Summary
admitting evidence of "child pornographic video with an incestuous theme, other child pornographic images, and incestuous stories" because the evidence was "relevant to show [defendant's] intent and motive to commit sexual acts with the nine-year-old female [victim]"
Summary of this case from State v. BrownOpinion
No. COA08-1279.
Filed 19 May 2009.
Cherokee County No. 07CRS051060.
Appeal by Defendant from judgment entered 26 June 2008 by Judge Dennis J. Winner in Superior Court, Cherokee County. Heard in the Court of Appeals 21 April 2009.
Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.
Reita P. Pendry, for defendant.
"[E]vidence of prior acts of sexual misconduct may properly be admitted under Rule 404(b) `to show a relevant state of mind such as intent, motive, plan, or opportunity. . . .'" In this case, Defendant Carl Steve Owens argues the trial court committed plain error by allowing irrelevant evidence about the contents of his computer and alleged prior bad acts. Because such evidence is relevant to show plan, intent, and motive, we find no error.
State v. Wade, 155 N.C. App. 1, 18, 573 S.E.2d 643, 654 (2002) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)), disc. review denied, 357 N.C. 169, 581 S.E.2d 444 (2003).
In 2004, Defendant lived in a mobile home that adjoined the residential property of Defendant's nephew and his wife and their four children, including eight and nine-year-old females. Defendant offered to fix the children's bikes when needed and sometimes invited them to his mobile home to play pinball on his computer.
The State's evidence tended to show that on an occasion when Defendant invited the girls to play pinball, the nine-year-old female went to Defendant's trailer alone and Defendant came out of the bathroom with his blue jeans down at his ankles. Defendant told the nine-year-old female to touch his private part; when she did not, Defendant grabbed her wrist and forced the nine-year-old female to touch his penis. The nine-year-old female pulled her hand away and left Defendant's trailer.
A week later, Defendant again invited the nine-year-old female to his mobile home to play pinball. Again, the nine-year-old female went alone and when she entered Defendant's trailer, she found him sitting on his couch without a shirt, pants or underwear. Defendant closed the door behind the nine-year-old female, told her to remove her pants and underwear, instructed the nine-year-old female to sit on top of him on the couch, and began to insert his penis into her vagina. Thereafter, the nine-year-old female jumped up and tried to leave but Defendant grabbed her and told her that he "would do something bad" to her if she told anyone what happened. The nine-year-old female ran home, went to her room, and did not tell anyone at that time.
Later that week, the nine-year-old female returned to Defendant's mobile home to play pinball. Again, Defendant was in the bathroom when the nine-year-old female arrived, and he came out without a shirt or pants. Defendant instructed the nine-year-old female to remove her pants and underwear and she complied. Then Defendant showed the nine-year-old female a pornographic videotape and he told her: "Every time I watch this I think of you." Thereafter, Defendant sat on the couch next to the nine-year-old female and inserted a finger into her vagina. The nine-year-old female left Defendant's trailer and did not go back to Defendant's mobile home.
The nine-year-old female's parents separated some time later and the nine-year-old female went to live with her father in an apartment. Her mother testified that the nine-year-old female first revealed what Defendant had allegedly done to her during a visit around Christmas in 2006. The nine-year-old female had shown signs of anger problems since her parents separated, but her mother noticed that the nine-year-old female sought her attention more than usual during this visit. At some point, the nine-year-old female's yearning for attention became anger, and she expressed feeling "like nobody cares about me, nobody don't even care that I got raped." Upon hearing this, her mother asked her to explain and the nine-year-old female told her mother about Defendant's alleged actions.
Immediately thereafter, her mother called Cindy Picon, the nine-year-old female's counselor, to relay the allegations. Picon revealed that, months before, the nine-year-old female told her "that a neighbor man exposed himself to her," but the nine-year-old female refused to give a name. Picon advised the mother to contact the Sheriff's Department immediately, which she did. In the hindsight of her trial testimony, the mother recalled that the nine-year-old female "would go into rages and tantrums and just be unruly" when she returned from Defendant's mobile home.
