1
No. COA08-1429JUDICIAL DISTRICT TWENTY-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From RichmondCounty
v.)No.05 CRS 51170
)
PENNY L. WALLACE,)
Defendant)
*********************************
DEFENDANT-APPELLANT’S BRIEF
*********************************
1
INDEX
PAGE
TABLE OF CASES AND AUTHORITIES ...... iii
QUESTION PRESENTED ...... 1
STATEMENT OF THE CASE ...... 1
STATEMENT OF JURISDICTION ...... 2
STATEMENT OF THE FACTS ...... 2
ARGUMENT:
THE COURT ERRED WHEN IT DENIED THE DEFENDANT’S MOTIONS TO DISMISS THE CHARGE OF FELONIOUS ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY WHEN THERE WAS NO EVIDENCE THAT MRS. WALLACE’S ALLEGED ASSAULT RESULTED IN MR. ALLRED’S “SERIOUS INJURY.” 19
A.Standard of Review ...... 19
B.Discussion ...... 19
CONCLUSION ...... 26
CERTIFICATE OF SERVICE ...... 28
TABLE OF CASES AND AUTHORITIES
CASES
PAGE
Kimberly v. Howland,
143 N.C. 399, 55 S.E.2d 778 (1906)...... 24
State v. Everhardt,
96 N.C. App. 1, 384 S.E.2d 562 (1989)...... 22-24 passim
State v. Goblet,
173 N.C. App. 112, 618 S.E.2d 257 (2005)...... 19, 20
State v. Israel,
353 N.C. 211, 539 S.E.2d 633 (2000)...... 19, 20
State v. James,
321 N.C. 676, 365 S.E.2d 579 (1988)...... 21
State v. King,
343 N.C. 29, 468 S.E.2d 232 (1996)...... 21
State v. Owens,
65 N.C.App. 107, 308 S.E.2d 494 (1983)...... 25
State v. Skinner,
162 N.C.App. 434, 590 S.E.2d 876 (2004)...... 21
STATUTES, RULES, AND OTHER AUTHORITIES
N.C. Gen. Stat. § 7A-27(b) (2007)...... 2
N.C. Gen. Stat. § 14-32(a) (2007)...... 20, 21
N.C. Gen. Stat. § 14-32(b) (2007)...... 22, 25
N.C. Gen. Stat. § 14-32(c) (2007)...... 26
N.C. Gen. Stat. § 14-33(a) (2007)...... 26
N.C. Gen. Stat. § 14-33(c)(1) (2007)...... 25, 26, 27
N.C. Gen. Stat. § 15A-1444(a) (2007)...... 2
N.C.R. App. P. 28(b)(5)...... 13
N.C.P.I. -- Crim. 101.05...... 17
N.C.P.I. -- Crim. 101.10...... 17
N.C.P.I. -- Crim. 101.15...... 17
N.C.P.I. -- Crim. 101.20...... 17
N.C.P.I. -- Crim. 104.20...... 17
N.C.P.I. -- Crim. 104.50...... 17
N.C.P.I. -- Crim. 104.50A...... 17
N.C.P.I. -- Crim. 104.94...... 17
N.C.P.I. -- Crim. 120.11...... 18
N.C.P.I. -- Crim. 206.17A...... 18
N.C.P.I. -- Crim. 208.10...... 18, 21
N.C.P.I. -- Crim. 208.15...... 18
N.C.P.I. -- Crim. 208.25...... 18
N.C.P.I. -- Crim. 208.50...... 18
N.C.P.I. -- Crim. 208.60...... 18
N.C.P.I. -- Crim. 210.25...... 18
Webster’s Third New International Dictionary of the
English Language (1986)...... 21
1
No. COA08-1429JUDICIAL DISTRICT TWENTY-A
NORTH CAROLINA COURT OF APPEALS
*******************************
STATE OF NORTH CAROLINA)
)From RichmondCounty
v.)No.05 CRS 51170
)
PENNY L. WALLACE,)
Defendant)
*********************************
DEFENDANT-APPELLANT’S BRIEF
*********************************
QUESTION PRESENTED
DID THE COURT ERR WHEN IT DENIED THE DEFENDANT’S MOTIONS TO DISMISS THE CHARGE OF FELONIOUS ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY WHEN THERE WAS NO EVIDENCE THAT MRS. WALLACE’S ALLEGED ASSAULT RESULTED IN MR. ALLRED’S “SERIOUS INJURY”?
STATEMENT OF THE CASE
The action of State of North Carolina v. Penny L. Wallace, Richmond County File Nos. 05CRS51168-70, charging Mrs. Wallace with attempted first degree murder, first degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury, came on for a hearing on Mrs. Wallace’s motion to dismiss for denial of the right to a speedy trial in the General Court of Justice, Superior Court Division, County of Richmond, at the 10 December 2007 Criminal Session, the Honorable Mark Klaas, judge presiding. The Hearing Court denied Mrs. Wallace’s motion.
