*1 OF APPEALS IN THE COURT OF SOC. SERVS. v. DIVISION MEZA (2008)] [193 Affirmed. concur. and ELMORE
Judges BRYANT and DIVISION OF v. OF SOCIAL SERVICES DIVISION MARIA D. MEZA, Petitioner, OF CAROLINA DEPARTMENT OF THE NORTH MEDICAL ASSISTANCE Respondents AND HUMAN SERVICES, HEALTH No. COA07-407 (Filed 2008) 21 October coverage emergency Medicaid Public Assistance— — agency of review decision — standard court review review in applied the correct standard of court emergency coverage Medicaid for involving the extent of a case nonqualified alien, judg- and its health treatment for mental by The matter is controlled order were affirmed. ment and Department v. N.C. Health 108-79(k) and Chatmon N.C.G.S. App. 85, APA, and the su- Services, 175 N.C. and Human appellate court. The both a trial court and perior court sits as independent finding fact to determine engages with state and federal DHHS decision is consistent whether the wholly may make new law, trial court not rehear but the would grounds not relied on DHHS findings, or determine that was not the basis of justify The standard of review the decision. in Diaz v. Division Social appeal and was not addressed controlling. Services, 384, and Chatmon remains Judge dissenting. Steelman and order entered 26
Appeal by respondents judgment from County January Mecklenburg Mims Evans in Judge Yvonne Appeals Superior in the Court of 30 October Court. Heard Cone, petitioner- Redpath, RA., by Thomas E. & Ott Cone for appellee. Attorney Cooper, by General Attorney Roy Assistant General respondents-appellants. Eaddy, Brenda IN THE COURT OF APPEALS
MEZA DIVISION OF SOC. SERVS.
GEER, Judge. Respondents, Department the North Carolina of Health and Human Services’ Division of Social Services and Division of Medical (collectively Assistance agency”), appeal “DHHS”or “the from the superior court’s decision reversing regarding DHHS’final decisions petitioner D. Maria Meza’sentitlement to emergency Medicaid cover
age non-qualified as a separate periods alien for two of medical treat ment in fall of 2004 and winter of appeal, 2005. On DHHS chal lenges applied by standard of review hold, court. We however, that properly applied N.C. Gen. Stat. 108A-79(k) (2007), Dep’t § as construed Chatmon N.C. Health Servs., App. 85, & Human (2005), disc. denied, and, review (2006), therefore, N.C. 479 affirm the su perior court’s decision. essentially
The facts in undisputed. this case are Ms. Meza applied for Medicaid coverage through County the Mecklenburg Department of Social hospitalization in-patient Services for her for mental health treatment at the Randolph Center, Behavioral Health CMC- January
from 15 October 2004 to 29 October 2004. On 26 2005, the Division of Medical Assistance issued a notice of benefits awarding coverage day Medicaid for (15 of admission October 2004), denying coverage but hospitalization. for the remainder of the
Ms. Meza was facility time, also admitted to the same a second January February from 17 2005 to 11 in-patient mental May 2005, health care. On 13 the Division of Medical Assistance issued its notice of hospitalization, again benefits for this awarding only coverage day Medicaid for the of admission.
On both occasions when hospital, Ms. Meza was admitted to the “non-qualified alien,” she was a who could not receive Medicaid cov- erage unless her medical condition met the definition of an “emer- gency “non-qualified medical condition” under federal law. A alien” is lawfully “an alien who permanent is not admitted for residence or permanently residing otherwise in the United States under color of law.” 1396b(v)(l) (2007). applicable 42 U.S.C. law, federal 1396b(v)(3), U.S.C. ‘emergency defines “the term medical condition’ a . manifesting symp- medical condition . . itself acute [to] mean[] severity (including toms of sufficient pain) severe such that the reasonably absence of immediate medical attention could be expected (A) placing patient’s to result health serious in— OF APPEALS IN THE COURT v. DIVISION OF SOC. SEEVS.
