Opinion
No. COA13–5.
2013-08-6
STATE of North Carolina v. Seth Jamenson FRAZIER.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard H. Bradford, for the State. W. Michael Spivey, for defendant-appellant.
Appeal by defendant from judgments entered 10 August 2012 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 22 May 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Richard H. Bradford, for the State. W. Michael Spivey, for defendant-appellant.
STEELMAN, Judge.
Where the State's 404(b) evidence was sufficiently similar to and not too remote in time from the charged crime, and the trial court took appropriate precautions in admitting the evidence, the trial court did not err in admitting the 404(b) evidence. Where defendant failed to preserve his fatal variance claim for appellate review by explicitly making it a ground for a motion to dismiss, it is dismissed. Where there were sufficient other incriminating circumstances to establish defendant's constructive possession of a firearm, the trial court did not err in denying defendant's motion to dismiss the charge of possession of a firearm by a felon.
I. Factual and Procedural Background
On 2 October 2011, Seth Jamenson Frazier (defendant) entered the Tuter residence in Sneads Ferry, North Carolina, between two and three o'clock in the morning. A.C., the Tuters' granddaughter, woke up when she heard someone enter her bedroom and felt someone pulling the covers off of her back. When she spoke to the intruder, he said “Shh, I'm leaving.” A.C. identified defendant as the intruder, based upon having worked with him the previous summer.
Defendant was indicted for first-degree burglary. On 6 August 2012, defendant consented to be tried on a bill of information for the charge of possession of a firearm by a felon. The two charges were tried before a jury at the 6 August 2012 Session of Criminal Superior Court for Onslow County. The trial judge instructed the jury that, with respect to the charge of burglary, it must find that defendant intended to commit the felony of taking indecent liberties with a minor at the time he broke into and entered the Tuters' dwelling.
On 10 August 2012, the jury found defendant guilty of both charges. Defendant was sentenced as a Level III offender to an active term of imprisonment of 84 to 110 months for first-degree burglary and to a consecutive term of 17 to 21 months for possession of a firearm by a felon.
Defendant appeals.
II. 404(b) Evidence of Previous Conduct
In his first argument, defendant contends that the trial court erred in admitting the testimony of A.B. concerning an incident that occurred in 2008 pursuant to N.C. Gen.Stat. § 8C1, Rule 404(b). We disagree.
A. Standard of Review
Though this Court has not used the term de novo to describe its own review of 404(b) evidence, we have consistently engaged in a fact-based inquiry under Rule 404(b) while applying an abuse of discretion standard to the subsequent balancing of probative value and unfair prejudice under Rule 403.... When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling ... we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the 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.
State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 158–59 (2012) (citations omitted).
B. Analysis
“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.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). “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.” Id.
Cases decided under N.C.R. Evid. 404(b) state a 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 had the propensity or disposition to commit an offense of the nature of the crime charged.’
State v. Houseright, ––– N.C.App. ––––, ––––, 725 S.E.2d 445, 447 (2012) (quoting State v. Coffey, 326 N.C. 268, 278–79, 389 S .E.2d 48, 54 (1990)).
In the instant case, defendant was previously convicted of indecent liberties with a child on 7 October 2008. The State presented testimony from A.B., the victim of the prior offense, to show defendant's intent, knowledge, identity, motive, preparation, or absence of mistake. Defendant objected to the State offering evidence of this offense and filed a motion in limine to exclude the testimony prior to trial. The trial court deferred ruling on this motion until it had heard the evidence presented in the State's case in chief, in order to determine whether the evidence was relevant for a proper purpose under Rule 404(b). After conducting a voir dire of the 404(b) witnesses, the trial court held that the evidence was admissible for the limited purposes of showing defendant's identity, intent, and motive. The court excluded a portion of the State's proposed evidence as irrelevant, and also excluded a portion under Rule 403 because it was more prejudicial than probative. At the conclusion of the voir dire hearing, the trial court entered an order containing extensive findings of fact and conclusions of law. On appeal, defendant contends that the trial court's findings of fact were not supported by the evidence and that the trial court's conclusions of law were not supported by its findings of fact.
1. Challenges to Findings of Fact
The trial court made five specific findings of fact that supported its conclusion that the two incidents were sufficiently similar. Those similarities were: (1) both victims were young females about 15 years of age at the time of the event; (2) both events occurred in the girls' residences when adults were nearby and defendant was aware of a great risk of discovery; (3) the events occurred at night after all the residents had gone to bed; (4) defendant quieted both victims using the “shh” sound after waking them; and (5) defendant became acquainted with the victims through his employment. Upon a review of the record, we hold that each of the challenged findings of fact was supported by competent evidence in the record.
