North Carolina Reports

STATE v. FAULKNER, COA06-7 (N.C.App. 12-19-2006) STATE OF
Carolina Court of Appeals. No. COA06-7. Filed 19 December

Cumberland County No. 01-CRS-64355

Appeal by defendant from judgment entered 7 June 2005 by
Judge E. Lynn Johnson in Superior Court, Cumberland County.
Heard in the Court of Appeals 17 October 2006.

Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.

Leslie C. Rawls for defendant-appellant.

WYNN, Judge.

The plain error rule applies when the appellate court is
“convinced that absent the error the jury probably would
have reached a different verdict.”[fn1] Here, Defendant
argues that the admission of testimony from several
witnesses was plain error. Because we find that the State’s
evidence as to Defendant’s guilt was substantial enough that
the testimony in question was not determinative of the
jury’s decision, we affirm Defendant’s conviction for
second-degree murder.

On 7 June 2005, Defendant Melvin Curtis Faulkner was
convicted of second-degree murder in the death of
22-month-old Jakob Waddington, the son of Defendant’s
girlfriend, Janet Perkins. At trial, the evidence tended to
show that Defendant and Ms. Perkins met through an America
Online chat room several months before she moved to
Fayetteville in March 2001 with her two children, Jakob and
his six-year-old sister. Ms. Perkins moved into Defendant’s
house within three or four weeks of her arrival in

Trial testimony indicated that Defendant’s relationship
with Ms. Perkins was tumultuous; for example, shortly after
Ms. Perkins moved into Defendant’s house, Defendant asked
her to move out so he could work things out with the mother
of his child, who was pregnant again, possibly with his
child. But a week later Defendant changed his mind, and Ms.
Perkins moved back into his house. Ms. Perkins testified
that, at the beginning of the relationship, Defendant “was
wonderful with Jakob,” and that he played with the boy and
had a lot of interaction with him, although he was not
involved in parenting responsibilities.

By the end of April 2001, however, Defendant and Ms.
Perkins began to have arguments related to Jakob, including
Defendant’s suggestion that the boy should go to live with
his father in Texas. Also around this time, Jakob began
having tantrums in which he would bang his head on the
floor. Jakob’s doctor testified that such head banging is
not unusual in children, but they are not injured by it,
and it cannot produce fatal brain injury. Jakob was
slightly developmentally delayed.

Throughout June and July 2001, the couple’s relationship
continued to deteriorate. In June, Ms. Perkins took an
overdose of sleeping pills and had her stomach pumped at
the hospital, but she denied that it was a suicide attempt.
Around the beginning of July, Ms. Perkins threatened to
leave Defendant because of his “picking on” Jakob; she
packed belongings and left the house with Jakob, but the
two returned a short time later, after Defendant and Ms.
Perkins had spoken on the telephone.

According to testimony at Defendant’s trial, Ms. Perkins
put Jakob down for his nap between 1:00 and 2:00 p.m. on 18
August 2001, and she then went to the store a short time
later, taking Defendant’s car because of heavy rains and
flooding. Ms. Perkins stated that Jakob was “fine” at that
time. While she was out, she called Defendant, who
mentioned during the course of their conversation that he
had found Jakob on the floor and put him back in the bed.
Defendant called her back a few minutes later, while she
was on her way home, and was upset because Ms. Perkins had
taken his car to the store, rather than her own. All told,
Ms. Perkins estimated her trip to the store took
approximately twenty to thirty minutes; no one else was in
the house during that time other than Defendant and Jakob.
She did not check on Jakob after she arrived back at the

Around 5:00 p.m., Ms. Perkins went into Jakob’s room to
wake him from his nap and found him on the floor on his
stomach. When she picked him up, his eyes rolled into the
back of his head, and his arms and legs went stiff. Ms.
Perkins called 911, and an ambulance arrived approximately
fifteen minutes later and transported Jakob to the
hospital. He was transferred to Chapel Hill, but he died
later that night.

At Defendant’s trial, medical personnel testified that
Jakob’s pupils were unequal and slow to react to light,
evidence of a serious head injury, and that there was a
raised and visibly noticeable hematoma on the left side of
Jakob’s head. His stiff arms and legs, called “posturing,”
indicated brain swelling from a head injury. One emergency
responder testified that, in response to the question of
what had happened to Jakob, Defendant appeared nervous,
with the color drained from his face, and did not respond;
Ms. Perkins answered that she believed Jakob had fallen out
of his bed. Jakob’s bed was eight inches to a foot off the
floor, and testimony at trial suggested that a fall from
such a height was inconsistent with and could not have
caused the type of head injury suffered by Jakob.

