Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Sex Acts/Related Conduct With Another
In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and the sentence of death, arguing a list of errors related to admission of evidence, denial of his motions to dismiss, and imposition of the death penalty. In a substantial and detailed opinion, the Supreme Court majority found no prejudicial error, affirming the death sentence.
In December of 2016, defendant set up a meeting with a woman, the eventual female victim, for sexual services at a Raleigh hotel. Defendant and an accomplice arrived at the hotel and the woman provided her room number. The two men went to the room, passing the man serving as a protector for the woman in the hallway. After a few minutes the protector, who was the eventual male victim, began banging on the door of the room. Defendant’s accomplice left the room and after an exchange in the hallway shot the protector several times. Hearing the shots, defendant ran out of the room, turned, and fired several shots back into the room, hitting the woman. By the time police arrived, both victims were dead from gunshot wounds; an autopsy determined the female victim was twelve weeks pregnant. Defendant and his accomplice fled the hotel but were subsequently arrested. During the guilt-innocence phase of trial, the State called two women, Bessie and Rachel, who had been hired for sexual services by defendant, and they offered testimony about his violent interactions with them, as he raped and robbed them in budget hotels. The State also called a woman, Kara, who had first been hired for sexual services by defendant, and who was then forced into prostitution by defendant and assaulted at gunpoint by him. Additional witnesses testified to defendant’s conduct during the sentencing phase of the trial. Defendant was convicted, sentenced to death, and appealed directly to the Supreme Court under G.S. 7A-27(a).
The Supreme Court took up defendant’s arguments regarding errors in both the guilt-innocence phase and the sentencing phase of trial (the numbering/lettering below corresponds to the majority opinion’s organization).
(A) Rule 404(b) Evidence (Bessie and Rachel) – Defendant argued it was error to admit evidence related to his interactions with Bessie and Rachel in the months before the murders. In separate incidents, defendant and an accomplice contacted each woman for sexual services, then met each woman at a budget Raleigh hotel, tied them up, raped them, and robbed them. (1) Defendant argued the evidence of the prior acts with the two women did not fall within the proper bounds of Rule 404(b) evidence. The Court disagreed, walking through defendant’s objections to the specific findings of fact and conclusions of law, noting the similarities between the crime at issue and the two incidents and concluding “[t]hese facts are sufficient in both temporal proximity and similarity to demonstrate a common plan or scheme to rape and rob [the female victim] on the night she was murdered.” Slip Op. at 18. (2) The Court then looked to whether the evidence was unfairly prejudicial under Rule 403, determining “this evidence was not unfairly prejudicial, nor did it substantially outweigh the highly probative value, because it was introduced to establish defendant’s common scheme or plan.” Id. at 19-20. (3) Finally, the Court considered the limiting instruction given by the trial court and found no error, noting that defendant actually requested the instructions in question, meaning even if there was error, it would be invited error on defendant’s part.
(B) Evidence of a Prior Assault with a Firearm (Kara) – Defendant next argued that admitting evidence of his assault on Kara was plain error under Rules of Evidence 401 and 403, as defendant failed to object at trial. Defendant met Kara after he hired her for sexual services, but defendant then forced her to engage in prostitution to raise money for him. After defendant continued to force Kara to raise money, she protested, and defendant threatened her by placing his gun in her mouth. (1) After defendant’s motion in limine, the trial court allowed the State “to elicit testimony from Kara [] to identify defendant and/or the weapon he used on the night she was assaulted.” Id. at 22. Kara was not permitted to testify about human trafficking or prostitution offenses. (2) The Court applied plain error review, noting review was not available under Rule 403 as review was not available for issues “within the realm of the trial court’s discretion.” Id. at 26 (quoting State v. Steen, 352 N.C. 227 (2000)). However, the Rule 401 relevancy issue could be considered, and the Court concluded that “testimony about defendant’s possession of, preference for, and prior assault with a firearm was relevant as it made the fact that defendant possessed and used the weapon to kill [the female victim] more probable.” Id. at 27-28. The Court also noted that even if the evidence was not relevant, defendant could not show the jury probably would have reached a different result if not for the evidence.
