State v. Elledge

343 S.E.2d 549 (1986)

STATE of North Carolina v. Jack Randall ELLEDGE.

No. 8523SC1120.

Court of Appeals of North Carolina.

May 20, 1986.

*550 Atty. Gen. Thornburg by Asst. Atty. Gen., Edmond W. Caldwell, Jr. and Special Deputy Atty. Gen., Charles J. Murray, for the State.

Ferree, Cunningham & Gray by William C. Gray, Jr., Wilkesboro, for defendant-appellant.

PHILLIPS, Judge.

Following appeal from the District Court and a trial de novo in the Superior Court defendant was convicted of the misdemeanor of communicating threats to his estranged wife in violation of G.S. 14-277.1. The State's evidence, in gist, tended to show that: He had broken into her house and assaulted her on previous occasions and about 4 o'clock in the morning on 1 December 1984 he telephoned her stating, among other things, "that I had better get that man out of my bed or he was going to come down and blow my brains out" and "that he would bring the Northwest Housing Authority to throw me out." None of defendant's four assignments of error have merit and two of them have no basis in the record. The assignment asserting that the court erred in refusing to let defendant's mother testify as to the condition of a door that defendant purportedly damaged on an earlier occasion is not supported by an offer of proof showing what her testimony would have been. State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510 (1980). And the assignment contending that the court erred in charging the jury is not supported by an objection to the charge, though the record shows that defendant was given the opportunity to object before the jury retired to consider the case. Rule 10(b)(2), N.C. Rules of Appellate Procedure. Furthermore, the portion of the charge now complained of was an accurate summary of the State's evidence and contentions concerning defendant's telephone call.

The defendant did object though to testimony that he had assaulted his wife on other occasions and contends that this evidence was erroneously received to his prejudice. We disagree. As pointed out in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), it has long been our law that evidence which reasonably tends to prove a material fact in issue is not to be rejected merely because it also tends to show that the defendant had committed another crime. In enacting the Evidence Code, Chapter 8C of the General Statutes, this long followed principle was brought forward by Rule 404(b), which expressly provides that evidence of other crimes, wrongs or acts may be admissible for purposes other than proving the character of a person. The crime of communicating threats under G.S. 14-277.1 involves more than making a threat to injure one's person or property and communicating it to the other person; it is also necessary, as the statute expressly provides, that the threat was made "in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out" and that "[t]he person threatened believes that the threat will be carried out." Evidence that on earlier occasions defendant had broken into his wife's house and assaulted her certainly tended to prove these two elements of the offense and its receipt did not violate Rule 404(b) of the N.C. Rules of Evidence, as defendant contends. All that Rule 404(b) forbids is receiving evidence of other crimes, wrongs or acts to "prove the character of a person in order to show that he acted in conformity therewith." The evidence in question was not received to prove defendant's character; it was received to prove two facts necessary for his conviction.

*551 Defendant's other assignment concerns an out of court statement purportedly made by a doctor in committing defendant to Broughton Hospital for observation after his wife "took out the papers to put him in D-tox," a 24-hour holding facility for alleged drug and alcohol addicts awaiting a hearing. While defendant objected to the statement that he was "too violent" for the detoxification unit, that defendant was sent to Broughton Hospital and his wife's testimony that he "jumped on the doctors" who made the statement were not objected to. Assuming arguendo that the statement was improper hearsay, in our opinion it merely supplemented and explained information that the jury already had and could not have affected their verdict. State v. King, 301 N.C. 186, 270 S.E.2d 98 (1980).

No error.

ARNOLD and EAGLES, JJ., concur.