in the Court of Appeals 9 January 2017
by Defendant from judgment entered 9 October 2014 by Judge
Tanya T. Wallace in Superior Court, Iredell County No. 11 CRS
Attorney General Joshua H. Stein, by Special Deputy Attorney
General James M. Stanley, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Jon H. Hunt, for Defendant.
Sheri Wilson-Angeles ("Defendant") appeals from
judgment entered after a jury found her guilty of attempted
first-degree arson and being intoxicated and disruptive in
was casually talking to her neighbor, Sharon Houston
("Houston"), outside Houston's apartment in
their apartment complex in Mooresville, North Carolina, just
before midnight on 20 December 2011. The two had been
neighbors for a few years, and were known to occasionally
visit and talk with each other in the evenings. That evening,
Defendant had been drinking, and "flipped out."
Defendant began cursing at Houston and accusing her of being
responsible for Defendant's children being taken away
from her. After a brief physical altercation, Houston
retreated into her apartment and locked the door. About five
minutes later, Houston heard a commotion just outside her
door. Houston peered through the peephole, and observed
Defendant outside with a Mad Dog 20-20 bottle (a brand of
fortified wine) in her hand. A rag was protruding from the
bottle, effectively making a "Molotov cocktail, "
that Defendant lit and threw against Houston's door.
Houston testified at trial that she heard a
"whoosh" sound as the flame "went up."
Houston also heard Defendant "cussing" and
"saying she was going to burn me out." Houston
Houston waited for law enforcement to arrive, she went
outside her apartment to assess the damage. The fire had gone
out on its own, leaving behind black soot, roughly three
inches in diameter, on the brick wall near her front door.
Houston swept up the pieces of broken glass from the bottle
and disposed of them in the trash. When law enforcement
arrived at the apartment complex, they immediately observed a
woman, later identified as Defendant, yelling obscenities and
loudly proclaiming she "was the victim." As law
enforcement approached Defendant, she quickly handed a
container she was holding to another person, who poured out
the liquid. Despite the liquid being poured out, the
container had a strong odor of alcohol. Defendant claimed to
law enforcement that she was bleeding, and repeatedly
attempted to remove her clothing to show the officers her
injuries. One of the officers who encountered Defendant,
Officer Brian Plyler ("Officer Plyler"), noticed a
strong odor of alcohol emanating from Defendant's mouth,
and observed that she appeared "extremely
intoxicated." Defendant was, according to Officer
Plyler, screaming at a large group of people who had
assembled to witness the spectacle, and it seemed to him that
Defendant was attempting to "incite more violence."
Based on these observations, Officer Plyler placed Defendant
under arrest for being intoxicated and disruptive in public.
During the ride to the police station, and while at the
station, Defendant exhibited other signs of being
intoxicated, including inexplicably singing hymns, repeatedly
claiming to be the victim, and later passing out at the
to Defendant's arrest, Officer Plyler's superior,
Captain Joseph Cooke ("Captain Cooke"), talked with
Houston. Houston described the physical altercation between
herself and Defendant, and told Captain Cooke about
Defendant's attempt to start a fire at her front door.
Captain Cooke explained at trial what he observed at
Houston's front door:
I saw broken glass from what looked like a bottle had been
shattered on the door. There was liquid on the door. There
was also carbon mark or a charring -- not really charring,
but a mark about three inches in diameter on the concrete in
front of her door that I had could see that something had
just been recently burned. Basically it looked like, you
know, bottle was thrown on the bottom of her door, shattered,
and liquid was all over the place, and something had been
tried to set on fire.
on his observations and conversation with Houston, Captain
Cooke instructed the other officers to also charge Defendant
with attempted first-degree arson.
trial began on 7 October 2014. During the course of the
trial, the State sought to introduce the testimony of three
witnesses - Jason Workman, Chris Jorgenson, and Gary Styers
("the 404(b) witnesses") - who were to testify
regarding Defendant's perpetration (or attempted
perpetration) of two prior arsons, both occurring at
properties in Mooresville, North Carolina in August 2008: one
at a property on Main Street (the "Main Street
Arson"), and another at a property on Mills Street (the
"Mills Street Arson").
voir dire of the 404(b) witnesses, the trial court
ruled that evidence regarding the Mills Street Arson was
relevant, but its probative value was outweighed by its
unduly prejudicial effect, rendering it inadmissible pursuant
to N.C. Gen. Stat. § 8C-1, Rule 403. The trial court
further ruled that the testimony regarding the Main Street
Arson was relevant and would be admitted pursuant to N.C.
Gen. Stat. § 8C-1, Rule 404(b) for the sole purpose of
showing Defendant's intent to commit arson. In so ruling,
the trial court also held that evidence of the Main Street
Arson was more probative than prejudicial, and admissible
pursuant to N.C. G.S. § 8C-1, Rule 403. Defendant was
found guilty of attempted first-degree arson and being
intoxicated and disruptive in public. The trial court
determined Defendant to be a prior record level III offender
for sentencing purposes, and sentenced her to a prison term
of thirty to forty-eight months. Defendant appeals.
argues the trial court erred by: (1) admitting evidence,
pursuant to N.C. Gen. Stat. §§ 8C-1, Rules 401, 403
and 404(b), that she had previously committed the Main Street
Arson; and (2) by including Defendant's probation,
parole, or post-release supervision in her prior record level
calculation for sentencing purposes in violation of N.C. Gen.
Stat. § 15A-1340.16(a6)'s notice requirements.
Defendant also argues that she received ineffective
assistance of counsel when her trial counsel failed to
request a jury instruction on voluntary intoxication.
Admission of Prior Bad Acts to Show Intent
argues the trial court erred in admitting evidence of the
Main Street Arson, and that the admission of this evidence
violated N.C. Gen. Stat. §§ 8C-1, Rules 401, 403,
and 404(b). We address these arguments together.
404(b) of the North Carolina Rules of Evidence provides, in
Evidence 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.
Gen. Stat. § 8C-1, Rule 404(b) (2015). Rule 404(b) has
been characterized as a "clear general rule of
inclusion of relevant evidence of other crimes,
wrongs or acts by a defendant." State v.
Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)
(emphasis in original). This clear rule of inclusion is
"subject to but one exception requiring its
exclusion if its only probative value is to show
that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged."
Id. (emphases in original). Despite these sweeping
and inclusive statements, our Supreme Court has also stated
that Rule 404(b) is "consistent with North Carolina
practice prior to [the Rule's] enactment." State
v. Carpenter, 361 N.C. 382, 386, 646 S.E.2d 105, 109
(2007) (citation and quotation marks omitted). "Before
the enactment of Rule 404(b), North Carolina courts followed
the general rule that in a prosecution for a particular
crime, the State cannot offer evidence tending to
show that the accused has committed another distinct,
independent, or separate offense." Id.
(emphasis added) (citation, ellipsis, and brackets omitted).
Attempting to reconcile ...