The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-35
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Guilford County
No. 11 CRS 77219
DWAYNE ELLIOT BROWN
Appeal by defendant from judgment entered 23 April 2013 by
Judge Richard W. Stone in Guilford County Superior Court. Heard
in the Court of Appeals 8 May 2014.
Roy Cooper, Attorney General, by Melissa L. Trippe, Special
Deputy Attorney General, for the State.
Staples S. Hughes, Appellate Defender, by Barbara S.
Blackman, Assistant Appellate Defender, for defendant-
appellant.
DAVIS, Judge.
Dwayne Elliot Brown (“Defendant”) appeals from his
conviction of first-degree murder. On appeal, he contends that
the trial court erred in admitting pursuant to Rule 404(b) of
the North Carolina Rules of Evidence testimony concerning a
prior assault committed by him. After careful review, we
conclude that Defendant received a fair trial free from error.
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Factual Background
The State presented evidence at trial tending to establish
the following facts: On 20 May 2011, Tereece Anshon Roseboro
(“Ms. Roseboro”) was at the home of her friend, Tawayn Chavis
(“Ms. Chavis”). Ms. Roseboro had been involved in a romantic
relationship with Defendant during the preceding year and had
lived at his home with her two children. However, in the weeks
leading up to 20 May 2011, Ms. Roseboro had decided to end her
relationship with Defendant and move out of his home and into
her father’s house.
On 20 May 2011, Defendant came to Ms. Chavis’ home and
informed Ms. Roseboro that she needed to return to his house and
retrieve her remaining possessions. Ms. Roseboro left Ms.
Chavis’ house in her father’s car, and Defendant left in his
gray Audi. This was the last time Ms. Roseboro was seen alive.
On 22 May 2011, Ms. Roseboro’s mother, Teri Roseboro,
reported Ms. Roseboro missing to the Greensboro Police
Department. That same day, Officer Lee Andrews (“Officer
Andrews”) and Corporal W.B. Barham (“Corporal Barham”) with the
Greensboro Police Department went to Defendant’s house to
determine whether Ms. Roseboro was there. Defendant invited the
officers inside and consented to a search of the residence.
Officer Andrews observed that a portion of the carpet in the
bedroom had been cut out and removed.
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Upon questioning from Officer Andrews about Ms. Roseboro’s
possible whereabouts, Defendant responded that “he was done with
her” and “he was basically going to tell her to move out.”
While the officers were in the home, Defendant repeatedly
stated: “I don’t know where she is. Why do you keep asking[?]”
The following day, Defendant was arrested and taken into
custody. During a search of Defendant’s house conducted
pursuant to a search warrant, Investigator Patrick Sigafoos
(“Investigator Sigafoos”) discovered bloodstains on the carpet
in the doorway of a bedroom as well as on the rear bumper of
Defendant’s Audi. Investigator Sigafoos further observed a set
of knives in Defendant’s kitchen with one knife missing.
During an interview with Detective Chris Tyndall
(“Detective Tyndall”) and Detective Clayton Coward (“Detective
Coward”) that same day, Defendant admitted — after waiving his
Miranda rights — to having stabbed Ms. Roseboro with the missing
kitchen knife but claimed the stabbing was accidental.
Defendant then told the officers that he had wrapped Ms.
Roseboro’s body in a blanket, placed it in the trunk of his
Audi, and disposed of the body off of U.S. Highway 220, south of
Greensboro.
Defendant directed Detectives Tyndall and Coward along with
Sergeant N. Rankin to the location of Ms. Roseboro’s body.
After the officers found her body, Defendant also pointed them
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to two dumpsters behind the Heritage Homes apartment complex in
which he had disposed of the bloodstained carpet section that
had been removed from his bedroom.
Law enforcement officers subsequently searched the
dumpsters. They recovered pieces of carpet Defendant had
removed from his bedroom and observed that they were
bloodstained. They also found bloodstained clothing, towels,
community service release papers belonging to Ms. Roseboro, and
a pair of latex gloves in the same dumpster. Upon searching the
other dumpster, they found a bent kitchen knife with bloodstains
on it.