2. Similarity
Defendant further challenges the trial court's ruling that these five similarities “support a reasonable inference that the same person committed both the earlier acts and the acts which are the subject of these cases.”
“Prior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them.” Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 159 (citation omitted). However, similarities need not “rise to the level of the unique and bizarre.” State v. Aldridge, 139 N.C.App. 706, 714, 534 S.E.2d 629, 635 (2000) (citation omitted). “Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.” Id.
In the instant case, the facts of the 2008 indecent liberties are sufficiently similar to support the State's theory that the 404(b) evidence shows the intent, identity, and motive of defendant. While defendant's brief focuses on the differences between the two acts, that type of analysis is incorrect. See Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 159–60 (holding that the Court of Appeals improperly focused on the differences between the charged crime and the 404(b) conduct, instead of reviewing the similarities noted by the trial court). Examining the trial court's five findings of similarities between the two incidents, we hold the 404(b) evidence of the prior indecent liberties offense was sufficiently similar to the events of the October 2011 burglary that it supports a reasonable inference that the same person committed both the earlier and the later acts.
3. Temporal Proximity
Defendant also challenges the trial court's ruling that there was “temporal proximity” between the 2008 indecent liberties offense and the 2011 burglary.
Temporal proximity is another constraint upon the “rule of inclusion.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). “Remoteness for purposes of 404(b) must be considered in light of the specific facts of each case and the purposes for which the evidence is being offered.” Aldridge, 139 N.C.App. at 714, 534 S.E.2d at 635. Remoteness is less significant when the 404(b) evidence is offered to show the defendant's intent. Id. Courts have admitted 404(b) evidence when a period of much longer than four years had passed. See, e.g., Beckelheimer, 366 N.C. at ––––, 726 S.E.2d at 160 (holding that prior acts occurring over 10 years ago were not too remote and were properly admitted by the trial court); see also State v. Williamson, 146 N.C. App 325, 334, 553 S.E.2d 54, 60 (2001) (holding that prior acts occurring ten years prior were not too remote to be considered relevant and admissible).
In the instant case, a period of three years and eight months passed between February 2008 and October 2011. Based upon our previous holdings, we hold that in the instant case, a period of three years and eight months is not too remote to be considered relevant and admissible. Further, the trial court made findings of fact that defendant had been incarcerated from February 2008 to September 2009. Excluding the time during which defendant was incarcerated, approximately two years passed between the February 2008 indecent liberties offense and the October 2011 burglary. See State v. Blackwell, 133 N.C.App. 31, 36, 514 S.E.2d 116, 120 (1999) (excluding any time during which the defendant was incarcerated from the analysis of remoteness). The trial court's conclusion that there was “temporal proximity” between the 2008 indecent liberties offense and the 2011 burglary is supported by its findings of fact.
4. Probative Value versus Prejudicial Effect
On appeal, defendant does not argue that the 404(b) evidence was not admissible under Rule 403 of the North Carolina Rules of Evidence, even though the trial court ruled upon this issue. This issue is deemed abandoned, and we do not address it. N.C.R.App. P. 28(b)(6).
III. Alleged Fatal Variance in Burglary Indictment
In his second argument, defendant contends that the trial court erred when it denied defendant's motion to dismiss the charge of first-degree burglary because of a fatal variance between the indictment and the evidence of crimes presented at trial. We disagree.
A. Preservation of the Issue at Trial
A claim of fatal variance between the indictment and the evidence presented at trial may be raised by the defendant's motion to dismiss, but defendant must state at trial that the fatal variance is the subject of his motion to dismiss to preserve the issue for appellate review. State v. Curry, 203 N.C.App. 375, 384, 692 S .E.2d 129, 137 (2010) (citation omitted). At the close of the State's evidence, defendant moved to dismiss both charges, and the trial court subsequently denied both motions. Defendant did not explicitly state that fatal variance was the basis of his motion to dismiss the first-degree burglary charge, and thus, this issue is not preserved for appellate review.
This argument is dismissed. While defendant requests review pursuant to N.C.R.App. P. 2, we decline to suspend our rules in this case.
Even assuming arguendo that defendant properly preserved this issue for appellate review, defendant's argument is without merit. Fatal variance occurs when there is a discrepancy between the indictment and the evidence presented at trial. Curry, 203 N.C. at 384, 692 S.E.2d at 137. Defendant contends that the language in the indictment stating “[t]he defendant broke and entered with the intent to commit a larceny and felony therein” was defective because the case was submitted to the jury on the underlying felony of indecent liberties with a child. An indictment for burglary is not required to specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering. State v. Worsley, 336 N.C. 268, 279–81, 443 S.E.2d 68, 73–74 (1994). However, if the indictment does allege a specific underlying felony, the conviction must be based on the felony charged in the indictment. State v. Silas, 360 N.C. 377, 383, 627 S.E.2d 604, 608 (2006). But see State v. Farrar, 361 N.C. 675, 651, S.E.2d 865 (2007) (holding no prejudicial error where the indictment alleged larceny as the underlying felony and the instruction to the jury included armed robbery as the underlying felony). “Where an indictment sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged.” State v. Gray, 292 N.C. 270, 293, 233 S.E.2d 905, 920 (1977).
