NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 April v. Guilford County Nos. 09 CRS 80644, EDEM KWAME KALEY

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedur e. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 5 April 2011 STATE OF NORTH CAROLINA v. Guilford County Nos. 09 CRS 80644, EDEM KWAME KALEY Appeal by Defendant from judgments entered 19 February 2010 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 8 March Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State. Hartsell & Williams, P.A., by Christy E. Wilhelm, for Defendant. STEPHENS, Judge. Procedural History and Factual Background On 20 July 2009, the Guilford County Grand Jury returned indictments against Defendant Edem Kwame Kaley for resisting, obstructing and delaying a public officer, domestic criminal trespass, first-degree burglary, assault with a deadly weapon with intent to kill, assault on a child, and interfering with emergency

2 -2- communications. The matters were called for trial at the 15 February 2010 criminal session of superior court in Guilford County. On 19 February 2010, the jury returned guilty verdicts against Defendant for resisting, obstructing and delaying a public officer, domestic criminal trespass, assault with a deadly weapon causing serious injury, and non-felonious breaking or entering. 1 The trial court sentenced Defendant to a term of 29 to 44 months, and two consecutive 45-day terms. Defendant appeals. The charges against Defendant arise from a series of events beginning in April 2009 and culminating in the early morning hours of 26 May The evidence at trial tended to show the following: Defendant, a legal immigrant from Ghana, met and began dating April Michelle Kimpson in The two resided at Kimpson s apartment at 1633 Glenside Drive in Greensboro, where Defendant worked as a mechanic and attended community college. Defendant lost his job in 2007, but Kimpson continued working for American Airlines. In April 2009, Kimpson s job was shifted to Washington Dulles International Airport ( Dulles ) in Virginia near Washington, D.C. She commuted each week, working double shifts on the weekends and returning to Greensboro on Mondays. While Kimpson worked, Defendant cared for 1 Defendant was found not guilty of interfering with emergency communications and assault on a child.

3 -3- his and Kimpson s one-year-old twins and Kimpson s ten-year-old son, Tyrone. Kimpson s commuting, child care issues, and the couple s financial situation caused stress in their relationship. At about the same time, Defendant became very suspicious and controlling in his behavior toward Kimpson. He accused her of cheating on him and monitored her conversations and activities. On Easter weekend, as the couple prepared to host a holiday dinner, Defendant answered Kimpson s cell phone and again accused her of being unfaithful to him. Defendant punched Kimpson in the chest and arms, threw her to the ground, slapped her, and then began to choke her. Kimpson managed to reach her cell phone and call Defendant=s mother who immediately came to the apartment. Kimpson did not call the police because she was embarrassed to be the victim of domestic violence and feared Defendant would be taken to jail since he was on probation at the time. Later in April 2009, Kimpson was scheduled to fly to Dulles for work and Defendant was driving her to the airport in Greensboro. Defendant accused her of planning to go somewhere other than work and, after she left for Virginia, he continuously sent her text messages. Kimpson called the cell phone company and had his service disconnected. The next day, Kimpson received a phone call from a

4 -4- Virginia phone number; it was Defendant, who told her, I m on my way to you. He had left ten-year-old Tyrone alone with the one-year-old twins in North Carolina. When Defendant arrived at Dulles, he could not reach Kimpson because he had no boarding pass to get through security. Kimpson stalled Defendant and then quickly caught a flight back to Greensboro. Once in Greensboro, she took the children to a friend s home and asked her landlady to change the apartment s locks. After this incident, Defendant no longer lived at the apartment and Kimpson did not give him a key. However, she did occasionally allow him to watch the children at the apartment while she worked. On 18 April 2009, when Defendant was at the apartment, he again accused Kimpson of cheating, choked her, and tried to take her car keys. Kimpson was able to call 911, but when police arrived she did not tell them that Defendant had choked her. On the night of 25 May 2009, Kimpson was making preparations to move herself and the children to Virginia. After midnight, she heard a thump at the back door and saw Defendant through a window. Defendant screamed at her to open the door and Kimpson tried to call 911, but Defendant kicked in the door, grabbed Kimpson s cell phone, and began choking her. Kimpson struggled with Defendant as he continued to strangle her. At one point, she was able to hit him