MEZA bodily functions, impairment (C) or serious jeopardy, (B) serious any bodily part.” dysfunction organ denying coverage, her appealed the Division’sdecisions Ms. Meza July 2005, a DHHS officer conducted and on 14 August officer issued determinations. On 26 both hospitalization. period each separate decision as to hospitalization, hearing officer found respect the first With “ ‘acutely psy- admission, diagnosed as Ms. Meza was ” out of chotic,’ reporting with her husband that she often wandered time, house, change her for several weeks at a forgot clothes personal neglected hygiene. The clothing, threw food and her Meza’s condition worsened to hearing officer further found that Ms. *3 danger and forced extent that she was considered a to herself necessary. hearing officer, According was deemed to the medication 2004, longer no considered to be a after 22 October Ms. Meza was danger to herself. hearing findings,
Based on these officer concluded 2004, 21 Ms. Meza’s medical con- from 15 October 2004 to October services, required emergency medical and thus she was en- dition period. respect coverage to Medicaid for that With titled hearing officer period of October 2004 to 29 October Ms. Meza’s condition had stabilized to the extent concluded that therefore, danger herself, and, “the longer that she was nó result, remaining underlying treatment was to cure illness.” As part Division’s decision in and hearing officer reversed the coverage Ms. Meza Medicaid for her treatment from 15 awarded through but not from 22 October October 2004 October through 29 October 2004. respect hospitalization, hearing With to Ms. Meza’s second schizophrenia diagnosed had been with and officer found that she withdrawn, isolated, suspicious feelings that she was and and had persecution. Ms. Meza’scondition hearing The officer concluded that qualify “emergent” under the federal definition because her did not as day following had the initial of admission. Based condition stabilized de- determination, on this officer affirmed the Division’s admission, 17 awarding coverage cision Medicaid for the date of January 2005, only.1 second conclusion of law in the second deci- 1. We note that the officer’s any appears mistakenly and is irrelevant to be taken from the first decision
sion review of the second decision. THE IN COURT OF APPEALS MEZA v. DIVISION OF SOC. SERVS. officer’s decisions constituted DHHS’final decisions. 108A-79(k), petition
Pursuant to N.C. Gen. Stat. Meza Ms. filed a judicial County review of the DHHS’ in Mecklenburg decisions Superior Concluding statutory interpre- Court. that the case involved application facts, tation and of law to court reviewed legal DHHS’ determinations de novo. The court concluded that DHHS misinterpreted had controlling and, consequently, federal law had applied legal determining erroneous standards for whether the treat- qualified ment Ms. Meza for a emergency. received was medical review, On court found that at the time of each Ms. hospital Meza’s admissions:
Ms. psychotic Meza was in a severe state of sudden onset re- sulting decompensation from of her long-standing underlying ill- Throughout ness. admissions], each her she demonstrated [of symptoms psychosis, severe reality, para- loss of touch with noia suspiciousness, including internal distractions delusions hallucinations, gross inability disorganization, and to attend eating, to basic needs bathing, such as and grooming. Through- admissions, out most of both she was unable talk or commu- nicate meaningful with peers, manner staff or her and her judgment insight very were limited. She refused medication during admissions, both and forced medication orders were required during each. “placed court determined that Ms. Meza’scondition her health in *4 jeopardy reasonably
serious expected and could have been to result placing jeopardy impairment either in serious or serious to [her] bodily dysfunction bodily part.” functions or serious of a organ or “required court further found that Meza’s Ms. treatment was and given to stabilize her condition” and that “her condition stabilized her discharge.” until superior
