dates while the evidence adduced at trial indicates that Susan Byrd answered only one call from defendant on each of these dates. Defendant argues G.S. 14496(a)(3) requires more than one call during a particular day and that the variance between the warrants and the evidence is fatal. We address defendant\u2019s contentions seriatim.\nFirst, G.S. 14496(a)(3) does not require more than one abusing, annoying, threatening, terrifying, harassing or embarrassing telephone call per day. The statute prescribes making such calls \u201crepeatedly.\u201d Unless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted. Transportation Service v. County of Robeson, 283 N.C. 494, 196 S.E. 2d 770 (1973). Repeatedly is the adverbial form of the term repeated meaning \u201crenewed or recurring again and again.\u201d Webster\u2019s Seventh New Collegiate Dictionary. The term repeatedly does not ordinarily connote a recurrence within a twenty-four hour period.\nDefendant\u2019s contention that a fatal variance between the warrant and the evidence is also without merit. The warrants cover repeated calls to Susan Byrd on or about 29 March 1984 and on or about 5 April 1984. The evidence from the PIN register indicates defendant made more than one call to Susan Byrd\u2019s apartment on these dates although Ms. Byrd did not answer more than one call on each date. G.S. 14496(a)(3) makes it unlawful for any person to \u201ctelephone another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number.\u201d G.S. 14-196(a)(3) (emphasis added). The State\u2019s evidence supports a finding that defendant called Ms. Byrd\u2019s apartment repeatedly on the dates in question with the intent to harass. Defendant\u2019s assignment of error is overruled.\nFor the reasons stated above we find defendant had a fair trial free from prejudicial error.\nNo prejudicial error.\nJudges Wells and Martin concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Wilson Hayman, for the State.",
      "Assistant Appellate Defender Gordon-Widenhouse for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SIMON DAVID BOONE\nNo. 853SC1123\n(Filed 18 March 1986)\n1. Telecommunications \u00a7 5\u2014 obscene phone calls \u2014 contents of calls \u2014 admissibility of evidence\nIn a prosecution of defendant for making harassing, embarrassing and annoying telephone calls, the trial court did not err in allowing witnesses to testify about the actual contents of the telephone calls, though the obscene statements attributed to defendant might have been prejudicial to defendant, since the contents of the statements were relevant to show whether the intent of the calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls.\n2. Telecommunications g 5; Criminal Law \u00a7 162\u2014 number of obscene phone calls \u2014failure to object to similar evidence\nIn a prosecution of defendant for making harassing, embarrassing and annoying telephone calls, defendant could not complain that the trial court admitted testimony regarding the total number of telephone calls made from defendant\u2019s telephone, since defendant failed to object when similar evidence was admitted.\n3. Telecommunications \u00a7 5\u2014 repeatedly making obscene phone calls \u2014 interpretation of \u201crepeatedly\u201d\nIn a prosecution of defendant for making harassing, embarrassing and annoying telephone calls in violation of N.C.G.S. \u00a7 14-196(a)(3), there was no merit to defendant\u2019s contention that the statute required more than one call during a particular day, since the statute proscribes making such calls \u201crepeatedly,\u201d but that term does not ordinarily connote a recurrence within a twenty-four hour period.\n4. Telecommunications 8 5\u2014 making obscene phone calls \u2014 no variance between warrants and proof\nThere was no variance between the warrants alleging repeated annoying calls to a named victim on given dates and evidence that defendant made more than one call to the victim\u2019s apartment on those dates, although the victim did not answer more than one call on each date, since N.C.G.S. \u00a7 14-196(a)(3) makes it unlawful for a person to \u201ctelephone another repeatedly, whether or not conversation ensues,\u201d for the purpose of \u201c. . . harassing . . . any person at the called number.\u201d\nAppeal by defendant from Barefoot, Judge. Judgments entered 27 March 1985 in Superior Court, Pitt County. Heard in the Court of Appeals 10 March 1986.\nDefendant, a self-proclaimed preacher, was convicted of six counts of making harassing, embarrassing and annoying telephone calls in violation of G.S. 14-196(a)(3). The State presented evidence tending to show that several female students at East Carolina University who rented an apartment together received hundreds of telephone calls from defendant from January of 1984 through 16 August 1984. A Police Information Network (PIN) register placed on defendant\u2019s phone under a court order indicated that on March 20, March 29, March 30, April 4, April 5, and April 11 over 50 calls were made from defendant\u2019s residence to the students\u2019 apartment. From judgments sentencing defendant to two consecutive two year active prison terms and one concurrent two year active prison term, defendant appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Wilson Hayman, for the State.\nAssistant Appellate Defender Gordon-Widenhouse for defendant, appellant."
  },
  "file_name": "0746-01",
  "first_page_order": 774,
  "last_page_order": 777
}
