Opinion
No. COA12–1328.
2013-08-6
STATE of North Carolina v. Bernard Edward GOSNELL, Jr., Defendant.
Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State. Staples S. Hughes, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for defendant-appellant.
Appeal by defendant from judgment entered 15 March 2012 by Judge Richard D. Boner in Caldwell County Superior Court. Heard in the Court of Appeals 9 April 2013. Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State. Staples S. Hughes, Appellate Defender, by John F. Carella, Assistant Appellate Defender, for defendant-appellant.
DAVIS, Judge.
Bernard Edward Gosnell, Jr. (“defendant”) appeals his conviction for taking indecent liberties with a child. After careful review, we find no error.
Factual Background
The State presented evidence at trial tending to establish the following facts: Defendant's son, Jeffrey Gosnell (“Gosnell”), moved into a new home in Granite Falls, North Carolina in April 2010. Living next door was Gosnell's friend from middle school, Frank H., along with his wife and three children. The youngest child, “Jennifer,” was four years old at the time.
Pseudonyms are used throughout this opinion to protect the minors' privacy and for ease of reading. N.C. R.App. P. 3.1(b).
Defendant began coming over to Gosnell's house every day while his son was at work to feed his dogs. Defendant and Jennifer developed an affectionate relationship with Jennifer considering defendant “her buddy.” On 19 June 2010, Jennifer and her mother were outside in the front yard. Defendant came out of his son's house and walked towards his car in the driveway. Seeing Jennifer, defendant “asked her if she had a hug for him.” Jennifer ran over to defendant, who was on the opposite side of the car from Jennifer's mother. Defendant bent over, wrapped his arms around her, and hugged her. The hug continued long enough that Jennifer's mother became uncomfortable, and she called for Jennifer to come back home. Jennifer ran back to her mother and the two went inside the house.
Less than five minutes later, Jennifer told her mother that when defendant hugged her, he touched her “pee pee”—referring to her vagina. Jennifer's mother reported the incident to law enforcement, and two days later Detective Shelly Hartley (“Detective Hartley”) of the Caldwell County Sheriff's Office conducted a forensic interview with Jennifer. During the interview, Jennifer told Detective Hartley that defendant had touched her vagina.
On 23 June 2010, Detective Hartley called defendant and asked him to come down to the sheriff's office. When defendant arrived, Detective Hartley asked him if he knew why she had asked to speak with him. Defendant indicated that he did not know why, explaining that he thought that the allegations that he had inappropriately kissed “Karla”—his step-granddaughter—had been settled. Detective Hartley responded that the purpose of the interview was not to discuss Karla but rather to discuss a report that defendant had sexually abused Jennifer. In response, defendant provided his own version of the incident involving Jennifer and denied having inappropriately touched her.
At the conclusion of the interview, defendant was arrested and charged with first-degree statutory sex offense and taking indecent liberties with a child. At trial, Karla was allowed to testify—over defendant's objection-regarding three instances in which defendant had attempted to kiss her using his tongue. The State was also allowed to play for the jury an unredacted video recording of Detective Hartley's 23 June 2010 interview with defendant at the sheriff's office.
The jury found defendant guilty of taking indecent liberties with a child but acquitted him of first-degree statutory sex offense. The trial court sentenced defendant to a presumptive-range term of 14 to 17 months imprisonment. The court further ordered defendant to register upon his release as a sex offender for a period of 30 years. Defendant gave oral notice of appeal in open court.
Analysis
I. Admissibility of Karla's Testimony
Defendant's primary argument on appeal is that the trial court erred in allowing Karla to testify about three prior instances in which he sexually abused her. He contends that this evidence was admitted in violation of Rules 404(b) and 403 of the North Carolina Rules of Evidence. Defendant claims that, given the prejudice resulting from the erroneous admission of this evidence, he is entitled to a new trial. We disagree.
At trial, when the State called Karla to testify, defendant objected, and the trial court conducted a voir dire examination. During the voir dire, Karla testified about three instances involving defendant, all occurring at the home defendant shared with his wife, Karla's grandmother. Karla testified initially about an incident that had occurred in 2008 when she was seven years old. Karla was alone with defendant in the living room; her grandmother, brother, and sister were in the kitchen. Karla and defendant were sitting next to each other on the couch watching cartoons. At some point, defendant “asked [her] if [she] wanted to give him a kiss.” Not “think[ing] anything of it,” Karla said “Yes.” Defendant then “pulled [her] in really tight,” with her hands “squished” to her sides, and “tried to stick his tongue in [her] mouth.” In response, Karla clenched her teeth and tightly pressed her lips together. After approximately five seconds, defendant released her, and she left the room.