The above action was joined for trial with the action of State of North Carolina v. Brenda Benton, Richmond County Files Nos. 05CRS51171-73 on 29 January 2008, and came on for jury trial in the General Court of Justice, Superior Court Division, County of Richmond, at the 28 January 2008 Criminal Session, the Honorable Susan Taylor, judge presiding. The jury returned not guilty verdicts on the attempted murder and kidnapping charges and, in Files Nos. 05CRS51170 and 51171, guilty verdicts on the lesser included offense of assault with a deadly weapon inflicting serious injury for both defendants. The court entered judgment, sentencing Mrs. Wallace to a term of imprisonment of 29 to 44 months on Mrs. Wallace and 25 to 39 months on Ms. Benton. Mrs. Wallace and Ms. Benton each individually gave timely notice of appeal. The record on appeal was filedon 14 November 2008, docketed on 4 December2008, and mailed from the clerk’s office on 8 December 2008.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b)and 15A-1444(a) (2007).
STATEMENT OF THE FACTS
No one disputes that there had been a long-running quarrel over property between James Allred (born 1925) and Penny Wallace (born 1939). (Jaeger T. pp. 294, 339, 340-341, 406, 413-414, 549, 571, 694) The quarrel went back to 1997. At that time, James Allred owned land in RichmondCounty, and he carved out a parcel from a larger acreage. There was a house on the smaller parcel, and he sold the parcel and house to George and Penny Wallace, who had been living in the house since 1996. (Jaeger T. pp. 294, 336, 588) Soon after the sale, disputes arose over the boundary between the Wallace parcel and Mr. Allred’s larger acreage and over Mr. Allred’s use of the Wallaces’ driveway to reach his larger acreage. (Jaeger T. pp. 341, 343, 359, 368-369) In 2004, Mr. Wallace died of a heart attack; Penny Wallace believed he had died of a broken heart. (Jaeger T. pp. 416, 597) After his death, the disputes continued between Mr. Allred and Mrs. Wallace. For eight (8) years, up until the events at issue in this case, thequarrel had been uncivil, but not violent.
What happened at the beginning of the events of 11 April 2005 is also undisputed. Around 11:30 a.m. that day, Mr. Allred was in the woods about 100 yards from Mrs. Wallace’s house. (Jaeger T. pp. 296, 298) Because he did not have permission to use the Wallace driveway to reach his own, larger acreage out of which he had carved the Wallace parcel back in 1997, he had acquired an easement nearby. (Jaeger T. pp. 295, 343, 359) The easement was often obstructed by trash and other obstacles, and there was a dispute about the boundary between the Wallace property and Mr. Allred’s easement. (Jaeger T. pp. 295, 368-369, 343-344, 369)
It is also undisputed that, later that day, Mr. Allred was at Mrs. Wallace’s house with Mrs. Wallace and her adult daughter, Brenda Benton. They had brought him from the nearby woods, using a child’s wagon to transport him from the woods to their carport. (Jaeger T. pp. 298, 558-559, 690) He had cuts and bruises on his face and upper torso, and they washed his face. (Jaeger T. pp. 300, 402, 411, 425, 566, 690, 691) While there, he wrote and signed a note, dictated by Mrs. Wallace, saying that they had been nice to him and “the land in question I knew was theirs all the time and I shouldn’t have been trying to take it.” (Jaeger T. pp. 299, 560) Mrs. Wallace and her daughter then walked him to his pick-up, about 100 yards away, and he left, arriving at his home, which was two miles away, about 3:30 p.m. (Jaeger T. pp. 301, 304, 338, 566, 693) Later that night, from about 9:30 to 11:30 p.m., he was seen at the emergency room in MooreCounty for cuts, bruises, and a cracked rib. (Jaeger T. pp. 304-305, 514, 516-517, 528)
Where the evidence diverged was on the question of why Mr. Allred was there and the ultimate question of how it came about that Mrs. Wallace and her daughter, Ms. Benton, brought Mr. Allred from the woods to their house in the child’s wagon: Did they attack him and then bring him against his will to their house? Or, did they find him collapsed and bring him to their house with his consent?
Mr. Allred testified that he had gone to the property to take pictures “because they had been throwing junk in [his] driveway.” (Jaeger T. p. 295, see p. 368) He then went on,
All right. I went out there to make the pictures, and I was in the process of making the pictures, and Brenda [Benton] grabbed the camera away from me. And we both fell down. And I got up and went the other way and she went back toward her house. On the way back out, Penny [Wallace] -- Brenda jumped on my back, and Penny pulled me down. And they were attempting to tie me up. And I’m laying [sic] on the ground on my back. Penny produced a plastic bag that she put over my head. And she said, “This won’t last long.”
