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State v. Voltz

Court of Appeals of North Carolina

August 15, 2017

STATE OF NORTH CAROLINA
v.
PHILLIP VOLTZ, IV, Defendant.

          Heard in the Court of Appeals 20 April 2017.

         Appeal 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.

          TYSON, JUDGE.

         Phillip 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.

         I. Background

         Jessica 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 her bedroom.

         As B.A. 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.

         During 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.

         Hearing 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.

         As B.A. 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.

         The 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").

         About 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 2016 charges").

         Prior 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[.]"

         Defendant's 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?
[Eller:] Yes.

         Eller 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."

         After 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 broken ...

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