Opinion
No. COA08-1260.
Filed June 16, 2009.
Columbus County Nos. 07 CRS 444; 07 CRS 456.
Appeal by defendant from judgments entered 19 March 2008 by Judge Robert F. Floyd, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 21 April 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Karen E. Long, for the State. Sue Genrich Berry, for defendant-appellant.
Michael Lynn Parker ("defendant") appeals his 19 March 2008 convictions of first-degree burglary and first-degree sex offense in file 07 CRS 444, and first-degree burglary and attempted second-degree rape in file 07 CRS 456. For the reasons stated below, we hold no error.
At approximately 6:00 p.m. on Sunday, 10 December 2006, Jessica Mason ("McBride") was at her home doing laundry and preparing to take some clean clothes to her mother's house where her children were spending the night. As she was hanging clothes on the clothesline, her cousin and defendant — whom she knew by name and recognized from the community — walked by on their way to her cousin's house next door. She noticed that her cousin had been drinking. Shortly thereafter, as McBride was exiting her house, defendant approached her with a knife, and forced her back into the kitchen of her house.
Jessica Mason was engaged to marry James McBride at the time of the incidents involved in the case. The couple subsequently married, and by the time of the trial Jessica Mason was known as Jessica McBride.
Holding the knife in a threatening manner, defendant demanded that McBride perform fellatio on him. He threatened to kill her if she did not comply. McBride was aware that defendant previously had cut a man in the neck and hit another man with a board. She was afraid and did what she was told. However, defendant did not ejaculate in the kitchen and forced McBride into her bedroom where he demanded that she continue. Defendant was able to ejaculate in the bedroom. When McBride felt defendant ejaculating, she tried to move her head, but defendant pushed it back down and ejaculated in her mouth.
At that time, McBride heard her then-fiancès truck arrive at the house. Defendant asked McBride for money, which she did not have. He stumbled as he attempted to leave, dropping the knife. McBride went to the back door where her fiancèwas trying to enter. Defendant attempted to flee through the front door; however, he could not because the deadbolt was broken.
McBride informed her fiancè what had happened. As her fiancè was saying, "[W]here's my gun, where's my gun," defendant left through the back door of the house. McBride and her fiancèwent into the house to find McBride's keys. McBride showed her fiancèwhere the knife was. The two then called the police while driving to McBride's mother's house.
Police interviewed McBride at her mother's house. She then accompanied police to her house where she showed them where events had occurred and located the knife. She also went to the hospital where evidence was collected by swabbing the inside of her mouth.
Between 7:15 and 7:30 p.m. on Sunday, 10 December 2006, Debbie Edwards ("Edwards") left church, stopped by her mother's house, and went to her home to change clothes before returning to her mother's house for a visit. Edwards lived less than a mile from McBride, with their houses being separated only by fields. As she was fumbling with her keys to unlock her front door, defendant came out of the field.
Edwards asked who he was and defendant answered that he was "Michael Parker, Phil Parker's son." Edwards was uncomfortable; she was still trying to find her key and defendant was walking quickly toward her. He made it to her porch as she unlocked her door and tried to back into the house. Edwards asked what he wanted, to which defendant replied that he wanted cigarettes.
Before she could pull the door closed behind her, defendant grabbed it, grabbed her, and threw her to the floor. Defendant reached under her sweater and fondled her breast. As Edwards fought with defendant and screamed, she said, "[O]h, God, please help me," at which point defendant stopped. He got up off of her and backed away. Edwards ran to her car and locked herself in. She then called 9-1-1. Defendant sat down on her porch step and asked her to forgive him for what he had done. Defendant left before officers arrived.
When officers arrived, Edwards showed them where defendant had gone back through the field. As Edwards was talking to the officers, her estranged husband arrived and asked what had happened. Shortly thereafter, he and some of Edwards' other relatives saw defendant at a nearby intersection, confronted him, and called the police. Defendant was arrested when officers arrived at the intersection.
