Helms Michael E by 649v7x0E

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									No. COA08-1323                                19C JUDICIAL DISTRICT


                  (NORTH CAROLINA COURT OF APPEALS)
                  *********************************

STATE OF NORTH CAROLINA              )
                                     )    From Rowan County
           v.                        )    No. 04 CRS 58832
                                     )
MICHAEL E. HELMS, JR.           )

   **********************************************************
                   DEFENDANT-APPELLANT'S BRIEF
   **********************************************************
                                INDEX

INDEX...........................................................i

TABLE OF AUTHORITIES...........................................ii

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...................2

STATEMENT OF THE FACTS........................................3-9

ARGUMENT.....................................................9-22

     THE COURT ERRED IN ADMITTING 404(B) EVIDENCE OF ALLEGED PRIOR
          THREATS IN THE STATE'S CASE-IN-CHIEF BEFORE ANY EVIDENCE OF
          THE ASSAULT ALLEGED WAS ADMITTED, FOR THE PURPOSE OF
          SHOWING THAT DEFENDANT HELMS WAS THE AGGRESSOR IN THE
          FIGHT, THE IDENTITY OF THE ASSAILANT WHO HAD STABBED BIVENS IN
          THE FIGHT, AND TO SHOW MOTIVE FOR THE ASSAULT. (R 7, T 22-32,
          32-36, 106-110, 136-137, 145-148)[ASSIGNMENT OF ERROR #1] ....9


THE REMAINING ASSIGNMENTS OF ERROR ARE ABANDONED.

CONCLUSION..................................................22-24

CERTIFICATE OF SERVICE.........................................25




                                  i
                           TABLE OF AUTHORITIES

CASES

Lovely v. U.S., 169 F.2d 386 (4th Cir. 1948) ...................17
State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990)...13
State v. Clark, 138 N.C.App. 392, 531 S.E.2d 482 (2000) .....................9
State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986).......21
State v. Frankum, 272 N.C. 253, 158 S.E.2d 62 (1967)...........12
State v. Hall, 85 N.C.App. 447, 355 S.E.2d 250 (1987)..........20
State v. Haskins, 104 N.C.App. 675, 679, 411 S.E.2d 376,
       380 (1991)..........................................14,16,23
State v. Jones, 153 N.C.App. 358, 364-365, 570 S.E.2d 128,
       133 (2002) ...............................................9,16
State v. Maxwell, 96 N.C.App. 19, 384 S.E.2d 553 (1989)........23
State v. McKoy, 78 N.C.App. 531, 337 S.E.2d 66 (1985), rev'd on
       other grounds, 317 N.C. 519, 347 S.E.2d 374 (1986)........17
State v. McNeill, 92 N.C. 812 (1885)...........................13
State v. Moctezuma, 141 N.C.App. 90, 539 S.E.2d 52 (2000)................9,16
State v. Morgan, 315 N.C. 626, 340 S.E.2d 84
       (1986)...........................................15,18,19,21
State v. Patterson, 146 N.C.App. 113, 552 S.E.2d 246 (2001) ...................9
State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550,
       552-553 (1988)......................................12,19,23
State v. Stager, 329 N.C. 279, 406 S.E.2d 876 (1991)...........21
State v. Thomas, 310 N.C. 369, 373, 312 S.E.2d 458, 460-461
       (1984).................................................16,17
State v. White, 101 N.C.App. 593, 401 S.E.2d 106 (1991)........17
State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992)............21


STATUTES

N.C.G.S.   §   8C-1, Rule 401(2007)................................14
N.C.G.S.   §   8C-1, Rule 404(a)(2007).......................10,13,22
N.C.G.S.   §   8C-1, Rule 404(b)(2007).............................13
N.C.G.S.   §   7A-27(b)(2008).......................................2
N.C.G.S.   §   15A-1443(a)(2007)...................................22
N.C.G.S.   §   15A-1444(a)(2008)....................................2




                                     ii
No. COA08-1323                                               19C JUDICIAL DISTRICT


                    (NORTH CAROLINA COURT OF APPEALS)
                    *********************************

STATE OF NORTH CAROLINA                        )
                                               )         From Rowan County
            v.                                 )         No. 04 CRS 58832
                                               )
MICHAEL E. HELMS, JR.                   )


    **********************************************************
                         APPELLANT'S BRIEF
    **********************************************************