Additional testimony was offered at trial as to Defendant’s
and Ms. Perkins’ demeanor at the hospital and the types of
treatment offered to Jakob. Five medical experts testified
for the State that the cause of Jakob’s death was brain
swelling caused by blunt force trauma to the head.
According to one expert, Jakob would have been immediately
symptomatic from the injuries and would have been rendered
completely unresponsive, unable to eat, walk, or
communicate. None of the State experts believed the
injuries could have been accidental, barring an incident
such as a fall from a third-story window. However,
Defendant offered testimony from three expert witnesses who
theorized that Jakob might have died from a stroke or
series of strokes, a blockage of veins in the brain, or
dissection or clotting of the carotid artery, although such
cases would not have accounted for his external bruises.

At the conclusion of the trial, the jury returned a verdict
finding Defendant guilty of second-degree murder. The trial
court sentenced Defendant to a term of 125 to 159 months’
imprisonment. Defendant now appeals that verdict, arguing
that the trial court (I) erred by allowing impermissible
character evidence; (II) erred by allowing impermissible
profile evidence as to “normal caretaker reaction,” which
was irrelevant and prejudicial; (III) committed plain error
by allowing irrelevant and highly prejudicial evidence as
to one side of a telephone conversation between Defendant
and his father and as to Ms. Perkins’ suspicions about
Defendant’s role in Jakob’s death; (IV) committed plain
error by admitting testimony about comments made by Jakob’s
grandmother about Defendant at Jakob’s funeral; (V) erred
by allowing lay witnesses to offer expert opinions; and
(VI) committed plain error by allowing testimony as to Ms.
Perkins’ attitude towards Defendant after both were


First, Defendant argues that the trial court erred by
denying his motion to suppress testimony from Ms. Perkins’
mother, Peggy Acker, regarding the June 2001 incident in
which Ms. Perkins took an overdose of sleeping pills.
Defendant contends that the testimony was offered solely as
evidence of his character and therefore should have been
disallowed under North Carolina Rule of Evidence 404. See
N.C. Gen. Stat. § 8C-1, Rule 404 (2005) (character
evidence not generally admissible to prove conduct).[fn2]

The standard of review in determining whether a trial court
properly denied a motion to suppress evidence is whether
the findings of fact are supported by competent evidence,
and whether the conclusions of law are in turn supported by
those findings of fact. State v. Cockerham, 155 N.C. App.
729, 736, 574 S.E.2d 694, 699, disc. review denied, 357
N.C. 166, 580 S.E.2d 702 (2003); see also State v. Smith,
160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (stating
that a trial court’s findings of fact regarding a motion to
suppress are conclusive on appeal if supported by competent
evidence, even if there is other, conflicting evidence);
State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191,
193-94 (2001) (noting that an appellate court will not
overturn a trial court’s conclusions of law as to a motion
to suppress if they are supported by its factual findings).
Indeed, “[w]hether to exclude evidence of other crimes or
bad acts is a matter within the sound discretion of the
trial court.” State v. Woolridge, 147 N.C. App. 685, 692,
557 S.E.2d 158, 162 (2001), rev’d on other grounds, 357 N.C.
544, 592 S.E.2d 191 (2003). A trial court will be held to
have abused its discretion only “upon a showing that its
ruling was manifestly unsupported by reason and could not
have been the result of a reasoned decision.” State v.
Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).

North Carolina Rule of Evidence 404(b) provides in
pertinent part:

Evidence 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. Gen. Stat. § 8C-1, Rule 404(b) (2005). “Th[e]
list of proper purposes is neither exclusive nor
exhaustive.” State v. Church, 99 N.C. App. 647, 653, 394
S.E.2d 468, 472 (1990) (citing State v. Young, 317 N.C.
396, 412 n. 2, 346 S.E.2d 626, 635 n. 2 (1986)). According
to our Supreme Court, Rule 404(b) is

a clear general 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

State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54
(1990). Thus, so long as evidence of a defendant’s prior
acts makes the existence of any fact at issue, other than
the character of the accused, more or less probable, that
evidence is admissible under Rule 404(b). Id.