Based its findings, the (1) court concluded: “[Ms. medical emergency condition át each admission MezaJ’s medical condition as in 42 1396(v)(3),” (2) § defined U.S.C. and throughout treatment each admission constituted “[Ms. Meza]’s immediate, medically necessary, appropriate and treatment for [her] emergency superior medical condition.” The court reversed DHHS’ provide decisions and ordered the Division to Ms. with Meza entirety coverage hospitalizations. Medicaid for the of both DHHS timely appealed to this Court. APPEALS IN THE COURT OF SOC. SERVS. v. DIVISION OF
MEZA
Discussion assignments (1) of error: appeal three has limited its DHHS of review of the decision in its de novo that trial court erred “[t]he when, after a de Respondent (2) that trial court erred agency”; “.[t]he Respondent agency, it made new of the novo review of the decision agency’s of with the and law inconsistent findings of fact conclusions when, conclusions”; (3) trial court erred and that findings and “[t]he agency, it made Respondent of review of the decision after a de novo with of law inconsistent independent findings of fact and conclusions agency which had not been finding[s] and conclusions the stand- excepted assignments of error relates to to.” Each of these of DHHS deci- applicable to a court’s review ard of review coverage treatment. regarding Medicaid for sions is forth in N.C. Gen. Stat. applicable review set standard.of pertinent part: provides in 108A-79(k),which applicant recipient with the final de- Any who is dissatisfied may Department of Health and Human cision Services] [of petition judicial ... review in file . . county . The shall be con- from which case arose. 4, Chapter 150B, provisions of according ducted Article shall, on Statutes. The court of the North Carolina General hearing under request, at the G.S. examine evidence excluded if evidence was 108A-79(i)(l) or G.S. 108A-79(e)(4) excluded, it. Notwithstand- improperly the court shall consider may testimony provisions, ing foregoing the court talce case, including evidence, excluded examine into the facts of under whether the decision in error determine final fed- regulations law, eral and State and under the rules Department or the Health and Services Commission Social Nothing . . in this shall be con- Human . subsection Services. may county abrogate rights have under strued 4 Chapter 150B. Article Chatmon, 90-91, at added.) In S.E.2d
(Emphasis specifically 688-89,we addressed the role of the court under 108A-79(k). *5 appeals posture unusual under This Court first noted the appellate superior sitting a in an 108-79(k): “[Although court is public reviewing and social services deci- capacity assistance when superior engage court to inde- sions, the statute authorizes IN THE COURT OF APPEALS
MEZA v. DIVISION
SOC.
OF
SERVS.
pendent fact-finding in order to
Department
determine whether the
and
Health
Human Services’ final decision is consistent with state
and federal law.” Id.
explains,
In order give meaning to to functions, both the trial court should be determining limited to whether the reason offered for the Department of Health and . Human Services’ decision . . was fac- tually legally and correct. 108A-79(k) Section should not be read to authorize the trial case, wholly court to rehear the make new findings, factual and determine that grounds alternative not upon by Department relied and Health Human Services justify would also the [decision]. 90-91,
Id. at
In reviewing proceeded these as mandated Chatmon: it addressed whether officer factually making legally correct these and conclu- *6 OF IN THE COURT APPEALS
356 OF SOC. SERVS. MEZA v. DIVISION App. (2008)] 350 [193 alterna- did base its decision on some superior court sions. improp- hearing the officer had rather concluded that ground, tive but condition, which she erly medical for that Ms. Meza’s determined emergency medical condition not constitute hospitalized, did 29 October law 22 October 2004 until applicable federal from under February January 2005 from 18 until 2004 and fact, find- findings own these did make its While the trial court by wholly independent made the offi- of those ings were not offi- the the cer; disregard did trial nor the court evidence and Rather, trial considered the same cer. the court factually and findings were not concluded that the officer’s findings to