An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                NO. COA14-35
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:       5 August 2014


STATE OF NORTH CAROLINA

      v.                                         Guilford County
                                                 No. 11 CRS 77219
DWAYNE ELLIOT BROWN



      Appeal by defendant from judgment entered 23 April 2013 by

Judge Richard W. Stone in Guilford County Superior Court.                      Heard

in the Court of Appeals 8 May 2014.


      Roy Cooper, Attorney General, by Melissa L. Trippe, Special
      Deputy Attorney General, for the State.

      Staples S. Hughes,             Appellate     Defender,    by Barbara S.
      Blackman, Assistant            Appellate     Defender,    for defendant-
      appellant.


      DAVIS, Judge.


      Dwayne     Elliot      Brown        (“Defendant”)    appeals      from    his

conviction of first-degree murder.                On appeal, he contends that

the trial court erred in admitting pursuant to Rule 404(b) of

the   North    Carolina    Rules     of    Evidence   testimony      concerning    a

prior   assault     committed      by     him.     After   careful    review,     we

conclude that Defendant received a fair trial free from error.
                                          -2-


                               Factual Background

    The State presented evidence at trial tending to establish

the following facts:           On 20 May 2011, Tereece Anshon Roseboro

(“Ms. Roseboro”) was at the home of her friend, Tawayn Chavis

(“Ms. Chavis”).          Ms. Roseboro had been involved in a romantic

relationship with Defendant during the preceding year and had

lived at his home with her two children.                    However, in the weeks

leading up to 20 May 2011, Ms. Roseboro had decided to end her

relationship with Defendant and move out of his home and into

her father’s house.

    On 20 May 2011, Defendant came to Ms. Chavis’ home and

informed Ms. Roseboro that she needed to return to his house and

retrieve    her    remaining      possessions.            Ms.    Roseboro    left   Ms.

Chavis’ house in her father’s car, and Defendant left in his

gray Audi.      This was the last time Ms. Roseboro was seen alive.

    On     22   May    2011,     Ms.   Roseboro’s         mother,   Teri    Roseboro,

reported     Ms.      Roseboro     missing      to        the    Greensboro    Police

Department.        That    same    day,    Officer         Lee   Andrews    (“Officer

Andrews”) and Corporal W.B. Barham (“Corporal Barham”) with the

Greensboro      Police    Department       went      to    Defendant’s      house    to

determine whether Ms. Roseboro was there.                   Defendant invited the

officers inside        and consented to         a    search of the          residence.

Officer Andrews observed that a portion of the carpet in the

bedroom had been cut out and removed.
                                              -3-


    Upon questioning from Officer Andrews about Ms. Roseboro’s

possible whereabouts, Defendant responded that “he was done with

her” and “he was basically going to tell her to move out.”

While   the      officers         were   in    the    home,    Defendant       repeatedly

stated: “I don’t know where she is.                   Why do you keep asking[?]”

    The following day, Defendant was arrested and taken into

custody.         During       a     search    of     Defendant’s     house     conducted

pursuant    to    a     search      warrant,        Investigator     Patrick    Sigafoos

(“Investigator Sigafoos”) discovered bloodstains on the carpet

in the doorway of a bedroom as well as on the rear bumper of

Defendant’s Audi.          Investigator Sigafoos further observed a set

of knives in Defendant’s kitchen with one knife missing.

    During         an     interview           with      Detective      Chris     Tyndall

(“Detective Tyndall”) and Detective Clayton Coward (“Detective

Coward”) that same day, Defendant admitted — after waiving his

Miranda rights — to having stabbed Ms. Roseboro with the missing

kitchen     knife       but       claimed      the     stabbing      was     accidental.

Defendant     then      told       the   officers       that   he    had   wrapped    Ms.

Roseboro’s body in a blanket, placed it in the trunk of his

Audi, and disposed of the body off of U.S. Highway 220, south of

Greensboro.

    Defendant directed Detectives Tyndall and Coward along with

Sergeant    N.    Rankin       to    the     location    of    Ms.   Roseboro’s      body.

After the officers found her body, Defendant also pointed them
                                         -4-


to two dumpsters behind the Heritage Homes apartment complex in

which he had disposed of the bloodstained carpet section that

had been removed from his bedroom.

       Law    enforcement          officers    subsequently         searched      the

dumpsters.          They     recovered   pieces    of   carpet      Defendant     had

removed      from      his    bedroom    and      observed   that      they      were

bloodstained.          They also found bloodstained clothing, towels,

community service release papers belonging to Ms. Roseboro, and

a pair of latex gloves in the same dumpster.                 Upon searching the

other dumpster, they found a bent kitchen knife with bloodstains

on it.

       Dr. Jonathan Privette, a forensic pathologist, performed an

autopsy on Ms. Roseboro.            He concluded that she had died of two

stab wounds to her chest, one of which had punctured her right

lung.