                              QUESTIONS PRESENTED

       1.      THE COURT ERRED IN ADMITTING 404(B) EVIDENCE OF ALLEGED PRIOR
THREATS IN THE STATE'S CASE-IN-CHIEF BEFORE ANY EVIDENCE OF THE ASSAULT
ALLEGED WAS ADMITTED, FOR THE PURPOSE OF SHOWING THAT DEFENDANT
HELMS WAS THE AGGRESSOR IN THE FIGHT, THE IDENTITY OF THE ASSAILANT WHO
HAD STABBED BIVENS IN THE FIGHT, AND TO SHOW MOTIVE FOR THE ASSAULT. (R
7, T 22-32, 32-36, 106-110, 136-137, 145-148) [ASSIGNMENT OF ERROR #1]

     The remaining Assignments of Error are abandoned.
                                2
                       STATEMENT OF THE CASE

     This case is before the Court of Appeals for appeal by the

Appellant, Michael E. Helms, Jr., from the trial occurring during

the 2/5/2007 session of Criminal Superior Court of Rowan County,

Salisbury, North Carolina, the Honorable James E. Hardin, Jr.,

presiding. (R 1, T 4-5)   The jury verdict was returned on 2/7/07.

(R 24, T 185)   The judgment was signed on 2/7/07. (R 27-28)

     The Appellant, Defendant Michael E. Helms, Jr., was indicted

and tried on one count of Assault with a Deadly Weapon Inflicting

Serious Injury (AWDWISI). (R 6, T 6)   After a jury trial, Michael

Helms was convicted of Assault with a Deadly Weapon Inflicting

Serious Injury (AWDWISI), a Class E felony, in 04 CRS 58832. (R 24,

27-28, T 185)   Defendant, through counsel, stipulated that he had

15 criminal history points and was sentenced in criminal history

category V in the presumptive range for a Class E felony to a term

of imprisonment of 53 months minimum to 73 months maximum. (R 25-

27, T 191)   From this judgment, the Defendant filed a petition for

writ of certiorari and was allowed to appeal, the appeal deemed

taken on 4-2-2008. (R 29, 49-51)

     This brief was timely filed on December 1, 2008.

                          STATEMENT OF THE GROUNDS FOR APPELLATE

REVIEW

     Jurisdiction for this appeal is granted by N.C.G.S. §§ 7A-

27(b) and 15A-1444(a)(2008).
                                            3



                              STATEMENT OF THE FACTS

       Douglas Wayne Bivens, a mechanic at Terry's Auto Sales, drove his Ford Festiva to


Little Buck's convenience store to get a drink while running as errand for his employment. (T


15-17) Bivens parked his Festiva about six to ten feet away to the right of two front glass


entry doors at Little Buck's convenience store. (T 16, 19-20). Bivens left the store and


returned to his car, opened his Sun Drop and sat in his car with the driver's side window


down. (T 21, 36) He heard someone yell. (T 21) He saw Michael Helms, who said, "Hey."


(T 21, 36, 37) Helms was standing at the double glass doors at the front of the convenience


store. (T 36)


       Bivens admitted he was sitting in his own car when he saw Helms. (T 36, 38, 53-54)


Bivens chose not to roll up the window, not to lock the car doors, and not to drive away. (T


21, 36-38, 53-56) Instead, although Helms had said nothing to him other than "Hey" (T 57)


did not approach Bivens or make any gestures toward Bivens (T 37-40, 59) and never


moved from leaning back on the front door (T 56-57), Bivens got out of his car, snuck up on
                                             4

Helms, and struck at Helms. (T 39-40, 57-59) Bivens wanted to "get the first shot in." (T


21, 37, 39, 59)


       Bivens testified he thought he missed Helms when he tried to hit Helms. (T 40)


According to Bivens, he took only one swing at Helms, then backed up and tripped over a


pole in front of the store as he saw Helms' arm coming up. (T 41) Bivens testified he felt


something warm, looked down, and found he was bleeding from his lower, left side. (T 41)


Bivens testified he had seen that Helms had a knife when Bivens was in his car and decided


to sneak up on Helms and attack him. (T 38-39, 54, 55, 57) Bivens denied having a


screwdriver or other weapon. (T 40) Bivens testified he went into the store while Helms went


to his truck. (T 42) Little Buck's Assistant Store Manager, Rhonda Seaford, testified that she


was standing at the register and saw Bivens and Helms come into the store together. (T 82)


       Ms. Seaford testified she didn't see Bivens and Helms until they were right at the front


doors. (T 74) A big sign on the front window of the store obscured part of her view. (R 9, T


70) Ms. Seaford testified she didn't pay any attention to them until she heard a noise at the
                                            5

front doors; she heard a loud noise like someone falling into the front doors of the store and


Bivens and Helms entered the store together, "sort of fell in the store." (T 74-76, 83)


Officer Boggs testified that Ms. Seaford told him at the scene on 11-29-2004 that she was on


the telephone at the time of the altercation, that she heard a loud noise, and saw someone


that looked like Mr. Helms fall through the door. (T 92) In her written statement given to


Officer Boggs on 11-30-2004, she described seeing a white male fitting the description of Mr.