Karla also testified about a second incident that occurred later that same day. That afternoon, Karla was playing in the yard by herself when she decided to go inside to get a drink of water. In order to get inside, Karla had to walk past defendant, who was sitting on a swing on the front porch. As she walked by defendant, he grabbed her arm and pulled her towards him. Defendant “smashed” Karla against his chest and “tried to stick his tongue in [her] mouth again.” Karla reacted, once again, by clenching her jaw to keep her mouth shut. After this incident, which lasted longer than the first one, Karla went inside and stayed with her grandmother for the rest of the day.
The third instance about which Karla testified occurred at a family Christmas party in 2009. At the party, defendant approached Karla while she was alone in the kitchen and told her that he wanted to give her a kiss. She responded “No” and tried to leave the room, but defendant stepped in front of her and “pulled [her] in” towards him. Defendant “smashed” Karla's hands down by her sides and tried to put his tongue in her mouth.
At the conclusion of the voir dire, the trial court found that the acts as to which Karla had testified and the acts forming the basis for the charges for which defendant was being tried were sufficiently similar and not too remote in time such that the evidence was admissible under Rule 404(b). The trial court further ruled that the evidence was admissible to prove a common scheme or plan on the part of defendant and that the “evidence [was] more probative than prejudicial.”
At trial, Karla was permitted to testify regarding the three prior instances in which defendant attempted to “kiss” her. Karla's testimony at trial was substantially similar to her voir dire testimony except that she stated at trial that the Christmas party occurred in 2008 rather than 2009. In its final instructions to the jury, the trial court provided a limiting instruction regarding Karla's testimony, explaining to the jury that her testimony was admitted “solely for the purpose of showing that there existed in the defendant's mind a plan, scheme, system, or design involving the crimes charged in this case.”
Rule 404(b) provides, in pertinent part, as follows:
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. R. Evid. 404(b).
Rule 404(b) is, as our Supreme Court has explained, 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). Although a rule of inclusion, Rule 404(b) is nonetheless “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). The prior acts and charged acts are sufficiently “similar” for Rule 404(b) purposes if there are “some unusual facts present in both crimes” that would indicate that the same person committed both. State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890–91 (1991). It is not necessary, however, that the similarities between the acts “rise to the level of the unique and bizarre.” State v. Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593,cert. denied,488 U.S. 900, 102 L.Ed.2d 235 (1988).
With respect to temporal proximity, the length of time between the incidents “must be considered in light of the specific facts of each case and the purposes for which the evidence is being offered.” State v. Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998), cert. denied,525 U.S. 1180, 143 L.Ed.2d 114 (1999). As our Supreme Court explained in Hipps:
For some 404(b) purposes, remoteness in time is critical to the relevance of the evidence for those purposes; but for other purposes, remoteness may not be as important. [R]emoteness in time may be significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan; but remoteness is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident.
Id. (citations omitted). The “more striking the similarities” between the prior acts and charged acts, the longer evidence of the prior acts remains relevant and potentially admissible for certain purposes. State v. Gray, 210 N.C.App. 493, 507, 709 S.E.2d 477, 488 (2011), disc. review denied,––– N . C. ––––, 723 S.E.2d 540 (2012).
The trial court's determination as to whether the evidence of other crimes, wrongs, or acts falls within the scope of Rule 404(b) is a question of law, which is reviewed de novo on appeal. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). In making this determination, North Carolina's courts have been “markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes ... enumerated in Rule 404(b).” State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987).
A. Similarity between Prior Acts and Charged Acts
Here, the trial court found that the prior sexual abuse described by Karla and the alleged sexual abuse of Jennifer shared the following similarities: (1) Jennifer (four) and Karla (seven to eight) were close in age at the time of the alleged inappropriate contact; (2) the alleged victims were both female; and (3) defendant used the same method of hugging or pulling the girls close to him in order to commit the abuse. Based on these findings, the trial court determined that the prior acts were sufficiently similar to the charged acts to be properly admitted under Rule 404(b).
Defendant first contends that the trial court's finding that defendant “hugged or pulled the child to him in order to accomplish an inappropriate act or touching” is not supported by the evidence. Defendant contends that the evidence fails to show that “[defendant] grab[bed] or pull[ed] Jennifer toward him, as Karla alleged he did to her.” He argues that without the finding that defendant accomplished the sexual abuse through hugging or pulling the child to him, the remaining similarities—that both victims were of similar ages and were the same gender—are too generic to support admission under Rule 404(b).
