An unpublished opinion of the North Carolina Court of Appeals does not constitute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, No s . 14 CRS 50038

- 39 STATE OF NORTH CAROLINA

v. JEMOND S. DICKENS
Appeal by defendant from judgment s entered 30 July 2014 by Judge Marvin
K. Blount , II I 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 Stat e. 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 inflicti ng serious inj ury (“AWDWIKISI”) , first

- degr ee 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 objection s to witness testimony aboutS TATE V

. D ICKENS Opinion of the Court

- 2

- 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:
O n 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

accom panied them for “ protection , ” bringing his 12

- gauge shotgun with him

. W hile Defendant and Staton waited in the car , El

- Amin entered Beacom’s
house , and at some point Beacom and El

- Amin began “mess ing around

. ” S hortly
thereafter , Defendant and Staton entered the house , and Defendant hit Beacom o n the head with his shotgun. Defendant ordered Staton t o 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 weddin g 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.S TATE V

. D ICKENS Opinion of the Court

- 3

- After the assailants left, Beacom retrieved a knife from his kitchen , freed his
hands , and called 91 1. 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 fin ger, which was caused by Staton’s
removal of his wedding ri ng. 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 arr ived at Bell’s house and upon entering the residence noticed a sawed

off 12

- gauge shotgun in a chair next to the door

. Offi cer 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 da ngerous
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 sentenc ed to consecutive sentences of 87

- 117 m onths for first

- degree burglary ,

1 Bell testified that Defendant had previously cut a hole in the box spring to allow h im to hide under the mattress.S TATE V

. D ICKENS Opinion of the Court

- 4

- 100

- 132 months for AWDWIKISI , 100

- 132 months for first

- degree kidna pping, and
87

- 117 months for robbery with a dangerous weapon. Defendant gave notice of appeal in open court

. Analysi s 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 object ions 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 d efendant 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 th e 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 t o the following testimony of Bell:

Q : Now, had you and [Defendant] had domestic issues in the past?
A: Yes. [DEFENSE COUNSEL]: Objection. Relevance.S TATE V

. D ICKENS Opinion of the Court

- 5

- 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 i t 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 agitat ed, 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.S TATE V

. D ICKENS Opinion of the Court

- 6

- Furthermore , we note that during its preliminary instructions to the jury , the
trial court i nstructed 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 b een 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. Judge s STROUD and INMAN concur.S TATE V

. D ICKENS Opinion of the Court

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- Report per Rule 30(e).