Opinion
No. COA09-1166
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgment entered 30 March 2009 by Judge Beverly T. Beal in Gaston County Superior Court. Heard in the Court of Appeals 24 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State. Richard E. Jester for defendant-appellant.
Gaston County No. 07 CRS 60042, 60064-67.
Defendant John Bradley Granger was indicted on four counts of statutory sexual offense under N.C. Gen. Stat § 14-27.7A, one count of first-degree sexual offense with a child under the age of thirteen years under N.C. Gen. Stat § 14-27.4, and one count of incest. At the 23 March 2009 criminal session of the Gaston County Superior Court, the trial court allowed defendant's motion to dismiss the incest charge and the jury found defendant guilty of the remaining charges. The trial court consolidated the charges and sentenced defendant to 269 to 332 months imprisonment. Defendant appeals. As discussed herein, we find no error.
Facts
The evidence tended to show the following. Defendant was the uncle by marriage of J., the child victim in this case. J. lived with her father and sister next to the trailer where defendant resided with his wife, J.'s aunt. J. testified that in March 2005, shortly after her twelfth birthday, defendant was in her home visiting her father. After J.'s father went to bed, defendant and J. played video games for awhile, and then defendant touched J.'s breasts, put his finger in her vagina and had sexual intercourse with her. In 2006, after defendant and his wife lost their young son, defendant told J. his wife had lost interest in sex and J. could help him. Defendant and J. began having sex two or three times a week in both defendant's and J.'s trailers. J. eventually told her sister about the relationship with defendant. Later, another uncle learned of the relationship and told J.'s father, who confronted defendant. Defendant admitted the sexual contact and apologized to J.'s father. J.'s older sister testified that J. had told her about the incidents with defendant and that, on one occasion, defendant had sex with both J. and her then fourteen-or fifteen-year-old sister at the same time. At trial, defendant denied having any sexual contact with J. or her sister.
Defendant made ten assignments of error, five of which he brings forward in four arguments to this Court. Defendant contends the trial court abused its discretion in (I) allowing certain Rule 404(b) evidence and (II) limiting defendant's evidence at trial; and erred in denying (III) his motions to dismiss and (IV) his request to join all charges on the calendar for trial. As discussed below, we find no error.
I
Defendant first argues the trial court abused its discretion in allowing Rule 404(b) evidence about an incident for which he could have been charged but was not. We disagree.
This Court reviews a trial court's decision to admit evidence under Rule 404(b) only for abuse of discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907, appeal dismissed and disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006). "An abuse of discretion occurs when a trial judge's ruling is `manifestly unsupported by reason.'" Id. (citation and quotation marks omitted).
Rule 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) (2009). We have held that 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 charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original). Admission of evidence under Rule 404(b) is only "constrained by the requirements of similarity and temporal proximity." State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
Under Rule 403, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." N.C.G.S. § 8C-1, Rule 403 (2009). The trial court's decision to admit the evidence pursuant to Rule 403 is also reviewed for an abuse of discretion. Summers, 177 N.C. App. at 697, 629 S.E.2d at 907.
The trial court allowed J. and her sister to testify about a 2006 incident in which defendant had sex with both of them at the same time. This incident occurred after defendant had begun his sexual relationship with J. Defendant was not charged with any offense in connection with the incident. The trial court allowed the evidence under Rule 404(b) to show opportunity, intent, plan and knowledge. Defendant first contends that the incident involving J. and her sister was not sufficiently similar to the sexual encounters for which he was charged because the incidents for which he was charged involved J. alone, while the 2006 incident involved both J. and her sister. We disagree. In both the incident involving J. and her sister and those involving J. alone, the evidence tended to show defendant engaged in sexual intercourse with his under-aged nieces, in the trailers where they lived, while defendant's wife was at work and the girls' father was asleep. The incident involving J. and her sister took place during the time defendant was engaged in an on-going sexual relationship with J. The incident involving J. and her sister was sufficiently similar and temporally proximate to the sexual encounters for which defendant was charged for admission under Rule 404(b).
Defendant also contends that the trial court should not have allowed the Rule 404(b) evidence because "[i]t is fundamentally unfair to allow the State to claim that the cases are not joinable, and then turn around and claim that they are so similar as to fall under the scope of Rule 404(b)." Defendant did not assign error on this basis and fails to cite any authority for this assertion. The trial court did not abuse its discretion in admitting the evidence. Defendant's assignment of error is overruled.
II
Defendant next argues the trial court erred in refusing to allow him to present certain evidence. We disagree.
Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 401 (2009). A trial court's ruling on relevancy is "technically . . . not discretionary and therefore [is] not reviewed under the abuse of discretion standard." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), appeal dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992). However, such determinations "are given great deference on appeal." Id. We review the trial court's decision under Rule 403 to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice for an abuse of discretion. Summers, 177 N.C. App. at 697, 629 S.E.2d at 907.
Defendant's theory of the case was that he had never had sex with J., who was lying about what happened due to the controlling relationship J.'s father had with her. Defense counsel questioned defendant's mother about the allegedly troubled relationship between J. and her father. The trial court allowed evidence of what defendant described as a controlling relationship between father and daughter. Defendant then asked his mother whether J.'s father had ever allowed her to smoke marijuana and the State objected; the trial court sustained this objection. Neither the State nor the trial court specified the basis for the objection, and defendant did not request clarification of the ruling. Defendant contends this question was relevant and should have been allowed. Assuming arguendo that the objection was sustained based on relevance, we see no abuse of discretion. A trial court must not only consider whether evidence is relevant, but also whether its probative value is substantially outweighed by its prejudicial value. Id. Testimony showing drug use by the alleged victim would clearly be prejudicial to the victim's character. Even if defendant is correct that the evidence from his mother would have been relevant, he makes no argument and we do not find that the trial court's balancing of relevancy versus prejudicial value constituted an abuse of discretion. This assignment of error is overruled.
III
Defendant also argues the trial court erred in denying his motions to dismiss and failing to set aside the verdicts. We do not agree.
In reviewing the trial court's denial of defendant's motion to dismiss, this Court
must evaluate the evidence in the light most favorable to the State. All contradictions must be resolved in favor of the State. The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. As long as the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt.
State v. Myers, 181 N.C. App. 310, 313, 639 S.E.2d 1, 3 (2007) (citations and quotation marks omitted). A motion to set aside a verdict is addressed to the sound discretion of the trial court. State v. Everette, 361 N.C. 646, 651-52, 652 S.E.2d 241, 245 (2007).
Defendant was indicted and convicted on one count of sexual offense under N.C. Gen. Stat. § 14-27.4 and four counts of sexual offense under N.C. Gen. Stat. § 14-27.7A. He first contends the evidence showed only that he had vaginal intercourse with J. during June and July 2006, an act which does not qualify as a sexual offense under section 14-27.4. Section 14-27.4 provides, in pertinent part:
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim
N.C.G.S. § 14-27.4 (2009). Our General Statutes define a sexual act as
cunnilingus, fellatio, analingus, or anal intercourse, but . . . not . . . vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.
N.C. Gen. Stat. § 14-27.1(4) (2009).
We note that indictment 07 CRS 060042 for the single charge of first-degree sexual offense under section 14-27.4 lists the date of offense as "3/1/05 — 3/31/2005," not June or July 2006. Our review of the transcript reveals that J. testified that in March 2005, when she was twelve years old, defendant "fingered" her "in [her] vagina." [T110-11]. In the light most favorable to the State, this evidence was sufficient to support an inference that defendant committed a first-degree sexual offense under section 14-27.4 in March 2005.
As to defendant's contentions regarding the events of June and July 2006, defendant acknowledges in his brief that J. testified to sexual intercourse occurring between himself and J. The indictments in file numbers 07 CRS 060066-67 which list June and July 2006 as the dates of the offenses are for sexual offenses under section 14-27.7A. Section 14-27.7A states:
(a) A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse or a sexual act with another person who is 13, 14, or 15 years old and the defendant is at least six years older than the person, except when the defendant is lawfully married to the person.
N.C.G.S. § 14-27.7A (2009) (emphasis added). Defendant's argument on this point appears to be based on a misreading of the indictments under which he was charged.
Defendant also argues the trial abused its discretion in denying his motion to set aside the verdicts. Defendant reargues the weight of the evidence and J.'s credibility and contends that "the verdict of the jury was more than contrary to the weight of the evidence, it completely ignored the most reliable evidence presented in the case." "Any discrepancies and inconsistencies in the evidence, and matters of credibility, are to be resolved by the jury." State v. Workman, 309 N.C. 594, 601, 308 S.E.2d 264, 268 (1983). Here, as discussed above, the jury verdicts were consistent with the introduction of substantial evidence regarding each element of the offenses charged and with defendant being the perpetrator of the offenses. Defendant fails to show an abuse of discretion by the trial court. These assignments of error are overruled.
IV
In his final argument, defendant discusses whether the charges in this appeal should have been joined with possible sexual offense charges involving J.'s sister. However, defendant concedes that he has no grounds for appellate relief on this point because no judgment was entered regarding the offenses against J.'s sister. This assignment of error has no merit.
No error.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).