(C) Evidence of the Abusive Backgrounds of Prior Women Victimized by Defendant – The Court considered defendant’s arguments against testimony in both phases of the trial. (1) In the guilt-innocence phase, defendant challenged testimony from the female victim’s sister about her childhood, arguing it was improper testimony about the victim’s character. The court disagreed, explaining “the evidence revealed the factual circumstances of [the female victim’s] life relevant to explaining why she was engaging in prostitution on the night she was murdered by defendant at the hotel.” Id. at 31-32. Defendant also challenged certain testimony from the witness Rachel about her abusive childhood and experience in prostitution. Here the Court noted that defendant did not object to this portion of Rachel’s testimony at trial, and this “may have been part of defendant’s trial strategy” as defense counsel questioned Rachel regarding her experiences as a prostitute during cross-examination. Id. at 33. This represented invited error, and to the extent other portions of the testimony were objectionable, the Court found they were introductory evidence that provided context for the jury about how she crossed paths with defendant. (2) In the sentencing phase, two additional women, Keyona and Keyana, offered testimony about defendant’s violence towards them, and defendant again objected to testimony about their backgrounds. For sentencing, the rules of evidence did not apply, and the Rule 403 balancing test was not relevant. The Court found no error admitting the testimony as it introduced the women to the jury and “it showed a course of conduct by defendant of engaging in violent acts against vulnerable women and prostitutes.” Id. at 37. Defendant also argued that the trial court erred by instructing the jury they could consider evidence from the guilt-innocence phase of trial during their sentencing deliberations, but the Court dispensed with the argument as it was not error.
(D) Admission of Photographic Evidence from the Crime Scene – Defendant argued that the admission of nine photographs in State’s Exhibit 3 were unnecessarily repetitive and cumulative “because other evidence presented at trial showed that [the female victim] was found naked by the door of the hotel room, that her cause of death was a bullet wound to the chest, and that shell casings were found near her body.” Id. at 41. The Court walked through each of the photographs, determining they were independently useful by providing perspective and information related to the scene. Ultimately the Court determined “these photographs provided sufficiently distinct information of independent value to the State’s case, making them neither unnecessarily duplicative nor excessive.” Id. at 42-43.
(E) Failing to Dismiss Charges for First-Degree Murder of Female Victim – Defendant argued error in denying his motion to dismiss for insufficient evidence the first-degree murder charge on both theories of felony murder and premeditation and deliberation. (1) For felony murder, defendant argued the State’s evidence failed to establish the murder occurred during the commission of an attempted rape or robbery. The Court first established that “[Rule] 404(b) evidence may be considered when determining whether the State has presented sufficient evidence of a defendant’s intent to commit an underlying crime.” Id. at 46. The Rule 404(b) testimony here “demonstrated that defendant had a common scheme or plan to rape and rob prostitutes.” Id. The Court then found an “overt act” towards the felonies when defendant entered the female victim’s hotel room. Id. at 48. (2) Dispensing with the premeditated murder argument, the Court explained that there was no time requirement to constitute premeditation. Here, defendant arrived at the hotel with a loaded weapon, suggesting he was prepared to engage in violence. The female victim did not provoke defendant and she was unarmed, and defendant fired two shots at her face and chest, showing he had a deliberate intent to kill.
(F) Failing to Dismiss Charges for First-Degree Murder of Male Victim – Defendant also argued error in denying his motion to dismiss the murder charge for the victim shot by his accomplice in the hallway. The Court considered whether evidence supported the acting-in-concert doctrine for defendant’s conviction. (1) For felony murder, the Court found sufficient evidence to support defendant and his accomplice acted “in a common plan or scheme to commit rape and robbery with a dangerous weapon” and the male victim “was killed in pursuit thereof” even though he was not the intended victim. Id. at 52. (2) The Court also found sufficient evidence of premeditation and deliberation, as “[the accomplice’s] violence against [the male victim] was unprovoked, [the male victim] was unarmed, and nine separate rounds were fired by [the accomplice], with multiple gunshot wounds to [the male victim’s] body.” Id. at 53. The Court also noted that it was “foreseeable that a prostitute would have another individual monitoring business-related activity for safety and protection” justifying the charge. Id.
