Opinion
No. COA11–1434.
2012-06-5
STATE of North Carolina v. Byron Antwain MOORE.
Attorney General Roy Cooper, by Assistant Attorney General Narcisa I. Woods and Director of Victims and Citizens Services David L. Elliott, for the State. Geoffrey W. Hosford for defendant appellant.
Appeal by defendant from judgments entered 10 June 2011 by Judge W. Allen Cobb, Jr., in Duplin County Superior Court. Heard in the Court of Appeals 23 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Narcisa I. Woods and Director of Victims and Citizens Services David L. Elliott, for the State. Geoffrey W. Hosford for defendant appellant.
McCULLOUGH, Judge.
Byron Antwain Moore (“defendant”) appeals from his convictions of communicating threats, second-degree rape, first-degree kidnapping, assault on a female, habitual misdemeanor assault, and obtaining the status of an habitual felon. The trial court consolidated defendant's charges and sentenced him to 113 to 169 months' imprisonment. For the following reasons, we find no error.
I. Background
On the evening of 2 September 2006, Cathleen Troublefield had been spending time with her boyfriend at his place in Kenansville, North Carolina, which entailed them having sexual intercourse without protection. Troublefield subsequently had her boyfriend drop her off at the Piggly Wiggly supermarket in Warsaw, North Carolina. While in the Piggly Wiggly parking lot, Troublefield purchased some crack cocaine, which she then smoked. She then walked across the railroad tracks to purchase a 24–ounce beer at the T–Mart convenience store. Troublefield has a history of criminal conduct which has resulted in convictions for felonious possession of stolen goods, misdemeanor possession of stolen goods, disorderly conduct, and two counts of possession of drug paraphernalia. She has not worked since 1999. At least two of these convictions resulted in active sentences for Troublefield due to violations of her probation.
At the T–Mart, Troublefield met some people, with whom she rode to Allison Moore's house for a party. Troublefield saw Moore's nephew, defendant, at the party. She had known defendant for twenty to twenty-five years, having worked on farms together, and knew him as “Bo–Bo.” At approximately 9:45 p.m. that evening, Troublefield left the party with defendant and Roy Williams. Williams drove defendant and Troublefield to Gum Street, where he dropped them off. Troublefield proceeded to cross Front Street, heading into a well-known drug area, on the way to a friend's home, with defendant following. While on the way, the two passed by Michelle Newkirk and a white man. At around 11:00 p.m., defendant asked Troublefield if she wanted to get high, which she declined. Defendant next allegedly grabbed Troublefield's purse, but she told him she had no money and he returned it. Defendant then grabbed her by the arm and pulled her into a yard beside a vacant house at 515 Front Street. He proceeded to hit her in the face and back of the head, while she screamed for help. He told her to stop screaming or he would kill her, and he then removed both of their pants. Defendant subsequently “put his penis inside of [her] vagina,” but did not ejaculate inside of her.
Once defendant finished, he jumped up and immediately got in a vehicle heading south on Front Street. Troublefield removed her bra and underwear and threw them away because they smelled of semen. She proceeded to walk down Washington Street where she stopped at the house of defendant's cousin, Thomas Moore, in an attempt to determine defendant's legal name. She allegedly did not seek immediate help due to defendant having threatened to kill her. She then left Thomas Moore's house, walking back to the convenience mart. On her way, almost two hours after the incident, Troublefield found her friend, Newkirk, bleeding on the side of the road. Troublefield flagged down Officer Rae Ward of the Warsaw Police Department (“WPD”), who was driving nearby. She reported the assault on Newkirk and then approached Officer Judy Perez, who had stopped to assist, to tell her that she had been raped by defendant. Officer Perez noticed that defendant had a busted lip, dried blood on her lip, a scrape on her arm, and a swollen left cheek, as well as her clothes being badly soiled by dirt and grass. Officer Perez called Jerry Wood, a detective with the WPD at the time, and the E.M .S. to transport Troublefield to the hospital.
At the hospital, a nurse collected evidence for a rape kit and Troublefield acknowledged that she was pregnant. The nurse questioned her about the rape, to which Troublefield responded that defendant had ejaculated inside of her. The nurse tested for evidence of bodily fluids on Troublefield's skin, which showed positive indications. A doctor examined Troublefield by performing a pelvic examination, which results were normal. Detective Wood met Troublefield at the hospital and forwarded her rape kit to the State Bureau of Investigation. The kit revealed a presence of sperm, but the DNA profile matched that of Troublefield's boyfriend and not defendant.
