State v. Boone

79 N.C. App. 746 | N.C. Ct. App. | 1986

HEDRICK, Chief Judge.

By his first assignment of error defendant contends the trial court erred in denying his motion in limine to exclude the actual contents of the obscene statements attributed to defendant. Defendant argues that the statements should have been excluded under G.S. 8C-1, Rule 403 because the statements’ “probative value is substantially outweighed by the danger of unfair prejudice. . . .” G.S. 8C-1, Rule 403.

The essential elements of a G.S. 14-196(a)(3) violation are “(1) repeatedly telephoning another person, (2) with the intent or purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number.” State v. Camp, 59 N.C. App. 38, 42, 295 S.E. 2d 766, 768 (1982). The actual contents of the statements attributed to defendant are relevant to show whether the intent of the telephone calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls. “Relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the cause of the party who offers it.” 1 H. Brandis, Brandis on North Carolina Evidence Sec. 80 (2d ed. 1982). We hold that the trial court did not err in allowing witnesses to testify about the actual contents of the annoying telephone calls.

By his next assignment of error brought forward on appeal defendant contends the trial court committed reversible error in admitting testimony regarding the total number of telephone calls made from defendant’s telephone. Defendant made a general objection to three questions concerning the total number of telephone calls made from defendant’s telephone during particular periods of time. Prior to these objections, defendant allowed Detective Wetherington to testify to the total number of telephone calls made from defendant’s telephone at two other times. Defendant also failed to object when the PIN register tapes documenting each call made from defendant’s telephone were passed to the jury. “[WJhere evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.” State v. Murray, 310 N.C. 541, 551, 313 S.E. 2d 523, 530 (1984). Defendant’s assignment of error is overruled.

By his fourth assignment of error defendant contends the trial court erred in admitting testimony regarding prior obscene telephone calls made by defendant. Assuming without deciding that the evidence of prior obscene telephone calls was inadmissible under G.S. 8C-1, Rule 404(b), the admission of the evidence was not prejudicial in the light of the overwhelming evidence of defendant’s guilt. See State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed. 2d 112 (1974).

By his final assignment of error, defendant urges us to dismiss the 29 March 1984 and 5 April 1984 counts because the arrest warrants charged repeated calls to Susan Byrd on or about these dates while the evidence adduced at trial indicates that Susan Byrd answered only one call from defendant on each of these dates. Defendant argues G.S. 14496(a)(3) requires more than one call during a particular day and that the variance between the warrants and the evidence is fatal. We address defendant’s contentions seriatim.

First, G.S. 14496(a)(3) does not require more than one abusing, annoying, threatening, terrifying, harassing or embarrassing telephone call per day. The statute prescribes making such calls “repeatedly.” Unless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted. Transportation Service v. County of Robeson, 283 N.C. 494, 196 S.E. 2d 770 (1973). Repeatedly is the adverbial form of the term repeated meaning “renewed or recurring again and again.” Webster’s Seventh New Collegiate Dictionary. The term repeatedly does not ordinarily connote a recurrence within a twenty-four hour period.

Defendant’s contention that a fatal variance between the warrant and the evidence is also without merit. The warrants cover repeated calls to Susan Byrd on or about 29 March 1984 and on or about 5 April 1984. The evidence from the PIN register indicates defendant made more than one call to Susan Byrd’s apartment on these dates although Ms. Byrd did not answer more than one call on each date. G.S. 14496(a)(3) makes it unlawful for any person to “telephone another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number.” G.S. 14-196(a)(3) (emphasis added). The State’s evidence supports a finding that defendant called Ms. Byrd’s apartment repeatedly on the dates in question with the intent to harass. Defendant’s assignment of error is overruled.

For the reasons stated above we find defendant had a fair trial free from prejudicial error.

No prejudicial error.

Judges Wells and Martin concur.