       On 1 August 2011, Defendant was indicted on a charge of

first-degree murder.           A jury trial was held in Guilford County

Superior Court on 15 April 2013.

       At trial, the State sought to introduce the testimony of

Chrystal     Sherard       (“Ms.   Sherard”)   concerning     events      that    had

occurred on 4 June 2007.              On that date, Defendant was living

with Ms. Sherard and involved in a romantic relationship with

her.      When   Ms.    Sherard     informed   Defendant     that    he   could    no

longer stay with her at her residence, Defendant grabbed a knife
                                      -5-


that he used for his work as a chef and held it to her neck,

drawing blood.         Ms. Sherard ultimately convinced Defendant to

lie down after he complained that he had a headache.                  Under the

pretext of going to get Defendant a cold compress, Ms. Sherard

fled from her residence and sought emergency assistance.                    Ms.

Sherard required stitches to close the wound on her neck.

       The trial court conducted a voir dire examination of Ms.

Sherard before ultimately allowing her to testify before the

jury   as   to    these   events.     While    Defendant’s    trial     counsel

objected to the admissibility of Ms. Sherard’s testimony after

the voir dire hearing, he did not renew his objection when Ms.

Sherard actually testified before the jury.                 The trial court

gave the jury a limiting instruction informing the jurors that

they could only consider Ms. Sherard’s testimony to show an

absence of mistake or accident.

       Defendant was convicted of first-degree murder.                  He was

sentenced to life imprisonment without parole.               Defendant gave

notice of appeal in open court.

                                    Analysis

       Defendant’s sole argument on appeal is that the trial court

erred in admitting the testimony of Ms. Sherard.               Specifically,

Defendant contends that the 2007 assault on Ms. Sherard was so

dissimilar       and   temporally   remote     from   the   killing    of   Ms.
                                     -6-


Roseboro     that   the      trial   court’s    admission       of    testimony

concerning the assault on Ms. Sherard constituted plain error.

    As     noted    above,     Defendant’s     counsel     objected        to    the

admission of Ms. Sherard’s testimony following her voir dire

examination but did not renew his objection at the time she

actually testified in the presence of the jury.                      It is well

established that on appeal we “will not review a trial court's

decision   to    admit    evidence   unless    there     has   been    a    timely

objection.      To be timely, the objection must be contemporaneous

with the time such testimony is offered into evidence.”                         State

v. Brent, __ N.C. __, __, 743 S.E.2d 152, 154 (2013) (internal

citations, quotation marks, and brackets omitted).                    Therefore,

because Defendant failed to properly preserve his objection to

this testimony, we review only 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.
           Moreover, because plain error is to be
           applied   cautiously   and    only  in  the
           exceptional case, the error will often be
           one that seriously affects the fairness,
           integrity or public reputation of judicial
           proceedings.

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

(internal citations, quotation marks, and brackets omitted).
                                       -7-


    Rule 404(b) states, in pertinent part, that

            [e]vidence 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.R. Evid. 404(b).

    “Rule       404(b)    clearly     provides          that     evidence     of     other

offenses is admissible so long as it is relevant to any fact or

issue   other     than    the   character     of    the        accused.”      State    v.

Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 889 (1991) (citation

and internal quotation marks omitted).                         Relevant evidence is

“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.R. Evid. 401.          However, “[a]lthough relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence.” N.C.R. Evid. 403.

    Our Supreme Court has held that

            when analyzing rulings applying Rules 404(b)
            and 403, we conduct distinct inquiries with
            different standards of review.     When the
            trial court has made findings of fact and
                                     -8-


            conclusions of law to support its 404(b)
            ruling . . . we look to whether the evidence
            supports   the  findings  and   whether  the
            findings support the conclusions. We review
            de novo the legal conclusion that the
            evidence is, or is not, within the coverage
            of Rule 404(b).    We then review the trial
            court's Rule 403 determination for abuse of
            discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159

(2012).

    The Supreme Court “has recognized that Rule 404(b) is a

rule of inclusion of relevant evidence of other crimes, wrongs,

or acts by a defendant, subject to but one exception requiring

its exclusion if its only probative value is to show that the

defendant has the propensity or disposition to commit an offense

of the nature of the crime charged.               The Rule, however, is

constrained    by   the   requirements     of   similarity    and   temporal

proximity.    When the features of the earlier act are dissimilar

from those of the offense with which the defendant is currently

charged, such evidence lacks probative value.            Similarly, when

otherwise     similar     offenses   are    distanced    by    significant

stretches of time, commonalities become less striking, and the

probative value of the analogy attaches less to the acts than to

the character of the actor.”          State v. Badgett, 361 N.C. 234,

243, 644 S.E.2d 206, 212 (internal citations, quotation marks,

and brackets omitted), cert. denied, 552 U.S. 997, 169 L.Ed.2d

351 (2007).
                                           -9-


      However, our Supreme Court has made clear that

            [r]emoteness in time between an uncharged
            crime   and   a   charged   crime  is   more
            significant when the evidence of the prior
            crime is introduced to show that both crimes
            arose out of a common scheme or plan.     In
            contrast,   remoteness   in  time  is   less
            significant when the prior conduct is used
            to show intent, motive, knowledge, or lack
            of accident; remoteness in time generally
            affects only the weight to be given such
            evidence, not its admissibility.