Defendant's argument is not supported by the evidence. The trial court's challenged finding of fact was based on (1) Jennifer's testimony that it was while defendant “hugged” her that he touched her vagina; and (2) Karla's testimony that defendant “[w]rapped his arms [around her] and pulled [her] in” towards him in order to try to “kiss” her. As this finding is supported by competent evidence, it is binding on appeal. See State v. Moseley, 338 N.C. 1, 37, 449 S.E.2d 412, 434 (1994) (holding trial court's findings regarding admission of Rule 404(b) evidence were binding on appeal because they were supported by competent evidence), cert. denied,514 U.S. 1091, 131 L.Ed.2d 738 (1995).
Defendant next argues that the similarities found by the trial court are insufficient to permit admission of the evidence of defendant's prior sexual abuse under Rule 404(b). Based on State v. Beckelheimer, 366 N.C. 127, 726 S.E.2d 156, our Supreme Court's most recent discussion of the admissibility of evidence under Rule 404(b), we disagree. Like the present case, Beckelheimer involved child sexual abuse. The Supreme Court concluded that the following “key similarities” between the prior sexual abuse and the charged acts rendered the evidence admissible: (1) the victims were close in age (11 and 12); (2) the victims were the same gender (male); (3) the sexual abuse occurred in the same location (the defendant's bedroom); and (4) the “similarities in ‘how the occurrences were brought about’ “ (defendant's acts of pretending to be asleep while fondling the boys). Id. at 131, 726 S.E.2d at 159.
Sufficient similarities were likewise found by the trial court here: (1) both Jennifer and Karla were children at the time of the abuse; (2) both victims were female; and (3) defendant used a similar method to “engage” each child—hugging or pulling the child towards him in order to inappropriately touch them. Based on Beckelheimer, we conclude that these overlapping facts are sufficient to render the evidence of defendant's prior sexual abuse involving Karla admissible under Rule 404(b) to show a common scheme or plan. See also State v. Every, 157 N.C.App. 200, 210, 578 S .E.2d 642, 650 (2003) (concluding prior acts of sexual abuse were sufficiently similar to charged acts where evidence showed that both victims were “adolescent females” and defendant used similar “manner of approach” with each girl).
Defendant relies on this Court's decisions in State v. Gray, 210 N.C.App. 493, 709 S.E.2d 477, and State v. White, 135 N.C.App. 349, 520 S.E.2d 70 (1999), in support of his argument that there are insufficient similarities here between the prior acts and the charged acts. We find both Gray and White distinguishable.
In Gray, the defendant was charged with first-degree sex offense and taking indecent liberties with a child based on allegations that he had touched a five-year-old girl “inside her vagina” while visiting the child's grandparent's home. Gray, 210 N.C.App. at 494, 709 S.E.2d at 479. The State also presented evidence that in the past, the defendant had often visited the house of a four-year-old boy's babysitter and that during one visit, the defendant engaged in anal intercourse with the boy. Id. at 510, 709 S.E.2d at 489.
This Court observed that the main similarities between the prior act and the charged act were that (1) “both children involved were quite young—four and five years of age—at the time the acts allegedly occurred”; and (2) “both alleged acts occurred at a caretaker's house where Defendant was a reasonably frequent visitor.” Id. at 511, 709 S.E.2d at 490. Recognizing that “[t]hese facts are all too common in cases involving sexual assaults on minors by an adult[,]” the Court held that the evidence of the defendant's prior sexual assault was not sufficiently similar to the act with which he was charged such that the evidence was inadmissible under Rule 404(b) for the purpose of proving a common scheme or plan. Id. at 512, 709 S.E.2d at 490.
In White, the defendant was charged with raping a nine-year-old girl in her home at knife-point. White, 135 N.C.App. at 350, 520 S.E.2d at 71. In order to show motive, opportunity, and intent on the part of the defendant, the State presented the testimony of a four-year-old girl who testified that defendant, while visiting her family's home, went into her bedroom where she was sleeping and licked her genitalia. Id. at 351, 520 S.E.2d at 72. On appeal, this Court granted the defendant a new trial, holding that the Rule 404(b) evidence should have been excluded because “[e]xcept for the fact that both incidents involve young females who were allegedly assaulted in their own homes, there are few points of similarity.” Id. at 353, 520 S.E.2d at 73.
