Opinion
No. COA10-675
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgments entered 22 May 2009 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 28 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State. Russell J. Hollers III, for Defendant.
Wake County Nos. 06 CRS, 64112-15.
Defendant appeals from judgments entered upon his conviction for first degree rape, first degree sex offense, sex offense by a substitute parent, and taking indecent liberties with a child. He argues that the trial court committed plain error by allowing the State to introduce evidence of other bad acts allegedly committed by Defendant. After careful review, we find no error.
Defendant was indicted for first degree statutory sex offense and taking indecent liberties with a child. Both offenses were alleged to have occurred on or about 1 May 2005 through on or about 27 May 2006, and they were alleged to have been committed against K.W., who was under the age of 13 years during that time period. Defendant was also indicted for the offense of sexual activity by a substitute parent, alleged to have occurred between August 2002 through 15 July 2003, involving A.A., who was then under the age of 18 years. Defendant was also indicted for first degree rape and first degree sex offense involving A.A., which allegedly occurred on or about 30 May 2005 when A.A. was nineteen years old. The charge of first degree sexual offense against A.A. was dismissed by the State during the trial.
To protect her privacy, her initials are used in this opinion.
To protect her privacy, her initials are used in this opinion.
When A.A., one of the two complaining witnesses, was eight or nine years old, her mother sent her to live with Defendant and his family in Durham. The family was comprised of Defendant, his wife Y, Y's daughter J.R., and two other children. A.A. believed Defendant was her father until she was about ten years old, when she found out he was not her father.
To protect her privacy, her initials are used in this opinion.
To protect her privacy, her initials are used in this opinion.
After A.A. had been living with Defendant for about a year or two, A.A. told Defendant that his son had been doing "stuff" to her, which included showing her his penis, performing oral sex on her, and trying to kiss her. Defendant did not believe A.A. and beat her and made her stand in a corner. A.A. did not tell anyone else about what Defendant's son did to her.
A.A. was taken out of public school to be home-schooled when she was in the fifth grade. When A.A. was ten or eleven years old, after she found out Defendant was not her father, Defendant took her to a hotel and had sexual intercourse with her. He told her they would marry each other and made her sign a pledge to marry.
A.A. testified that when Defendant sent his wife and the other children to the store, or while the other children would play outside, Defendant would have sex with A.A. She estimated that, from the first time they had sex until she left the residence in May 2006, she and Defendant had sex over a hundred times. She stated that he would sometimes force her to perform oral sex on him prior to having intercourse. If A.A. cried and said she did not want to participate, Defendant would beat her. A.A. said she knew that Defendant's sexual abuse was improper, but she was scared and did not trust anyone enough in which to confide. Also, Defendant told her not to tell anyone because he would go to jail. After Defendant started having sex with A.A., he provided her with birth control. She said Defendant sometimes used a condom, but "[n]ot that often."
Some time after 11 September 2001, when A.A. was fifteen or sixteen years old, she and Defendant and the rest of the family moved to Wake County. By this time, several other people had joined the household, including S, described as Defendant's second wife, and S's three children. When A.A. was nineteen or twenty years old, her sister K.W. came to live in Defendant's house. K.W. had not been born when A.A. was sent to live with Defendant, and A.A. did not remember having met K.W. or speaking with her before she arrived from their grandmother's house in Moore County. K.W. was about ten or eleven years old when she moved into Defendant's house. A.A. testified that she was afraid that K.W. would also be subjected to sexual abuse by Defendant.
To protect her privacy, her initials are used in this opinion.
K.W. testified that she went to live with Defendant when she was ten years old and in the fourth grade. However, when she moved to Raleigh she was home-schooled by one of the older girls. K.W. got along with almost everyone in the house, although she argued occasionally with one of the older boys.
K.W. recalled the first time Defendant touched her inappropriately. He called her back to the storage room and told her he was going to do "what a doctor would do," which she understood to mean a pelvic exam. He told K.W. to take off her pants and underwear and spin around slowly. He made her lay on her back and open her legs. He put his tongue on her "privates." He then made her put her "mouth on his privates", and he put his penis in her mouth. Defendant asked K.W. if she would marry him, that he would treat her as he did Y, and K.W. said "no." Defendant told K.W. that if she told anyone what he had done, she would burn in hell.
A.A. recounted numerous incidents of fellatio in addition to beatings by Defendant. Defendant always carried a gun and slept with one. Defendant kept numerous other weapons in the house, including shotguns, handguns, assault rifles, sniper rifles, and swords. A.A. testified that after she ran away to Myrtle Beach and returned to Wake County in May 2005, Defendant beat her, threatened her with a handgun, and had sexual intercourse with her. A.A., K.W., J. and S. eventually ran away from Defendant's home.