Helms get pushed inside the door and then go back outside. (R 12, T 101) Seaford testified


that she did not observe any disturbance or see any of the fight between Bivens and Helms


and didn't pay any attention until she heard a noise at the front door. (T 80-82)         The


Assistant Manager Seaford recalled Helms having some kind of metal object that "looked kind


of like" a tire tool stuck down on the inside of his pants on the side. (T 76) She could only


see part of the metal object. (T 76) She did not see Helms with any knife, and did not see


Bivens with a screwdriver. (T 76, 79)
                                             6

       Bivens testified that he went into the store and asked the cashier to call 9-1-1, and she


gave him first aid. (T 42) Bivens testified that Helms came into the store and said "Alisa's


next." (T 43) Bivens testified that Helms had a tool like a "jackhammer" in his hand, but he


didn't do anything with it in the store. (T 43-44)


       Helms gave Bivens aid and helped him outside but was not at the scene when the


ambulance arrived. (T 84, 109-110, 111) Bivens was not sure whether he was still bleeding


when he got to the hospital. (T 46) Bivens had some surgery, however, and stayed overnight


at the hospital before being discharged. (T 46) The serious injury element of the offense was


not contested at trial.


       Michael Helms testified in his own defense on the charge of Assault With a Deadly


Weapon Inflicting Serious Injury on Bivens. Helms testified he stopped to get gas at Little


Buck's on 11-29-2004. (T 107) He had five dollars in his hand to go pay for gas and had


his hand on the front door when Bivens came up from behind him and hit him. (T 107)


Helms turned around, and Bivens hit him again. (T 107) Helms testified Bivens hit him with
                                            7

his fist from behind. (T 143-144) Helms testified that he had not said anything to Bivens


before Bivens hit him because he didn't know Bivens was there until Bivens hit him from


behind. (T 115, 138, 143-144)


       After Helms got hit at the door by Bivens, the two men started fighting. (T 107)


Bivens had a screwdriver and swung it at Helms. (T 107-108, 113, 115-117)            Bivens


scratched his neck with the screwdriver and stabbed Helms one time in the shoulder with the


screwdriver, leaving Helms a two-inch scar there which Helms showed to the jury. (T 107-


108, 112)


       After Helms was struck with the screwdriver by Bivens, then Helms pulled out his


pocket-knife and tried to scare Bivens. (T 107-108, 113) Helms had a pocket-knife with him


with a blade maybe three inches long that he used to cut box bands off at work. (T 121)


Helms testified that he swung the pocket-knife towards Bivens' stomach after he was struck


with the screwdriver by Bivens, but didn't realize he had stabbed Bivens because Bivens kept


hitting him. (T 108, 113) Helms testified Bivens continued to hit Helms and they ended up
                                            8

around the side of the building where the dumpster was. (T 108, 113-114) Bivens threw a


Pepsi crate at him and then picked up a metal pipe that was lying on the ground and swung


the pipe at Helms. (T 108-109) Helms got the metal pipe away from Bivens, and Bivens


asked him not to hit him with it. (T 109, 114) They stopped fighting and both men went into


the store. (T 109) Helms still had to pay for his gas. (T 109) Once in the store, Bivens said


he was stabbed. (T 109) Helms was surprised and said he didn't stab Bivens and then


noticed that Bivens was bleeding. (T 109) Helms didn't realize that he had stabbed him until


Bivens told him in the store, but Helms admitted stabbing Bivens. (T 109) Helms helped


Bivens. (T 84, 109, 110-111) Helms testified that he went outside with Bivens, and Bivens


started saying he was going to get Helms, going to shoot Helms. (T 109-110) Bivens wanted


to go to his car and Helms testified he was scared Bivens had a gun and left. (T 110)


       Prior to any testimony about what happened on 11-29-2004, the State sought to admit


as 404(b) evidence of prior bad acts or prior crimes, Bivens' testimony was that Helms had


previously threatened him about two weeks before the fight at Little Bucks. (T 22) Bivens
                                             9

had already testified that he knew Helms because he was dating Helms' former girlfriend, Alisa


Grimes. (T 20-21) In voir dire, Bivens testified that about two weeks prior to the fight on 11-


29-2004, Bivens saw defendant and two other boys getting gas at the Amoco Station next


door to Terry's Auto Sales lot where Bivens worked. (T 23-24) Bivens testified that Helms


said, "Come over here, we are going to teach you a lesson." On as second occasion within


that two week period Bivens testified Helms was at the Amoco Station and said to Bivens,


"Come over here. I'm going to do you just like I'm going to do Alisa." (T 24) Helms was


between 100 and 200 feet away when he made these statements to Mr. Bivens, according to


