Opinion
No. COA 12–1531.
2013-08-6
STATE of North Carolina v. James B. WALLER, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
Appeal by defendant from judgments entered 15 June 2012 by Judge Henry W. Hight in Durham County Superior Court. Heard in the Court of Appeals 23 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Laura E. Parker, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
ROBERT N. HUNTER, JR., Judge.
James Bennett Waller, Jr. (“Defendant”) appeals from judgment entered after a jury convicted him of: (i) attempted first-degree sex offense; and (ii) two counts of taking indecent liberties with a child. Defendant argues the trial court erred by admitting testimony under North Carolina Rule of Evidence 404(b) when the prior act was: (i) too dissimilar; and (ii) too remote in time. Upon review, we find no error.
I. Facts & Procedural History
On 15 August 2011, Defendant was indicted for: (i) attempted sexual offense against a person thirteen years old; and (ii) two counts of indecent liberties with a minor. The case was heard during the 11 June 2012 Criminal Session of Durham County Superior Court.
At trial, the minor complainant Marjorie was first to testify during the state's case-in-chief. In May 2011, Marjorie was a thirteen-year-old eighth-grader living in Durham with her mother, Samantha. Marjorie testified that Samantha operated a daycare center in their home. Tabitha Waller (“Ms.Waller”), one of Samantha's customers, often left her son at the daycare. At the time of trial, Ms. Waller was twenty-four years old. Ms. Waller and Marjorie became friends. Marjorie often called Ms. Waller her “play aunt” even though they were not related. Ms. Waller's father, Defendant, did yard work for Samantha and visited his grandson at the daycare.
“Marjorie” is a pseudonym used to protect the minor's privacy.
“Samantha” is a pseudonym used to protect the family's privacy.
On 4 May 2011, Defendant picked up Marjorie at her home after school to go ice skating. Since Defendant came straight from work, he first took Marjorie to his home to change his clothes and pick up his skates. Defendant and Marjorie then went to the rink. At the rink, Defendant's son and his son's mother were already present. After about an hour and a half of skating, Defendant and Marjorie left. They first returned to Defendant's home so Defendant could give a haircut to a client.
Defendant was also a barber.
According to Marjorie, once they arrived at Defendant's home, Defendant cut the client's hair on an indoor porch. Marjorie was in the same room watching television. Afterward, Defendant cleaned up the porch and he and Marjorie went into the living room. While Defendant and Marjorie were preparing to leave, Defendant asked her for a hug. After Marjorie hugged Defendant, he asked for another one. Marjorie again hugged Defendant, but this time she testified he began kissing the left side of her neck. Marjorie pushed Defendant away, but he replied that it was okay and continued kissing her. Marjorie began crying.
Defendant then pulled Marjorie by the hand into a bedroom. She continued to try to pull away. In the bedroom, Defendant pushed Marjorie down onto the bed, laid her on her back and climbed onto the bed next to her. Defendant then unzipped his pants, removed his penis, and put it six to eight inches from Marjorie's face. Marjorie understood this as a gesture for her to perform oral sex. Marjorie continued crying, turned her head away, and told Defendant she wanted to go home. He agreed and got off the bed. In the living room, Defendant told Marjorie “make sure you don't tell your mom.” Defendant then took Marjorie home. They did not speak during the ten to fifteen minute drive to Marjorie's home.
From 4 May to 25 May, Marjorie did not tell anyone about the incident at Defendant's home. Marjorie testified that she did not tell anyone because she thought it would ruin her relationship with Ms. Waller.
On 25 May 2011, Marjorie told her mother and Ms. Waller what happened. Marjorie testified that her mom and Ms. Waller had noticed she had been acting out and kept asking her about her behavior. When she got tired of them asking questions she told them what Defendant had done to her. Samantha then called the police. Marjorie was interviewed by a police officer and told him the story of the events on 4 May 2011.
Ms. Waller was the second witness to testify for the State. She testified that she met Samantha and Marjorie three years prior when she first began using Samantha's childcare services.
She also testified that on 25 May 2011 she was at Samantha's home picking up her son when Marjorie told her of the events from 4 May 2011. Samantha called the police after Marjorie told them.
Following this testimony, the jury was excused while the State conducted a voir dire Ms. Waller. During the voir dire, Ms. Waller testified that she lived with Defendant intermittently from when she was seven until she was twelve, and Defendant repeatedly raped her vaginally at his home during that time span. Ms. Waller also described how when she was twelve, Defendant once stood in front of her at his home, removed his penis from his pants, and asked her to perform oral sex. When she refused, he beat her with a belt but did not physically force her to perform oral sex.