On 19 March 2008, a jury found defendant guilty of first-degree burglary and first-degree sex offense against McBride in file 07 CRS 444 and guilty of first-degree burglary and attempted second-degree rape against Edwards in file 07 CRS 456. The court determined that defendant had a Prior Record Level II and sentenced him in the presumptive range to a term of 288 to 355 months imprisonment for the crimes against McBride. For the crimes against Edwards, defendant was sentenced in the presumptive range to a term of seventy-seven to 102 months imprisonment, to be served at the expiration of the other sentence. Both convictions required defendant to register as a sex offender and submit to lifetime satellite -based monitoring upon his release from custody. Defendant appeals.
Defendant first argues that the trial court lacked subject matter jurisdiction to convict him of first-degree sex offense because the indictment charged him with a statute "which does not exist." We disagree. This Court reviews the sufficiency of an indictment de novo as this is a question of law. State v. McKoy, ___ N.C. App. ___, ___, 675 S.E.2d 406, 409 (2009). Pursuant to a de novo review, this Court "considers the matter anew and freely substitutes its own judgment" for that of the lower court. In re Appeal of The Greens of Pine Glen Ltd. Part., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).
"The purpose of an indictment . . . is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused. . . ." State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984). "An indictment is `constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.'" State v. Hutchings, 139 N.C. App. 184, 188, 533 S.E.2d 258, 260 (quoting State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)), disc. rev. denied, 353 N.C. 273, 546 S.E.2d 381 (2000).
Here, the indictment charged defendant with "first-degree sex offense" in violation of North Carolina General Statutes, section "14-27.4(A)" because he "unlawfully, willfully and feloniously did engage in a sex offense with Jessica Mason, by force and against the victim's will, against the form of the statute in such case made and provided and against the peace and dignity of the State." Defendant contends that section "14-27.4(A)" does not exist. Although defendant technically is correct, section "14-27.4(a)" exists and is the section criminalizing first -degree sex offense.
"[A]lthough an indictment may cite to the wrong statute, when the body of the indictment is sufficient to properly charge defendant with an offense, the indictment remains valid and the incorrect statutory reference does not constitute a fatal defect." State v. Mueller, 184 N.C. App. 553, 574, 647 S.E.2d 440, 455 (citing State v. Jones, 110 N.C. App. 289, 290-91, 429 S.E.2d 410, 411-12 (1993); State v. Reavis, 19 N.C. App. 497, 498, 199 S.E.2d 139, 140 (1973)), cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007). In Mueller, the indictment referenced section 14-27.7A but recited language consistent with section 14-27.4 (a)(1). This Court determined that the indictment remained valid notwithstanding the incorrect statutory reference which did not constitute a fatal defect. Id.
Here, the difference in the statute referenced in the indictment and the actual statute being charged is a matter of form, not substance. The indictment incorrectly capitalized the subsection when it should have been lowercase. It is difficult to fathom how this minor mistake would have failed to apprise defendant of the charge against him with sufficient certainty to prepare his defense and protect him from double jeopardy . In fact, defendant asserted the defense of consent at trial. Read in its entirety, the indictment informed defendant of the date of the offense, the location of the offense, the approximate time of the offense, the alleged victim, the name of the offense being charged, and sufficient facts to satisfy the statutory requirements for a short-form indictment. This assignment of error is overruled.
Defendant next argues that the trial court erred in joining the cases together for trial. We disagree.
Pursuant to North Carolina General Statutes, section 15A-926, when "the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan[,]" they may be joined for trial. N.C. Gen. Stat. § 15A-926 (a) (2007).
A motion to consolidate charges for trial is addressed to the sound discretion of the trial judge and that ruling will not be disturbed on appeal absent an abuse of discretion. If, however, the charges consolidated for trial possess no transactional connection, then the consolidation is improper as a matter of law.
