Opinion
No. 07-157.
Filed February 5, 2008.
Henderson County, Nos. 05 CRS 51899, 05 CRS 51900.
Appeal by defendant from judgments entered 3 August 2006 by Judge J. Marlene Hyatt in Henderson County Superior Court. Heard in the Court of Appeals 10 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State. Michael J. Reece, for defendant-appellant.
Clarence William Poley (also known as "Uncle Clarence" or "defendant") appeals from judgments entered upon a jury verdict finding him guilty of two counts of indecent liberties with a child. We find no error.
The State presented the following pertinent evidence: Defendant rubbed nine-year-old H.M.'s vagina on top of her clothes while she sat in his lap at her Granny's house. According to H.M.'s testimony, this was not an isolated incident. Defendant rubbed H.M. in the same way on previous occasions. On one occasion, defendant picked her up while she slept in her aunt's room and carried her in his arms while walking to his brother's bus. She was awakened while he carried her and discovered defendant was rubbing her vagina in the same manner as he had when she was in his lap. After these incidents occurred, defendant told her not to tell her mother, but H.M. did, in fact, tell her mother. In addition, H.M. told a school counselor and a detective.
H.M.'s two sisters, J.M., age 11 and B.R., age 14, and her brother, A.M., age 7, occasionally walked to their Granny's house together. J.M. testified that her Uncle Clarence touched her in a "bad way" when she was in the living room at her Granny's house. J.M. formerly lived with her parents and siblings in a residence near their grandmother's residence, with whom defendant lived. While defendant sat in a recliner, defendant touched her front over the top of her clothes. Defendant rubbed back and forth when he touched her. On the same day, she saw defendant touch her sister, H.M., on her front, below her waist, while he sat in his recliner. On another occasion, defendant touched J.M. when she and her siblings played in a car. Defendant put his hand inside the front of her pants, and rubbed her.
Mark Chapman ("Chapman"), a Child Protective Services Investigator with the Avery County Department of Social Services, interviewed both H.M. and J.M. after their school counselor reported their situation to Henderson County Department of Social Services. At the time Chapman interviewed H.M., she was seven years old. H.M. told Chapman that defendant would touch her when she went to sleep in defendant's lap. She said that one time she faked being asleep and "he done it." H.M. indicated on a diagram of an unclothed child where defendant had touched her. Chapman also interviewed J.M., who was nine years old at the time of the interview. She told Chapman that defendant had touched her in the "wrong places," explaining that he touched her "down in front" and then "[h]e stuck his hand down behind." She identified the location of the touching on the diagram. She told Chapman that she was sitting on defendant's lap when he touched her. She also told him that she saw defendant touch H.M. "[i]n front on her privates and on her butt." In a third diagram, J.M. identified the place where defendant had touched H.M.
B.R. testified that she was fourteen years old and was the half-sister of H.M., J.M., and A.M. When she was five or six years old, she lived with her mother and defendant touched her on a couple occasions. On two separate occasions, defendant pulled B.R.'s underwear to the side and rubbed her vagina with his fingers. Detective Carol Coss ("Detective Coss") testified that she was a sergeant in the youth enforcement/child abuse unit at the Henderson County Sheriff's Department and that in 1997, she received a report of an investigation involving abuse of B.R. Detective Coss interviewed B.R., who was then five years old, and B.R. said that defendant "put his finger in my privates" while they were in the backyard of his grandmother's home.
Detective Coss testified that she and SBI Agent Steve Miller interviewed defendant on 18 September 1997. Defendant told them that his sexual problems began when he was approximately nine years old. At that time, an older family member taught him how to have intercourse and other sexual activities. He admitted that he was occasionally aroused by children who were around the age of nine. He said he was wrong to have touched B.R.'s vagina. He said that he rubbed her vagina three times and that she had exposed herself to him and asked him to do it. Defendant denied any digital penetration. However, during an earlier interview on 26 August 1997, defendant said that he may have digitally penetrated B.R. but could not remember.
Detective Scott Justus ("Detective Justus") of the Henderson County Sheriff's Department testified that he interviewed defendant on 2 August 2004 and 20 October 2004 regarding the abuse of H.M. and J.M. During the first interview, defendant denied touching either H.M. or J.M. However, on 20 October 2004, when SBI Agent Chris Smith ("Agent Smith") also interviewed defendant, his story changed. He told Agent Smith that he had touched H.M. between her legs over her clothing when she was sitting on his lap, but he denied that he had ever touched J.M. although she sat on his lap on several occasions. Defendant had not tried to show J.M. any of his private parts.