Nevertheless, any Rule 404(b) evidence “should be
carefully scrutinized in order to adequately safeguard
against the improper introduction of character evidence
against the accused.” See State v. al-Bayyinah, 356 N.C.
150, 153-55, 567 S.E.2d 120, 122-23 (2002) (citing cases
and text expounding upon the rationale for limitation),
cert. denied, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006). A
trial court should consider whether the evidence is offered
for a proper purpose, whether it is relevant, and whether
its probative value is substantially outweighed by its
potential for unfair prejudice to the defendant. Huddleston
v. United States, 485 U.S. 681, 691-92, 99 L. Ed. 2d 771,
784 (1988). Of course, “[e]vidence which is probative of
the State’s case necessarily will have a prejudicial effect
upon the defendant; the question is one of degree.” Coffey,
326 N.C. at 281, 389 S.E.2d at 56.

Here, the testimony in question was summarized and read
into the record by the trial court:

Ms. Acker described going to the defendant’s house in early
June after receiving a call from Janet that she needed
assistance. When Ms. Acker arrived, she realized Janet
needed medical attention and asked the defendant to call
911. The defendant refused. He then indicated where the
phone was located. The defendant also initially refused to
give Ms. Acker the street address. The defendant told Ms.
Acker he did not know what Janet had taken and, quote, I
don’t care if she dies, end quote.

After hearing from the State and defense counsel on the
motion to suppress, the trial court found that the
testimony would not constitute impermissible character
evidence but was instead “factual information dealing with
the dynamics of the two personalities involved, that is Ms.
Perkins and [Defendant]. They are factual declarations by
[Defendant].” He further found that because “the state is
relying upon a circumstantial evidence case in this case,”
those dynamics were “relevant and probative as to assessing
the two [personalities],” and the factual statement related
to Defendant’s “perception and relationship with Ms.
Perkins at that time.” The trial court therefore denied the
motion to suppress and allowed the testimony.

In State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47
(2002), in which the defendant had been convicted of the
first-degree murder of his girlfriend’s eight-month-old
child, this Court considered the denial of a motion to
suppress evidence of the defendant’s prior instances of
violence toward the mother of the child. Noting that the
evidence was offered to show “why the mother did not take
any action against defendant when he first began assaulting
her son; to identify defendant, rather than [the mother],
as the perpetrator; and to dispel defendant’s contention
that the injuries were accidentally inflicted,” this Court
found no abuse of discretion by the trial court. Id. at
551, 562 S.E.2d at 52.

We find Carrilo to be directly analogous to the instant
case and likewise conclude that the trial court here did
not abuse its discretion in allowing the evidence as to
Defendant’s conduct during Ms. Perkins’ overdose of
sleeping pills in June 2001. Given the defense’s attempts
to suggest that Ms. Perkins may have been the perpetrator
or that Jakob died from an accidental fall, evidence
concerning the relationship between Defendant and Ms.
Perkins was probative for a purpose other than his bad
character. The trial court made appropriate findings of
fact based on competent evidence, and therefore we will not
disturb its conclusions of law. This assignment of error is
accordingly overruled.


Second, Defendant argues that the trial court erred by
overruling its objection to the testimony of a State expert
as to “normal caretaker reaction” and a profile of
caretaker behavior after an injury to a child. Defendant
contends the testimony was irrelevant and prejudicial and
fell outside the parameters of permissible expert testimony,
as established by N.C. Gen. Stat. § 8C-1, Rule 702
(2005). We disagree.

As this Court has previously held,

According to Rule 702 of the North Carolina Rules of
Evidence, expert witness testimony is admissible if it will
appreciably help the jury. While applying this test, the
trial court must balance the probative value of the
testimony against its potential for prejudice, confusion,
or delay. The trial court has wide discretion in determining
whether expert testimony is admissible.

State v. Owen, 133 N.C. App. 543, 549, 516 S.E.2d 159, 164
(internal quotations and citation omitted), disc. review
denied, 351 N.C. 117, 540 S.E.2d 744 (1999). Thus, “a trial
court’s ruling on the qualifications of an expert or the
admissibility of an expert’s opinion will not be reversed
on appeal absent a showing of abuse of discretion.”
Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d
674, 686 (2004); see also State v. Anderson, 322 N.C. 22,
28, 366 S.E.2d 459, 463, cert. denied, 488 U.S. 975, 102 L.
Ed. 2d 548 (1988); Riddick, 315 N.C. at 756, 340 S.E.2d at
59 (an abuse of discretion is found only when the trial
court ruling was “manifestly unsupported by reason and
could not have been the result of a reasoned decision”).