(G) Finding of the Aggravating Circumstance that the Murders were Committed During the Commission of an Attempted Rape and Attempted Robbery – Defendant argued that insufficient evidence supported the aggravating circumstance, as with the felony murder argument above. The Court explained that although defendant failed to object at trial, his objection was preserved as the trial court should have known he was contesting this factor. However, “the evidence of the attempted rape and armed robbery of [the female victim] was sufficient for its submission to the jury as an aggravating factor.” Id. at 55.
(H) Trial Court’s Failure to Submit the Enmund/Tison Issue to the Jury for the Murder of the Male Victim – Defendant argued error under that Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), as he did not shoot the male victim, although defendant did not raise this objection at trial. The Court first explained Enmund’s holding where “[t]he Supreme Court determined that imposition of the death penalty on those who had not manifested an intent to kill violates the Eighth Amendment.” Slip Op. at 56. The holding in Tison “essentially concluded that major participation in felonious conduct in which there is a significant risk of death is no different for Eighth Amendment purposes than the intent to kill issue that Enmund confronted.” Id. at 57-58. The Supreme Court of North Carolina held in State v. Robinson, 342 N.C. 74 (1995), that an Enmund/Tison instruction is not required if a defendant is convicted of first-degree murder based on premeditation and deliberation. The Court explained that the fact pattern here resembled Tison, as defendant was armed and actively involved in the planning and execution of the violent crimes, and in footnote 7 pointed out that the trial court provided an instruction on malice similar to the Enmund/Tison instruction in question. This led the Court to conclude that even if failing to provide an explicit Enmund/Tison instruction was error, it did not represent plain error.
(I) Jury Instructions Regarding the Use of the Same Evidence to Support More Than One Aggravating Circumstance – Defendant argued error in failing to instruct the jury that it could not use the same evidence to support more than one aggravating circumstance; here the circumstances were G.S. 15A-2000(e)(5) (during attempt or flight after robbery or rape) and (e)(11) (part of a course of conduct including other crimes of violence). The Court first noted that under State v. Moseley, 338 N.C. 1 (1994), the circumstances would only be redundant if there is a “complete overlap” of the evidence supporting each circumstance. Slip Op. at 60. Here testimony from two witnesses supported both (e)(5) and (e)(11), but “substantial separate evidence from additional victims that were subjected to the ongoing course of conduct” supported the (e)(11) circumstance, meaning no error. Id. at 61.
(J) Trial Court’s Denial of Defendant’s Motion to Suppress a Witness’s In-Court Identification – During sentencing, a witness testified about an encounter she had with defendant in 2016 while working as a prostitute in a Raleigh hotel. Before the witness testified, the trial court allowed voir dire about her identification of defendant; after being contacted by a Raleigh police officer, the witness conducted research on her own and determined defendant was the same person she encountered in 2016. Defendant objected to the witness’s identification, arguing it was tainted by government action, but the objection was overruled. Looking at the limited contact between the Raleigh police officer and the witness, the Court concluded her identification “was not a result of State action and does not violate defendant’s due process rights.” Id. at 66.
(K) Trial Court’s Final Mandate for First-Degree Murder Under the Theory of Felony Murder – Defendant argued error by failing to repeat the elements for the underlying felonies of attempted rape and attempted robbery with a dangerous weapon, but failed to object to the instruction at trial. Here, the trial court informed the parties that it planned to give N.C.P.I.-Crim. 206.14, and defendant did not object or propose new instructions, meaning the review was for plain error. The Court explained that the trial court instructed on first-degree murder on the basis of malice, premeditation, and deliberation, then for felony murder, and then a final mandate. Although the final mandate did not contain the elements of the underlying felonies, the Court reviewed the instructions as a whole and concluded “the trial court thoroughly and correctly instructed the jury as to the elements of the underlying felonies.” Id. at 73.
(L) Cumulative Error in Denying Defendant a Fair Trial and Sentencing Hearing – Defendant argued the cumulative effect of the various errors he identified justified a new trial or sentencing. The Court disagreed, explaining “there can be no cumulative error because the trial court did not err.” Id. at 74.