Here, however, unlike in Gray and White, in addition to the fact that the two victims were children and that both were female, defendant was able to commit the sexual abuse against them by using a similar manner of restraint. See State v. Simmons, 191 N.C.App. 224, 230–31, 662 S.E.2d 559, 563 (2008) (upholding admission of Rule 404(b) evidence of prior sexual assault where “each woman testified that defendant used substantially the same method of restraining her during the attack”). In Beckelheimer, which was decided after Gray and White, our Supreme Court held that such similarities regarding how prior and charged acts are “brought about” are “key” in determining the admissibility of evidence under Rule 404(b). Beckelheimer, 366 N.C. at 131, 726 S .E.2d at 159. Thus, we conclude that sufficient similarities existed between the prior and charged acts in this case.
B. Temporal Proximity
Defendant further contends that the acts testified to by Karla and Jennifer “were too remote to show a common scheme or plan,” pointing to the fact that (1) the first time defendant allegedly sexually abused Jennifer occurred in April 2010; and (2) although Karla testified during her voir dire examination that the last act of sexual abuse by defendant occurred sometime around Christmas in 2009, she subsequently testified at trial that this act occurred during Christmas in 2008. Thus, defendant argues, what appeared at the time of the trial court's initial ruling to be a four-month time span between the last act involving Karla and the first act involving Jennifer turned out to actually be a 16–month gap.
However, whether the gap in time was four months or 16 months, defendant's argument still fails. Our caselaw holds that periods of time far greater than 16 months between acts of sexual abuse do not render the acts too attenuated to be admissible under Rule 404(b). See, e.g., State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (holding that 10–year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common scheme or plan), cert. denied,519 U.S. 1098, 136 L.Ed.2d 725 (1997); State v. Harris, 140 N.C.App. 208, 212, 535 S.E.2d 614, 617 (determining that evidence of “two- and five-year gaps between the prior rapes and the present one are not so remote in time as to render the evidence inadmissible” to show common scheme or plan), appeal dismissed and disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). Accordingly, the trial court properly concluded that the acts were not so remote in time as to require exclusion under Rule 404(b).
C. Admissibility under Rule 403
Defendant further contends that the trial court erred in determining under Rule 403 that the probative value of the 404(b) evidence was not substantially outweighed by the danger of unfair prejudice. The trial court's Rule 403 determination, which is reviewed for abuse of discretion, will not be overturned on appeal unless the ruling was manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000), cert. denied, 531 U.S. 1114, 148 L.Ed.2d 775 (2001).
In Beckelheimer, the Supreme Court held that the trial court in that case did not abuse its discretion under Rule 403 in admitting evidence of the defendant's prior sexual abuse where the Rule 404(b) evidence was probative of the defendant's modus operandi and the trial court gave the jury a limiting instruction regarding the proper consideration of the evidence. Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160–61.See also Penland, 343 N.C. at 654, 472 S.E.2d at 745 (holding that exclusion of evidence of defendant's prior sexual assaults was not required under Rule 403 where evidence was probative of a common scheme or plan and trial court gave limiting instruction).
Here, Karla's testimony “did not simply imply that defendant had a bad character, but tended to prove the existence of a common plan or scheme on his part.” Id. Moreover, as in Beckelheimer and Penland, the trial court in this case properly gave the jury a Rule 404(b) limiting instruction regarding Karla's testimony. Based on Beckelheimer and Penland, we cannot conclude that the trial court abused its discretion in its Rule 403 determination.
D. Harmless Error
The erroneous admission of evidence is considered harmless unless the defendant demonstrates on appeal that “there is a ‘reasonable possibility’ that without the error ‘a different result would have been reached at the trial.’ “ State v. Ray, 364 N.C. 272, 278, 697 S.E.2d 319, 322 (2010) (quoting N.C. Gen.Stat. § 15A–1443(a)). Such an error may be rendered “harmless ... where there is overwhelming evidence of defendant's guilt.” State v. Weldon, 314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985).
Even assuming arguendo that Karla's testimony should have been excluded under either Rule 404(b) or Rule 403, we conclude that any such error was harmless. Jennifer testified unequivocally that when defendant “hugged” her on 19 June 2010, he touched her “pee pee”—referring to her vagina—with his hand. She told her mother about what had happened within five minutes of the incident. Jennifer's accounts of the incident, first, when she initially told her mother what had happened, and, second, when she later related the occurrence to Detective Hartley during the forensic interview, were substantially the same. Moreover, during the interview, Jennifer identified the vaginal area on an anatomical drawing as the place where defendant touched her. Jennifer's testimony was corroborated by both her mother's and Detective Hartley's testimony.