justified. Accordingly, trial court modified the legally the make compliance with the law. The modification to them into bring the of Chatmon to them correct falls within direction “determin[e] Department of Health and Human offered for the whether reason factually correct[,]” without legally . . . Services’ decision wholly findings” “determin[ing] that alter- new factual or “makfing] justify” . also the decision. not relied . . would grounds native S.E.2d at 688. The trial court used 90-91, 175 N.C. just a different conclusion. grounds; same it reached its beginning at the Although quotes DHHS from Chatmon superior court’s order. brief, disregards discussing it Chatmon way com- explain in what court failed to does not DHHS limited its ply 108A-79(k) Chatmon. As the with or regarding a determination whether of DHHS’two decisions to review they factually correct, order legally we hold that the court’s were complies 108A-79(k)and Chatmon. with § were findings of fact arguing that court’s
In solely under the Admin- improper, DHHShas on cases decided relied through 150B-1 (“APA”),N.C. Gen. Stat. §§ istrative Procedure Act 108A-79(k)and Chatmon —not (2007). 150B-52 N.C. Gen. Stat. § respect to case. See N.C. Gen. Stat. 150B-43 APA—control with this by aggrieved final in a con- (“Anyperson who is decision (2007) made all administrative remedies and who has exhausted tested rule, judicial agency is entitled to to him statute available procedure Article, adequate unless review of the decision under this statute, judicial provided by in which case another review added)). (emphasis statute.” shall be under such other review Servs., opinion suggests that Diaz v. Div. Soc. dissenting correctly As (2006), overruled Chatmon. IN OF THE COURT APPEALS
MEZA DIVISION OF SOC. SEEVS. pointed dissent, out Diaz “addressed the identical substantive question presented case,” (emphasis added), instant which requires scope was: “This case determination of the of coverage and nonqualifying reimbursement for a alien’s medical treatment under *7 385, federal and North Carolina Medicaid law.” 360 N.C. at Nevertheless, procedural 2. posture at the in signifi- Diaz differs cantly Although from that with which we now are faced. the trial in plaintiff’s court Diaz had likewise found the that treatment was for emergency condition, medical DHHS appeal based its to this Court in is, Diaz on the substance of the trial court’s order—that the trial interpretation application court’s and of the federal statute’s defini- “emergency tion of medical the of condition” to treatment the dis- ease. The of Diaz proper focus was thus on the of construction 42 1396b(v), question U.S.C. a law. § of such, employed by
As the standard of review the trial court in deny Diaz plaintiff to reverse the DHHS decisions to coverage to the implicated Supreme was Indeed, neither nor discussed the Court. N.C. 108A-79(k) Gen. Stat. and § Chatmon were never even cited in Supreme opinion the Appeals’ Court’s or the of Court decision.2 The Supreme only question presented Court’s decision addressed to it appeal: on properly interpreted whether the trial court had applied the federal statute. improperly applied
Since an standard of review was not the basis appeal Diaz, Supreme of the DHHS in Court did not address question. Dep’t Transp., 400, 402, See Viar v. N.C. 360, (2005) (“It appellate S.E.2d ever, is not the role courts, of the how- appeal appellant.”). Thus,
to create an for an the statement in that, appealed tribunals, Diaz cases from administrative we “[i]n questions questions review of law de novo and of fact under the test[,]” explic- whole record 628 S.E.2d at does not itly apply involving case N.C. Gen. Stat. 108A-79(k), as the Supreme question. Court did consider not in Diaz
Nothing
suggests
impose
that the Court intended to
respect
whole record review with
fact when such an
approach
contrary
plain
is
to the
of the
language
statute. The statute
specifically
testimony
authorizes the
court to “take
case,”
examine into the
facts
a method of review that cannot be
Notably,
Supreme
prop-
none of
the briefs filed
Court addressed the
application
108A-79(k)
er construction
of N.C.
or the
Gen. Stat.
relevance
Chatmon.
OF APPEALS
IN THE COURT
OF SOC. SERVS.
