# State v. Everett > Court of Appeals of North Carolina · June 20, 2006 · 178 N.C. App. 44 URL: https://www.frixlaw.com/law-library/cases/9616009 ## Case - **Full name:** State of North Carolina v. Karen Elaine Everett - **Court:** Court of Appeals of North Carolina - **Decided:** June 20, 2006 - **Citations:** 178 N.C. App. 44; 630 S.E.2d 703; 2006 N.C. App. LEXIS 1302 - **Precedential status:** Published - **Opinion:** Dissent by Geer - **Judges:** Tyson, Jackson, Geer - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9616009 ## Opinion text GEER, Judge, dissenting. Because I believe defendant received a trial free of prejudicial error, I respectfully dissent. With respect to the exclusion of the testimony of Virgil Rhodes regarding the victim’s damaging a car, I would hold that any error was harmless based upon my review of the record. First, defendant was allowed to testify fully regarding the incident, the victim’s being charged in connection with the incident, and the effect of the incident .on her. While defendant argues — and the majority agrees — that Rhodes would have provided the only evidence from a neutral source of the victim’s violent nature, the car dealership incident was not *60 seriously disputed by the State and defendant introduced extensive testimony from other witnesses regarding the victim’s physically violent character. Neither defendant nor the majority opinion demonstrates, in light of the substantial evidence admitted of the victim’s violence towards defendant, how the exclusion of the Rhodes testimony, regarding violence to a car, gives rise to “a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2005). Notably, at the time of the initial ruling regarding Rhodes, the trial court indicated to defense counsel that he could ask the court to reconsider the issue later in the trial. Nevertheless, even though the court ultimately allowed defendant to testify regarding the incident, counsel did not then ask the court to permit the testimony of Rhodes to corroborate defendant. I would observe, in addition, that the trial court precluded the testimony of Rhodes because the conduct involved property damage and no threat to any person — a decision I believe to be consistent with Rule 404 of the Rules of Evidence. Rule 404(a)(2) allows “[e]vidence of a pertinent trait of character of the victim of the crime.” (Emphasis added.) I believe that the trial court could properly determine that the victim’s willingness to damage a car was not “pertinent” to whether defendant’s apprehension of death or bodily harm was reasonable. I also cannot agree with the majority’s conclusion that the trial court' erred in excluding defendant’s testimony that one of her employees had told her that the victim threatened “to shoot up” the employee’s house. The majority holds that this statement was admissible because it falls within the exception to the hearsay rule set out in N.C.R. Evid. Rule 803(3) and because it was not offered to prove the truth of the matter asserted. While this may be true, defendant did not argue these bases for admission at trial and has not argued them on appeal. See N.C.R. App. R 10(b)(1) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”). The majority’s discussion of the offer of proof requirements in N.C.R. Evid. 103(a)(2) is beside the point. The issue is not whether the nature of the intended testimony was apparent from the record, but rather whether defendant’s trial counsel sufficiently identified for *61 the trial judge a basis under the Rules of Evidence for admitting the testimony. Once the State objected, defendant never argued to the trial court any basis at all. for the admission of the testimony. Counsel simply stood silent in response to the State’s objection. Silence does not comply with N.C.R. App. P. 10(b)(1). Even if- defendant had made some response at trial, the fact remains that he has not made any argument on appeal to address the State’s hearsay contention. The basis for the majority opinion was not the subject of an assignment of error and cannot by any stretch be gleaned from defendant’s appellate brief. Our Supreme Court has made plain that these arguments may not, therefore, form a basis for granting a new trial. See Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402 , 610 S.E.2d 360, 361 (2005) (“It is not the role of the appellate courts ... to create an appeal for an appellant.”). Simply stated, the majority has created a basis for appeal for defendant. Finally, I disagree with the majority opinion’s holding regarding the admission of testimony that defendant shot a dog. I believe the majority has misunderstood the State’s argument as to the evidence’s relevance. The State was not focusing simply on whether defendant knew how to use a gun, but rather was arguing that because the victim knew that defendant could — and would — use a gun to kill, the victim would not have charged defendant while she was pointing a gun at him and had already fired once. The State argued in closing: If we have any such thing as common sense, say she’s going to stand there with a .38 and we know she knows how to use it. She’s already shot a dog, said she intended to kill it. She’s taken target practice. He knows she knows how to use that gun, which is another important thing when he’s standing over here. He knows she’s just not some person scared and she doesn’t know how to use that gun. He’s seen her shoot and he know [sic] she carries it every day. She bought it and carried it in that book bag. He knows that she can use that gun. (Emphasis added.) Thus, the State used the victim’s knowledge of the dog shooting to suggest that defendant’s, version of what occurred was not credible. I believe the testimony was admissible for this purpose: to suggest that the victim would not have charged defendant. For the foregoing reasons, I dissent from the majority’s decision to grant a new trial. I would hold that defendant received a trial free of prejudicial error. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9616009. Public record. Not legal advice.