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State v. China

Court of Appeals of North Carolina

February 21, 2017

STATE OF NORTH CAROLINA, Plaintiff,
v.
NATHANIEL MALONE CHINA, Defendant.

          Heard in the Court of Appeals 25 January 2017.

         Appeal by defendant from judgments entered 5 February 2016 by Judge Henry W. Hight, Jr. in Durham County No. 13 CRS 5607, 13 CRS 60141, 14 CRS 1447-48 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State.

          Richard Croutharmel for defendant-appellant.

          ZACHARY, Judge.

         Nathaniel Malone China (defendant) appeals from judgments entered upon his convictions for felonious breaking and entering, second-degree kidnapping, first-degree sex offense, intimidating a witness, misdemeanor assault inflicting serious injury, and having attained the status of a habitual felon. On appeal, defendant argues that the trial court erred by admitting evidence that defendant committed these offenses shortly after being released from prison, and by denying defendant's motion to dismiss the charge of second-degree kidnapping for insufficiency of the evidence. Upon careful review of defendant's arguments, in light of the record on appeal and the applicable law, we conclude that defendant has failed to preserve for appellate review the admissibility of testimony indicating that defendant had spent time in prison, and that the trial court erred by denying defendant's motion to dismiss the charge of second-degree kidnapping. Accordingly, we find no error in defendant's convictions for felonious breaking or entering, first-degree sex offense, intimidating a witness, misdemeanor assault inflicting serious injury, and having attained the status of a habitual felon. We vacate defendant's conviction for second-degree kidnapping and remand for correction of the judgments to reflect this.

         I. Factual and Procedural Background

         On 4 November 2013, the Durham County Grand Jury indicted defendant for first-degree kidnapping, felonious breaking or entering, and felonious assault inflicting serious bodily injury. The Grand Jury indicted defendant for first-degree sex offense, crime against nature, and intimidating a witness on 7 April 2014, and on 1 June 2015, defendant was indicted for being a habitual felon. On 26 January 2016, the State dismissed the indictment charging defendant with intimidating a witness and defendant agreed to proceed on that charge pursuant to a criminal bill of information. Prior to trial, the State dismissed the charge of crime against nature. The remaining charges against defendant came on for trial at the 26 January 2016 criminal session of Durham County Superior Court. Defendant did not present evidence at trial. The State's evidence tended to show, in relevant part, the following.

         Nichelle Brooks and defendant began a romantic relationship in 2008. At some point before 2013, defendant was confined to prison. In 2012 or 2013, while defendant was in prison, Ms. Brooks began a romantic relationship with Mark.[1] Ms. Brooks did not visit defendant in prison; however, they sometimes talked on the phone and, during one of their phone calls, Ms. Brooks told defendant that she had a new boyfriend. In early October 2013, after defendant had been released from prison, he called Ms. Brooks and asked if they could resume their relationship. Ms. Brooks agreed to meet with defendant at her apartment to discuss their situation, in "the hope that he would just understand" her "decision in ending what we had and moving on." Shortly thereafter, defendant visited Ms. Brooks overnight at her apartment.

         After defendant's overnight stay, Ms. Brooks told Mark that she had previously had a relationship with defendant and asked Mark to stay away for a few days to enable Ms. Brooks to "get things in order" with defendant. Mark testified that in October 2013 he and Ms. Brooks had been dating for about a year. They did not discuss their past relationships and Mark was not aware that Ms. Brooks had been involved with defendant until she asked Mark to stay away for a few days.

         On 14 October 2013, after Mark had absented himself from Ms. Brooks' apartment for several days, Ms. Brooks told Mark that things were "cordial" with defendant and that Mark could resume visiting Ms. Brooks at her home. Mark spent that night with Ms. Brooks at her apartment. On the morning of 15 October 2013, Ms. Brooks took her daughter to school and went to school at the Durham Beauty Academy, leaving Mark alone in the apartment.

         Shortly after Mark awoke, he heard knocking at Ms. Brooks' door, and when he looked through a peephole in the door he saw two men whom he did not recognize. At trial, Mark identified one of the two men as defendant. Mark returned to the bedroom and hurriedly dressed for work. Mark heard banging noises and just as Mark finished dressing he heard a "boom, like the door was just kicked in." Defendant ran back to the bedroom cursing, and immediately punched Mark, who "never [had] a chance to hit him back." Defendant punched Mark "straight in the face" with his fist, and Mark fell onto the bed. Defendant "got on top of" Mark and continued punching him in the face while cursing at Mark. As a result of the beating, Mark felt "weak" and rolled over onto his face. While defendant was on the bed punching Mark in the back of the neck, he pulled Mark's pants down, spread his "anal cheek[s]" and "rammed" his erect penis into Mark's anus several times. Mark swung his arms and defendant jumped up and dragged Mark off the bed by his ankles. Defendant and his companion started "kicking and stomping" Mark, who curled up on the floor, trying to protect himself. When an opportunity arose, Mark ran out of the house and drove to his place of employment. When he arrived there, he asked for help and was taken to the hospital. As a result of the assault, Mark suffered physical injuries and emotional damage.

         At the close of the State's evidence and again at the end of all the evidence, defendant moved for dismissal of the charges. The trial court agreed to submit the charge of misdemeanor assault inflicting serious injury to the jury, rather than the charge of felonious assault inflicting serious bodily injury, and denied defendant's motion with respect to the other charges. On 1 February 2016, the jury returned verdicts finding defendant guilty of felonious breaking or entering, intimidation of a witness, second-degree kidnapping, first-degree sex offense, and misdemeanor assault inflicting serious injury. Defendant entered a plea of guilty to being a habitual felon. The trial court imposed a sentence of 150 days' imprisonment for misdemeanor assault inflicting serious injury, and consecutive prison sentences totaling 590 to 799 months for the other offenses. On 5 February 2016, the trial court conducted a resentencing proceeding, imposing the same sentences but arresting judgment on defendant's conviction for misdemeanor assault inflicting serious injury. Defendant gave notice of appeal in open court.

         II. Admission of Evidence Concerning Defendant's Previous Incarceration

         At trial, Ms. Brooks testified that she had received phone calls from defendant while he was in a federal prison. She told the jury that she could recognize that defendant's calls were from a prison facility based on a recording that identified the call as coming from a federal prison. She identified a later call from defendant as originating from outside prison, because of the absence of this recording. On appeal, defendant argues that the trial court committed reversible error by admitting this testimony. Defendant contends that this evidence was not admissible under North Carolina Rule of Evidence 404(b), and that its admission was prejudicial to defendant.

         "For us to assess defendant's challenge, however, he was required to properly preserve the issue for appeal by making a timely objection at trial." State v. Joyner, ___ N.C.App. ___, ___, 777 S.E.2d 332, 335 (2015) (citing State v. Thibodeaux, 352 N.C. 570, 577, 532 S.E.2d 797, 803 (2000), [2] and N.C. R. App. P. 10(a)(1) (2015)). "[T]o preserve for appellate review a trial court's decision to admit testimony, 'objections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence' and not made only during a hearing out of the jury's presence prior to the actual introduction of the testimony." Ray, 364 N.C. at 277, 697 S.E.2d at 322 (quoting Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806).

         Defendant asserts on appeal that this "error was preserved for appellate review by [defendant's] pretrial motion to preclude evidence of his recent release from prison and his timely objection during trial to the State's proffer of testimony concerning his recent release from prison." It is true that defendant made a pretrial motion to exclude this evidence, and that he objected during trial to the State's intention to elicit the challenged testimony from Ms. Brooks. However, defendant made no objection to Ms. Brooks' ...


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