(M) Excusing Jurors for Cause Based on Their Views on the Death Penalty – Defendant argued abuse of discretion in excusing three jurors for cause when they expressed hesitation in imposing the death sentence. The Court first explored the caselaw in this area, noting a prospective juror cannot be excused for general objections to the death penalty, but can be excused for holding views that prevent impartially performing the required duties. The Court then examined the transcript, concluding the answers of each prospective juror represented personal views that were at odds with the duties imposed on jurors, and the trial court did not abuse its discretion when allowing the three to be excused for cause.
(N) Peremptory Instructions on Three Mitigating Circumstances – Defendant argued error in failing to give peremptory instructions on three non-statutory mitigating circumstances related to defendant’s childhood, home environment, and mental health. Initially the State stipulated to the three disputed circumstances, but after further evidence was admitted, the State withdrew the stipulations. The Court first noted that peremptory instructions for mitigating circumstances were not appropriate when “the evidence is controverted or the evidence supporting the circumstance is not manifestly credible.” Id. at 84 (quoting State v. McLaughlin, 341 N.C. 426, 449 (1995)). Here, after looking at the testimony and evidence admitted during sentencing, the Court found controverted evidence or credibility issues with all three circumstances, meaning the trial court did not err.
(O) Defendant’s Motion to Strike the Death Penalty – Defendant argued that the District Attorney’s “discretion in seeking the death penalty and engaging in plea bargaining” created a system where the death penalty was effectively mandated similar to the now-repealed G.S. 15-162.1. Id. at 88. The Court rejected this interpretation of the discretion granted to the State and found no constitutional violation with the existing system.
(P) Lethal Injection as Cruel and Unusual – Defendant argued that North Carolina’s execution method was unconstitutional under the United States and North Carolina constitutions. The Court rejected defendant’s argument because he merely identified hypothetical risks and failed to “articulate how North Carolina’s lethal injection procedure creates a ‘substantial risk of serious harm.’” Id. at 91.
(Q) Preservation Issues – Defendant argued that the Court should invalidate the death penalty under international norms and prevailing standards of decency, and the indictment was insufficient because it did not include any elements elevating the crime of murder from second-degree to first-degree or allege aggravating circumstances. The Court noted these arguments have been rejected in the past, and pointed to several cases such as State v. Allen, 360 N.C. 297 (2006), and State v. Golphin, 352 N.C. 364 (2000). The Court also rejected defendant’s argument that the State was barred from “death qualifying” the jury, pointing to State v. Barts, 316 N.C. 666 (1986). Slip Op. at 93. Defendant additionally argued that the death penalty itself was unconstitutional in light of evolving standards of decency, which the Court again rejected.
(R) Ineffective Assistance of Counsel – In defendant’s final issue, he requested the Court dismiss his claims of ineffective assistance of counsel without prejudice so he could assert them in a MAR proceeding. The Court granted this request and dismissed the claims without prejudice.
Justice Earls, joined by Justice Riggs, concurred in the Court’s judgement that the first-degree murder convictions were proper, but provided a lengthy dissent finding errors with defendant’s sentencing. Id. at 98.
In this Wake County case, the Supreme Court (1) affirmed the Court of Appeals holding that Rule 404(b) testimony was properly admitted, but (2) reversed the Court of Appeals decision vacating defendant’s sentence for improper consideration of the choice to pursue a jury trial, reinstating defendant’s original sentence.
From August-September of 2015, defendant, a middle-school chorus teacher, repeatedly raped and assaulted an eleven-year old student in the bathroom of the middle school as the student took her daily trips to the school nurse for medication. The student eventually reported the details of the assaults, leading to defendant’s trial for statutory rape and statutory sexual offense with a child in October of 2019. At trial, defendant filed a motion in limine to prevent the State from admitting testimony under Rule of Evidence 404(b) regarding defendant’s alleged rape of a previous student, but the trial court denied his motion. After the jury found defendant guilty of all charges, he was sentenced to three consecutive active sentences. During sentencing, the trial court addressed defendant regarding the testimony of the two victims and the traumatizing nature of the proceedings. At the end of this statement, the trial court said “[t]hey didn’t have a choice and you, [defendant], had a choice.” Slip Op. at 16. Defendant appealed, and the Court of Appeals majority found no error in admitting the Rule 404(b) testimony, but did find that the trial court improperly considered defendant’s choice to pursue a jury trial when imposing his sentence. The State subsequently appealed based upon the divided panel, leading to the current opinion.
