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State v. Locklear11/15/2005
ry probably would have reached a different result." State v.Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
In this case, defendant fails to show that the jury probably would have reached a different result had the evidence of prior bad acts not been admitted. Defendant argues that the jury's acquittal of defendant on the original charge of first degree sexual offense shows that the jury had some reservations about defendant's guilt, and that the evidence of prior acts unfairly influenced the jury's result. We are not persuaded. Defendant was convicted of second- degree sexual offense under N.C. Gen. Stat. § 14-27.5. To find defendant guilty of this offense, the jury found beyond a reasonable doubt that defendant "engage in a sexual act with another person . . . y force and against the will of the other person[.]" N.C. Gen. Stat. § 14-27.5 (2003). To find defendant guilty of the original charge of first degree sexual offense, the jury must have found the additional element that defendant
a. Employ or display a dangerous or deadly weapon or an article which the other person reasonably believe to be a dangerous or deadly weapon; or
b. Inflict serious personal injury upon the victim or another person; or
c. . . . commit the offense aided and abetted by one or more other persons.
N.C. Gen. Stat. § 14-27.4 (2003).
The jury's failure to find an additional element of first degree sexual offense does not in itself show that the jury doubted that defendant engaged in a sexual act with Zack by force and against Zack's will. The State presented substantial evidence of defendant's guilt through the testimony of Rash, who was present inthe cell at the time of the assault. Rash testified that he heard Zack say " o" and saw the fight between defendant and Zack, whose pants were down. Rash heard defendant threaten to kill Zack if Zack said anything, and later heard defendant brag about raping Zack. This testimony was corroborated by Burriss and Narem, who also heard defendant bragging about the sexual assault. In light of the evidence of defendant's guilt presented at trial, we hold the trial court did not commit plain error in admitting evidence of defendant's prior acts. See State v. Perkins, 154 N.C. App. 148, 571 S.E.2d 645 (2002).
Defendant argues in the alternative that the testimony should have been excluded because the trial court never performed the requisite balancing test under N.C. Gen. Stat. § 8C-1, Rule 403. Rule 403 permits a trial court to exclude relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C.G.S. § 8C-1, Rule 403. Since all evidence against a defendant is necessarily prejudicial, evidence may only be excluded when it is unfairly prejudicial. See State v. Mercer, 317 N.C. 87, 94-95, 343 S.E.2d 885, 889-90 (1986). Again, defendant fails to show that the jury probably would have reached a different result had the evidence of prior bad acts not been admitted. Accordingly, we find no plain error.
Defendant presented no argument on his remaining assignments of error and they are therefore abandoned. N.C.R. App. P. 28(b)(6).
No prejudicial error.
Judges McCULLOUGH and JACKSON concur.
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