Mr. Bivens. (T 24-25)     According to Mr. Bivens on voir dire, Helms made no gestures


towards him and had no weapons in his hand when he made these statements. (T 25-26) In


his testimony before the jury, Bivens testified that Helms said, "Come over here, I am going to


teach you a lesson." (T 34) And on a second occasion within that two weeks before the fight,


Helms was at the Amoco Station and said to Bivens, "We're going to do you just like I'm


gonna do Alisa." (T 34-35) Bivens later testified Helms second statement was, "Come over
                                            10

here, I am going to do you just like I am going to do Alisa." (T 63-64) Helms denied


making the threats or statements to Bivens. (T 105-106) Helms said he and his brother had


gotten air in his brother's tires at the gas station which is beside Terry's Auto Sales, but


neither he nor Bivens said anything to the other. (T 106)


       The State listed several purposes under 404(b) for admission of Helms' prior


statements or threats:   motive, identity, lack of accident, intent versus accident, to rebut


Helms' claim of self-defense, and to show Helms was the aggressor in the fight. (T 27-29)


       Defense counsel objected to the admission of these statements as 404(b) evidence. (T


29-30) The Court ruled the evidence admissible for the following purposes: motive, identity,


and to show defendant was the aggressor. (T 30-32) The Court gave a limiting instruction to


the jury during the jury charge on the limited purposes for which the statements were


admitted: motive, identity, and intent to commit the crime. (R 18, T 172-173)


       After deliberating for a time, the jury sent a note that the jury was deadlocked 11 to 1,


and asked for the definition of excessive force. (T 179) The Court gave the jury the statutory
                                            11

charge under N.C.G.S. § 15A-1235 for deadlocked juries (T 182-183) and re-instructed on


excessive force. (T 182-183)


       The jury returned a verdict of guilty of assault with a deadly weapon inflicting serious


injury. (T 185)


                                         ARGUMENT

       1.      THE COURT ERRED IN ADMITTING 404(B) EVIDENCE OF ALLEGED PRIOR
THREATS IN THE STATE'S CASE-IN-CHIEF BEFORE ANY EVIDENCE OF THE ASSAULT
ALLEGED WAS ADMITTED, FOR THE PURPOSE OF SHOWING THAT DEFENDANT
HELMS WAS THE AGGRESSOR IN THE FIGHT, THE IDENTITY OF THE ASSAILANT WHO
HAD STABBED BIVENS IN THE FIGHT, AND TO SHOW MOTIVE FOR THE ASSAULT. (R
7, T 22-32, 32-36, 106-110, 136-137, 145-148) [ASSIGNMENT OF ERROR #1]


Standard of Review: Whether evidence admitted as 404(b) evidence is offered for a proper


purpose is a question of law and is reviewed de novo. See, State v. Jones, 153 N.C.App.


358, 364-365, 570 S.E.2d 128, 133(2002); State v. Patterson, 146 N.C.App. 113, 552


S.E.2d 246 (2001). Whether the evidence is relevant is a question of law reviewed de novo.


State v. Moctezuma, 141 N.C.App. 90, 539 S.E.2d 52 (2000). Whether the evidence of


extrinsic conduct is more probative than prejudicial is reviewed for abuse of discretion. State


v. Clark, 138 N.C.App. 392, 531 S.E.2d 482 (2000).
                                            12

       Both Helms' and Bivens' testimony agreed that Bivens was the aggressor in the assault


on 11-29-2004: Bivens was not provoked by Helms; Bivens got out of his car and snuck up


on Helms to assault Helms, and did strike at Helms. Bivens said he thought he missed


Helms; Helms said Bivens hit him first and continued hitting him, and stabbed Helms with a


screwdriver before Helms drew his pocket-knife and stabbed Bivens. But the evidence as to


how the confrontation began was undisputed and Bivens was clearly the aggressor. The


evidence of alleged prior threats against Bivens testified to only by Bivens was character


evidence which fell within the general prohibition of N.C. Rule of Evidence 404(a) and the


specific prohibition in 404(b). N.C.G.S. § 8C-1, Rule 404(a) and (b)(2007).


       Prior to any testimony about the events of 11-29-2004, the

State sought to admit as 404(b) evidence of prior bad acts or

crimes, Bivens' testimony that Helms had previously threatened him

about two weeks before the fight at Little Buck's on 11-29-2004.

       In his testimony before the jury, Bivens testified that Helms said, "Come over here, I'm


going to teach you a lesson." (T 34) And on a second occasion made the statement to


Bivens, "We're gonna do you just like I'm going to do Alisa" (T 34-35), and later testified his
                                             13

second statement was, "Come over here, I'm gonna do you just like I'm going to do Alisa."


