Opinion
No. COA09-267.
Filed February 16, 2010.
Wake County Nos. 08CRS000685-86, 08CRS016982.
Appeal by Defendant from judgments entered 14 November 2008 by Judge Paul G. Gessner, in Superior Court, Wake County. Heard in the Court of Appeals 3 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.
Reita P. Pendry, for Defendant-Appellant.
Before extrinsic evidence of a prior bad act is admissible under Rule 404(b), a trial court must determine that it is relevant under Rule 403; that determination is based on whether there is sufficient evidence that the defendant in fact committed the prior bad acts. Here, Defendant contends that the trial court erred by admitting extrinsic evidence of prior bad acts because there was insufficient evidence that he committed the acts. Because the trial court's determination that Defendant committed the acts was supported by sufficient evidence, we find no error.
State v. Haskins, 104 N.C. App. 675, 679-80, 411 S.E.2d 376, 380 (1991).
The State's evidence tended to show that Defendant, Percy Edward Smith, frequently engaged in sexual acts with his step-grandson D.S. over the course of several years. D.S. testified that he was born on 22 September 1994. In June 2007, foster care worker, Katie Treadway, spoke to Defendant's grandchildren while investigating allegations of abuse. During an interview with Treadway, D.S.'s sister L.A. described several occasions on which Defendant exhibited inappropriate sexual behavior toward her.
Initially, D.S. denied any occurrence of sexual abuse. As a result of further investigation, however, the Defendant's grandchildren were placed in foster care on or about 27 June 2007. Over the course of several therapy sessions, D.S. revealed that Defendant had engaged him in sexual contact.
At trial, D.S. testified that Defendant first began forcing him to engage in sexual acts when he was in the third grade. At night, Defendant would call D.S. to his room and order him to undress. Once D.S. was undressed, Defendant would rub his penis against D.S. until Defendant ejaculated. D.S. described how he could smell liquor on Defendant's breath during these incidents. Defendant would tell D.S. not to tell anyone, clean him up, and send the minor back to his own room. D.S. explained that he did what Defendant told him to do because he was afraid. D.S. also explained that on several occasions Defendant attempted to penetrate him anally and orally.
The State also introduced evidence regarding two other alleged victims of Defendant's sexual abuse: T.A. and L.A., both granddaughters of Defendant. This evidence was the subject of a pretrial motion by the State, and admitted by the trial court after a hearing pursuant to Rule 404(b) and Rule 403.
L.A. testified that she was sixteen years old, and in the 10th grade. She lived with her grandparents from age eight. L.A. testified that Defendant had talked to her four times about sex. She stated that Defendant had come into her room at night and touched her vagina and breasts. Treadway and others to whom L.A. had spoken corroborated her testimony.
T.A. testified that she was twenty-two and had two children. She lived with her grandparents since age nine. T.A. testified that from the time she was thirteen, at least once or twice a week, Defendant came into her room and got into bed with her. He would touch her breasts and bottom through her clothes. When T.A. was fifteen she threatened Defendant that she would kill him if he did anything to her again. T.A. eventually moved out of her grandparents' house and got her own place. Her brothers came to her and showed her bruises and marks from Defendant's physical abuse. She did not learn that the children were being sexually abused. T.A. gave up her apartment in September 2006 and moved back in with her grandparents to protect her siblings. Treadway and an officer with the Raleigh Police Department corroborated T.A.'s account.
Defendant was charged by indictment with two counts of taking indecent liberties with a minor child and eight counts of first-degree sex offense. A superseding indictment was filed on 10 November 2008. An information was filed on 10 November 2008, and Defendant consented to being tried on the information. At the close of the evidence, the trial court dismissed four counts of first-degree sex offense. Defendant was convicted by a jury of two counts of taking indecent liberties with a minor, two counts of attempted first-degree sexual offense, and two counts of first-degree sexual offense.
Defendant now appeals his convictions arguing that the trial court erred in (I) denying Defendant's motion to dismiss the charges of first-degree sex offense because there was insufficient evidence to submit the charge to the jury; and (II) granting the State's motion to introduce Rule 404(b) evidence of prior bad acts because the evidence was unreliable and the acts were not proven by a preponderance of the evidence.