MEZA DIVISION
Supreme
that the
telling
review. It
with whole record
reconciled
even reference the
apply
whole record test or
not itself
Court did
or the
hearing officer
findings of fact of either the
directly
pertinent
Rather,
applied
federal statute
Court
judge.
evidence.
apparently
uncontested
suggest
does
timing
of the Chatmon and Diaz decisions
noting
It is worth
overruled the former.
that the latter sub silentio
day
April
Diaz decision
handed
2006, the
before the
that on 6
discretionary
of this
also denied
review
down,
Supreme
Court
Dep’t Health &
See Chatmon v. N.C.
Court’s decision Chatmon.
line,
(2006).
indicating
this time
Servs.,
Alternatively, argues DHHS that the court lacked author petition judi ity Meza’s findings because Ms. to make alternative objections specific exceptions or to cial review did not set out authority no findings fact in DHHS’decisions. Because DHHS cites of support assignment deem the of error aban argument, of this we set App. 28(b)(6) (“Assignments P of error not out doned. See N.C.R. brief, support argument no reason or appellant’s or in of which abandoned.”). Cape authority cited, will be taken as is stated or Cf. Servs., Transp., Dep’t 162 N.C. Inc. N.C. Health & Human Med. v. of with 14, 22, (2004) (holding that “consistent sec 590 S.E.2d permitted APA], is to make its 150B-51(c) the trial court tion [of party objected though to those find fact, own even neither of agency). of ings” THE OF
IN COURT APPEALS MEZA DIVISION OF SOC. SEEVS.
Finally, challenges superior DHHSalso court’s determination legally superior as to whether DHHS’decision was correct. The court application concluded DHHS’ final decisions involved the of improper legal interpreta- standards and were an based on incorrect of governing tion federal and regulation. statute DHHS agreed in presented its brief this by Court that the issues Ms. Meza to the questions statutory appli- court were of construction and the controlling cation of the law the facts: Appellee’s judicial petition
The ultimate issue in [for review] is she wanted the court determine that her this[:] stay entire was a Medicaid covered agency event. While the must apply statutory language of facts the determi- nation as to “emergency” whether an has ended for Medicaid cov- erage purposes statutory is a interpretation. matter of If the agency applies law the federal and corresponding State code and caselaw, appropriately applies] specific these criteria to the facts a case, agency correctly, has acted and no error should flow from that decision.
DHHS, however, overlooks the governing standard of review such questions: statutory application construction and the of law to fact questions are reviewing law that a court de considers novo. See In Proposed re Co., Assessments v. Ins. 161 N.C. Jefferson-Pilot Life App. 558, 559, 589 S.E.2d (2003) (“Questions statutory interpretation questions are of law, which are reviewed de novo appellate court.”); Hudson, 465, 472, Hudson v.
719, 724 (1980) (“Whether statutory requirements . . . have been question law, met Thus, reviewable on appeal.”). as to the issues below, identified DHHS as raised prop- erly conducted a de novo review to the extent it functioning as *9 appellate court-3
We do remaining not address the contentions in DHHS’brief be- they encompassed by any cause are not assignment of error. See App. R (“[T]he scope N.C.R. on 10(a) appeal of review is confined to argument superior 3. We do not “engage understand DHHS’ that the court did not agency’s support in 108A-79(k). a true de novo review” of the decisions under In of contention, points superior its DHHS to the fact that the court “cites the exact federal agency any regarding statutes as the and does set not out error the in manner which agency applicable superior law.” identifies the While the court and the offi- agreed controlling statute, superior cer on what was the court that the concluded application relating officer erred in of his that statute to the actual facts to Ms. short, superior proper application In Meza. considered construction and of the statute de novo. APPEALS OF IN THE COURT OF SOC. SERVS. MEZA DIVISION on out in the record of error set assignments of those a consideration are not decision of the court’s .”). . . . The merits appeal specifically assign error to not us DHHS did properly before because apart of law findings of fact conclusions any court’s of The find standard of review. regarding the DHHS’ contentions from are “dis therefore, binding appeal, and there no are, on of fact ings Servs., review. Medina v. Div. Soc. puted law” to conclusions of of Accordingly, we 502, 505, (2004). 709-10 order. judgment and affirm the court’s Affirmed.