5 -5- in the head with a glass candle jar, causing him to let go. Kimpson motioned her son to hand her another glass candle jar, but Defendant grabbed it instead and threw it at Tyrone, striking him in the mouth. Defendant grabbed another jar, struck Kimpson with it, and then began choking her again. Defendant told Kimpson he was going to kill her and then kill himself. Defendant held a knife to Kimpson s chest before putting it down. Kimpson asked Tyrone to bring her some peroxide to treat her wounds and Defendant s; when Defendant relaxed, she grabbed the knife and stabbed Defendant in the neck. Defendant then began strangling her again and Kimpson blacked out. When she regained consciousness, she saw Defendant scrolling through her cell phone s call list. At that point, police arrived at the apartment and ordered everyone down on the ground. When Defendant fled toward the back door, officers subdued him with a Taser and arrested him. Defendant brings forward four arguments on appeal: that the trial court erred in (1) admitting testimony from Kimpson and other witnesses about prior domestic violence incidents by Defendant against Kimpson, (2) denying his motions to dismiss, and (3) instructing the jury; and (4) that he was denied his right to a speedy trial. For the reasons discussed herein, we find no error. Evidence of Prior Bad Acts

6 -6- Defendant first argues that the trial court erred in admitting testimony from Kimpson and other witnesses about prior domestic violence incidents by Defendant against Kimpson under Rules of Evidence 404(b) and 403. We disagree. Rule 404(b) provides, in pertinent part: Evidence 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. Gen. Stat. ' 8C-1, Rule 404(b) (2009). The North Carolina Supreme Court has held that Rule 404(b) is a rule of inclusion. State v. Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201 (2001) (citing State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)). The use of evidence under Rule 404(b) is guided by two constraints: similarity and temporal proximity. Id. (quoting State v. Barnett, 141 N.C. App. 378, 390, 540 S.E.2d 423, 431 (2000) (internal quotation marks and citations omitted)). Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice [under Rule 403]. Id. at 272, 550 S.E.2d at 202. Further, testimony about [a] defendant s misconduct

7 -7- toward his wife [i]s proper under Rule 404(b) to prove motive, opportunity, intent, preparation, absence of mistake or accident with regard to [a] subsequent... attack upon her. State v. Scott, 343 N.C. 313, 330, 471 S.E.2d 605, 615 (1996) (internal citation and quotation marks omitted). Specifically, evidence of frequent quarrels, separations, reconciliations, and ill-treatment is admissible as bearing on intent, malice, motive, premeditation, and deliberation. Id. at 331, 471 S.E.2d at 616 (citation omitted). Finally, [e]vidence, not a part of the crime charged but pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if linked in time and circumstance with the charged crime, or [if it] forms an integral and natural part of an 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) (internal citations and quotation marks omitted). Here, the State sought to introduce evidence about numerous incidents of domestic violence between Defendant and Kimpson, including incidents that occurred before they were living together and while Kimpson was pregnant. The trial court ultimately allowed testimony about incidents of domestic violence by Defendant against Kimpson during April 2009, finding this testimony relevant in order to show Defendant s motive, modus operandi, intent, and thus,

8 -8- admissible for those purposes. The trial court did not allow testimony about the earlier incidents. The allowed testimony concerned: the Easter weekend incident when Defendant choked Kimpson before dinner; the incident when Defendant drove to Dulles to confront Kimpson; and the 18 April incident when Defendant tried to take Kimpson s car keys and choked her. We conclude that the trial court did not err in admitting testimony about Defendant s prior assaults on Kimpson. All of the incidents were temporally proximate, occurring within two months of the date of the offenses for which Defendant was being tried. Each was probative on the question of Defendant s motive, modus operandi, and intent, revealing Defendant s jealousy and suspicion about Kimpson s faithfulness, his obsession with her cell phone call history, and his tendency to choke Kimpson during assaults. In addition, this chain of events explains why Defendant was no longer living at the apartment at the time of the offenses for which he was charged. Although Defendant and Kimpson were not married, they lived in a marital-like relationship, living and raising children together over a period of years. Thus, under Scott, testimony about the volatile nature of Defendant s relationship with Kimpson was relevant and admissible for proper purposes under Rule 404(b).

9 -9- Further, although this testimony was certainly prejudicial to Defendant, this is true of all evidence which is probative of the State s case against him; the question, then, is one of degree. State v. Mercer, 317 N.C. 87, 94, 343 S.E.2d 885, 889 (1986). We review a trial court s decisions to admit evidence under Rule 403 for an abuse of discretion. State v. Theer, 181 N.C. App. 349, , 639 S.E.2d 655, , appeal dismissed, 361 N.C. 702, 653 S.E.2d 159 (2007), cert. denied, 553 U.S. 1055, 171 L. Ed. 2d 769 (2008). This Court will find an abuse of discretion only where a trial court s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. Id. at 360, 639 S.E.2d at (quoting State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006)). Here, in making its determination under Rule 403, the trial court stated: The Court has weighed all of this evidence to, under Rule 403, to determine whether its probative value is outweighed by its prejudicial value. In doing so the Court using that analysis and weighing it further using the Court s discretion will exclude the evidence about what occurred while they were dating and--and before he moved in, as well as the incident that occurred when she was pregnant.