Through the “excited utterance” exception to the hearsay rule, seeN.C. R. Evid. 803(2), Jennifer's mother's testimony that Jennifer told her that defendant touched her vagina was considered by the jury not only as corroborative evidence but also as substantive evidence. Defendant does not challenge the trial court's ruling on this issue on appeal.
We hold that there was overwhelming evidence of defendant's guilt and that there is not a reasonable possibility that, in the absence of Karla's challenged testimony, a different result would have been reached at defendant's trial. See State v. Zinkand, 190 N.C.App. 765, 770–71, 661 S.E.2d 290, 293 (holding defendant could not demonstrate prejudice resulting from admission of evidence of prior “sexual misconduct” where State presented “strong direct evidence of defendant's guilt”), disc. review denied,362 N.C. 513, 668 S.E.2d 783 (2008).
II. Admissibility of Videotape of Interview
In a related argument, defendant also argues that the trial court erred in allowing the State to play for the jury the video recording of his interview with Detective Hartley. As a preliminary matter, the State contends that defendant failed to properly preserve this issue for review. We agree.
Prior to trial, defendant filed a motion to suppress the video on constitutional grounds. At the hearing on defendant's motion, defendant argued that the video was inadmissible under both the Fifth Amendment's exclusionary rule and Rule 404(b). The prosecutor, in addition to arguing that any statements made by defendant during the interview were not obtained in violation of his constitutional rights, advised the trial court that the State sought to introduce the video for the purpose of corroborating Karla's 404(b) testimony. The trial court, after considering the arguments of counsel, denied defendant's motion to suppress the video but declined to otherwise rule on the admissibility of the video at that time.
At trial, during a recess when the jury was not present in the courtroom and just before the State called Detective Hartley to testify regarding the interview, defense counsel advised the trial court that he was objecting to the admission of the video. The trial court “noted” counsel's objection for the record and allowed the State to play the video for the jury. Defendant did not, however, subsequently object to the admission of the video at the time it was offered into evidence before the jury.
Defendant contends that his trial counsel's objection during the recess was sufficient to preserve his argument for appeal. Contrary to defendant's contention, however, our Supreme Court has repeatedly held that “[t]o be timely, an objection to the admission of evidence must be made ‘at the time it is actually introduced at trial.’ “ Ray, 364 N.C. at 277, 697 S.E.2d at 322 (quoting State v. Thibodeaux, 352 N.C. 570, 581, 532 S.E.2d 797, 806 (2000), cert. denied, 531 U.S. 1155, 148 L.Ed.2d 976 (2001)). Thus, an objection to the admissibility of evidence made outside the presence of the jury prior to the introduction of the evidence is insufficient to preserve for review the trial court's decision to admit the evidence. Ray, 364 N.C. at 277, 697 S.E.2d at 322.
Here, the record shows that defendant did not interpose an objection at the time the State actually offered the video into evidence. Defendant, therefore, failed to properly preserve for review the issue of the video's admissibility. See id. (holding that defendant failed to preserve issue of admissibility of evidence of prior convictions where, although “defendant objected to the admission of [the] evidence ... out of the jury's presence,” he did not “subsequently object when the evidence was actually introduced at trial”) (citation and quotation marks omitted); Thibodeaux, 352 N.C. at 581–82, 532 S.E.2d at 806 (declining to address admissibility of testimony where defendant failed to object “contemporaneous[ly] with the time such testimony [was] offered into evidence”). As a consequence, defendant is now limited to arguing plain error. N.C. R.App. P. 10(b)(4).
Our Supreme Court has recently explained that
[f]or error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).
Defendant's argument concerning the admissibility of the video mirrors his argument regarding Karla's testimony-that it amounts to “pure ‘propensity’ evidence in violation of Rule 404(b)....” However, a review of the transcript from the suppression hearing shows that the video was not offered by the State as Rule 404(b) evidence, but, rather, as corroborative evidence. See generally State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980) ( “Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness.”).
Defendant's argument that the video was inadmissible under Rule 404(b) fails to address the admissibility of the video as corroborative evidence. See State v. Turgeon, 44 N.C.App. 547, 553, 261 S.E.2d 501, 505 (holding that testimony of social worker was admissible to corroborate properly admitted testimony of witness who testified that defendant committed similar sexual acts on both her and her sister in order to show “animus and purpose” of defendant), appeal dismissed and disc. review denied, 299 N.C. 740, 267 S.E.2d 669 (1980). Defendant has, therefore, failed to demonstrate any error, much less plain error, on appeal.
Conclusion
For the reasons stated above, we find that defendant received a fair trial free from error.
NO ERROR. Judges McGEE and GEER concur.
Report per Rule 30(e).