I. Motion to Dismiss
"In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (citations omitted).
Defendant argues first that the charge of first-degree sexual offense should not have been submitted to the jury because the State presented no evidence of D.S.'s age regarding the alleged sexual acts that occurred in December 2006 and May 2007.
To obtain a conviction of first-degree sexual offense, the State must show that the defendant engaged in a sexual act with a victim that was under thirteen at the time the offense was committed. N.C. Gen. Stat. § 14-27.4(a)(1) (2007). At trial, D.S. testified that he was born 22 September 1994. In December 2006 and May 2007, D.S. would have met the statutory age requirement of the first-degree sexual offense statute. The State therefore presented substantial evidence that D.S. was under thirteen at the time the sexual offenses were committed.
Defendant next argues that the information on which he was tried impermissibly alleged that he was guilty of first-degree rape. The indictment correctly charges Defendant with eight counts of first-degree sexual offense, citing to the correct statute, N.C. Gen. Stat. § 14-27.4. The information upon which he was tried lists "First Degree Sexual Offense," but incorrectly cites to N.C. Gen. Stat. § 14-27.2, the first-degree rape statute. The information states eight separate times:
I, the undersigned prosecutor, upon information and belief also allege that during the month of [date], . . . the defendant named above unlawfully, willfully, and feloniously did engage in a sexual act with D.S. (9/22/1994), a juvenile who was under the age of 13 years. At the time of the offense, the defendant was at least twelve (12) years old and is at least four (4) years older than the victim. This act was done in violation of North Carolina General Statute § 14-27.2.
Defendant argues that State v. Miller, 159 N.C. App. 608, 583 S.E.2d 620 (2003), requires that the judgment against him be vacated. Id. at 614, 583 S.E.2d at 623 (holding that indictments were fatally defective in part because they cited to the wrong statute). Defendant claims that the instant case presents the same situation as cases in which this Court has vacated convictions on the basis of fatally deficient indictments.
The State replies that N.C. Gen. Stat. § 15A-924(a)(6) provides that an error in a statutory citation for a count of an offense charged is not grounds for dismissal of the charges or for reversal of a conviction. Moreover State v. Meuller, 184 N.C. App. 553, 647 S.E.2d 440, cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007), provides that "although an indictment may cite to the wrong statute, when the body of the indictment is sufficient to properly charge defendant with an offense, the indictment remains valid and the incorrect statutory reference does not constitute a fatal defect." Id. at 574, 674 S.E.2d at 455.
The apparent conflict between Miller and Meuller may be resolved by observing that the indictment in Miller also listed the wrong statutory elements. Miller, 159 N.C. App. at 612, 583 S.E.2d at 622. By contrast, the indictment in Meuller listed the correct statutory elements. Meuller, 184 N.C. App. at 574, 647 S.E.2d at 455. As we observed in Meuller, "the wording of the indictments reveals the statute contemplated by the State in charging defendant was actually section 14-27.4." Id. at 574, 647 S.E.2d at 454. We are not unmindful of the fact that the only difference in wording between N.C. Gen. Stat. § 14-27.2(a)(1) and N.C. Gen. Stat. § 14-27.4(a)(1) is that the former requires "vaginal intercourse," whereas the latter requires "a sexual act." In the present case, the information upon which Defendant was tried lists the elements of N.C. Gen. Stat. § 14-27.4. This is sufficient to bring this case under Meuller. We therefore reject Defendant's argument that the mistake requires reversal of his convictions.
We note also that this case was tried on an information, not on an indictment. According to the State's brief, this was because the 27 October indictment (superceding a previous indictment of 21 June) misstated the dates on which the offenses were alleged to have occurred. The Defendant waived indictment and consented to be tried on the information. Although an information is required to contain everything required of an indictment other than the signature of the foreman of a grand jury ( See N.C. Gen. Stat. § 15A-644(b)(2007)), we have discovered no cases indicating that a conviction must be overturned for a fatally deficient information. In the present case, both indictments listed the correct statute. Therefore, the Miller/Meuller debate is not strictly necessary, as the indictment listed the correct statute. Either way, Defendant's argument is without merit.