Dr. Jonathan Privette, a forensic pathologist, performed an
autopsy on Ms. Roseboro. He concluded that she had died of two
stab wounds to her chest, one of which had punctured her right
lung.
On 1 August 2011, Defendant was indicted on a charge of
first-degree murder. A jury trial was held in Guilford County
Superior Court on 15 April 2013.
At trial, the State sought to introduce the testimony of
Chrystal Sherard (“Ms. Sherard”) concerning events that had
occurred on 4 June 2007. On that date, Defendant was living
with Ms. Sherard and involved in a romantic relationship with
her. When Ms. Sherard informed Defendant that he could no
longer stay with her at her residence, Defendant grabbed a knife
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that he used for his work as a chef and held it to her neck,
drawing blood. Ms. Sherard ultimately convinced Defendant to
lie down after he complained that he had a headache. Under the
pretext of going to get Defendant a cold compress, Ms. Sherard
fled from her residence and sought emergency assistance. Ms.
Sherard required stitches to close the wound on her neck.
The trial court conducted a voir dire examination of Ms.
Sherard before ultimately allowing her to testify before the
jury as to these events. While Defendant’s trial counsel
objected to the admissibility of Ms. Sherard’s testimony after
the voir dire hearing, he did not renew his objection when Ms.
Sherard actually testified before the jury. The trial court
gave the jury a limiting instruction informing the jurors that
they could only consider Ms. Sherard’s testimony to show an
absence of mistake or accident.
Defendant was convicted of first-degree murder. He was
sentenced to life imprisonment without parole. Defendant gave
notice of appeal in open court.
Analysis
Defendant’s sole argument on appeal is that the trial court
erred in admitting the testimony of Ms. Sherard. Specifically,
Defendant contends that the 2007 assault on Ms. Sherard was so
dissimilar and temporally remote from the killing of Ms.
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Roseboro that the trial court’s admission of testimony
concerning the assault on Ms. Sherard constituted plain error.
As noted above, Defendant’s counsel objected to the
admission of Ms. Sherard’s testimony following her voir dire
examination but did not renew his objection at the time she
actually testified in the presence of the jury. It is well
established that on appeal we “will not review a trial court's
decision to admit evidence unless there has been a timely
objection. To be timely, the objection must be contemporaneous
with the time such testimony is offered into evidence.” State
v. Brent, __ N.C. __, __, 743 S.E.2d 152, 154 (2013) (internal
citations, quotation marks, and brackets omitted). Therefore,
because Defendant failed to properly preserve his objection to
this testimony, we review only for plain error.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice — that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affects the fairness,
integrity or public reputation of judicial
proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations, quotation marks, and brackets omitted).
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Rule 404(b) states, in pertinent part, that
[e]vidence 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.
N.C.R. Evid. 404(b).
“Rule 404(b) clearly provides that evidence of other
offenses is admissible so long as it is relevant to any fact or
issue other than the character of the accused.” State v.
Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 889 (1991) (citation
and internal quotation marks omitted). Relevant evidence is
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” N.C.R. Evid. 401. However, “[a]lthough relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” N.C.R. Evid. 403.
Our Supreme Court has held that
when analyzing rulings applying Rules 404(b)
and 403, we conduct distinct inquiries with
different standards of review. When the
trial court has made findings of fact and
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conclusions of law to support its 404(b)
ruling . . . we look to whether the evidence
supports the findings and whether the
findings support the conclusions. We review
de novo the legal conclusion that the
evidence is, or is not, within the coverage
of Rule 404(b). We then review the trial
court's Rule 403 determination for abuse of
discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012).
The Supreme Court “has recognized that Rule 404(b) is a
rule of inclusion of relevant evidence of other crimes, wrongs,
or acts by a defendant, 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. The Rule, however, is
constrained by the requirements of similarity and temporal
proximity. When the features of the earlier act are dissimilar
from those of the offense with which the defendant is currently
charged, such evidence lacks probative value. Similarly, when
otherwise similar offenses are distanced by significant
stretches of time, commonalities become less striking, and the
probative value of the analogy attaches less to the acts than to
the character of the actor.” State v. Badgett, 361 N.C. 234,
243, 644 S.E.2d 206, 212 (internal citations, quotation marks,
and brackets omitted), cert. denied, 552 U.S. 997, 169 L.Ed.2d
351 (2007).
