{ "id": 8358173, "name": "JOHN CHARLES LAY, III v. DEBORAH A. MANGUM", "name_abbreviation": "Lay v. Mangum", "decision_date": "1987-10-06", "docket_number": "No. 8714SC4", "first_page": "251", "last_page": "256", "citations": [ { "type": "official", "cite": "87 N.C. App. 251" } ], "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": "271 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521191 ], "year": 1980, "pin_cites": [ { "page": "332-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0329-01" ] }, { "cite": "100 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627157 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0389-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "48 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2086719 ], "year": 1855, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/48/0154-01" ] }, { "cite": "5 S.E. 2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1939, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "216 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603013 ], "weight": 2, "year": 1939, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/216/0410-01" ] } ], "analysis": { "cardinality": 559, "char_count": 12038, "ocr_confidence": 0.794, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3032217322322653 }, "sha256": "4994e8eb61174831134f233acec68652233f2603c34386f57266d51e1a9903cb", "simhash": "1:ed66e369e6448af8", "word_count": 1890 }, "last_updated": "2023-07-14T18:10:55.356094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Parker concur." ], "parties": [ "JOHN CHARLES LAY, III v. DEBORAH A. MANGUM" ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff first contends that the trial court erred by allowing defendant\u2019s witness Sprenger, a biomedical laboratory employee, to offer testimony concerning plaintiff\u2019s alleged attempts to bribe the witness to tamper with the blood grouping laboratory test results which were used to prove plaintiff\u2019s non-paternity. We disagree. Plaintiff\u2019s argument is based upon an erroneous interpretation of two rules of evidence, to wit: G.S. 8C-1, Rule 608(b) and G.S. 8C-1, Rule 404(b). G.S. 8C-1, Rule 608(b) provides in pertinent part: \u201cSpecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. . . .\u201d\nWe find that this testimony in question was not introduced for the purpose of attacking the witness\u2019 credibility as provided in Rule 608 but instead was offered for the purpose of showing the course of conduct taken by the plaintiff to affect the results of the blood test which would determine the outcome of the claim for child support levied against the plaintiff. The witness Sprenger\u2019s testimony was highly relevant to rebut the plaintiff\u2019s claim that the defendant instituted a child support action without probable cause. If plaintiff would attempt such extreme measures to alter the blood grouping tests, he most probably had some reason to be convinced of the validity of the underlying claim and the existence of probable cause for instituting the action. Therefore, this testimony was not extrinsic evidence in the form of testimony collaterally related to the plaintiff\u2019s credibility, but was rather highly relevant noncollateral evidence of the plaintiff\u2019s knowledge surrounding the particular facts and circumstances of this case.\nIn addition, Mooney v. Mull, 216 N.C. 410, 5 S.E. 2d 122 (1939), provides that a defendant in an action for malicious prosecution may gather and utilize all the evidence which tends to show plaintiff\u2019s guilt of the crime for which he was prosecuted, when, as here, the defendant challenges plaintiff\u2019s allegation that the prosecution was instituted without probable cause. The court states:\nTo hold otherwise would make it possible for a guilty person, who through some fortuitous circumstances has been acquitted, to vex his prosecutor with a suit for malicious prosecution merely because the prosecutor was not advertent to all the incriminating facts at the time he instituted the prosecution, and to recover damages for a prosecution that was justified upon all the facts.\nMooney, 216 N.C. at 412, 5 S.E. 2d at 123.\nIn turn, G.S. 8C-1, Rule 404(b) was similarly misinterpreted by plaintiff. It provides in pertinent part: \u201cEvidence 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.\u201d The clear language of the statute verifies its inapplicability to the case at bar and the authority of Mooney, supra, clearly supports the admissibility of the testimony.