Judge WYNNconcurs. separate opinion. ain
Judge dissents STEELMAN STEELMAN, dissenting. Judge, majority opinion. That respectfully dissent from
I must entirely concept that, provi- under the opinion upon the grounded completely trial court was 108A-79(k), Gen. Stat. sions of N.C. Hearing made Officer findings of fact disregard free to and make its and Human Services Department of Health for the analysis with this for independent disagree fact. I own several reasons.
Background majority opinion, Contrary there to the assertions presented officer sharply conflicting medical evidence hospitalized petitioner was in for which this matter. condition hospitalized for this condition She was not new condition. previous occasions, again 1999 or Rather several there, country seeking origin treatment returning than her episodes in October of in the United States. The she remained by petitioner’s taking January triggered of 2005 were hospitalization. prescribed during her her last the medications that, as and testified Benjamin petitioner’s records Dr. reviewed petitioner’s con- no onset of admission, there was sudden to the first only the first it to illness and that he found be chronic dition. Rather report Dr. emergent into the criteria. day of admission fit opined peti- that all of the care of He was also evidence. Mehta through admission, from 15 October 2004 on the first tioner *10 APPEALS 361 IN THE COURT OF OF SOC. SERVS. MEZA v. DIVISION N.C. 350 necessary “emergency of an 2004, was for the treatment October statute.” The officer condition as defined medical position emergency condition existed ground a middle that the found through 21 from 15 2004 October October February January 11 admission, second 2005 to As Benjamin petitioner’s was not 2005, Dr. concluded that condition chronic, have been cov- acute, but rather was and thus should not that the by disagreed, stating Medicaid. Dr. DiNome his letter ered February January consti- petitioner of from 17 2005 to care necessary for the treat- single tuted a course of treatment that was as defined in the statute.” emergency ment of “an medical condition hospitalization ruled that none of this was cov- The officer by ered Medicaid. expert in the testi-
There was thus a clear and distinct conflict peti- mony to whether the treatment of of the medical witnesses as provisions under the of 42 U.S.C. 1396b.There is tioner was covered support position in the record to either the evidence presented Judge questions of Evans. The then are: who officer or that credibility will weight of should make the determinations case; appropriate what standard of review for the resolve the superior court; appropriate what standard of review for is this Court. Superior Review of Court
Standard of
for the
majority argues that the standard of review
The
108A-79(k) de novo and is controlled
under N.C. Gen. Stat.
Dep’t
Health &Human
Court’s decision Chatmon v.
this
denied, 360
Servs.,
App. 85,
(2005),
S.E.2d 684
disc. rev.
175N.C.
majority attempts
distinguish
479,-S.E.2d-(2006).
Supreme
decision of Diaz v.
express holding found in the
Court
I
to so
Servs.,
(2006).
[193
386,
Supreme
Id.
Chatmon v. N.C. Devartment of Health & Human Services applying Even the tests set case, forth Chatmon to the instant majority I believe that liberally, has construed Chatmon far too interpretation and that a more appropriate. restrictive of that case is Chatmon, In appropriate this Court wrestled with the standard of review for the trial court under N.C. Stat. 108A-79(k). § The rel- Gen. portions evant of that statute state: shall according provisions be conducted to the 4, Chapter 150B,
Article of the North Carolina General Statutes. shall, request, .court examine the evidence excluded at the 108A-79(e)(4) under G.S. 108A-79(i)(l) G.S. and if the improperly excluded, evidence was the court shall consider it. Notwithstanding foregoing provisions, may the court take tes- timony and examine case, into the facts of the including excluded evidence, to determine whether the final decision is in error law, under federal and State and under the rules regulations Department Social Services Commission or the of Health and Human Services.