On 7 September 2006, Detective Wood interviewed defendant after having read him his Miranda rights and having him sign a waiver form. According to defendant's signed statement, he did attend a cookout at Allison Moore's house on 2 September 2006, but his story differs from Troublefield's at that point. He denies having seen Troublefield that night and actually stated that he had not seen her since around 15 July 2006.
During the State's case-in-chief, it sought to introduce evidence under N.C.R. Civ. P. 404(b) regarding defendant's motive, common plan or scheme, or identity. The trial court conducted a voir dire hearing regarding the questionable evidence during which Deborah Jeanine Wright Turner testified regarding the events of 27 December 1995. In 1995, Turner was thirty-eight, with four children, and was a frequent user of crack cocaine and alcohol. Between 2:00 a.m. and 3:00 a.m. on 27 December 1995, Turner left her home on her bicycle in search of her eldest son. She stopped by David Sloan's house without any luck. As she was leaving, a man grabbed her by the neck and pulled her into an alley adjacent to a pool hall. She did not know the man, but screamed several times for help hoping he would let go or someone would come to her aid. He choked her and hit her in the head, as well as hitting her head against the pool hall wall. He also threatened to kill her and her family if she did not get undressed. She undressed and he attempted to penetrate her, but he could not.
Turner then suggested that they call her mother for a ride, so they walked back to Sloan's house. Sloan heard hollering at his back door and opened it to find Turner and a man. Turner used the phone to call 911 while the man sat in the kitchen and talked to Sloan. The man told Sloan that he had neither raped nor assaulted Turner, while showing Sloan some old scars on his hands. Sloan allegedly identified defendant at a later point based on the scars on his hands. The man left and the police then arrived at Sloan's house. The police questioned Turner and took photographs. However, Sloan testified that the police never came to his house, but he later went to the WPD to answer some questions. Turner could not identify the man, but gave them the name “Billy Ray.” Nonetheless, she later talked with her mother about the incident, who suggested that she might have known the man because they were related. Turner subsequently identified defendant in court as her assailant.
Deputy Sheriff Steve Stancil, a former detective with the WPD with twenty years' experience, investigated the alleged incident. In his second interview with Turner, she admitted to having a fair amount to drink that night. Deputy Stancil could not remember Sloan identifying anyone by scars on their hands, nor could he remember Turner identifying defendant as her assailant. Defendant denied all the accusations. The State sought indictments against defendant for attempted sexual assault, kidnapping, and assault on a female; however, the grand jury failed to return any true bills of indictment. In the case at hand, the trial court allowed the State's Rule 404(b) evidence regarding the incident of 27 December 2005 to show a common plan or scheme, motive, or identity, over defendant's objections.
On 6 June 2011, defendant was charged with communicating threats, second-degree rape, first-degree kidnapping, assault on a female, habitual misdemeanor assault, and obtaining the status of an habitual felon. Defendant admitted to the existence of prior misdemeanor convictions. He moved to dismiss all charges at the close of the State's case, which the trial court denied. He did not offer evidence and renewed his motion to dismiss, which the trial court again denied. The jury returned unanimous verdicts finding defendant guilty of communicating threats, second-degree kidnapping, and assault on a female. The jury reached a non-unanimous verdict as to the second-degree rape charge and the trial court declared a mistrial. Defendant admitted to obtaining the status of an habitual felon. The trial court sentenced him to a consolidated sentence of 133 to 169 months in prison. Defendant gave oral notice of appeal on 10 June 2011.
II. Analysis
A. Admission of Evidence Regarding Prior Sexual Misconduct
Defendant raises two issues on appeal with his first being that the trial court erred in admitting evidence of prior sexual misconduct pertaining to the 1995 incident with Turner. Specifically, defendant contends the trial court erred in finding the evidence to be admissible to show defendant's identity, common plan or scheme, or motive, and that the evidence had sufficient similarities with the current crime charged pursuant to N.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). Moreover, he argues the evidence's probative value did not outweigh its likeliness of causing unfair prejudice as required by N.C. Gen.Stat. § 8C–1, Rule 403 (2011). We disagree.