A lot happened in the next hour, like I managed to get a hole in the plastic bag, and they attempted to cram it in my mouth. I bit Penny on the hand. And then I’m not sure which one put that plastic bag over my mouth and my nose and tried to keep me from breathing. That didn’t work either. Somewhere along the way, we were all exhausted, and it was a break, and I’m begging for my life. And I hate to admit those two frail-looking woman [sic] over there beating me up. (Jaeger T. pp. 296-297)
Mr. Allred further testified that, after “taking a break,” there was no more hitting. (Jaeger T. p. 397) Before that break was taken, however, he testified that Ms. Benton had hit him with fists and “limbs off of some trees.” (Jaeger T. p. 330) Ms. Benton also pinned his arms back. (Jaeger T. p. 352) At some point, Mrs. Wallace and Ms. Benton came up with a child’s wagon and pulled him to their house. Mr. Allred did not remember the actual ride, only being put in the wagon and arriving at their carport. Then, while sitting in their carport, he testified that Mrs. Wallace said, “All right. You’re going to write a note saying that we were good to you, we were nice to you.” (Jaeger T. p. 298) They cleaned him up and then, after having written the note, they became very nice, extremely nice, and walked him to his pick-up. (Jaeger T. pp. 300-301)
Mrs. Wallace’s testimony, and also that of her daughter and co-defendant, Ms. Benton, tended to show, on the other hand, that on 11 April 2005 Mrs. Wallace heard her dog barking and went outside, but she saw nothing. Her dog continued barking, and she started looking where the dog was and saw Mr. Allred lying in the yard. (Jaeger T. pp. 550-551, 689) Ms. Benton testified that Mr. Allred came to the property on a pretty regular basis and repeatedly accused the Wallaces of trespassing. (Jaeger T. p. 694) Whatever his reason for being there on 11 April 2005, he was prostrate, lying face down. (Jaeger T. p. 554, 689)
There was evidence from Mr. Allred’s own testimony and Karen Weimorts, who testified in Mrs. Wallace’s defense, that Mr. Allred may have been at risk of stumbling or passing out. Mr. Allred testified that he had a health condition called polyneuropathy that “affects [the] whole body” and “takes your muscles, your muscles shrink, your nerves don’t do right, and I stumble, and that kind of thing.” (Jaeger T. p. 328, cf. p. 347 (Allred testifying that he had passed out or fallen down one time because of the polyneuropathy)). Besides being Mrs. Wallace’s daughter, Ms. Weimorts was also a crime scene investigator for the Greensboro Police Department, and she testified to her observing a stumbling incident where she had seen Mr. Allred “kind of [go] down towards the ground” with at least one knee on the ground. (Jaeger T. pp. 630-632)
After finding Mr. Allred lying in the yard, Mrs. Wallace then went back into the house and told Brenda that he was lying in the yard, and Brenda came back out with her. Mrs. Wallace turned him over and saw that his glasses were crooked on his face, and he had a cut and an abrasion on his nose. (Jaeger T. pp. 554, 690)
She asked what he was doing there on her property, and she testified,
A. He said, “Maxine [his wife, see T. p. 400] told me not to come.” I said, “She told you not to come, why did you?” He said, “I don’t know.” I said, “Then get up. Get out of here.”
Q. What happened next?
A. He said, “I can’t.” He said, “Penny, I’m hot. You have to help me up. I’m hot. You’ve got to get me out of the sun.”
Q. All right. What happened next?
A. I told him -- well, he had asked me to go get his pickup. And I thought --
Q. Where was his pickup?
A. Oh. Gosh.
Right up here somewhere. It would have been way up there.