(T 63-64) Helms denied making any threats or statements to Bivens. (T 105-106) Helms


said he and his brother had gotten air in his brother's tires at the gas station which is beside


Terry's Auto Sales, but neither he nor Bivens had said anything to the other. (T 106)


       The State offered these statements for several purposes: to show motive, the reason


that Helms would assault Bivens was that he was angry and upset at Bivens for dating his ex-


girlfriend; to show identity - to indicate that defendant was the perpetrator of the assault on


11-29-2004; to show lack of accident, although accident had not been raised as a defense; to


show intent versus accident; and to rebut Helms' claim of self-defense by showing that Helms


was the aggressor in the assault. (T 27-29) The State had already gotten into evidence that


Bivens was dating Alisa Grimes, who had been Helms' girlfriend. (T 20)


       Defendant objected to the 404(b) evidence and argued that the statements were not


relevant for the purposes offered, the prejudice outweighed the probative value, that the


statements did not show defendant's aggression on this occasion or even aggression at the
                                             14

time the threats were made since both were conditioned on Bivens coming over to Helms. (T


29-30)    The Court ruled the evidence of the alleged threats was admissible under Rule


404(b) to show "defendant's motive for engaging in this assault," to show "defendant's


identity in this alleged assault", and to show defendant was the aggressor in the assault (T


31); and that the probative value outweighed the prejudice to defendant. (T 30-32) In his


instructions to the jury, the Court instructed that the jury could consider these statements for


the purpose of showing motive, identity of the person who committed the crime, and intent to


commit the crime. (R 18, T 172-173)


       The testimony at trial from State's witness Bivens and from

Helms established the fact that Bivens was the aggressor in

starting the fight.            He got out of his car, snuck up on Helms to

hit him without any provocation from Helms on the day of the fight.

 Bivens' own testimony established that, whether or not Helms had a

knife when Bivens decided to attack him, Helms did not threaten him

or provoke Bivens in any way prior to Bivens coming up to Helms and

hitting Helms or striking at him.

       The word     assault has been defined as "an overt act or
       attempt,     with force and violence, to do some immediate,
       physical     injury to the person of another, which show of
       force or     violence must be sufficient to put a person of
                                     15
      reasonable   firmness    in     fear     of   immediate   physical
      injury."

State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550, 552-553

(1988).

      It was clear from the State's own evidence by Bivens that

Bivens assaulted Helms.       It is not legally significant whether he

hit Helms or whether he missed him, as he testified.                  No words

spoken by Helms within the two weeks prior to this assault,

constitutes legal provocation for Bivens' physical assault upon

Helms two weeks later.        Generally, mere words do not amount to

legal provocation for assault.        State v. Frankum, 272 N.C. 253, 158

S.E.2d 62 (1967).    Where words and other circumstances arising to

an   assault   arouse   sudden       uncontrollable       passion   which   may

constitute     provocation,     an     intervening      cooling-off     period

dissipates any provocation.          See State v. McNeill, 92 N.C. 812

(1885).

      Under paragraph (a) of Rule 404, evidence of a person's

character or a trait of his character is generally inadmissible for

the purpose of proving that the person acted in conformity with his

character or trait of character on a particular occasion, except in

certain limited circumstances set forth by statute.             N.C.G.S. § 8C-

1,   Rule   404(a)(2007).     Under     Rule    404(b),    however,   although

evidence of other crimes, wrongs, or acts is not admissible to

prove character of a person to show that he acted in conformity
                                     16
with that character, such evidence may 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.G.S.     §    8C-1,   Rule   404(b)(2007).

Evidence of other crimes or bad acts not directly probative of the

crime charged may be admissible if it pertains to the chain of

events explaining context, motive or set up of the crime charged,

it is linked in time and circumstances with the crime charged, or

forms an integral and natural part of the account of the crime, or

is necessary to complete the story of the crime for the jury. State

v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990).

     Rule 401 defines "relevant evidence" as "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.G.S. § 8C-1, Rule

401(2007).     In State v. Haskins, the Court of Appeals stated that

evidence of other crimes, wrongs, or bad acts must be offered for a

proper purpose under Rule 404(b), and "must be relevant and such

evidence is not relevant unless it ‘reasonably tends to prove a

material fact in issue' other than the character of the accused."

State v. Haskins, 104 N.C.App. 675, 679, 411 S.E.2d 376, 380

(1991).