N.C. Gen. Stat. 108A-79(k)(2007). § Aside from its reference to the Administrative Procedure Act (“APA”), the statute is silent as appropriate provisions standard of review. Chatmon construed the N.C. Gen. Stat. 108A-79(k),as follows:
The task of the. court in this case was not to determine whether a sanction was basis, warranted on but rather Department whether decision, of Health and Human Services’ relied, factually justi- and the basis legally which it IN THE OF APPEALS COURT
MEZA v.
OF SOC. SEKVS.
DIVISION
to take tes-
108A-79(k)
While section
authorizes
trial court
fied.
only
timony
facts, this
“to
and reexamine the
authorization
Department
whether
final decision
determine
[of
Human
is in error . . . .” N.C. Gen. Stat.
Health and
Services]
108A-79(k)
. . .
108A-79(k) (emphasis added).
Section
should
read to authorize the trial court
rehear the
make
not be
wholly
findings,
new factual
and determine that alternative
upon by
Department
not relied
of Health
Human
grounds
justify
would also
the sanction.
Services
*12
90-91,
Id. at
In the instant
the trial court did not hear
evidence
any party
improperly excluded,
that
did
contended was
nor
it
testimony.
Chatmon,
any
Thus,
take
was limited
under
its role
factually justified.”
“legally
90,
the decision
Id.
whether
622
This
what the trial
in this
S.E.2d at 688.
is not
court did
case.
court,
Rather, the trial
the identical evidence before the
based
officer,
independent
fact
findings
made its own
This
reached a different conclusion of law.
was in direct contraven-
in
holding
stating
tion
the trial court
Chatmon
wholly
make
factual find-
“to rehear
case
new
authorized
[and]
90-91,
ings.”
Conclusion Supreme adopted Diaz, test set forth in In our Court Hammon, Greenery Group (2d v. F.3d 226 Cir. Rehabilitation 150 provisions utilized a 1998), which “stabilization” construction Emergency medical conditions 1396b(v)(3). contained 42 U.S.C. physical “sudden, severe, statute are to be and short-lived under the prevent injuries require fur- or illnesses that immediate treatment Supreme Court went 387-88, ther Diaz at 628 S.E.2d at The harm.” super legisla- role is not to as a on to state that “the of the Court sit officials.” Id. at second-guess ture balance struck elected 555, Bryant, 554, at 5 (citing State IN THE COURT OF APPEALS STATE v. LOFTON (2005)). S.E.2d Our courts are to defer in this matter to the policy adopted by Congress. the United States
I erroneously would hold that the trial court made new applied of fact this case and wrong standard of review. The decision of the trial court should be reversed.
STATE OF NORTH Plaintiff v. SAMUEL L. Defendant CAROLINA, LOFTON,
No. COA07-1530 (Filed 2008) 21 October prior 1. Evidence— crimes or bad acts —assault—motive— similarities — remoteness plain
The trial court did felony not commit aggra- error vated handicapped person, assault on a felonious assault strangulation, imprisonment, false by per- and habitual felon case mitting testify the victim prior about incidents of defendant assaulting her (1) because: the evidence was admissible to show disputed motive since defendant committing against crimes *13 victim; (2) testimony regarding previous defendant’s motive to hit the victim prob- was relevant since it made it more able that defendant committed charged against crimes again victim when he accused her of cheating him; (3) simi- larities existed between the offenses when all three incidents involved accusing defendant cheating victim of himon before striking her, prior one of the incidents and the current incident weapon, involved the use of a prior and the incidents and the cur- rent crime violently involved defendant hitting the victim on the head face; (4) prior victim testified that the incidents year occurred less than a before the incidents for which defend- charged; any prejudicial ant was (5) effect the evidence was outweighed probative their in establishing value defend- ant’s motive in assaulting the victim.
2. Evidence— victim’s mental impact condition — victim
evidence
The trial plain felony court did not commit error in a ag- gravated handicapped person assault on a by permitting case testify victim to regarding her condition, including mental her