STATE OF NORTH CAROLINA v. SHENANDOAH FREEMAN

The evidence at trial tended to show the following:

Defendant and Amber Gottschalk (“Ms. Gottschalk”) met in February of 2014

when Defendant hired Ms. Gottschalk as a prostitute. From then until May of 2014,

Defendant and Ms. Gottschalk continued in an illicit intimate relationship, with

Defendant acting as both a pimp and protection for Ms. Gottschalk. In exchange,

Defendant collected forty percent of Ms. Gottschalk’s earnings from third parties for

her services.

In May of 2014, the relationship between Defendant and Ms. Gottschalk

soured as the result of a violent altercation (hereinafter the “May Incident”). A few

days before 8 May 2014, Ms. Gottschalk called Defendant to get cocaine while she

was staying at a motel. Following the call, Defendant entered Ms. Gottschalk’s motel

room with another man, placed a gun to her head, and then beat her with the gun.

Afterwards, Defendant and his accomplice zip-tied Ms. Gottschalk’s hands, wrapped

her in a blanket, and took her to Defendant’s apartment. A few days later, Ms.

Gottschalk went to a nearby hotel and called the Durham City Police Department.

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When the police arrived, Ms. Gottschalk informed them of what transpired between

her and Defendant. The police searched Ms. Gottschalk’s motel room, found heroin

and drug paraphernalia, and arrested her. Charges were also brought against

Defendant but were later dismissed.

Following Ms. Gottschalk’s arrest, Defendant posted bail for her release from

jail. Ms. Gottschalk continued to work as an escort but, due to her fear stemming

from the May Incident, gave Defendant all of her earnings. Ms. Gottschalk

eventually fled Defendant in June of 2014 as a result of this fear, depriving him of

her income.

Ms. Gottschalk and Defendant next came into contact with each other on 16

July 2014, and the encounter once again devolved into violence against Ms.

Gottschalk. On that date, Ms. Gottschalk was waiting at an Exxon to buy heroin

from a man named Kenneth Peaks (“Peaks”). After Peaks picked her up in a car, the

two drove to a motel in Durham so he could sell her the drugs. When they arrived at

their destination, Ms. Gottschalk noticed that Defendant was at the motel. Ms.

Gottschalk informed Peaks that Defendant was the individual who had assaulted her

two months earlier in the May Incident. Peaks made sure that Gottschalk felt alright

staying in the car by herself, and then exited his car to go inside the motel. While

Peaks was inside, Defendant approached Ms. Gottschalk and ordered her out of the

car. She refused, and Defendant shot her six times.

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Defendant was arrested following the shooting and indicted for: (1) assault

with a deadly weapon with intent to kill inflicting serious injury; (2) attempted first

degree murder; (3) discharge of a firearm into an occupied conveyance causing serious

bodily injury; (4) possession of a firearm by a felon; and (5) having attained habitual

felon status.

Defendant filed motions in limine seeking to exclude any evidence of the May

Incident pursuant to Rules 403 and 404 of the North Carolina Rules of Evidence. The

trial court denied the motions, ruling that the evidence of the prior bad acts was

admissible for the limited purpose of proving identity, motive, and intent to commit

the alleged crimes. At trial, the court gave the jury a limiting instruction concerning

evidence of the May Incident consistent with this ruling.

The jury returned a guilty verdict on all of the underlying felony charges. The

State then informed the court that it would voluntarily dismiss the charge that

Defendant had attained habitual felon status. At sentencing, the court found eight

prior record points and stated that it “acknowledge[d] that the State . . . has chosen

not to pursue the Defendant as a habitual felon and has taken that into consideration

in fashioning this judgment and, as such, has chose[n] not to make specific findings

of fact as [to] aggravation or mitigation . . . .” The trial court sentenced Defendant to

an active prison term of a minimum of 207 and a maximum of 261 months, within

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the presumptive range as calculated by the class of felony and prior record points.

Defendant gave oral notice of appeal.

II. Analysis

On appeal, Defendant first contends that the trial court committed prejudicial

error in allowing evidence of the May Incident, arguing that the prior acts were not

suitably similar to the alleged crimes to be admissible pursuant to Rule 404(b) and

that the evidence should be excluded pursuant to Rule 403 because it was not

sufficiently probative to outweigh the danger of unfair prejudice. We disagree.