During voir dire, Defendant objected to Ms. Waller's testimony under Rule 404(b) because the testimony described acts that contain “more dissimilarities than similarities” and the remoteness in time “makes the probability of an ongoing plan more tenuous.” The trial court ruled the testimony admissible under Rule 404(b) and Rule 403 “to prove the existence of a plan or intent to engage in sexual activity with young girls.” Defendant again objected at the end of voir dire. Ms. Waller then testified before the jury.
Later, based in part on this testimony, the jury found Defendant guilty of: (i) attempted sexual offense against a person thirteen years old; and (ii) two counts of indecent liberties with a minor. Defendant received sentences of: (i) 180 months to 225 months imprisonment for the attempted statutory sexual offense; and (ii) 19 months to 23 months imprisonment for indecent liberties. The trial court arrested judgment on the other indecent liberties conviction. Defendant appealed in open court.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
The sole issue on appeal is whether the admission of Ms. Waller's testimony is admissible under Rule 404(b). When reviewing evidentiary rulings under North Carolina Rule of Evidence 404(b), “we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159 (2012). Thus, we engage in a de novo review of whether the circumstances satisfy the similarity, temporal proximity, and relevancy requirements of Rule 404(b). See id. at ––––, 726 S.E.2d at 158–59. “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted); see also Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).
III. Analysis
On appeal, Defendant argues the trial court erred by admitting Ms. Waller's testimony under North Carolina Rule of Evidence 404(b). Specifically, Defendant contends the acts described in her testimony are: (i) too dissimilar from the facts of the instant case; and (ii) too remote in time. Lastly, Defendant argues the error was prejudicial. We disagree.
North Carolina Rule of Evidence 404(b) states:
(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. R. Evid. 404(b). The list of permissible purposes set forth in the statute “is not exclusive and the fact that evidence cannot be brought within a category does not necessarily mean that the evidence is inadmissible.” State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). To this effect Rule 404(b) has been interpreted as 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). Thus, Rule 404(b) allows evidence of other offenses “so long as it is relevant to any fact or issue other than the character of the accused.” State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). Relevant evidence is “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. R. Evid. 401.
However, “Rule 404(b) evidence ... should be carefully scrutinized in order to adequately safeguard against the improper introduction of character evidence against the accused.” State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002). “To effectuate these important evidentiary safeguards, the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity.” Id. at 154,567 S.E.2d at 123. Our Supreme Court has elaborated that:
When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.
State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds,494 U.S. 1023 (1990).
Furthermore, our courts are “markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b).” State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987). To this effect, the similarities need not “rise to the level of the unique and bizarre.” State v. Martin, 191 N.C.App. 462, 467–68, 665 S.E.2d 471, 475 (2008) (quotation marks and citation omitted). Instead, they must simply “tend to support a reasonable inference that the same person committed both the earlier and later acts.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991) (emphasis omitted).
For temporal proximity, “remoteness in time tends to diminish the probative value of the evidence and enhance its tendency to prejudice.” Artis, 325 N.C. at 300, 384 S.E.2d at 482. Moreover, “[r]emoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998) (quoting Stager, 329 N.C. at 307, 406 S.E.2d at 893).
Even if the trial court erred in its Rule 404(b) determination, this Court will only remand for a new trial if the error was prejudicial. See Sisk v. Sisk, ––– N.C.App. ––––, ––––, 729 S.E.2d 68, 71 (2012). (“New trials are not awarded because of technical errors. The error must be prejudicial.” (quotation marks and citations omitted)) “The party who asserts that evidence was improperly admitted usually has the burden to show the error and that he was prejudiced by its admission.” State v. Anthony, 133 N.C.App. 573, 579, 516 S.E.2d 195, 199 (1999). “This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed.” State v. Jones, 188 N.C.App. 562, 569, 655 S.E.2d 915, 920 (2008); see alsoN.C. Gen.Stat. § 15A–1443 (2011).
In the present case, Defendant argues the trial court erred in admitting Ms. Waller's testimony under Rule 404(b) because the events she described were: (i) too dissimilar from the alleged crime; and (ii) too remote in time. He then contends this error was prejudicial.
We do not review the trial court's Rule 403 ruling because Defendant did not appeal that part of the trial court's ruling. See Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005) (“It is not the duty of this Court to supplement an appellant's brief with ... arguments not contained therein.”).
A. Similarity
Given North Carolina's approach in applying Rule 404(b) to sex offense cases, the acts described in Ms. Waller's testimony are sufficiently similar to the alleged acts of 4 May 2011. See Cotton, 318 N.C. at 666, 351 S.E.2d at 279. Specifically, the numerous similarities “tend to support a reasonable inference that the same person committed both the earlier and later acts.” Stager, 329 N.C. at 304, 406 S.E.2d at 891 (emphasis omitted).