State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981) (citations omitted). To show an abuse of discretion by the trial court, a defendant must show that the ruling was so arbitrary it could not have been the result of a reasoned decision. See State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
"[I]n determining whether an accused has been prejudiced by joinder[,] . . . `The question is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant.'" State v. Greene, 294 N.C. 418, 423, 241 S.E.2d 662, 665 (1978) (quoting State v. Johnson, 280 N.C. 700, 704, 187 S.E.2d 98, 101 (1972)) (emphasis in original). McBride and Edwards lived within less than one mile from each other, with their homes separated only by fields. Less than two hours separated the two crimes . Defendant was known by both women — McBride knew him by name and Edwards knew him through his father. Defendant approached each woman at her door and forced her inside. He committed a sexual offense against McBride and attempted to rape Edwards. We can discern no abuse of the trial court's discretion in joining these cases together for trial. This assignment of error is overruled.
Finally, defendant argues that the trial court erred in allowing McBride to testify about her knowledge of defendant's prior bad acts. Defendant contends the evidence was inadmissible hearsay and character evidence. We disagree.
Pursuant to the North Carolina Rules of Evidence, "preliminary questions concerning the . . . admissibility of evidence shall be determined by the court." N.C. Gen. Stat. § 8C-1, Rule 104(a) (2007). "Decisions made under Rule 104(a) are addressed to the sound discretion of the trial court." State v. Shuford, 337 N.C. 641, 649, 447 S.E.2d 742, 747 (1994) (citing State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985)). "A trial court abuses its discretion if its determination is `manifestly unsupported by reason' and is `so arbitrary that it could not have been the result of a reasoned decision.'" State v. Lasiter, 361 N.C. 299, 301-02, 643 S.E.2d 909, 911 (2007) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted ." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2007). At trial, McBride testified that defendant had cut one man in the neck and had hit another man with a board. McBride was not testifying to what someone else had told her about what defendant had done in the past, but to her own knowledge of those events. Further, this testimony was not offered for its truth — that defendant had in fact committed these prior acts of violence — but to show how McBride's knowledge of those acts affected her — by making her afraid of defendant. Therefore, McBride's testimony was not inadmissible hearsay.
"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 ." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2007). However, 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." Id. Rule 404(b) is
"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. Agee, 326 N.C. 542, 550, 391 S.E.2d 171, 175 (1990) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)) (emphasis in original). Here, the probative value of the evidence was to counter defendant's contention that McBride consented to engage in fellatio with him. It was not offered to show that defendant had a propensity to assault men.
In his dissent in State v. Scarborough, 92 N.C. App. 422, 374 S.E.2d 620 (1988), adopted per curiam by 324 N.C. 542, 379 S.E.2d 857 (1989), Judge Greene noted that "the prosecutrix's evidence of her awareness of the prior conduct of the defendant is admissible to show that her `will had been overcome by her fears for her safety.'" Id. at 429, 374 S.E.2d at 624 (quoting State v. Young, 317 N.C. 396, 413, 346 S.E.2d 626, 636 (1986)). "Therefore, the prosecutrix's testimony was competent to explain her . . . behavior and was probative on the issue of whether her will had been overcome in part by her fears for her safety." Id.
Here, McBride testified in voir dire that she did not fight back against defendant "because, I mean, he done told me [he] was going to kill me, and I done know what he did go [sic] somebody else. I was doing what I had to do to live for my kids." As in Scarborough, McBride's testimony of her awareness of defendant's prior acts of violence was admissible to show that her will had been overcome by her fear for her safety. McBride's testimony was not inadmissible character evidence.
Because McBride's testimony was competent, the trial court did not err in admitting this evidence. Further, the trial court instructed the jury prior to hearing the evidence that it was "being received solely for the purpose of showing that the sexual assault upon the witness was against the victim's will and for the purpose of showing the witness's state of mind. If you believe this evidence, you may consider it, but only for the limited purposes for which it was offered." This assignment of error is overruled.
Having found no merit in defendant's arguments, we can discern no error in the trial below.
No error.
Judges WYNN and HUNTER, Jr., Robert N. concur.
Report per Rule 30(e).