     Because    the    Court     ruled   the       404(b)   extrinsic   evidence

admissible before the State's witness testified, there was no
                                        17
showing     that    the   evidence     was   necessary    or   relevant    to    any

contested material fact in issue for which the Court admitted this

testimony.     After the State's witness Bivens testified, it was

clear that the extrinsic evidence of prior bad acts was not

relevant for any purpose for which it was admitted, as it did not

show Helms was the aggressor in the fight on 11-29-2004, did not

establish his motive for the assault since he was not the initiator

of the assault, and Helms identity was not a material controverted

fact in issue because he admitted he stabbed Bivens, but claimed it

was    in   self-defense.        It    therefore     constituted    inadmissible

character evidence.        Bivens' testimony established that he was the

aggressor     and    started    the    fight    by   attacking    Helms,   but    he

testified he was unarmed, so the only issue for the jury to

determine in the case was whether Helms used excessive force by

using his pocket-knife to repel Bivens' assault.                  The key fact to

be    determined     by   the   jury   was     whether   Bivens    was   armed   in

determining whether the force Helms used in repelling Bivens'

assault was unreasonable and excessive.              Helms testified Bivens had

a screwdriver and attacked him with it, stabbing Helms with it in

the shoulder before Helms drew his pocket-knife and stabbed Bivens.

 Bivens testified that he was unarmed.               The credibility of Bivens

and Helms was the critical issue.

       In State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), the

N.C. Supreme Court set out the procedure for the trial court to
                                  18
follow in considering the admissibility of evidence under Rule

404(b).    The Court must first make a preliminary determination of

whether the conduct being offered is the type of evidence admitted

under Rule 404(b) - that is, a prior crime, wrong, or act that

reveals something about the defendant other than character; and

that the evidence is offered for a proper purpose under the rule,

such as proof of identity, motive, opportunity, etc.       The next step

is determining whether the extrinsic conduct evidence offered is

relevant. "Any evidence must be logically relevant in order to be

admissible".    Morgan at 637, 91.     The Morgan Court explained that

the purposes for which the extrinsic conduct is admissible under

404(b) are theories of relevancy for using the extrinsic conduct to

prove a controverted fact at trial. Id. Finally, the Court must

balance the probative value of the proffered evidence versus the

prejudicial effect of the proffered evidence.            The issues of

whether evidence is offered for a proper purpose and whether

evidence is relevant are questions of law and are reviewed using a

de novo standard.    See State v. Jones, 153 N.C. App. 358, 364-365,

570 S.E.2d 128, 133 (2002); State v. Moctezuma, 141 N.C.App. 90,

539 S.E.2d 52 (2000).    In balancing the probative value versus the

prejudicial effect, the Court is required to weigh factors such as

reliability, to determine that there is substantial proof that the

events    actually   occurred   and   the   defendant   committed   them.

Evidence of extrinsic acts is relevant only if the jury can
                                 19
conclude, by   preponderance of the evidence, that the extrinsic act

in fact   occurred and that defendant was the actor, and the trial

court is required to make an initial determination of whether there

is sufficient evidence that the defendant in fact committed the

extrinsic act.    State v. Haskins, 104 N.C.App. 675, 411 S.E.2d 376

(1991).

     The trial court admitted the extrinsic evidence of the alleged

statements or threats by Helms to Bivens for several reasons.    One

reason was "to show defendant's identity in this alleged assault."

 Admission of this evidence was error to show the identity of Helms

 because Helms' identity was not a controverted issue.       Before

evidence of other crimes can be admitted to show an identity,

identity must be a material controverted issue in the case. State

v. Thomas, 310 N.C. 369, 373, 312 S.E.2d 458, 460-461 (1984).

Helms admitted he stabbed Bivens in the fight at Little Buck's on

11-29-2004.      Helms raised the defense of self-defense in this

matter and did not dispute his identity.     Self-defense claims no

crime was committed because Helms had the right to defend himself

from attack.     In State v. White, 101 N.C.App. 593, 401 S.E.2d 106

(1991), the Court of Appeals stated that identity must be a genuine

controversy before evidence of other crimes is admitted on this

basis, and where the defendant admits committing the act, other

crimes evidence is not admissible on this theory, citing State v.

McKoy, 78 N.C.App. 531, 337 S.E.2d 66 (1985), rev'd on other
                               20

grounds, 317 N.C. 519, 347 S.E.2d 374 (1986); Lovely v. U.S., 169

F.2d 386 (4th Cir. 1948).

     The second prong for admission of extrinsic evidence to

establish identity was also not met.      The second prong for the

admission of extrinsic evidence to show identity is that the act

must be sufficiently similar such as   tend to show the two offenses

were committed by the same person.     There must be some unusual

facts present in both crimes or particularly similar acts which

indicate the same person committed both crimes. State v. Thomas,

310 N.C. 369, 312 S.E.2d 458 (1984).     "To show the admission of

evidence of other crimes without such a showing of similarities

would defeat the purpose of the general rule of exclusion." Id. at

374, 461.

     Identity of Helms was not a material issue in this case.    He

admitted committing the act, but simply claimed self-defense.

