An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA 15-182

                               Filed: 15 September 2015

Pitt County, Nos. 14 CRS 50038-39

STATE OF NORTH CAROLINA

              v.

JEMOND S. DICKENS


       Appeal by defendant from judgments entered 30 July 2014 by Judge Marvin

K. Blount, III in Pitt County Superior Court. Heard in the Court of Appeals 10

August 2015.


       Roy Cooper, Attorney General, by Amy Bircher, Special Deputy Attorney
       General, for the State.

       Farber Law Firm, P.L.L.C., by Sarah Jessica Farber, for defendant-appellant.


       DAVIS, Judge.


       Jemond S. Dickens (“Defendant”) appeals from his convictions for first-degree

burglary, assault with a deadly weapon with intent to kill inflicting serious injury

(“AWDWIKISI”), first-degree kidnapping, and robbery with a dangerous weapon. On

appeal, he contends that the trial court erred by failing to give a limiting instruction

to the jury after sustaining his trial counsel’s objections to witness testimony about
                                  STATE V. DICKENS

                                  Opinion of the Court



acts of domestic violence committed by him. After careful review, we conclude that

Defendant received a fair trial free from error.

                               Factual Background

      The State presented evidence at trial tending to establish the following facts:

On the evening of 29 December 2013, Defendant, Brittany Staton (“Staton”), and

Anastaasia El-Amin (“El-Amin”) left the home of Defendant’s girlfriend, Crystal Bell

(“Bell”), and drove to Grant Beacom’s (“Beacom”) residence. Beacom had posted an

ad on Craigslist seeking an escort, to which El-Amin, who occasionally worked as a

prostitute, had responded. Staton drove El-Amin to Beacom’s home and Defendant

accompanied them for “protection,” bringing his 12-gauge shotgun with him.

      While Defendant and Staton waited in the car, El-Amin entered Beacom’s

house, and at some point Beacom and El-Amin began “messing around.” Shortly

thereafter, Defendant and Staton entered the house, and Defendant hit Beacom on

the head with his shotgun. Defendant ordered Staton to bind Beacom’s hands with

cord while he repeatedly struck Beacom with the shotgun. Defendant subsequently

took multiple items from the house, including a television, a computer monitor,

Beacom’s 12-gauge shotgun, money, two Wii games, and Beacom’s wedding ring.

Defendant, Staton, and El-Amin then returned to Bell’s home with the stolen items

in the early morning hours of 30 December 2013.




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                                         Opinion of the Court



       After the assailants left, Beacom retrieved a knife from his kitchen, freed his

hands, and called 911. Defendant’s assault left Beacom with a fractured skull and

cuts on his head requiring twenty stitches as well as numerous bruises and abrasions.

Beacom also required surgery to repair a broken finger, which was caused by Staton’s

removal of his wedding ring.

       Subsequently, on 1 January 2014, law enforcement officers responded to a

silent alarm that was set off at Bell’s residence during an altercation between

Defendant and Bell. Officer Kelvin Joyner (“Officer Joyner”) of the Pinetops Police

Department arrived at Bell’s house and upon entering the residence noticed a sawed-

off 12-gauge shotgun in a chair next to the door. Officer Joyner requested backup, at

which point additional officers responded and conducted a search of Bell’s home.

During the search, Defendant was found hiding inside the box spring of Bell’s bed.1

Law enforcement officials seized a television, a computer monitor, and Wii games

from Bell’s residence.

       Defendant was charged with first-degree burglary, robbery with a dangerous

weapon, first-degree kidnapping, and AWDWIKISI. A jury trial was held on 28 July

2014 before the Honorable Marvin K. Blount, III in Pitt County Superior Court.

       On 30 July 2014, the jury found Defendant guilty of all charges. Defendant

was sentenced to consecutive sentences of 87-117 months for first-degree burglary,


       1 Bell testified that Defendant had previously cut a hole in the box spring to allow him to hide
under the mattress.

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                                   STATE V. DICKENS

                                   Opinion of the Court



100-132 months for AWDWIKISI, 100-132 months for first-degree kidnapping, and

87-117 months for robbery with a dangerous weapon. Defendant gave notice of appeal

in open court.

                                       Analysis

      Defendant’s sole argument on appeal is that the trial court erred by failing to

give a limiting instruction to the jury after sustaining defense counsel’s objections to

certain testimony from Bell regarding acts of domestic violence allegedly committed

by Defendant.     Defendant acknowledges that he did not request a limiting

instruction. As such, Defendant requests that we review this issue for plain error.

      “For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial. To show that an error was fundamental, a

defendant must establish prejudice — that, after examination of the entire record,

the error had a probable impact on the jury’s finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations

and quotation marks omitted).

      Defendant specifically challenges the trial court’s failure to sua sponte give a

limiting instruction in relation to the following testimony of Bell:

             Q: Now, had you and [Defendant] had domestic issues in
             the past?

             A: Yes.

                    [DEFENSE COUNSEL]: Objection. Relevance.


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                                   Opinion of the Court




                    THE COURT: Sustained.

                    [DEFENSE COUNSEL]: Motion to strike.

                    THE COURT: Allowed.

             ....

             Q: What happened the -- that would have been -- the next
             day would have been New Year’s Eve. What happened that
             day? What did y’all -- what did y’all do?

             A: Well, we were supposed to go out, and [Defendant] kept
             pushing to go to the strip club because it was New Year’s
             Eve and he was like -- That’s the only time I get to see other
             female shake they behinds. So he got mad because we
             didn’t get to Goldsboro in time, and they were closed or
             shut down, and everybody had been drinking. So we got
             back to the house. He got agitated, and I said -- I don’t
             want to hear nothing about other females and my
             birthday’s in a couple of days. He say -- Don’t nobody give
             a F about your birthday, and he just started slapping me
             up --

             [DEFENSE COUNSEL]: Objection.

             THE COURT: Sustained.

      Defendant’s argument is meritless. It is well-settled that “[a] trial court does

not err by failing to give a curative jury instruction when . . . it is not requested by

the defense.” State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992).

Therefore, the trial court’s failure to give a limiting instruction in the present case

did not constitute error at all — much less plain error.




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                                   Opinion of the Court



      Furthermore, we note that during its preliminary instructions to the jury, the

trial court instructed the jury as follows:

                    It is the right of the attorneys to object when
             testimony or other evidence is offered that the attorney
             believes to be not admissible. When the Court sustains an
             objection to a question, the jurors must disregard the
             question and the answer, if one has been given, and draw
             no inference from the question or answer, or speculate as
             to what the witness would have said if permitted to answer.

             ....

                   If the Court grants a motion to strike all or part of
             the answer of a witness to a question, you must disregard
             and not consider the evidence that has been stricken.

      Our Supreme Court has held that “[j]urors are presumed to follow the trial

court’s instructions.” State v. Gregory, 340 N.C. 365, 408, 459 S.E.2d 638, 663 (1995),

cert. denied, 517 U.S. 1108, 134 L.Ed.2d 478 (1996). Thus, when defense counsel’s

objections to the challenged testimony were sustained, the jurors were presumed to

have followed the above-quoted preliminary instruction by disregarding Bell’s

testimony on this issue. Accordingly, Defendant’s argument is overruled.

                                      Conclusion

      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Judges STROUD and INMAN concur.



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                         STATE V. DICKENS

                         Opinion of the Court



Report per Rule 30(e).




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