Taking up (1), the Supreme Court explained that “Rule 404(b) has been characterized as a rule of inclusion, and evidence of prior bad acts is admissible unless the only reason that the evidence is introduced is to show the defendant’s propensity for committing a crime like the act charged.” Id. at 8. However, prior acts must be sufficiently similar and contain “some unusual facts that go to a purpose other than propensity” common to both crimes to be admissible under Rule 404(b). Id. at 13, quoting State v. Beckelheimer, 366 N.C. 127, 132 (2012). Here, the State offered testimony from a victim who was one of defendant’s chorus students in February of 2015. The victim testified that defendant raped her in his apartment while he was taking her to practice for a competition. The State offered this Rule 404(b) testimony to show defendant’s “intent, motive, plan, and design to sexually assault middle school students from schools where he was a teacher.” Id. at 10. Analyzing seven similarities and unique facts shared by assaults, the Court noted the age of the children, defendant’s use of his position as a teacher to gain access, and the style of intercourse defendant attempted with the children. The Court explained the proper analysis “involves focusing on the similarities and not the differences between the two incidents,” and concluded that admission of the Rule 404(b) testimony was not error. Id. at 13.
Turning to (2), the Court first noted the strong protection for an accused’s right to a trial by jury, and the necessity of a new sentencing hearing if the trial court imposed a sentence “at least in part because defendant . . . insisted on a trial by jury.” Id. at 15, quoting State v. Boone, 293 N.C. 702, 712 (1977). The issue in the current case was whether the “choice” referenced in the sentencing hearing was defendant’s decision to plead not guilty and pursue a jury trial. The Court examined relevant precedent and explained that the statement must be reviewed with the entire record. Here, reviewing the entirety of the trial court’s statement, it was unclear if the trial court was referring to defendant’s choice to pursue a jury trial or to “the egregious nature of [defendant]’s crimes and his decision to commit those crimes.” Id. at 20. The Court concluded that this ambiguity did not overcome the “presumption of regularity” enjoyed by the trial court’s sentence. Id. This led the Court to reinstate defendant’s original sentence.
In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.
(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.
(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):
Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).
The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.
(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:
[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).
The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.
(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim. He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:
[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.
Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]
(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.
(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.
(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.
A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.
Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.
Reversing State v. Beckelheimer, 211 N.C. App. 362 (Apr. 19, 2011), the court held that the trial judge did not err by admitting 404(b) evidence. The defendant was charged with sexual offense and indecent liberties. At the time of the alleged offense the defendant was 27. The victim was the defendant’s 11-year-old male cousin. The victim testified that after inviting him to the defendant’s bedroom to play video games, the defendant climbed on top of the victim and pretended to be asleep. He placed his hands in the victim’s pants, unzipped the victim’s pants, and performed oral sex on the victim while holding him down. The victim testified that on at least two prior occasions the defendant placed his hands on the victim’s genital area outside of his clothes while pretending to be asleep. At trial, witness Branson testified about sexual activity between himself and the defendant. Branson, then 24 years old, testified that when he was younger than 13 years old, the defendant, who was 4½ years older, performed various sexual acts on him. Branson and the defendant would play video games together and spend time in the defendant’s bedroom. Branson described a series of incidents during which the defendant first touched Branson’s genital area outside of his clothes while pretending to be asleep and then reached inside his pants to touch his genitals and performed oral sex on him. Branson also related an incident in which he performed oral sex on the defendant in an effort to stop the defendant from digital anal penetration. The court found that Branson’s testimony was properly admitted to show modus operandi. The conduct was sufficiently similar to the acts at issue given the victim’s ages, where they occurred, and how they were brought about. The court of appeals improperly focused on the differences between the acts rather than their similarities (among other things, the court of appeals viewed the acts with Branson as consensual and those with the victim as non-consensual and relied on the fact that the defendant was only 4½ years older than Branson but 16 years older than the victim). The court went on to conclude that given the similarities between the incidents, the remoteness in time was not so significant as to render the prior acts irrelevant and that the temporal proximity of the acts was a question of evidentiary weight. Finally, the court held that the trial court did not abuse its discretion by admitting the evidence under Rule 403.