Investigator Jerry Crisp testified that the nine-year-old female was initially hesitant to talk but eventually opened up and described Defendant's alleged actions. The nine-year-old female also told Investigator Crisp that she thought Defendant did similar things to her eight-year-old sister. Thereafter, Investigator Crisp interviewed the eight-year-old female, who told him that Defendant had touched the outside of her vagina with his fingers on multiple occasions. The eight-year-old female gave the same testimony at trial. Genital examinations of both females revealed no physical injuries or evidence to support or refute the allegations.
During an interview with Officer Roger Williams, Defendant denied the allegations regarding the eight and nine-year-old females, but admitted viewing incest and child pornographic images on his home computer as research for English classes he was taking. At trial, Officer Williams testified that he was unable to verify that Defendant was actually enrolled in such classes.
In a written statement, Defendant alleged that the nine-year-old female had once come to his trailer, removed her pants and underwear, and rubbed her body against him. Officer Williams transcribed that Defendant became "sexually excited" by the nine-year-old female's alleged actions, but Defendant struck through "sexually" before initialing the statement. In that same statement, Defendant also admitted possessing and viewing adult pornography, but he stated it belonged to the children's mother and he was simply holding it so the girls would not discover it.
Defendant allowed officers to search his home computers. Officer Williams found a child pornographic video with an incestuous theme, other child pornographic images, and incestuous stories. Officer Williams did not find anything on Defendant's computer suggesting research for an English class, but he found a story about a preacher, unrelated to child pornography or incest, that supported Defendant's explanation.
Defendant testified on his own behalf. He stated that he had a close relationship to the girls because they were raised nearby and their parents gave him permission to discipline the girls if necessary. Defendant acknowledged his statement to Officer Williams, but denied stating that he became "sexually aroused" when the nine-year-old female allegedly rubbed her body against him. Otherwise, Defendant generally denied all other allegations, including ever touching either of the girls or showing them pornography. Additionally, Defendant explained that some pornographic material appeared on his computer because a website "took over [his] computer," and he had voluntarily downloaded other material as research for his English class. Following the evidence, a jury convicted Defendant of one count of first-degree sexual offense with a child and the trial court sentenced him to 228-238 months of imprisonment.
On appeal, Defendant contends the trial court: (I) erred by failing to give a limiting instruction after permitting evidence of uncharged acts with the eight-year-old female; (II) committed plain error by admitting the contents of his computer because the evidence was irrelevant, improper Rule 404(b) evidence, and more prejudicial than probative under Rule 403; and (III) committed plain error by allowing the State to cross-examine him about the contents of his computer because the testimony was irrelevant, improper Rule 404(b) evidence and more prejudicial than probative under Rule 403.
I.
In first his argument, Defendant concedes that he did not object to the trial court's failure to give a limiting instruction after admitting evidence of the uncharged acts with the eight-year-old female. Nor did Defendant request a limiting instruction; so, he urges this Court to review the omission for plain error. However, we observe that Defendant did not specifically assign plain error to this issue, so it is not properly before us. N.C. R. App. P. 10(c)(4) (2007) (stating that the "judicial action questioned [must be] specifically and distinctly contended to amount to plain error"); State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, ___ U.S. ___, 172 L. Ed. 2d 58 (2008).
Nonetheless, given the potential impact of this evidence on the jury, we have in our discretion reviewed the record and concluded that the trial court did not err by failing to give a limiting instruction. Our conclusion is guided by this statement from our Supreme Court:
[T]he admission of evidence which is relevant and competent for a limited purpose will not be held error in the absence of a request by the defendant for a limiting instruction. Such an instruction is not required unless specifically requested by counsel.
State v. Stager, 329 N.C. 278, 309, 406 S.E.2d 876, 894 (1991) (original emphasis) (citations omitted). Furthermore, it is settled that evidence is not admissible under Rule 404 "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) (2007), but such evidence is admissible "`to show a relevant state of mind such as intent, motive, plan or opportunity.'" Wade, 155 N.C. App. at 17-18, 573 S.E.2d at 654 (quoting Boyd, 321 N.C. at 577, 364 S.E.2d at 119).