In the instant case, Dr. Sharon Cooper, a developmental and
forensic pediatrician, testified as a rebuttal witness for
the State. Among other things, Dr. Cooper outlined three
parameters used by medical personnel to determine whether a
child’s injuries are accidental or inflicted, namely
— the consistency of the history given by the
caretaker, the extent to which the caretaker’s explanation
is consistent with the extent of the injuries, and the
behavior of the caretaker. The objected-to exchange was
transcribed as follows:

Q: . . . What is the normal caretaker reaction after an
injury to a child or does it vary, that type of thing?

. . .

A: Very often, when a child has been accidentally injured,
and it’s obvious that they’re injured, for example
unconscious, unable to respond to them or having seizures,
if it’s an immediate onset of the accident and then you see
these kinds of findings, caregivers who are present and
witness an accident, right away try to seek help for the
child. On the other hand, the forensic pediatric literature
is very clear that when children are injured intentionally,
when there is an inflicted injury, it is very common, it’s
almost the rule more so than the exception, that the
individual who has injured the child will leave them and not
seek care for them. . . .

A: Oftentimes the caregiver is not concerned about what has
happened to the child. They’re much more concerned about
how it impacts upon them, but not so much about what has
happened to the child.

The trial court overruled defense counsel’s objections to
the questions and allowed answers as to a caretaker

“The law wisely permits evidence not otherwise admissible
to be offered to explain or rebut evidence elicited by the
defendant himself.” State v. Anthony, 354 N.C. 372, 415,
555 S.E.2d 557, 585 (2001) (internal quotations and
citations omitted), cert. denied, 536 U.S. 930, 153 L. Ed.
2d 791 (2002). Thus, “[w]here one party introduces evidence
as to a particular fact or transaction, the other party is
entitled to introduce evidence in explanation or rebuttal
thereof, even though such latter evidence would be
incompetent or irrelevant had it been offered initially.”

Here, earlier testimony offered by medical experts for the
defense had outlined some criteria used in determining
child abuse; one expert had also suggested that there was
an over diagnosis and perhaps rush to judgment of child
abuse because of a belief that child abuse is underreported
and because “everybody is completely discombobulated by the
death of a child . . . because children are not supposed to
die.” In light of this defense testimony, Dr. Cooper’s
statements as to the parameters used to determine child
abuse, and specifically the profile of normal caretaker
behavior, had significant probative value as proper
rebuttal evidence. Even assuming arguendo that Dr. Cooper’s
testimony would have been impermissible if offered during
the State’s direct case, the defense opened the door to the
criteria used to determine if child abuse has occurred,
including what is considered normal caretaker behavior in
such situations. Accordingly, we find the trial court’s
decision to allow this testimony was reasonable and was
therefore not an abuse of its discretion. This assignment
of error is overruled.


Third, Defendant argues the trial court committed
prejudicial error and plain error by allowing testimony as
to Ms. Perkins’ suspicions of Defendant regarding Jakob’s
death, her mother’s disapproval of Ms. Perkins’
relationship with Defendant, and the substance of one side
of a phone conversation Defendant had with his father at
the hospital while Jakob was being treated.

Regarding Defendant’s assertion as to prejudicial error, we
note that under the rules of this Court,

In order to preserve a question for appellate review, a
party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the
specific grounds were not apparent from the context. It is
also necessary for the complaining party to obtain a ruling
upon the party’s request, objection or motion.

N.C.R. App. P. 10(b)(1). Here, Defendant made no objection
at trial to any of the testimony challenged in this
assignment of error; indeed, on several occasions, the
objected-to statements were made under cross-examination by
defense counsel. We therefore dismiss the portion of
Defendant’s assignment of error that asserts the trial
court committed prejudicial error.

Nevertheless, our appellate rules state that

In criminal cases, a question which was not preserved by
objection noted at trial and which is not deemed preserved
by rule or law without any such action, nevertheless may be
made the basis of an assignment of error where the judicial
action questioned is specifically and distinctly contended
to amount to plain error.