Q. Did you see his pickup?
A. Not from where we were. No.
**********
Q. . . . Now the carport that we’ve been talking about, the car shed, where is it located?
A. Directly behind the house. It’s attached to the house.
Q. Okay. How far is it from where you found James Allred?
A. Maybe 60 feet. Maybe a little more. (Jaeger T. pp. 555, 556)
Mrs. Wallace and Ms. Benton “were not going to walk him up the road” (Jaeger T. p. 557), and Mrs. Wallace doesn’t “drive other people’s vehicle.” (Jaeger T. p. 558) Instead of taking him back to his pickup, they put him onto a child’s wagon and got him to the carport with Ms. Benton pulling and Mrs. Wallace pushing, and Ms. Benton put a pillow under his head because he said the jarring of the wagon was hurting his head. (Jaeger T. pp. 558-559, 690, 691) Then, once they got to the carport, Mrs. Wallace testified that he said, “What can I do to thank you?” And Mrs. Wallace answered, “Since you put it like that, you can put your thanks in writing.” Ms. Benton then got a little spiral notebook, and Mrs. Wallace dictated “to him what to write. Because there was a dispute over that line from the Silver Run Creek. And it was supposed to go all the way to Carl Allred’s line, but they were saying that it stopped at 400.7. And it does not.” (Jaeger T. pp. 560-561, 692)
Mr. Allred was thirsty and drank three (3) glasses of water. He did not drink the fourth glass brought to him. He said he was hot, and Mrs. Wallace told her daughter to bring a washcloth. She brought a wetted washcloth and washed his face with it. Then, they walked him to his truck because he asked them to, but he walked on his own. (Jaeger T. p. 566, 693) At the truck,
He got -- he went over -- he had his truck parked on Richard Allred’s land and it was back under some trees. And he walked to it and he drove it out. When he got to where we were, he said, “I want to shake Brenda’s hand and thank her.” And I told Brenda what he wanted. So she put out her left hand and he put out his left hand, and they shook hands. And then he left. (T. p. 567)
Brenda Benton and Mr. Allred shook with left hands because Brenda suffers some paralysis on her right side. She suffered complete paralysis at age seven because of a reaction to a smallpox vaccination. She is also deaf because of it. She can speak a little. Most people cannot understand her, but Mrs. Wallace can. (Jaeger T. pp. 567-568, 570; see also pp. 591-592, 634-635, 691-692)
Mrs. Wallace expressly denied that anyone “put a bag over that man’s [i.e., James Allred’s] head.” (Jaeger T. p. 561) She also testified that she did not and her daughter did not strike or hit Mr. Allred, that neither of them put a plastic bag over his head, and that neither of them tied him up. (Jaeger T. p. 570; cf. p. 691 (Brenda Benton testifying that she did not hit or strike Mr. Allred and he was not tied up))
With the ultimate question of whether Mrs. Wallace and Ms. Benton attacked or rescued Mr. Allred at issue, both the State and Mrs. Wallace presented additional evidence tending to show ancillary facts or to corroborate the principals’ positions. The State called Mr. Allred’s wife and two law enforcement officers.[1]
Mr. Allred’s wife, Maxine Allred, testified that Mr. Allred told her that “Penny and Brenda, as he was coming back out, got him down,” and that
Brenda was -- got on his chest and just jumped up and down. Sat down on his chest. Jumped up and down and hurt him real bad. He was having a lot of pain in there. And he said they got tired. Of course, he was -- he was worn out. They got tired -- they would get tired and rest for a little bit, and they talked a little bit. . . . They put him in a child’s wagon and drug him down the hill to their house. (Jaeger T. pp. 403-404)
Jackie Stoner of the Richmond County Sheriff’s Department (RCSD) had answered several calls in that area in connection to the property dispute and timber cutting on the disputed property, including one where it had been alleged that Mr. Allred was threatening with a firearm. (Jaeger T. pp. 413-416) On the afternoon of 11 April 2005, Officer Stoner went to Mr. Allred’s house in response to a call on an assault charge and spoke with Mr. Allred, who was sitting at a table wearing a T-shirt with blood on it and whose face was bruised and battered. (Jaeger T. pp. 410-411) Officer Stoner testified that Mr. Allred told him that he had been in that area taking pictures when Ms. Benton grabbed his camera and “wrestled him to the ground, striking him in his face several times.” He also told him about the plastic bag, the transport in the child’s wagon, and the note. Officer Stoner then contacted Detective Mike Williams (RCSD) to take pictures and get warrants. (Jaeger T. pp. 411-412)
Detective Williams testified that he went to Mr. Allred’s residence and Mr. Allred told him that Ms. Benton “grabbed him from behind in a bear hug,” “threw him to the ground,” “sat on his chest,” and that “they started beating him in the face.” He also said that Mr. Allred told him about the plastic bag, tying him up, the rest period, the transport in the child’s wagon, and the note written at Mrs. Wallace’s dictation. (Jaeger T. pp. 426-428)
Detective Williams also testified about executing a search warrant at Mrs. Wallace’s residence later that evening. While there, he noticed that Ms. Benton had a bandage on her thumb and that Mrs. Wallace also had a Band-Aid on her thumb. He also saw their hands without the bandages, and saw that Mrs. Wallace’s thumb bore a very small cut mark and that the back of Ms. Benton’s hand had two small holes or cuts punched. (Jaeger T. pp. 461-462) Mrs. Wallace told Det. Williams that “he fell and we helped him,” and said that the injuries to their hands occurred “a few days prior.” (Jaeger T. p. 509)