For example, in both instances, the alleged acts took place in Defendant's home. Additionally, Ms. Waller and Marjorie were similar ages at the time of the alleged events: Ms. Waller was twelve when Defendant attempted oral sex, and Marjorie was thirteen. Next, Defendant filled a paternal role for both girls: Defendant is Ms. Waller's biological father, and he said he wanted to be a father-figure for Marjorie. In both cases Defendant solicited oral sex from the girls. Lastly, when both girls refused, Defendant did not physically force them to carry out the act. Upon review, we determine these commonalities satisfy Rule 404(b)'s similarity requirement. See State v. Smith, 152 N.C.App. 514, 527, 568 S.E .2d 289, 297–98 (2002) (holding testimony of a prior bad act in a sex offense case was admissible under Rule 404(b) with even fewer similarities; in Smith the sexual acts were different and the two victims were different ages).
Defendant erroneously relies on State v. Webb, 197 N.C.App. 619, 682 S.E.2d 393, (2009), and State v. Gray, 210 N.C.App. 493, 709 S.E.2d 477 (2011), to argue Ms. Waller's testimony does not satisfy Rule 404(b)'s similarity requirement. We distinguish both cases.
In Webb, the defendant was charged with taking indecent liberties with a minor. 197 N.C.App. at 620, 682 S.E.2d at 394. The trial court allowed two witnesses to testify “that defendant had abused them twenty-one and thirty-one years prior.” Id. at 623, 682 S.E.2d at 395. The similarities between the prior acts and the defendant's alleged crime were: (i) all the victims were in the defendant's care; (ii) the acts all took place in the defendant's home; and (iii) the defendant told all the girls not to tell anyone about the incidents. Id. There, this Court ordered a new trial because “when two or three decades have passed between the incidents, certainly the Court must require more similarity between the acts than what was provided herein.” Id. In the instant case, however, only eleven years passed between the two acts, not twenty-one to thirty-one years. Also, there are more similarities here because: (i) Ms. Waller and Marjorie were around the same age at the time of their assaults; (ii) the sexual acts were the same; (iii) the incidents all took place in Defendant's home; (iv) Defendant had a paternal role in both girls' lives; and (v) Defendant did not physically force either girl to perform oral sex.
Defendant also erroneously relies on Gray despite factual differences. In Gray, the defendant was found guilty of first-degree sex offense and taking indecent liberties with a child. Gray, 210 NC.App. at ––––, 709 S.E.2d at 480. This Court remanded for a new trial because:
The similarities show little more than that the alleged perpetrator of both acts was attracted to young children, and that he used the fact that he was a welcome guest in the house where each child was staying to find time alone with that child in order to commit the assaults. These facts are all too common in cases involving sexual assaults on minors by an adult.
Id. at ––––, 709 S.E.2d at 490. However, in the instant case, additional similarities exist: (i) the girls were around the same age; (ii) the sexual acts were the same; (iii) the incidents all took place in Defendant's home; (iv) Defendant had a paternal role in both girls' lives; and (v) Defendant did not physically force either girl to perform oral sex. Consequently, we believe the instant case is not one where the similarities are “all too common in cases involving sexual assaults on minors by an adult.” Id. at ––––, 709 S.E.2d at 490.
Therefore, we hold Ms. Waller's testimony satisfies Rule 404(b)'s similarity requirement.
B. Temporal Proximity
Ms. Waller's testimony also satisfies Rule 404(b)'s temporal proximity requirement.
Here, the trial court admitted her testimony to show: (i) intent; and (ii) common scheme. Our Supreme Court has held temporal proximity “is less significant when the prior conduct is used to show intent ...; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” White, 349 N.C. at 553, 508 S.E.2d at 265 (quoting Stager, 329 N.C. at 307, 406 S.E.2d at 893). Thus, since remoteness in time does not affect admissibility for Rule 404(b) evidence offered to show intent, the trial court did not err in admitting Ms. Waller's testimony to show intent.
Defendant next argues Ms. Waller's testimony described events too remote in time to be admitted to show a common scheme. However, since Ms. Waller's testimony is also admissible to show intent, we need not consider this argument. State v. Harris, 140 N.C.App. 208, 212, 535 S.E.2d 614, 617 (2000) (“[B]ecause the evidence was admissible for a proper purpose ..., the trial court's error in admitting that same evidence for an improper purpose ... is rendered non-prejudicial.”). Additionally, since Defendant has not raised any arguments under Rule 403, we need not determine whether the testimony's “probative value is substantially outweighed by the danger of unfair prejudice.” N.C. R. Evid. 403.
Therefore, the trial court did not commit prejudicial error in admitting Ms. Waller's testimony under Rule 404(b)'s temporal proximity requirement.
IV. Conclusion
For the forgoing reasons, we conclude that the trial court did not commit any prejudicial error in admitting Ms. Waller's testimony under Rule 404(b)'s similarity and temporal proximity requirements.
NO ERROR. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).