Carolina Vence ("Ms. Vence"), defendant's probation officer, testified to the terms of defendant's probation and that defendant had violated his probation. Specifically, Ms. Vence testified that on 11 May 1998, defendant was convicted of assault on a child under 12 and placed on probation. According to defendant's probation order, he was prohibited from having contact with minor children. In addition, he was subject to the standard conditions for sex offenders. These conditions included his probation officer's approval of his residence and work and more importantly, he was prohibited from being alone with a minor child under the age of eighteen unless approved by his probation officer.
Aside from Ms. Vence's testimony, the trial court admitted documents regarding defendant's probation, which included multiple orders showing that defendant's probation had been modified. Each order was titled "Order on Violation of Probation or on Motion to Modify." The trial court also admitted a document titled "Special Conditions of Supervised Probation for Child Sexual Offender Cases." Defendant objected to the admission of these documents, arguing they were prejudicial. After hearing defendant's argument, the court excluded defendant's plea agreement and release order, but admitted the documents relating to defendant's probation. The trial court denied defendant's motion to dismiss at the close of all the evidence.
On 31 July 2006, following a jury verdict of guilty on all counts, defendant received consecutive sentences of a minimum term of 19 months and a maximum term of 23 months in the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant contends that the trial court violated Rules 404(b) and 403 of the North Carolina Rules of Evidence by admitting evidence of defendant's prior probationary sentence. We disagree.
I. Rule 404(b)
Rule 404(b) provides:
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) (2006).
"[A]s a careful reading of Rule 404(b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused." State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986) (citation omitted). "`Relevant evidence' means evidence having 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. Gen. Stat. 8C-1, Rule 401 (2006) (emphasis supplied). Our Supreme Court has held:
Recent cases decided by this Court under Rule 404(b) state 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). Here, defendant argues that Rule 404(b) required the trial court to exclude the evidence that defendant was on probation and the terms of defendant's probation. Defendant challenges the admissibility of this evidence on the ground that its only relevance was its tendency to show that defendant was a bad person and that he had a propensity to molest children. He also challenges the relevancy of the evidence because he believes the fact he was on probation is not sufficiently similar to the charges in the present case to be relevant as evidence to show motive, intent, identity, opportunity, or any other basis for admission of the evidence.
During defendant's probationary period, he was prohibited from unsupervised contact with a minor child under the age of eighteen unless approved by his probation officer. Defendant testified that the children were often at his mother's house when he went home for lunch and in the afternoon when he returned home from work. Although the evidence shows that defendant had regular contact with the children during his five-year probation period, there were no allegations that he touched them in a sexual manner until after his probation period terminated and he was no longer receiving sex offender specific treatment. Defendant's probationary period ended in May of 2003. The incidents supporting the charges began on 1 June 2003, less than one month after termination of defendant's treatment at a mental health facility, and when he was no longer in danger of having his probation revoked. Thus, defendant's testimony concerning the frequency and nature of his contact with the children during his probationary period demonstrates that defendant had the opportunity to sexually abuse the children.
Furthermore, the testimony that defendant did not touch the children in a sexual manner until after defendant's probationary period ended shows that defendant did not accidentally rub the children's vaginal area and that defendant had the intent to touch the children in a sexual manner. Therefore, the evidence concerning defendant's probation is relevant to show opportunity and intent and has more probative value than merely showing defendant's propensity to molest children. The trial court properly admitted this evidence.
II. Rule 403
Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2006).
Defendant argues that the probative value of evidence concerning defendant's probationary terms and documents was substantially outweighed by the danger of unfair prejudice it created, and that the trial court was required to exclude it under Rule 403 of the North Carolina Rules of Evidence. The decision "to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court." State v. Cotton, 318 N.C. 663, 668, 351 S.E.2d 277, 280 (1987). After hearing defendant's arguments, the trial court exercised its discretion and admitted evidence of defendant's probation as well as documents regarding defendant's probation. "[E]vidence which is probative in the State's case will have a prejudicial effect on the defendant; the question, then, is one of degree." State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986). While the evidence regarding defendant's probation may have been prejudicial to defendant, the evidence did not substantially outweigh any probative value due to unfair prejudice to defendant. We conclude the trial court did not abuse its discretion under Rule 403 by admitting evidence regarding defendant's probation. This assignment of error is overruled. Since we have determined the trial court properly admitted the evidence regarding defendant's probation, we need not address defendant's remaining arguments concerning the fact that there exists a reasonable probability that a different outcome would have occurred had this evidence not been admitted.
No error.
Judges McCULLOUGH and STEPHENS concur.
Report per Rule 30(e).