II. Rule 404(b) Evidence
Defendant next argues that the trial court erred in granting the State's motion to introduce Rule 404(b) evidence of prior bad acts because the evidence was unreliable and the acts were not proven by a preponderance of the evidence. We disagree.
Rule 404(b) provides a general rule of inclusion, subject only to the limitation that evidence is not admissible to show propensity or disposition to commit a crime. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) states:
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) (2007). Furthermore, "the rule of inclusion described in Coffey is 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).
Defendant argues that in order for the trial court to admit evidence of conduct extrinsic to the offenses on trial, the court must find that the State had proven by a preponderance of evidence that the extrinsic acts were committed and that Defendant was the perpetrator. Defendant maintains that in the instant case the evidence of extrinsic or uncharged offenses was so unreliable as to be inadmissible, and that the trial court could not find by a preponderance that the acts were committed or that Defendant was the perpetrator. Defendant supports this assertion essentially by arguing that the testimony of L.A. and T.A. was uncorroborated.
Defendant somewhat misstates the applicable law. Before extrinsic evidence of a prior bad act is admissible under Rule 403, a trial court must determine whether there is sufficient evidence that the defendant committed the prior bad act. State v. Haskins, 104 N.C. App. 675, 679-80, 411 S.E.2d 376, 380 (1991). "The judge is not required to be convinced beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence, that defendant committed the extrinsic act. Rather, as a prerequisite to admitting the evidence, the trial court must find the evidence to be substantial." Id. at 680, 411 S.E.2d at 380. (citations omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Our Supreme Court has been liberal in allowing evidence of similar sexual acts in trials involving sexual crimes. State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 300 (1996).
In the present case, the trial court heard arguments prior to trial on the State's motion to offer Rule 404(b) evidence. The State presented to Defense counsel and the trial court summaries of the evidence expected to be offered, a chart of the evidence, and a memorandum of law in support of the motion. The court held a hearing on the motion outside of the presence of the jury, at which Defense counsel argued that the prior bad acts were not sufficiently similar to be admitted under Rule 404(b), and that the prejudicial nature of testimony outweighed its probative value under Rule 403. The trial court found the prior acts sufficiently similar and close in time to the offenses charged. The trial court concluded that the evidence was not being offered to show propensity. Finally, the trial court stated that it had considered Rule 403, and did not find the testimony unduly prejudicial "in light of the nature of the offenses charged and the similarities of these." This determination was sufficient to meet the requirements of Haskins that the trial court make an initial determination that the evidence was substantial.
"Furthermore, the `other crimes, wrongs, or acts' evidence is relevant only if the jury can conclude by a preponderance of the evidence that the extrinsic act occurred and that the defendant was the actor." Haskins, 104 N.C. App. at 679, 411 S.E.2d at 380 (quoting N.C. Gen. Stat. § 8C-1, Rule 404(b) (1988)). In the present case, the testimony of L.A. and T.A. was sufficient to support a conclusion that the act occurred and that Defendant was the actor. Moreover, Treadway corroborated the accounts of D.S.'s sisters.
During an initial interview with Treadway, L.A. described how Defendant would come to her room at night and talk to her about sex. On some occasions, Defendant would lie down in the bed next to the minor's sister while he spoke to her. T.A. often thought that she smelled alcohol on Defendant's breath when he came to her room. During a joint session with Treadway and her therapist, L.A. provided a written description of how she was sexually abused by Defendant.
Moreover, T.A. recounted similar occurrences in an interview with Treadway. T.A. explained that when she was younger Defendant would come into her room smelling of alcohol and lie down next to her bed. While in bed, Defendant would tell T.A. about sex and would touch her breast and buttocks.
Our Supreme Court has articulated that "the trial court is concerned only with sufficiency of the evidence to carry the case to the jury and not its weight. . . . The determination of the witnesses' credibility is for the jury." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). Defendant's argument that the testimony of L.A. and T.A. was slim and unreliable goes to the weight of the evidence, not to its admissibility.
Accordingly, we hold that the trial court did not err in granting the State's motion to admit the testimony of the victim's sisters under Rule 404(b).
No error.
Judges McGEE and BRYANT, concurring.
Report per Rule 30(e).