We apply two different standards of review to rulings under Rules 404(b) and

403. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). “We review

de novo the legal conclusion that 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.” Id. at 130, 726 S.E.2d at 159. When reviewing an issue de

novo, the Court considers the matter anew and may freely substitute its own

judgment for that of the trial court. N.C. Dep’t of Envtl. & Nat. Res. v. Carroll, 358

N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

Evidence of a criminal defendant’s prior bad 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

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accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2015). “ ‘Rule 404(b) is a rule of

inclusion, subject to the single exception that such evidence must be excluded if

its only probative value is to show that [a] defendant has the propensity or disposition

to commit an offense of the nature of the crime charged.’ ” State v. Corum, 176 N.C.

App. 150, 156, 625 S.E.2d 889, 893 (2006) (quoting State v. Berry, 356 N.C. 490, 505,

573 S.E.2d 132, 143 (2002)). In order for evidence to be admissible under the Rule,

it “must be offered for a proper purpose, must be relevant, must have probative value

that is not substantially outweighed by the danger of unfair prejudice to the

defendant, and, if requested, must be coupled with a limiting instruction.” State v.

Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991).

Because of the dangerous tendency of evidence of prior bad acts to mislead and

raise a legally spurious presumption of guilt, “its admissibility should be subjected to

strict scrutiny by the courts.” State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d

120, 122 (2002) (citations omitted). However, “the burden is on the defendant to show

that there was no proper purpose for which the evidence could be admitted.” State v.

Willis, 136 N.C. App. 820, 823, 526 S.E.2d 191, 193 (2000) (citation omitted; emphasis

added).

The trial court here allowed evidence of the May Incident to show, in part,

Defendant’s motive to commit the alleged crimes related to the shooting. While

Defendant contends that the facts of the May Incident and the shooting are too

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dissimilar to support the admissibility of the former, “[w]hen determining the

relevancy of other crimes evidence offered to prove defendant’s motive, the degree of

similarity between uncharged and charged crimes is considerably less important than

when such evidence is offered to prove identity.” Haskins, 104 N.C. App. at 682, 411

S.E.2d at 382 (citation omitted). The more critical inquiry is whether “the other

crimes evidence reveal some motive for the commitment of the crime charged.” Id. at

682, 411 S.E.2d at 382. Motive is thus revealed if the prior act “pertain[s] to the chain

of events explaining the context, motive and set-up of the crime and form[s] an

integral and natural part of an account of the crime . . . necessary to complete the

story of the crime for the jury.” Willis, 136 N.C. App. at 823, 526 S.E.2d at 193

(internal quotation marks and citations omitted).

Recognizing the dissimilarities between the May Incident and the shooting, we

nevertheless hold that, given their lower importance in this context, Haskins at 682,

411 S.E.2d at 382, the similarities between the two incidents are sufficient to show

motive: (1) the alleged victim and perpetrator in both events are identical; (2) the May

Incident and the shooting each occurred at area motels and adjacent parking lots in

the course of illegal drug activity; and (3) Ms. Gottschalk was assaulted with a silver

pistol in both instances. Evidence of the May Incident also tends to show why Ms.

Gottschalk feared Defendant, causing her to flee from him and deprive him of her

income. Defendant’s loss of all income from Ms. Gottschalk’s escort service for two

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months tended to prove a motive for Defendant to shoot Ms. Gottschalk. Evidence of

the events involving Defendant and Ms. Gottschalk preceding the July shooting

provided the jury with a more complete picture of their relationship and Defendant’s

motive to commit the alleged crimes. See, e.g., State v. Lloyd, 354 N.C. 76, 90, 552

S.E.2d 596, 609 (2001) (holding evidence of a prior assault by defendant of victim in

a murder case was relevant to show motive under Rule 404(b)); State v. Petrick, 186

N.C. App. 597, 604, 652 S.E.2d 688, 693 (2007) (holding evidence of prior acts of

domestic violence against murder victim by defendant was admissible under Rule

404(b) to show motive). In short, “[o]mission of [the May Incident] evidence would

have given the jury an incomplete understanding of the circumstances and

connections among the players that led to [Ms. Gottschalk’s attempted] murder[,]”

and therefore fell within the scope of Rule 404(b). State v. Hope, 189 N.C. App. 309,

315, 657 S.E.2d 909, 912 (2008).

This same analysis defeats Defendant’s argument that the trial court erred in

overruling an objection based on the risk of unfair prejudice resulting from the

evidence. The significance and high probative value of the May Incident in showing

Defendant’s motive to shoot Ms. Gottschalk, the appropriate limiting instruction

given to the jury about said evidence, and the findings of fact and conclusions of law

in the trial court’s order denying Defendant’s motion in limine all demonstrate that

the court engaged in the proper balancing of probative value against unfair prejudice.

