State v. Godfrey, 263 N.C. App. 264 (2018)

No Error
  • Facts: Defendant appeals his conviction of a first-degree sex offense with a child, arguing the trial court erred in admitting evidence of prior bad acts. The conviction is based on an incident that occurred in May 2004, when the victim was 12 years old, although she did not report the crime until 2016. In the “May 2004” incident for which Defendant was charged, the victim testified that when she was staying at the defendant’s home, he pulled her into the laundry room, removed her pants and underwear, and digitally penetrated her vagina with his middle finger until she freaked out and ran away. The victim testified to two other incidents that Defendant was not charged with: (1) the “bed incident,” which occurred a month or two before the May 2004 incident when the victim was staying at Defendant’s home, and where Defendant crawled into bed with the victim and digitally penetrated her vagina with his middle finger until she freaked out and ran away, and (2) the “Lick Mountain” incident, when the victim was staying at Defendant’s place two or three years before the May 2004 incident, and where Defendant while wrestling with victim, carried her to his bed and digitally penetrated her vagina with his middle finger. The trial court permitted the testimony of prior acts for the purpose of showing a “common plan or scheme” to digitally penetrate the victim under Rule of Evidence 404(b) and determining the testimony was more probative than prejudicial under Rule 403.
  • The standard of review of a trial court’s Rule 403 determination is an abuse of discretion. The appellate court reviews de novo the legal conclusion that evidence is/is not covered by Rule 404(b).
  • Rule 404 limits the introduction of character evidence  but allows evidence of other crimes, wrongs, or acts to show a person acted in conformity therewith when the evidence is relevant to a fact or issue and is not for the purpose of showing defendant has the propensity to commit an offense of the nature of the crime charge. Evidence of a similar sex offense involving the same victim as the victim of the crime for which defendant is on trial is often viewed as showing Defendant’s “common scheme or plan” to sexually abuse the victim. The evidence may be excluded under Rule 403 when its probative value is outweighed by unfair prejudice. “When prior incidents are offered for a proper purpose, the ultimate test of admissibility is whether they are sufficiently similar and not so remote as to run afoul of the balancing test between probative value and prejudicial effect set out in Rule 403.” Sl. Op. at 10 (citation omitted). Here, the three incidents involved the same type of sexual act involving penetration, however, slight, by an object (the defendant’s middle finger) into a genital opening of a person’s body (the victim’s vagina). Additionally, all three incidents occurred while the victim was staying with the Defendant. Each incident involved the same victim, same mode of penetration, and same circumstance and were sufficiently similar to show a common scheme or plan by Defendant to digitally penetrate the victim while she was under his control. Although the Lick Mountain incident was two or three years earlier, the time period does not inherently render the evidence of this prior act so remote as to eliminate its probative value given its striking similarity to the other incidents. There was no abuse of discretion in admitting the testimony regarding both prior acts.
Criminal Cases with Application to Child Welfare
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