\nThe evidence in question of the plaintiff\u2019s attempt to bribe the witness and subornate perjury was not being introduced to prove the plaintiffs character in order to show conformity as provided in Rule 404(b). In fact, the testimony in dispute cannot accurately be classified as character evidence at all. \u201cCharacter comprises the actual qualities and characteristics of an individual, \u2018[t]he peculiar qualities impressed by nature or by habit on the person, which distinguish him from others; these constitute real character. . . .\u2019 \u201d 1 Brandis on North Carolina Evidence, sec. 102, at 383 (1982), quoting Bottoms v. Kent, 48 N.C. 154, 160 (1855). The testimony of defendant\u2019s witness Sprenger is simply not evidence of a \u201cdistinct, independent, and separate offense\u201d whose introduction is prohibited by the \u201cMcClain Rule,\u201d as this testimony on the alleged offense arose out of the particular facts of this case. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954).\nPlaintiff next contends that the trial court erred by sustaining defendant\u2019s objection to the introduction of two pieces of documentary evidence concerning plaintiffs indictment for soliciting perjury. State v. John Charles Lay, Durham County Superior Court File No. 85CRS6730, and an order quashing said indictment, dated 11 September 1985. The indictment arose in connection with plaintiff\u2019s alleged attempts to bribe defendant\u2019s witness Sprenger to tamper with the blood tests taken upon plaintiff John Charles Lay in order to distort the results. We find no abuse of discretion by the trial court in not admitting the documents into evidence.\nPlaintiff attempted to offer into evidence a copy of the indictment and an order quashing said indictment at the close of defendant\u2019s case. This was done without advance notice to the defendant as the plaintiff did not list the documents as two of their known exhibits in the pretrial order. As a result, the defendant was unable to conduct discovery to ascertain the reason why the indictment was quashed, to rebut the probable inference that the quashing proved the plaintiffs innocence. A pretrial order \u201ccontrols the subsequent course of the action, unless modified at the trial to prevent manifest injustice. . . .\u201d G.S. 1A-1, Rule 16.\nPlaintiff alleges that he is entitled to rebut the evidence offered by witness Sprenger pursuant to the guidance of Highfill v. Parrish, 247 N.C. 389, 100 S.E. 2d 840 (1957). On that claim, we are in accord. However, we do not agree that the plaintiff may rebut the evidence with exhibits which were not listed on the pretrial order to the prejudice of the defendant as the trial court has determined in the exercise of its discretion.\nPlaintiffs third Assignment of Error addresses whether the plaintiff presented sufficient evidence at trial to withstand defendant\u2019s motion for a directed verdict on plaintiffs claim for intentional infliction of emotional distress. \u201cThe question presented by a defendant\u2019s motion for a directed verdict is whether all the evidence, which supports the plaintiff s claim, when taken as true, considered in the light most favorable to the plaintiff and given the benefit of every reasonable inference in the plaintiffs favor which may legitimately be drawn therefrom, is sufficient for submission to the jury.\u201d Tripp v. Pate, 49 N.C. App. 329, 332-33, 271 S.E. 2d 407, 409 (1980). We find that the court, having applied this standard, committed no error when it granted the defendant\u2019s motion, concluding, as a matter of law, that plaintiff had failed to present evidence of the requisite element of \u201cextreme and outrageous conduct\u201d to require submission of the evidence to the jury.\nFinally, we find no merit in plaintiffs argument that the trial court committed prejudicial error when it denied plaintiff\u2019s request for an instruction regarding the presumption of the legitimacy of a child born in wedlock. We have considered the court\u2019s instructions to the jury and find that the instructions given were sufficient.\nIn an action for paternity, a jury instruction on the presumption of legitimacy is highly relevant. However, the action before us is not one to determine paternity, but rather to determine, in this claim for malicious prosecution, whether the defendant Deborah A. Mangum had probable cause for instituting the criminal child support action against the defendant. We find that such an instruction requested by the plaintiff would have been surplus-age which could only serve to confuse the jury on the pertinent issues.\nAffirmed.