10 -10- These remarks reflect the trial court s reasoning and show that it did not make an arbitrary decision regarding the admission of evidence of prior domestic violence incidents by Defendant toward Kimpson. Accordingly, this argument is overruled. Motions to Dismiss Defendant next argues that the trial court erred in denying his motions to dismiss for insufficiency of the evidence. We disagree. Defendant moved to dismiss the charges against him at the close of the State s case and again at the close of all evidence, which motions the trial court denied. Our standard of review from the denial of a motion to dismiss for insufficiency is well-established: Upon [a] defendant s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant s being the perpetrator of such offense. If so, the motion is properly denied. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed. In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.

11 Both competent and incompetent evidence must be considered. In addition, the defendant s evidence should be disregarded unless it is favorable to the State or does not conflict with the State s evidence. The defendant s evidence that does not conflict may be used to explain or clarify the evidence offered by the State. When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence. State v. Fritsch, 351 N.C. 373, , 526 S.E.2d 451, (2000) (internal citations and quotation marks omitted). Defendant contends that the evidence was insufficient to support sending the domestic criminal trespass and first-degree burglary 2 charges to the jury because Kimpson s apartment was also Defendant s own home. Section , entitled Domestic criminal trespass, provides, in pertinent part: Any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart[.] 2 Defendant was found guilty of the lesser-included offense of non-felonious breaking or entering.

12 -12- N.C. Gen. Stat. ' (a) (2009). Likewise, first-degree burglary is the breaking and entering of an occupied dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Williams, 314 N.C. 337, 335, 333 S.E.2d 708, 720 (1985); N.C. Gen. Stat. ' (2009). Here, Defendant and Kimpson both testified that Defendant was not living at Kimpson s apartment on 26 May Kimpson also testified that she changed the locks while Defendant was looking for her at Dulles and refused to give Defendant a key, and that Defendant kicked in the back door to gain access to her apartment on the night of the assault. Taken in the light most favorable to the State, this evidence was sufficient to show that Defendant did not reside at the apartment and forced his way inside. Defendant also contends that his motion to dismiss the resisting an officer charge should have been allowed because the evidence was insufficient. However, Defendant does not explain which element of this offense he feels is not supported by substantial evidence and provides no argument in support of his contention. If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor. N.C. Gen. Stat. ' (2009). Here, one of the officers who

13 -13- arrested Defendant testified that, after entering the apartment, he identified himself as a police officer and ordered everyone down on the ground. In response, Defendant ran toward the kitchen, leaping over an obstacle in the apartment as he went. Another officer used his Taser to stop Defendant. Kimpson also testified that Defendant ran toward the back door when the police entered, and that, even after he was struck by the Taser, he still tried to get back up. In the light most favorable to the State, this evidence was sufficient to show that Defendant willfully resisted the officers as they attempted to discharge the duties of their office. These arguments are overruled. Jury Instruction Defendant also argues that the trial court abused its discretion in declining to instruct the jury as Defendant requested. We disagree. The choice of jury instructions rests within the trial court s discretion and will not be overturned absent a showing of abuse of discretion. A trial court abuses its discretion when its ruling is so arbitrary that it could not have been the result of a reasoned decision. State v. Parker, 187 N.C. App. 131, , 653 S.E.2d 6, 9-10 (2007) (internal citations and quotation marks omitted).

14 -14- Defendant requested that the pattern jury instruction on domestic criminal trespass and burglary be modified to add additional language. After consideration of the request, the trial court declined to give the requested instruction. Defendant s entire discussion of the trial court s purported abuse of discretion is a single sentence in his brief: In denying these requested jury instructions, the trial court left the possibility of confusion for the jury open and abused its discretion without reason. Defendant does not explain the differences between Defendant s requested instructions and those given by the trial court. Nor does he make any attempt to explain how the trial court abused its discretion or acted in an arbitrary manner, and we see none. This argument is overruled. Right to a Speedy Trial Finally, Defendant argues that he was denied his constitutional right to a speedy trial. We disagree. Defendant was arrested on 26 May 2009 and was indicted less than two months later on 20 July Defendant was incarcerated for less than nine months prior to judgment being entered against him. Our review of the record reveals that Defendant did not raise this issue in the trial court. Constitutional issues not raised and passed upon at trial will not be considered for the first time on

15 -15- appeal. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). No error. Judges HUNTER, Robert C., and ERVIN concur. Report per Rule 30(e).