in the Court of Appeals 20 April 2017.
by defendant from judgments entered 2 September 2016 by Judge
Gregory R. Hayes in Catawba County Nos. 15 CRS 3289-91 and 16
CRS 50116-17 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Stuart M. Saunders, for the State.
Richard Croutharmel for Defendant.
Voltz, IV ("Defendant") appeals from judgments
entered after a jury found him guilty of assault inflicting
serious injury, second-degree sexual offense, assault by
strangulation, felonious breaking or entering, and
intimidating a witness. We affirm in part, and find no plain
error in part.
Tony ("Tony") invited Defendant to the apartment
she shared with B.A. and B.A.'s two-year-old daughter on
the evening of 12 May 2015. Defendant brought a six-pack of
beer with him. Tony, Defendant, and B.A. sat on the porch
drinking and talking. Defendant and B.A. had not met prior to
that evening. At around 12:30 a.m., B.A.'s daughter woke
up and began to cry. Tony left to check on the child, and
eventually fell asleep with her. When B.A. found Tony asleep,
she told Defendant he needed to leave. Defendant responded he
could not leave because he did not want to drive drunk, so
B.A. told him he could sleep on the couch. B.A. retired to
was preparing for bed, Defendant entered B.A.'s bedroom
and informed her "that [they] were going to have
sex." B.A. "told [Defendant] no, " and
Defendant pushed B.A. onto the bed, got on top of her, and
choked her for a few seconds. Defendant forced B.A. to put
her hands over her head, pulled off her shirt, ripped off her
bra, and inserted his fingers into her vagina while choking
her with one hand.
a struggle, B.A. managed to fight off Defendant. B.A. then
stood up on the bed, swung her right hand and hit Defendant
in the eye, causing him to fall backwards. Defendant
exclaimed "[l]ook what you did to my face, " pulled
B.A. down from the bed, threw her against the wall, and began
to choke her again. B.A. was able to reach the bedroom door,
open it, and push Defendant off of her. Defendant again
grabbed B.A., and the pair fell to the floor in the doorway
of the bedroom. The struggle continued into the hallway,
during which Defendant picked B.A. up by her legs and slammed
her to the floor three times.
the commotion, Tony came out of her bedroom, screamed, and
asked what was going on. Tony testified that B.A. "kept
yelling that [Defendant] raped her[.]" B.A. testified
she told Tony to call the police. B.A. eventually managed to
get away from Defendant.
explained at trial,
I ran into the bar area of my kitchen and grabbed the hammer
and told [Defendant] that he needed to get out, and so I
followed at a safe distance behind him as he went out the
door and then he turned around and grabbed the hammer away
from me and slashed it at my arm and told me that he would
see me again.
police responded to the scene, but Defendant had left before
they arrived. Defendant was indicted on 15 June 2015 on
charges of assault inflicting serious injury, second-degree
sexual offense, and assault by strangulation (collectively,
the "13 May 2015 charges").
eight months later, Kerissa Eller ("Eller"),
B.A.'s neighbor, was washing dishes in her kitchen on 2
January 2016 when a man wielding a knife broke into her home.
The man repeatedly asked "[w]here the f--k is
[B.A.'s first name]?" Eller assumed the man meant
B.A. Eller testified that after the man repeated the question
a few times, he stopped, looked around, exclaimed "[o]h
s--t, " and ran out. Eller called the police. The police
showed Eller a photographic lineup, which included a photo of
Defendant, but Eller was unable to identify anyone in the
lineup. Defendant was indicted on 7 March 2016 on charges of
felony breaking or entering, felony stalking, and
intimidating a witness (collectively, the "2 January
to trial, the State moved to join the 13 May 2015 and the 2
January 2016 charges for a single trial. Defense counsel
objected to the motion. After considering arguments by
Defendant and the State, the trial court ruled, "after
hearing all the arguments and reviewing the case law, "
joinder "[was] proper in this matter[.]"
trial began on 29 August 2016. During Eller's testimony,
the trial court conducted voir dire to determine
whether to admit portions of her testimony regarding
B.A.'s character. In her voir dire testimony,
Eller described B.A. as someone who created drama by, for
example, "not keeping up with her dog." Eller
further testified B.A. "always [had] . . . eight or nine
cars in and out of [the apartment complex] all day."
Also during voir dire, the following colloquy
occurred between Defendant's counsel and Eller:
[Defendant's counsel:] And what kind of people do you see
always going in and out of [B.A.'s] house?
[Eller:] I don't really know how to describe it. It's
just lots of cars, lots of black men mostly. And there is a
couple white girls that come in and out a lot but they're
always arguing with the people they're with too, so I
just try to stay to myself.
[Defendant's counsel:] So is it fair to say you see
[B.A.] arguing a lot with the variety of people?
further testified during voir dire that she had
observed B.A. arguing with men in the yard outside of the
apartment complex, and she could occasionally hear B.A.
loudly arguing with men inside of B.A.'s apartment, which
was a considerable distance away. Following voir
dire, the trial court ruled that Eller's testimony
would be limited to describing statements B.A. made to Eller
about the events surrounding the alleged attack, but Eller
was not permitted to testify about B.A.'s
"propensity for violence" or about the "people
coming in and out."
all of the evidence was presented, the trial court instructed
the jury regarding each of the charged offenses. With respect
to the charge of felonious breaking or entering, the trial
court gave the following oral instruction in open court:
[Defendant] has been charged with felonious breaking or
entering into another's building without her consent with
the intent to commit a felony. For you to find the defendant
guilty of this offense the State must prove four things
beyond a reasonable doubt.
First, that there was either a breaking or an entry by
[Defendant]. Coming into the apartment of [Eller], . . . with
a knife would be a breaking or entering.
Second, the State must prove that it was a building that was