N.C.R. App. P. 10 © )(4). Thus, a defendant may challenge a
trial court’s admission of evidence under a plain error
standard even if no objection was made at trial. However,
“[t]he plain error rule applies only in truly exceptional
cases,” such that the appellate court would be “convinced
that absent the error the jury probably would have reached
a different verdict.” State v. Cummings, 352 N.C. 600, 636,
536 S.E.2d 36, 60-61 (2000) (citation and quotation
omitted), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641
(2001). “Therefore, the test for ‘plain error’ places a
much heavier burden upon the defendant than [that on]
defendants who have preserved their rights by timely
objection.” Id., 536 S.E.2d at 61. To meet this burden, a
defendant must convince the appellate court, using support
from the record, that “the claimed error is so fundamental,
so basic, so prejudicial, or so lacking in its elements
that justice could not have been done.” State v. Fleming,
350 N.C. 109, 132, 512 S.E.2d 720, 736, cert. denied, 528
U.S. 941, 145 L. Ed. 2d 274 (1999). For those reasons,
then, the “bare assertion” of plain error in an assignment
of error, without accompanying explanation, analysis, or
specific contentions in a defendant’s brief, is in
sufficient to show plain error. Cummings, 352 N.C. at 637,
536 S.E.2d at 61.

In his brief, Defendant states the standard of review for
this assignment of error to be that for “balancing
prejudicial effect against probative value,” which would be
an abuse of discretion standard, not the plain error
standard. Even looking past this violation of the appellate
rules, see N.C. R. App. P. 28(b)(6) (“[t]he [appellant’s
brief] argument shall contain a concise statement of the
applicable standard(s) of review for each question
presented . . .”), we find that the admission of this
testimony did not rise to the level of plain error, such
that it “tilted the scales” and caused the jury to convict
Defendant. See Cummings, 352 N.C. at 636, 536 S.E.2d at 61.

The State offered a significant amount of evidence at trial
that showed the building tension in Defendant’s house in
the weeks leading up to Jakob’s death, as a result of the
deteriorating relationship between Defendant and Ms.
Perkins, as well as of Defendant’s “picking on” Jakob.
Other evidence showed that Defendant was alone at home with
Jakob at the time the child’s injuries were sustained, and
that his behavior with emergency personnel and at the
hospital was somewhat unusual. In light of the strength of
the State’s case against Defendant, the challenged
statements, particularly about Ms. Perkins’ suspicions in
the months after Jakob’s death and her mother’s dislike of
Defendant, were unlikely to have been determinative factors
in the jury’s verdict. Moreover, the testimony about the
phone conversation included Defendant’s denial to his
father of any involvement in or responsibility for Jakob’s
injuries — information which could be considered
exculpatory rather than harmful. We therefore overrule this
assignment of error.


Fourth, Defendant contends that the trial court committed
plain error when it admitted testimony concerning Jakob’s
grandmother’s comments about Defendant at Jakob’s funeral.
However, Defendant’s brief fails to offer any discussion of
these comments or argument to support this assertion.
According to the rules of this Court, “[a]ssignments of
error not set out in the appellant’s brief, or in support
of which no reason or argument is stated or authority
cited, will be taken as abandoned.” N.C. R. App. P.
28(b)(6); see also Cummings, 352 N.C. at 636-37, 536 S.E.2d
at 61 (requiring a defendant to offer some “explanation,
analysis, or specific contention” in his brief to support a
“bare assertion” of plain error, or else waiving appellate
review). We therefore find that Defendant abandoned his
fourth assignment of error as to the testimony about
Jakob’s grandmother’s comments about Defendant at Jakob’s


Fifth, Defendant argues that the trial court erred by
admitting the opinion testimony of lay witnesses as to
Jakob’s medical condition, in violation of North Carolina
Rule of Evidence 701, and that the admission of testimony
in instances in which Defendant did not object at trial
rose to the level of plain error. However, as noted by
Defendant himself, all of the testimony being challenged
was also properly admitted through other expert witnesses;
each of the doctors who testified for the State explained
the nature of Jakob’s injuries and their belief that they
could not have been caused by falling off of his bed. As
such, we find that the admission of this evidence through
testimony by lay witnesses was not prejudicial and thus
cannot rise to the level of plain error. Defendant makes
only the bare assertion that the testimony “impacted the
jury verdict.” Accordingly, we dismiss the portion of his
assignment of error that alleges plain error.

We review the admission of opinion testimony by expert and
lay witnesses under an abuse of discretion standard.
Anderson, 322 N.C. at 28, 366 S.E.2d at 463; State v.
Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395
(2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427
(2001). In North Carolina, “[w]hile the better practice may
be to make a formal tender of a witness as an expert, such
a tender is not required.” State v. White, 340 N.C. 264,
293, 457 S.E.2d 841, 858, cert. denied, 516 U.S. 994, 133
L. Ed. 2d 436 (1995). “Further, absent a request by a
party, the trial court is not required to make a formal
finding as to a witness’ qualification to testify as an
expert witness. Such a finding has been held to be implicit
in the court’s admission of the testimony in question.” Id.
at 293-94, 457 S.E.2d at 858 (internal citation omitted). A
party must make a specific objection to the content of the
testimony or the qualifications of a witness as an expert in
a particular field; a general objection will not preserve
the matter for appellate review. Riddick, 315 N.C. at 758,
340 S.E.2d at 60.