Neither the first prong of identity being a controverted material

issue at trial nor the second prong of similarity of the extrinsic

act to the crime being tried was met.       Admission of the 404(b)

evidence to establish identity was error.

     The Court also admitted the extrinsic 404(b) evidence of prior

statements or threats to show the motive of Helms to engage in the

assault. (T 31)   Since Helms did not start the confrontation, the

extrinsic evidence did not show his motive relevant to the charge

being tried.   The State's witness, Bivens, testified that Bivens
                               21
started the fight by getting out his car, sneaking up on Helms, and

striking at Helms without Helms taking any action against Bivens.

Therefore, Helms' motive for the assault was not at issue in this

case.   Both Bivens and Helms agreed that Helms struck back after

Bivens attacked him.   In State v. Morgan, 315 N.C. 626, 639, 340

S.E.2d 84, 92 (1986), the Supreme Court said "the proper inquiry in

a self-defense claim focuses on the reasonableness of defendant's

belief as to the apparent necessity for, and the reasonableness of,

the force used to repel an attack upon his person."    Since Bivens'

testimony established that he attacked Helms without provocation on

11-29-2004, statements Helms had allegedly made to Bivens at some

earlier occasion which did not result in confrontation on the

earlier occasion are not relevant to the events on 11-29-2004,

except to prove the character of Helms for violence.    In State v.

Rowland, 89 N.C.App. 372, 336 S.E.2d 550 (1998), in a case of

attempted armed robbery turning on the credibility of the defendant

and the alleged victim, the Court held that evidence of a drug

problem of the defendant offered to prove motive was not relevant

where credibility was the question for the jury, and it was

prejudicial to introduce extrinsic evidence of drug addiction

because its true purpose was to show character.

     The trial court also admitted the extrinsic 404(b) evidence to

show "that the defendant in the alleged assault was the aggressor."

 The undisputed evidence of both the State and the defense was that
                                 22
Bivens was the aggressor in starting the fight, therefore, this

also was not a contested issue in case.           When the question of

whether the defendant was the aggressor is not a material issue in

the case, evidence of other bad acts to show defendant was the

aggressor in those acts and therefore allow an inference that he

was the aggressor in the act being tried is inadmissible character

evidence barred by the express language of 404(b), as it merely

shows a propensity for violence. State v. Morgan, 315 N.C. 626,

637-638, 34 S.E.2d 84, 91-92 (1986).       The Morgan Court stated that

the evidence of a violent disposition to prove that the person was

the aggressor in an affray is an impermissible use of extrinsic

evidence of other crimes, wrongs or acts. Id. at 638, 92.



     Although intent was not given as a reason for admissibility

for this extrinsic 404(b) evidence (T 31), the jury was instructed

that they could consider the evidence for intent, as well as motive

and identity. (R 18, T 173)    In State v. Hall, 85 N.C.App. 447, 355

S.E.2d 250 (1987), the Court of Appeals stated that when a specific

mental intent is an essential element of the offense being tried,

evidence of previous acts of the same kind is admissible to prove

defendant's   intent.   In    Hall,   in   a   trial   for   second-degree

kidnaping and attempted first-degree rape, whether the defendant

intended to rape the victim was the critical issue at trial, and

the court held that defendant's prior conviction for assault with
                                23
intent to commit rape was admissible in that instance to prove

intent.     However, in this case, intent to commit crime was not

controverted, and the alleged prior act was not of the same kind.

It was not sufficiently similar to show any intent in the incident

on 11-29-2004 because the extrinsic evidence did not shed light on

Helms' intent to commit an assault on Bivens which Helms did not

initiate.     Helms did not claim that he was unable to form the

requisite intent to stab Bivens, nor did he claim the stabbing was

accidental.    Therefore, intent was not a contested element of this

case.   Helms claimed he was acting in self-defense when he stabbed

Bivens.   Therefore, this evidence was not admissible on an intent

theory of relevancy.   The relevant inquiry in a self-defense claim

focuses on the reasonableness of defendant's belief as to the

apparent necessity for, and the reasonableness of, the force used

to repel the attack upon him.   State v. Morgan, 315 N.C. 626, 639,

340 S.E.2d 84, 92 (1986).   This evidence was not relevant to intent

and was not admissible for that purpose.

     Evidence of extrinsic bad acts must be excluded if the slight

probative value is so outweighed by prejudice that there is a

substantial likelihood the jury will consider the evidence for the

purpose of determining defendant's propensity to commit crimes of

the type charged.    State v. White, 331 N.C. 604, 419 S.E.2d 557

(1992).     The court must also consider in balancing the evidence

under Rule 403 whether there are other available means of proof and
                                      24
other factors such as whether the evidence is uncorroborated or

reliable.    See State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350

(1986).     "Abuse of discretion results when the Court's ruling is

manifestly unsupported by reason or is so arbitrary that it could

not have been a result of a reasoned decision." State v. Stager,

329 N.C. 279, 406 S.E.2d 876 (1991).          In the case at bar, the Court

abused its discretion in admitting the evidence of alleged threats.