Deputy Montez Wilson of the Wake County Sheriff's Department responded to a call on 27 May 2006 around 10:00 p.m. about "some runaways." When he arrived at the scene, he was asked to go around to the back of the house because A.A., K.W., J. and S. were afraid that Defendant might find out that they reported him to authorities. The girls told the deputy that they ran away from home because they were afraid of Defendant and that they did not want to return home. They stated that Defendant had strict rules and was mentally abusive to them. The deputy noticed that the girls were shaking and they refused to answer when Deputy Wilson asked if any of them had been physically or sexually abused by Defendant or anyone else. Deputy Wilson took the girls to the sheriff's office. A.A. and K.W.'s mother was called and she met them at the sheriff's office. When she arrived, Deputy Wilson told her his concerns about the girls' refusal to answer questions about abuse.
At the close of the State's evidence, Defendant moved to dismiss the charges; the trial court denied Defendant's motion. Defendant's evidence included testimony from his stepdaughter, J.R., two of his other children, and himself.
Defendant testified that he never had sex with or took indecent liberties with A.A. and K.W. He denied taking A.A. to a hotel in Durham or having sex with her on any other occasion, including in May 2005 after A.A. had run away to Myrtle Beach. He stated that he made A.A., J.R., and K.W. sleep in the living room in order to keep an eye on K.W., who had been accused of molesting one of S's children. Defendant acknowledged being a strict disciplinarian and that he would "pop" the children with a piece of PVC plumbing pipe for punishment. He denied seeing any of the children with bruises caused by being hit with the pipe. With regard to the events of May 2006, he agreed that he was angry.
The jury returned verdicts of guilty of each of the four offenses charged except first degree sex offense against A.A., which was dismissed. The trial court consolidated the offenses of first degree rape and sex offense by a substitute parent against A.A. into one judgment, and sentenced Defendant to a minimum term of 192 months and a maximum of 240 months. The court consolidated the remaining two offenses of first degree sex offense and indecent liberties against K.W. into a second judgment with a sentence of 192 months to 240 months, to run consecutively to the first sentence. From the judgments entered, Defendant appeals.
By his sole argument on appeal, Defendant contends the trial court committed plain error by allowing the State to elicit testimony about bad acts other than those related to the offenses charged. Specifically, Defendant challenges the following evidence: (1) testimony by A.A. and K.W. that Defendant beat them; (2) A.A.'s testimony regarding sexual activity that occurred at different times and at different places than what was alleged in Defendant's indictments; and (3) testimony from witnesses other than A.A. and K.W. that corroborated their testimony about Defendant beating them. Defendant argues that this testimony constituted unduly prejudicial character evidence which should have been excluded pursuant to N.C. Gen. Stat. § 8C-1, Rules 403 and 404. We disagree.
Since Defendant did not object to the testimony he now challenges on appeal, we review the introduction of the challenged evidence for plain error. State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004). "Plain error" does not connote simply "obvious or apparent error." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). "Under the plain error standard of review, defendant has the burden of showing: `(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'" Jones, 358 N.C. at 346, 595 S.E.2d at 135 (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). We "must examine the entire record and determine if the . . . error had a probable impact on the jury's finding of guilt." State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 252 (2004) (internal quotation marks omitted).
Rule 404(b) provides, in relevant part, that:
(b) Other crimes, wrongs, or acts. — 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). Rule 404(b) has been described as "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, the evidence tended to show that Defendant began having sexual intercourse with A.A. when she was ten or eleven years old and they were still living in Durham County. A.A. testified that she and Defendant had sexual intercourse over a hundred times, and that Defendant frequently made her perform fellatio prior to having intercourse. She stated that after May of 2005, she and Defendant began having sex almost every day.
This Court has stated,
Our state is quite liberal with respect to the admission of evidence of other sex offenses when those offenses involve the same victim as the victim of the offense for which defendant is being charged.
State v. Thompson, 139 N.C. App. 299, 303, 533 S.E.2d 834, 838 (2000). The numerous sexual acts referred to by A.A. which occurred over a period of years clearly connote a plan or scheme by Defendant to sexually assault A.A. while she lived with him. Our Supreme Court has stated, "[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan." State v. Shamsid-Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847 (1989). Thus, we conclude that A.A.'s testimony regarding prior sexual acts committed by Defendant against A.A. was not required to be excluded pursuant to Rule 404(b) and that the trial court therefore did not commit plain error by failing to exclude it.
Regarding evidence that Defendant beat both A.A. and K.W., Defendant has failed to show either "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." Jones, 358 N.C. at 346, 595 S.E.2d at 135 (internal quotation marks and citation omitted). Sufficient evidence was presented as to each of the offenses charged, such that it is unlikely the jury would have reached a different result but for the challenged evidence. Further, Defendant has failed to show that the introduction of evidence of Defendant's beatings constituted fundamental error resulting in the denial of a fair trial. Defendant's arguments are overruled.
Defendant also contends that the evidence of prior bad acts should have been excluded pursuant to Rule 403 of the Rules of Evidence. Even if evidence is admissible pursuant to Rule 404(b) and is otherwise 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 (2009). However, "[w]hether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion." State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995) (citation omitted). "[Supreme Court of North Carolina] has specifically refused to apply the plain error standard of review `to issues which fall within the realm of the trial court's discretion.'" State v. Cunningham, 188 N.C. App. 832, 837, 656 S.E.2d 697, 700 (2008) (quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000)). Accordingly, Defendant's contentions are overruled.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).