Here, Defendant contends that testimony by emergency
medical personnel Wayne Averitt and Tina Joyner as to
Jakob’s medical condition and the possible cause of his
injury exceeded the scope of permissible lay opinion
testimony. However, at trial, defense counsel made only
general objections to the testimony; by overruling the
objections, the trial court implicitly accepted Mr.
Averitt’s and Ms. Joyner’s qualifications as expert
witnesses. By failing to specifically object at trial to
their qualifications, Defendant waived the right to raise
this issue on appeal.

Moreover, even if Defendant had properly preserved his
challenge to the testimony, we find that Mr. Averitt and
Ms. Joyner were qualified to render their opinions as to
the nature of Jakob’s injuries and the possibility that
they were caused by falling out of a toddler bed that they
themselves examined. By virtue of their emergency medical
training and experience, both were equipped with
“scientific, technical, or other specialized knowledge”
that would “assist the trier of fact to understand the
evidence or to determine a fact in issue.” N.C. Gen. Stat.
§ 8C-1, Rule 702 (2005). The questions and answers
related specifically to their area of expertise and
qualifications. Cf. State v. Shuford, 337 N.C. 641, 649-50,
447 S.E.2d 742, 747 (1994) (requiring defendant to make
some showing of qualifications of emergency medical
technician as either an expert or lay witness before he
could testify as to the distance from which victim was

Accordingly, this assignment of error is overruled.


Sixth, Defendant argues that the trial court committed
plain error by admitting testimony that Ms. Perkins
screamed at Defendant when the two were placed near each
other after their arrests.[fn3] We find this argument to be
without merit.

Ms. Perkins testified as to her emotional outburst at the
police station, stating that she had screamed, “Why did you
do this? Why did you do this to me? Why did you do this to
my son? Why did you do this to my family?” In light of the
other substantial evidence offered by the State, the
admission of this testimony by Ms. Perkins did not rise to
the level of plain error, such that it “tilted the scales”
and convinced the jury to convict Defendant. See Cummings,
352 N.C. at 636, 536 S.E.2d at 61. Moreover, in light of
the defense theories at trial that either Ms. Perkins
inflicted Jakob’s injuries, or they were accidental, this
evidence was probative to refute those suggestions. Given
that “[e]vidence which is probative of the State’s case
necessarily will have a prejudicial effect upon the
defendant; the question is one of degree,” Coffey, 326 N.C.
at 281, 389 S.E.2d at 56, and the obviously heightened
emotional state of Ms. Perkins when she had the outburst,
the degree of prejudice here was not sufficient to
substantially outweigh the probative value of the evidence
in question. Accordingly, we overrule this assignment of

In sum, we uphold Defendant’s conviction for second-degree
murder in the death of Jakob Waddington.

No error.

Judges McGEE and McCULLOUGH concur.

[fn1] State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36,
61 (2000) (citation and quotation omitted), cert. denied,
532 U.S. 997, 149 L. Ed. 2d 641 (2001).

[fn2] We note that, at trial, Defendant’s counsel told the
trial court that he did not believe the testimony was Rule
404(b) evidence of other crimes, wrongs, or acts, but was
instead Rule 404(a) evidence of Defendant’s having “a
character trait of being cold-hearted and callous,” being
used to show that Defendant acted in conformity with that
character on the particular occasion of Jakob’s death.
However, Defendant’s brief to this Court cites to Rule
404(b) as the basis for disallowing the evidence. Because
the assignment of error references only Rule 404, without
specifying which section, we address the merits of
Defendant’s argument and do not find that he has attempted
to “swap horses” on appeal. See Weil v. Herring, 207 N.C.
6, 10, 175 S.E. 836, 838 (1934); see also N.C. R. App. P.
10(a) (“[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the
record on appeal.)”. Nevertheless, we deem his argument as
to Rule 404(a) to be abandoned since none was presented in
his brief.

[fn3] We note that here again, Defendant misstated in his
brief the appropriate standard of review for this
assignment of error; as noted in his brief, defense counsel
objected to this testimony at trial, such that trial
court’s overruling the objection was preserved for
appellate review under an abuse of discretion standard.
Nevertheless, under either standard, we find no error in
the trial court’s admission of this testimony.