Opinion
NO. COA12-730
12-18-2012
STATE OF NORTH CAROLINA v. EDWARD JAMES KRIEGER
Roy Cooper, Attorney General, by Thomas O. Lawton III, Assistant Attorney General, for the State. Parish & Cooke, by James R. Parish, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Stanly County
No. 10 CRS 51356
Appeal by Defendant from judgment entered 19 January 2012 by Judge Tanya T. Wallace in Stanly County Superior Court. Heard in the Court of Appeals 23 October 2012.
Roy Cooper, Attorney General, by Thomas O. Lawton III, Assistant Attorney General, for the State.
Parish & Cooke, by James R. Parish, for Defendant.
THIGPEN, Judge.
Edward James Krieger ("Defendant") appeals from a judgment entered upon a jury verdict finding him guilty of second degree rape. After careful review, we find no error.
I. Factual & Procedural Background
The State's evidence at trial tended to show the following: On the afternoon of 20 May 2010, eighteen-year-old D.K. left her home after an argument with her stepfather ("Mr. Teague"). D.K. walked approximately 100 yards through the wooded area behind her home to a creek, where she would occasionally go "just to relax and get away from everything." After sitting by the water for approximately 30 minutes to an hour, D.K. realized that it was getting dark and that she "needed to head home." She had begun walking back through the woods toward her home when she heard the sound of sticks breaking behind her. She stopped briefly, but did not turn around, thinking that she had heard only a deer. She was about to start walking again when she felt someone grab her by both shoulders from behind. The individual, whom D.K. recognized as Defendant, then forced her up against a tree. Defendant pinned D.K. to the tree with one hand and stripped D.K.'s pants and underwear down to her ankles with the other. Defendant unzipped his pants and proceeded to engage in sexual intercourse with D.K. Defendant did not say anything, but smiled and licked D.K.'s ear. D.K. did not cry or scream because she "was frozen in shock and fear." Defendant subsequently placed his hands around D.K.'s waist, crouched down, and began performing oral sex on her. At some point, the sound of a car in the distance distracted Defendant. When Defendant turned towards the noise, D.K. shoved him, grabbed her clothing, and "just ran home" without looking back. The entire encounter lasted approximately twenty minutes.
The initials "D.K." are used throughout this opinion to protect the identity of the victim.
Defendant was arrested on 25 May 2010 and subsequently indicted on the charge of second degree rape on 2 August 2010. Defendant filed a pre-trial notice of intent to offer consent as a defense, and the matter came on for trial on 9 January 2012. At trial, D.K. testified to the factual account detailed above and further testified that she recognized Defendant at the time of the alleged attack because he lived nearby and because he had done "odd jobs around the yard for [Mr. Teague]." Mr. Teague also testified on the State's behalf. Mr. Teague described an incident less than one week prior to the 20 May 2010 incident in which Defendant was assisting him with his lawnmower in front of his residence when D.K. and her friend, Jennifer, came out of the house to take a walk. Mr. Teague testified to the following:
We use a pseudonym to protect the identity of the minor.
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[Mr. Teague]: As they was coming out, walking up the road, [Defendant] said, Look at the ass on that girl there. He said, I sure would like to have that. I said, Leave
them young'uns alone. I said, They ain't but 14, 15 years old. He said he didn't give a damn, he would have them anyway.
The trial court admitted this testimony over Defendant's objection, stating that it was "possibly addressed by 404(b)" because Defendant had raised consent as a defense and that the testimony was relevant to Defendant's plan, opportunity, intent and/or preparation. The court further stated that even if the testimony was not admissible under Rule 404(b), it was admissible as a statement by Defendant, and Mr. Teague was entitled to testify to a conversation he had with Defendant.