 This extrinsic conduct evidence was not relevant for any purpose.

 The probative value of the alleged prior threats was outweighed by

the prejudicial effect on the defendant.

     There were no witnesses to the fight other than Helms and

Bivens - credibility was crucial in this case.              There were no other

witnesses other than Bivens to corroborate the alleged prior

threats conduct that Bivens attributed to Helms.                  Helms denied

having    made   any   prior   threats       to   Bivens.    Bivens   testimony

established that he was the aggressor in starting the fight.                  The

State cleverly used 404(b) extrinsic evidence to confuse the jury

and prejudice them against Helms with character evidence before the

State's own witness testified that he started the fight by sneaking

 up on Helms "to get the first hit in" and assaulting Helms.                  The

admission of the extrinsic character evidence testified to by

Bivens about Helms allowed the jury to convict Helms based on

character    evidence,   which   is    prohibited     under    N.C.   Rules   of
                                    25
Evidence 404(a) and 404(b).         N.C.G.S. § 8C-1, Rule 404(a) and

(b)(2007).

      On the facts of this case, defendant has shown that there is a

reasonable possibility that, had the error in question not been

committed, a different result would have been reached at trial,

establishing prejudicial error under § 15A-1443(a). N.C.G.S. § 15A-

1443(a)(2007).     The errors were prejudicial and defendant is

entitled to a new trial.

                              CONCLUSION

      It was error to admit the extrinsic conduct evidence of the

alleged threats because the evidence was not offered for any proper

purpose to prove a material controverted fact in issue in the case.

 Therefore, the extrinsic conduct evidence was not relevant to any

controverted issue other than character of the defendant and was

inadmissible.    Intent, motive, identity - none were purposes for

which the 404(b) evidence of alleged prior threats was a proper

purpose, or proper theory of relevancy, for admission of the 404(b)

evidence here.    Because the evidence was not admissible for any

proper purpose for which it was admitted, the admission was

prejudicial error.     State v. Haskins, 104 N.C.App. 675, 411 S.E.2d

376   (1991).    The    extrinsic    conduct   evidence   was   also   not

sufficiently similar to the crime being tried.      Under the balancing

test of Rule 403, the evidence was not necessary in view of other

available means of proof, the extrinsic evidence was uncorroborated
                                26
and of questionable reliability, and was more prejudicial than

probative.   It was an abuse of discretion to admit the evidence

under the facts of this case.   The admission of 404(b) evidence was

prejudicial error where the case was essentially a swearing match

between the alleged victim and the defendant, making the primary

question for the jury one of credibility as to what evidence to

believe. State v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550,

552-553 (1988); State v. Maxwell, 96 N.C.App. 19, 384 S.E.2 553

(1989).

     Admission of the extrinsic conduct evidence of alleged prior

threats from Helms to Bivens for purposes of identity, motive and

intent, which were not at issue in this case confused the issues

and the jury as to who was the aggressor in bringing on the fight

and allowed the jury to consider words allegedly spoken two weeks

earlier as provocation taking away defendant's right of self-

defense, essentially allowing the jury to conclude that Helms was a

violent person and to infer that he was not entitled to self-

defense on 11-29-2004.

     For this prejudicial error, Defendant Helms is entitled to a

new trial.

     Respectfully submitted this the ____ day of December, 2008.




                                ________________________________
27
L. Jayne Stowers
Attorney for Appellant
Suite 102, 811 West Fifth Street
Winston-Salem, NC 27101
Telephone: (336) 761-8950
Email: S-JPA@triad.rr.com
NC State Bar # 14323
                               28
                     CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date served

this paper (Defendant-Appellant's Brief in State v. Helms) in the

above-entitled action upon all other parties to this cause by

depositing a copy hereof in a postpaid wrapper in a post office or

official depository under the exclusive care and custody of the

United States Post Office properly addressed to:

                    LaShawn Strange
                    Assistant Attorney General
                    North Carolina Court of Appeals
                    Insurance Section
                    P.O. Box 629
                    Raleigh, NC 27602


     This the _____ day of December, 2008.




                              __________________________________
                              L. Jayne Stowers
                              Attorney for Appellant
                              Suite 102, 811 West Fifth Street
                              Winston-Salem, NC 27101
                              Telephone: (336) 761-8950
                              Email: S-JPA@triad.rr.com
                              NC State Bar # 14323

								
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