In the instant case, the indictment sets forth alternative theories for conviction of first-degree burglary, “larceny and a felony[.]” This method of alternative theories for conviction is proper and we hold there was no discrepancy between the indictment and the evidence presented at trial. Further, the purpose of an indictment is to “enable the defendant to prepare his defense[,]” State v. Coffey, 289 N.C. 431, 438, 222 S.E.2d 217, 221 (1976), and in the instant case, defendant cannot show that he was unable to prepare his defense. The State provided defendant with complete discovery of both the 2011 burglary and the 2008 conviction of indecent liberties. Additionally, the State stated at the pretrial hearing on 6 August 2012, that it “would likely be asking the court to instruct [the jury] that the felony would be indecent liberties with a child[,]” and the trial court did in fact instruct the jury on that underlying felony. Defendant's contention that the trial court committed plain error, thus must also fail because defendant cannot show that a fundamental error occurred, or that he was prejudiced by the alleged fatal variance.
IV. Constructive Possession
In his third argument, defendant contends that the trial court erred when it denied his motion to dismiss the charge of possession of a firearm by a felon because there was insufficient evidence of his actual or constructive possession of the firearm. We disagree.
A. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). On appeal, this Court must determine “whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.” Id. “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).
We review the evidence in the light most favorable to the State and any conflicts are resolved in the State's favor. State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001). “If substantial evidence exists supporting defendant's guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt.” Id.
B. Analysis
Under N.C. Gen.Stat. § 14–415.1, it is ‘unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm....’ Thus, the State need only prove two elements to establish the crime of possession of a firearm by a felon: (1) defendant was previously convicted of a felony; and (2) thereafter possessed a firearm.
State v. Wood, 185 N.C.App. 227, 235, 647 S.E.2d 679, 686 (2007) (quoting N.C. Gen.Stat. § 14–4151(a) (2011)). “Possession of any item may be actual or constructive. Actual possession requires that a party have physical or personal custody of the item.” State v. Alston, 131 N.C.App. 514, 519, 508 S.E.2d 318, 319 (1998) (citation omitted). “A person has constructive possession of an item when the item is not in his physical custody, but he nonetheless has the power and intent to control its disposition.” Id. When the defendant does not have exclusive possession or ownership of the premises where the firearm is found, “the State must show other incriminating circumstances before constructive possession may be inferred.” State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).
In the instant case, the State was required to show incriminating circumstances sufficient to prove constructive possession because defendant did not have actual possession of the firearm. See Davis, 325 N.C. at 697, 386 S.E.2d at 190. During the trial, the State elicited testimony from Francis Brazier (Brazier), defendant's girlfriend, who testified that defendant was known to occupy a shed adjacent to a local restaurant. On the day defendant was arrested, Brazier removed defendant's items from the shed, including his backpack, suitcase, bag, a “large gun,” a machete, and a sword. She identified the machete as belonging to defendant. Brazier stored some of his belongings at her house and disposed of the weapons in the woods because she didn't know “if [defendant] was going to get in trouble.” Subsequently, Brazier led Deputy Mitchell Gordon to the location where she had hidden the weapons, and he identified the gun as an SKS assault rifle. Andy Carter, defendant's employer, also testified that defendant told him that he owned a rifle and would shoot it with his friends. The following facts constituted sufficient incriminating circumstances: (1) defendant was living in the shed prior to his arrest and stored some of his belongings in the shed; (2) the rifle was found in the same general area as defendant's personal property; (3) Brazier believed the machete belonged to defendant; (4) Brazier removed the rifle from the shed, disposed of it in the woods, and led Deputy Gordon to its location; (5) after his arrest, defendant wrote a letter to Brazier asking her to remove his “toys” from the shed; (6) defendant's dog lived in the shed and remained there after defendant's arrest; (7) there was no evidence that any one else lived in the shed; and (8) defendant told his former boss that he owned a rifle and liked to shoot it with his friends. These facts also demonstrated that defendant had the power and intent to control the disposition of the firearm. The trial court properly submitted the issue of constructive possession to the jury.
This argument is without merit.
DISMISSED IN PART, NO ERROR IN PART. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).