Detective Carla Eudy-King ("Detective King"), a detective sergeant with the Stanly County Sheriff's Office, also testified as a witness for the State. Detective King recounted her arrest and interrogation of Defendant in connection with the 20 May 2010 incident. Detective King described Defendant's "several different accounts" of his relationship with D.K. Defendant initially informed Detective King that he "didn't know [D.K.] at all[,]" but he then stated that he "knew of her." Defendant later claimed that he had "talked to [D.K.] as a friend" about her "boyfriend problems" and had heard about her "promiscuous" reputation. According to Detective King, Defendant finally stated that he had seen D.K. walking her dog by the creek where he was fishing on the day in question and that "one thing led to another and he kissed her, then she pulled him down on top of her and they had sex."
Defendant moved to dismiss at the close of the State's evidence, and the trial court denied the motion. Defendant did not present any evidence.
On 19 January 2012, the jury returned a unanimous verdict convicting Defendant as charged. The trial court designated Defendant a prior record level IV offender and sentenced Defendant to 110 to 141 months imprisonment. Additionally, the court found that Defendant had committed a sexually violent offense and that he was a recidivist offender and ordered Defendant to register as a sex offender and enroll in satellite-based monitoring for the remainder of his natural life upon his release from imprisonment. Defendant appeals.
II. Analysis
Defendant contends that the trial court erred in admitting the portion of Mr. Teague's testimony recited above, in which Mr. Teague recounted Defendant's statements to him that "he didn't give a damn [about D.K. and Jennifer's age], he would have them anyway." Defendant argues that this testimony was irrelevant, unfairly prejudicial, and inadmissible character evidence under Rule 404(b). We disagree.
"To receive a new trial based upon a violation of the Rules of Evidence, a defendant must show that the trial court erred and 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) (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 (2011). Although generally admissible, relevant evidence may be excluded under other Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 402 (2011). For instance, even relevant
[e]vidence 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) (2011). Further, even if the evidence is relevant and admissible for a proper purpose under Rule 404(b), the evidence may still be excluded under Rule 403 "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 (2011).
We note at the outset that Defendant's statements to Mr. Teague concerning D.K. do not constitute prior bad acts within the meaning of Rule 404(b). See State v. White, 131 N.C. App. 734, 743, 509 S.E.2d 462, 468 (1998). Defendant's contentions that these statements were inadmissible under Rules 404(b) and 403 are, therefore, misplaced. The statements at issue are more properly classified as party admissions under N.C. Gen. Stat. § 8C-1, Rule 801(d) (2011). See White, 131 N.C. App. at 743, 509 S.E.2d at 468; State v. Workman, 344 N.C. 482, 503, 476 S.E.2d 301, 312 (1996). Rule 801(d) permits introduction of a hearsay statement "if it is offered against a party and it is . . . his own statement." N.C. Gen. Stat. § 8C-1, Rule 801(d). The statements at issue meet these requirements, and we thus discern no error in their admission through Mr. Teague's testimony at trial.
We further note the relevance - and thus admissibility - of Defendant's statements under Rule 401. Defendant's statements were relevant in that they tended to undermine his defense at trial that his sexual encounter with D.K. was consensual. More specifically, the challenged statements reflected Defendant's desire to "have" both Jennifer and D.K., thereby indicating a motive for his attack on D.K. only one week later.
Defendant's contention that his statements were irrelevant because they pertained only to D.K.'s friend, Jennifer, and not to D.K, is without merit. Defendant asserts that this distinction is important because Jennifer was a minor, and whether Defendant wanted to have sex with a minor was "simply not relevant to the issue of whether the sex with [D.K., an eighteen-year-old] adult female[,] was consensual." However, even assuming arguendo that Defendant's remarks, "Look at the ass on that girl there," and "I sure would like to have that," were directed toward Jennifer, Defendant's statement that he "would have them anyway" clearly referred to both Jennifer and D.K. This construction is clear in light of the fact that Defendant's statement that he "would have them anyway" was in response to Mr. Teague's statement, "Leave them young'uns alone."
Because we hold that the trial court did not err in admitting the challenged statements, we need not determine whether "there is a 'reasonable possibility' that without the error 'a different result would have been reached at the trial.'" Ray, 364 N.C. at 278, 697 S.E.2d at 322 (citation omitted). For the foregoing reasons, we find no error.
NO ERROR.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).