Accordingly, evidence of Defendant's alleged acts with the eight-year-old female was relevant and admissible for a limited purpose, such as showing Defendant's intent or common scheme in committing the charged offense with the nine-year-old female. Because evidence of Defendant's alleged acts with the eight-year-old female was admissible for one purpose and inadmissible for another, Stager controls and a limiting instruction was "not required unless specifically requested by [Defendant's] counsel." Stager, 329 N.C. at 309, 406 S.E.2d at 894. As Defendant concedes that he did not request a limiting instruction, we find no error.
II.
In his next argument, Defendant contends that the trial court committed plain error by admitting evidence of the contents of his computer that was irrelevant, improper Rule 404(b) evidence, and more prejudicial than probative under Rule 403. We disagree.
This Court will not find that the trial court's admission of evidence amounted to plain error unless the jury probably would have reached a different result if the alleged error had not occurred. State v. Lofton, ___ N.C. App. ___, ___, 667 S.E.2d 317, 320-21 (2008) (citation omitted). The burden is on Defendant to show "the error in question `tilted the scales' and caused the jury to reach its verdict. . . ." State v. Morgan, 315 N.C. 626, 645, 340 S.E.2d 84, 96 (1986) (citing State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983)). We must apply the plain error rule "cautiously and only in the exceptional case where" the error "resulted in a miscarriage of justice or a denial to appellant of a fair trial." Id. (citations and quotation marks omitted).
North Carolina Rule of Evidence 401 defines "relevant evidence" as "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 (2007). Our Supreme Court construes Rule 404(b) narrowly as a rule of inclusion "subject to but one exception requiring [evidence's] 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. Jeter, 326 N.C. 457, 460, 389 S.E.2d 805, 807 (1990) (original emphasis). Thus, such evidence is "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) (2007). The "ultimate test" for determining the admissibility of Rule 404(b) evidence is "whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403." State v. Hinson, 102 N.C. App. 29, 36, 401 S.E.2d 371, 375 (1991) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)).
Here, evidence of the contents of Defendant's computer was relevant to show his intent and motive to commit sexual acts with the nine-year-old female. The State's evidence showed that much of the material on Defendant's computer had an incest theme, and some of it was child pornography. Defendant testified that he considered himself to be an uncle to the children. Therefore, the incestuous child pornography on Defendant's computer tended to show Defendant's motive, or intent to commit the charged offense.
Moreover, evidence on Defendant's computer bore substantial probative value because its incest theme correlates with Defendant's relationship to the nine-year-old female, making the evidence "sufficiently similar" to the charged offense. Hinson, 102 N.C. App. at 36, 401 S.E.2d at 375 (quoting Boyd, 321 N.C. at 577, 364 S.E.2d at 119). Additionally, the prejudicial effect of the evidence on Defendant's computer was limited considering the eight-year-old female's testimony that Defendant committed acts on her similar to the acts alleged by the nine-year-old female. In sum, we cannot conclude that the trial court committed any error, much less plain error, by admitting evidence of the contents of Defendant's computer. Accordingly, we reject this argument.
III.
Defendant next argues the trial court committed plain error by allowing the State to cross-examine him about the contents of his computer because the evidence was irrelevant, impermissible under Rule 404(b), and more prejudicial than probative under Rule 403. We disagree.
Defendant essentially challenges the same evidence, on the same grounds, that we concluded was not erroneously admitted in Section II above. In this argument, however, Defendant contends the trial court committed plain error by permitting the State to ask questions relating to the contents of his computer during his cross-examination. Thus, to the extent Defendant actually challenges the scope of his cross-examination, North Carolina Rule of Evidence 611(b) governs.
Rule 611(b) provides: "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility." N.C. Gen. Stat. § 8C-1, Rule 611(b) (2007). For the reasons stated in Section II, we conclude that evidence of the contents of Defendant's computer was relevant to show his motive or intent to commit the charged offense. Accordingly, the State's questions seeking to elicit that evidence during Defendant's cross-examination were permissible under Rule 611(b), and this argument is overruled.
No error.
Judges JACKSON and Robert N. HUNTER concur.
Report per Rule 30(e).