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However, our Supreme Court has made clear that
[r]emoteness in time between an uncharged
crime and a charged crime is more
significant when the evidence of the prior
crime is introduced to show that both crimes
arose out of a common scheme or plan. In
contrast, remoteness in time is less
significant when the prior conduct is used
to show intent, motive, knowledge, or lack
of accident; remoteness in time generally
affects only the weight to be given such
evidence, not its admissibility.
Stager, 329 N.C. at 307, 406 S.E.2d at 893 (internal citation
omitted).
In the present case, Defendant contends that the 2007
assault on Ms. Sherard satisfied neither the similarity
requirement nor the temporal proximity requirement of Rule
404(b). We disagree.
In State v. White, 343 N.C. 378, 385, 471 S.E.2d 593, 597,
cert denied, 519 U.S. 936, 136 L.Ed.2d 229 (1996), the defendant
broke into the victim’s home at night and fatally stabbed her
with a paring knife he stole from her kitchen. At trial, the
State was permitted to introduce into evidence the testimony of
two prior sexual assault victims of the defendant. On appeal,
the defendant argued that these sexual assaults were too
dissimilar from the killing of the victim in the case for which
he was on trial to be deemed admissible by the trial court. In
upholding the admissibility of this evidence, our Supreme Court
noted the similarities between the prior sexual assaults and the
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killing of the victim in the charged offense, specifically
observing that
[the] defendant committed both of the prior
assaults by placing a sharp blade to the
women's throats. In this case, the victim
was stabbed and her throat slashed.
Defendant caused clothing to be removed from
both victims of the prior assaults. In this
case, the victim was found completely naked.
Defendant assaulted both victims of the
prior assaults shortly after using alcohol
and/or drugs[.]
Id. at 390, 471 S.E.2d at 600. The Court concluded that “[t]he
evidence of the prior assaults was sufficiently similar to the
evidence in this case of first-degree murder and intent to
commit first-degree murder to be admissible under Rule 404(b).”
Id. at 389-90, 471 S.E.2d at 600.
In the present case, there were arguably even more
similarities between Defendant’s prior assault on Ms. Sherard
and the killing of Ms. Roseboro than were present in White. The
evidence tended to show that in both instances (1) Defendant had
been romantically involved with the victims; (2) Defendant
attacked both women with a kitchen knife; (3) the attacks were
both carried out in a residence he had shared with the victims;
and (4) the attacks occurred while both women were in the
process of ending their cohabitation with Defendant.
Defendant also claims that the assault on Ms. Sherard was
too temporally remote from the killing of Ms. Roseboro because a
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four-year gap in time existed between the two incidents. This
argument also lacks merit. We have previously upheld the
admission of Rule 404(b) evidence where far longer periods of
time had elapsed between the prior incident and the incident for
which the defendant was charged. See State v. Peterson, 361
N.C. 587, 597, 652 S.E.2d 216, 224 (2007) (16 years); Stager,
329 N.C. at 307, 406 S.E.2d at 893 (10 years).
Moreover, as noted above, “remoteness in time is less
significant when the prior conduct is used to show intent,
motive, knowledge, or lack of accident; remoteness in time
generally affects only the weight to be given such evidence, not
its admissibility.” Stager, 329 N.C. at 307, 406 S.E.2d at 893
(internal citation omitted). Here, the Rule 404(b) evidence was
relevant to show, at a minimum, the absence of accident.
Accordingly, we hold that the four-year period of time between
the two events did not render this evidence inadmissible under
Rule 404(b).
Had Defendant properly preserved his objection to Ms.
Sherard’s testimony, we would proceed to determine whether the
trial court abused its discretion in allowing this evidence
under Rule 403. However, “[t]he balancing test of Rule 403 is
reviewed by this [C]ourt for abuse of discretion, and we do not
apply plain error to issues which fall within the realm of the
trial court’s discretion.” State v. Cunningham, 188 N.C. App.
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832, 837, 656 S.E.2d 697, 700 (2008) (citation and internal
quotation marks omitted).
Conclusion
For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).