Stager, 329 N.C. at 307, 406 S.E.2d at 893 (internal citation

omitted).

      In   the   present        case,   Defendant   contends    that    the    2007

assault     on   Ms.      Sherard       satisfied   neither    the     similarity

requirement      nor    the     temporal    proximity     requirement    of    Rule

404(b).    We disagree.

      In State v. White, 343 N.C. 378, 385, 471 S.E.2d 593, 597,

cert denied, 519 U.S. 936, 136 L.Ed.2d 229 (1996), the defendant

broke into the victim’s home at night and fatally stabbed her

with a paring knife he stole from her kitchen.                   At trial, the

State was permitted to introduce into evidence the testimony of

two prior sexual assault victims of the defendant.                     On appeal,

the   defendant        argued    that    these   sexual    assaults     were    too

dissimilar from the killing of the victim in the case for which

he was on trial to be deemed admissible by the trial court.                      In

upholding the admissibility of this evidence, our Supreme Court

noted the similarities between the prior sexual assaults and the
                                            -10-


killing      of    the    victim    in     the     charged      offense,     specifically

observing that

              [the] defendant committed both of the prior
              assaults by placing a sharp blade to the
              women's throats.    In this case, the victim
              was   stabbed   and   her   throat  slashed.
              Defendant caused clothing to be removed from
              both victims of the prior assaults. In this
              case, the victim was found completely naked.
              Defendant assaulted both victims of the
              prior assaults shortly after using alcohol
              and/or drugs[.]

Id. at 390, 471 S.E.2d at 600.                   The Court concluded that “[t]he

evidence of the prior assaults was sufficiently similar to the

evidence     in    this    case     of     first-degree         murder   and     intent    to

commit first-degree murder to be admissible under Rule 404(b).”

Id. at 389-90, 471 S.E.2d at 600.

       In    the    present        case,     there       were     arguably       even    more

similarities between Defendant’s prior assault on Ms. Sherard

and the killing of Ms. Roseboro than were present in White.                               The

evidence tended to show that in both instances (1) Defendant had

been    romantically        involved        with     the    victims;       (2)    Defendant

attacked both women with a kitchen knife; (3) the attacks were

both carried out in a residence he had shared with the victims;

and    (4)   the    attacks    occurred          while     both    women    were    in    the

process of ending their cohabitation with Defendant.

       Defendant also claims that the assault on Ms. Sherard was

too temporally remote from the killing of Ms. Roseboro because a
                                           -11-


four-year gap in time existed between the two incidents.                               This

argument    also    lacks      merit.        We     have   previously         upheld    the

admission of Rule 404(b) evidence where far longer periods of

time had elapsed between the prior incident and the incident for

which the defendant was charged.                    See State v. Peterson, 361

N.C. 587, 597, 652 S.E.2d 216, 224 (2007) (16 years); Stager,

329 N.C. at 307, 406 S.E.2d at 893 (10 years).

    Moreover,       as     noted       above,     “remoteness      in    time    is    less

significant      when    the     prior     conduct    is    used    to   show    intent,

motive,    knowledge,       or    lack     of   accident;        remoteness      in    time

generally affects only the weight to be given such evidence, not

its admissibility.”         Stager, 329 N.C. at 307, 406 S.E.2d at 893

(internal citation omitted).               Here, the Rule 404(b) evidence was

relevant    to     show,    at     a    minimum,     the    absence      of     accident.

Accordingly, we hold that the four-year period of time between

the two events did not render this evidence inadmissible under

Rule 404(b).

    Had     Defendant       properly        preserved      his     objection     to     Ms.

Sherard’s testimony, we would proceed to determine whether the

trial   court    abused     its        discretion    in    allowing      this   evidence

under Rule 403.          However, “[t]he balancing test of Rule 403 is

reviewed by this [C]ourt for abuse of discretion, and we do not

apply plain error to issues which fall within the realm of the

trial court’s discretion.”                State v. Cunningham, 188 N.C. App.
                               -12-


832, 837, 656 S.E.2d 697, 700 (2008) (citation and   internal

quotation marks omitted).

                             Conclusion

    For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

    NO ERROR.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).