Whether evidence was properly admitted under Rule 404(b) involves a three-step test. First, is the evidence relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried' Second, is that purpose relevant to an issue material to the pending case' Third, does the probative value of the evidence substantially outweigh the danger of the unfair prejudice pursuant to Rule 403.
State v. Glenn, No. COA11–897, 2012 WL 1293805, at *9 (N.C.Ct.App. Apr. 17, 2012) (citations omitted). The first two steps contain questions of relevance as defined by Rule 401. SeeN.C. Gen.Stat. § 8C–1, Rule 401 (2011).
This Court reviews questions of relevancy de novo, but accords deference to the trial court's ruling. State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011) (“A trial court's rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.”). The third step of the Rule 404(b) test—the Rule 403 balancing test—is reviewed for abuse of discretion. Summers, 177 N.C.App. at 697, 629 S.E.2d at 907.
Glenn, No. COA11–897, 2012 WL 1293805, at *9 (N.C.Ct.App. Apr. 17, 2012).
Other crimes, wrongs, or acts evidence “must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction.” State v. Haskins, 104 N.C.App. 675, 679, 411 S.E.2d 376, 380 (1991). Moreover,
[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). It is admissible only if there is evidence to convince the jury that the defendant committed that prior crime, wrong, or act. Haskins, 104 N.C.App. at 679, 411 S.E.2d at 380. Nevertheless, Rule 404(b) is 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 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). “To effectuate these important evidentiary safeguards, 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 contends the State's sole purpose in offering evidence of the 1995 incident was to show defendant's character and propensity for committing rapes in a certain manner. Under Rule 404(b) “[o]ffering evidence solely to show that the defendant has the propensity to commit an offense of the nature of the crime charged' does not qualify as a proper purpose.” Haskins, 104 N.C.App. at 679, 411 S.E.2d at 380 (quoting Coffey, 326 N.C. at 278–79, 389 S.E.2d at 54). However, the trial court found that the State properly introduced the evidence of the 1995 crime for the purposes of proving defendant's identity, common plan or scheme, or motive in committing the 2006 rape.
Defendant otherwise argues the evidence cannot be considered relevant because Turner was intoxicated on the night of the incident in 1995 and only identified defendant after her mother suggested that Turner might have known the man.
[T]he “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. See Huddleston, 485 U.S. at 689–90, 99 L.Ed.2d at 782–83. In this regard, the trial court is required to make an initial determination pursuant to Rule 104(b) of whether there is sufficient evidence that the defendant in fact committed the extrinsic act. See United States v. Beechum, 582 F.2d 898, 913 (5th Cir.1978), cert. denied,440 U.S. 920, 59 L.Ed.2d 472 (1979). 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. See Huddleston, 485 U.S. at 690, 99 L.Ed.2d at 782;Beechum, 582 F.2d at 913. Rather, as a prerequisite to admitting the evidence, the trial court must find the evidence to be substantial. State v.. Williams, 307 N.C. 452, 454, 298 S.E.2d 372, 374 (1983) (defining substantial evidence as “such evidence as a reasonable mind might accept as adequate to support a conclusion”)[.]
Id. at 679–80, 411 S.E.2d at 380. Defendant argues the trial court erred in finding the evidence to be substantial due to the fact that a grand jury did not return true bills of indictment against defendant in regard to the 1995 incident. Moreover, the State did not produce evidence that the events actually occurred or that defendant committed those acts.
However, the State notes that for evidence to be relevant and thus admissible there must be “some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes.” State v. Hyatt, 355 N.C. 642, 661, 566 S.E.2d 61, 74 (2002) (internal quotation marks and citations omitted), cert. denied,––– U.S. ––––, 176 L.Ed.2d 426 (2010). The trial court properly found that “[t]he testimony of Cathleen Troublefield and Deborah Turner demonstrate sufficient similarity between the prior acts described by Deborah Turner and the crime specified against Cathleen Troublefield to justify the admission of the defendant's prior sexual misconduct. State v. Shamsid–Deen, 324 N.C. 437 (1989).” Both instances involved the raping of middle-aged African–American women, after being offered crack cocaine, and subsequently being beaten and threatened into submission. These facts are substantially similar to make the 1995 incident relevant in the case at hand.