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We hold that the trial court did not abuse its discretion in declining to exclude the

evidence under Rule 403. See, e.g., State v. Miller, 197 N.C. App. 78, 676 S.E.2d 546

(2009) (finding no abuse of discretion in admitting evidence over defendant’s Rule 403

objection where an appropriate limiting instruction was given to the jury).

Defendant’s arguments that the evidence of the May Incident was not admissible

pursuant to Rules 404(b) and 403 are overruled.1

Defendant next argues that the trial court erred at sentencing in considering

the State’s decision to abandon habitual felon status as part of its judgment. We

disagree.

We review assignments of error contending the trial court considered improper

factors at sentencing de novo. State v. Person, 187 N.C. App. 512, 525-28, 653 S.E.2d

512, 569 (2007), rev’d on separate grounds, 362 N.C. 340, 663 S.E.2d 311 (2008); State

v. Gantt, 161 N.C. App. 265, 271-273, 588 S.E.2d 893, 897 (2008). A sentence that

falls within the statutory limits is “presumed regular,” though such a presumption is

not conclusive. State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). “[I]f

the judge by his own pronouncement shows clearly that he imposed [the] sentence for

a cause not embraced within the indictment and the plea, then the presumption of

1 Defendant also argues that the evidence was inadmissible to show identity and intent under Rule 404(b). Even if Defendant is correct as to these grounds, he cannot show prejudice in light of our holding as to motive: “[W]here at least one of the [other] purposes for which the prior act evidence was admitted was [proper,] there is no prejudicial error.” State v. Morgan, 359 N.C. 131, 158, 604 S.E.2d 886, 903 (2004) (internal quotation marks and citation omitted).

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regularity is overcome, and his sentence is in violation of the defendant’s rights.”

State v. Swinney, 271 N.C. 130, 133, 155 S.E.2d 545, 548 (1967). However, judges are

“permitted wide latitude in arriving at the truth and broad discretion in making

judgment.” State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).

In sentencing a defendant with prior felony convictions, “there are two

independent avenues by which a defendant’s sentence may be increased based on the

existence of prior convictions.” State v. Bethea, 122 N.C. App. 623, 626, 471 S.E.2d

430, 432 (1996). These convictions “will either serve to establish a defendant’s status

as an habitual felon . . . or to increase a defendant’s prior record level . . . .” Id. at

626, 471 S.E.2d at 432. The convictions may not be used to do both, however. Id. at

626, 471 S.E.2d at 432; see also N.C. Gen. Stat. § 14-7.6 (2015).

In the present case, the trial judge made the following statements in rendering

his sentence:

The Defendant has been found guilty by this jury of violations, the most serious of which is a Class B2 felony and will be sentenced as such. The Court has reviewed the Defendant’s prior record and finds eight (8) prior record level points . . . . He’s a level record three and will be sentenced as a Level III violator.



The Court has considered the evidence and mitigation that has been offered by Counsel for the Defendant . . . . The Court acknowledges that the State of North Carolina has chosen not to pursue the Defendant as a habitual felon and has taken that into consideration in fashioning this judgment and, as such, has chose[n] not to make specific findings of fact as [to] aggravation or mitigation; thus, the

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term to be imposed is within the presumptive range of sentences authorized by North Carolina law and in consideration of the mitigation that has been offered.



Taking the above in its complete context and in light of the presumption that

sentences within the presumptive range are proper, we construe the trial judge’s

statement as a simple recognition that the State had declined to pursue its habitual

felon indictment and, therefore, Defendant’s prior convictions were applicable to

calculate his prior record level and combined with the offense class to determine the

sentence imposed within the presumptive range defined by statute. The decisions

cited by Defendant in support of his argument, State v. Chatman, 308 N.C. 169, 301

S.E.2d 71 (1983) and State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983), are

inapposite, as both of those cases involved sentences in the aggravated range. Here,

by contrast, the trial court arrived at a sentence within the presumptive range using

factors expressly considered by the General Assembly, including prior offenses that

established Defendant’s prior record level as a result of the State’s decision not to

pursue habitual felon status. It was not error for the trial court to consider these

prior offenses in arriving at its sentence within the presumptive range. See, e.g.,

State v. Oakes, 219 N.C. App. 490, 497-98, 724 S.E.2d 132, 137 (2012) (“[D]efendant

cites no authority—and we know of none—suggesting that a trial court may not take

into account . . . the defendant’s criminal record in deciding where within a

presumptive range a defendant’s sentence should fall.”).

For the foregoing reasons, we hold that the trial court did not err in admitting evidence of Defendant’s prior assault, and that the trial court’s imposition of a sentence within the presumptive range was proper and valid.