\nJudges Arnold and Parker concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Loflin & Loflin, by Thomas F. Loflin III and Dean A. Shangler, for plaintiff appellant.", "Everette, Hancock, Nichols & Calhoun, by M. Jean Calhoun, for defendant appellee." ], "corrections": "", "head_matter": "JOHN CHARLES LAY, III v. DEBORAH A. MANGUM\nNo. 8714SC4\n(Filed 6 October 1987)\n1. Malicious Prosecution \u00a7 11.1; Evidence \u00a7 15\u2014 malicious prosecution and intentional infliction of emotional distress \u2014attempt to bribe witness \u2014 admissible\nIn an action for malicious prosecution and intentional infliction of emotional distress arising from a nonsupport warrant sworn out by defendant against plaintiff, the trial court did not err by allowing a biomedical laboratory employee to testify concerning plaintiffs alleged attempts to bribe the witness to tamper with the blood grouping test results. The testimony was not being introduced to prove plaintiffs character, and it was not extrinsic evidence in the form of testimony collaterally related to plaintiffs credibility, but was highly relevant noncollateral evidence of plaintiffs knowledge surrounding the particular facts and circumstances of the case. Moreover, a defendant in an action for malicious prosecution may gather and utilize all of the evidence which tends to show plaintiffs guilt of the crime for which he was prosecuted when defendant challenges plaintiffs allegation that the prosecution was instituted without probable cause. N.C.G.S. \u00a7 8C-1, Rules 404(b) and 608(b).\n2. Rules of Civil Procedure \u00a7 16\u2014 pretrial order \u2014 documents not listed as exhibits \u2014 not admitted\nIn a prosecution for abuse of process and malicious prosecution arising from a criminal nonsupport warrant sworn out against plaintiff by defendant, the trial court did not abuse its discretion by not admitting plaintiffs indictment for soliciting perjury and an order quashing the indictment where plaintiff did not list the documents as known exhibits in the pretrial order. N.C.G.S. \u00a7 1A-1, Rule 16.\n3. Trespass \u00a7 2\u2014 intentional infliction of emotional distress \u2014 directed verdict for defendant proper\nThe trial court did not err by granting defendant\u2019s motion for a directed verdict on plaintiffs claim for intentional infliction of emotional distress arising from a nonsupport warrant sworn out by defendant where plaintiff failed to present evidence of the requisite element of \u201cextreme and outrageous conduct.\u201d\n4. Malicious Prosecution \u00a7 14\u2014 requested instruction denied \u2014 no error\nThe trial court did not err in an action for malicious prosecution by denying plaintiffs request for an instruction regarding the presumption of the legitimacy of a child born in wedlock.\nAPPEAL by plaintiff from Battle, Judge. Judgment entered 21 August 1986 in Superior Court, DURHAM County. Heard in the Court of Appeals 25 August 1987.\nThis is a civil action instituted 5 August 1985 to recover damages for malicious prosecution and intentional infliction of emotional distress.\nOn 10 August 1984, defendant appeared before a Durham County magistrate and swore out a warrant against plaintiff charging him with nonsupport of an illegitimate child born unto defendant 22 May 1984. On 17 August 1984, plaintiff was arrested on this warrant. On 7 May 1985, blood samples were taken from plaintiff, defendant and the minor child at the Duke University Medical Center for the purpose of obtaining a scientific determination of the probability that plaintiff is the father of the minor child. On 29 May 1985, Dr. Wendell F. Rosse and Dr. Emily G. Reisner, by affidavit, certified their opinions, formed on the basis of the blood testing done at Duke University Medical Center, that plaintiff is not the father of the minor child. Thereafter, on 31 May 1985, the criminal charges against plaintiff were terminated in plaintiffs favor by the State taking a voluntary dismissal in the case. Thereupon, plaintiff instituted this action to recover damages for the alleged malicious prosecution and alleged intentional infliction of emotional distress.\nAt the close of all the evidence, the trial court granted defendant\u2019s motion for a directed verdict on plaintiffs claim for the intentional infliction of emotional distress. The jury returned a verdict in favor of defendant on plaintiffs claim for malicious prosecution. Plaintiff appeals.\nLoflin & Loflin, by Thomas F. Loflin III and Dean A. Shangler, for plaintiff appellant.\nEverette, Hancock, Nichols & Calhoun, by M. Jean Calhoun, for defendant appellee." }, "file_name": "0251-01", "first_page_order": 279, "last_page_order": 284 }