Additionally, defendant argues the two incidents lacked the temporal proximity to be relevant. The incidents were separated by a span of eleven years, but defendant happened to be incarcerated for a period of sixteen months during that eleven-year span, bringing the span of time to less than ten years. Defendant relies on the case of State v. Carpenter, 361 N.C. 382, 646 S.E.2d 105 (2007), where our Supreme Court reversed and remanded on charges of possession of cocaine with intent to sell or deliver when the prior incident happened eight years before. However, in that case our Supreme Court held that there were “more differences than similarities” between the two acts, so they reversed on the discrepancies in the acts rather than the temporal proximity. Thus, we believe the period of time between the incidents is not so remote as to outweigh the probative value of the various similarities between the acts. Id. at 389, 646 S.E.2d at 110. Furthermore, the trial court gave a proper limiting instruction to the jury that the evidence of the 1995 act could only be considered
for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed; that the defendant had a motive for the commission of the crime charged in this case; and that there existed in the mind of the defendant a plan, scheme, system, or design involving the crime charged in this case. If you believe this evidence, you may consider it but only for the limited purpose for which it was received.
As a result, the probative value of the evidence from 1995 was not substantially outweighed by a danger of unfair prejudice. SeeN .C. Gen.Stat. § 8C–1, Rule 403. Overall, the trial court properly admitted evidence of the 1995 incident for the purposes of proving identity, motive, or common plan or scheme.
B. Admission of Victim's Prior Convictions
In defendant's second argument he contends the trial court erred in granting the State's motion in limine to prohibit the presentation of Troublefield's prior convictions that occurred more than ten years before the trial. Defendant argues the jury had already heard about Troublefield's prior convictions that were less than ten years old, so there would not have been any prejudice in allowing the older convictions. We disagree.
Generally, “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or [certain misdemeanors], shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter.” N.C. Gen.Stat. § 8C–1, Rule 609(a) (2011). However,
[e]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
N.C. Gen.Stat. § 8C–1, Rule 609(b).
Here, defendant sought to introduce evidence of Troublefield's prior convictions outside of the ten-year period, including crimes of dishonesty and moral turpitude, to attack Troublefield's credibility. Specifically, defendant sought to introduce Troublefield's prior conviction for filing a false police report. Nonetheless, the trial court granted the State's motion in limine and denied defendant's request to admit the evidence because defendant already planned on presenting Troublefield's multiple convictions that fell within the ten-year limit. These convictions also went to Troublefield's credibility and the trial court did not see a need for the admission of any convictions outside of the ten-year period.
Defendant, however, contends the trial court did not conduct a balancing test in determining whether to allow or deny the evidence, as required by Rule 609(b). See id. He argues the trial court merely excluded the evidence based on its age. While age is a factor to consider in weighing the evidence, the trial court must apply a balancing test. See id. Nevertheless, “[e]ven where the trial court improperly excludes certain evidence, [ ] a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error.” State v. Black, 111 N.C.App. 284, 290, 432 S.E.2d 710, 715 (1993). We acknowledge that the trial court did not administer a proper balancing test, but its neglect did not prejudice defendant. The trial court properly determined the evidence sought was outside of the ten-year period and defendant already had the ability to elicit evidence of Troublefield's numerous, more recent convictions. An allowance of these additional convictions outside of the ten-year period would have been cumulative in nature and certainly would have been more prejudicial than probative. See State v. Harris, 140 N.C.App. 208, 216–17, 535 S.E.2d 614, 619–20 (2000). The jury would likely not have reached a different result. Consequently, the trial court did not abuse its discretion in granting the State's motion in limine to prohibit the introduction of Troublefield's convictions from more than ten years before the trial.
III. Conclusion
In sum, defendant received a fair trial free from error. The trial court did not err in allowing evidence regarding “other crimes, wrongs or acts” more than ten years prior to the current incident to prove identity, motive, or common scheme or plan, where the acts were more probative than prejudicial and were substantially similar. Additionally, the trial court did not err in excluding evidence regarding Troublefield's prior convictions more than ten years before trial due to the cumulative nature of the convictions and the fact that the allowance of the prior convictions would have been more prejudicial than probative.
No prejudicial error. Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).