In this Gaston County case, defendant appealed his conviction for taking indecent liberties with a child, arguing error in admitting testimony under Rule of Evidence 404(b) that was dissimilar to the crime charged and unfairly prejudicial. The Court of Appeals found no error.
In 2014, defendant fondled a youth member of his church during a worship practice. The minor victim initially reported the abuse to a youth leader at the church, and then learned that defendant had abused another minor in the church. At that point, the victim reported defendant to law enforcement. Before trial, the State moved to introduce evidence of the other youth member abused by defendant under Rule 404(b). The trial court granted the motion, reasoning that the previous abuse was sufficiently similar to the current case and the temporal proximity was “not so remote that it would render the evidence inadmissible in the present case.” Slip Op. at 3.
Taking up defendant’s argument, the Court of Appeals first looked to State v. Beckelheimer, 366 N.C. 127 (2012), for the similarity and temporal requirements applicable to Rule 404(b) evidence. The court concluded that the evidence here met those standards, as the two victims were both young boys of similar in age at the time of the acts, and defendant met and formed his relationships with both through the church. When considering proximity, the court noted “[h]ere, the modus operandi of the crime being tried is not only strikingly similar to [the other victim’s] testimony, but also occurred only two years earlier.” Slip Op. at 11. Having determined the evidence was admissible under Rule 404(b), the court then moved to the Rule of Evidence 403 balancing test, determining that the trial court conducted a fair evaluation of the possible prejudice and provided a limiting instruction to “curtail[] the risk of unfair prejudice.” Id. at 13.
In this Rowan County case, defendant appealed his convictions for rape of a child and additional sexual offenses with two children, arguing error in (1) admitting evidence of prior sexual abuse that was not charged, and (2) denying his motion to dismiss because the State did not produce substantial evidence of the dates of his alleged offenses against one victim. The Court of Appeals found no error.
Defendant sporadically dated, and occasionally lived with, the mother of the two victims between 2007 and 2017. In September of 2019, one victim reported sexual abuse to her pediatrician. Subsequently, the other victim reported similar allegations of sexual abuse against defendant. During trial, the State elicited testimony from one victim about abuse that occurred in Cabarrus County in an earlier time period. The victim testified that she had blocked out the specific details of the individual acts, and they were not part of the charged offenses. The trial court found this evidence was admissible to show defendant’s plan, intent, or scheme and allowed the testimony before the jury.
Taking up (1), the Court of Appeals explained that defendant challenged the admission of the testimony as erroneous under Rule of Evidence 404(b) and highly prejudicial under Rule of Evidence 403. The court first concluded that “[b]ased on the similarity of the allegations and the temporal proximity” the testimony showed a common plan or scheme by defendant. Slip Op. at 10. Looking next to the Rule 403 analysis, the court did not see abuse of discretion, noting that the trial court weighed the evidence and limited the amount of testimony in front of the jury.
Reaching (2), the court explained that “[i]n cases involving sexual assaults of children, our Supreme Court has explicitly relaxed the temporal specificity requirements that the State must allege.” Id. at 13. Here, defendant did not prove prejudice by the possible variance in the dates, and beyond asserting “that his relationship with the girls’ mother was volatile and that he frequently left the home” defendant did not present an alibi that would have been affected by the dates. Id. at 14.
In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.
Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.
Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.
Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.
Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.
Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.
In this Wake County case, defendant appealed his convictions for first-degree rape of a child and first-degree sexual offense with a child based on error in the admission of testimony regarding a prior alleged assault and in sentencing. The Court of Appeals found no error in the admission of evidence under North Carolina Rule of Evidence 404(b), but improper considerations in sentencing that justified remanding the matter for resentencing.
The State filed a pretrial notice of Rule 404(b) evidence, and defendant countered with a motion in limine to preclude the State from introducing any evidence related to sexual assaults in Durham, NC. At trial, the State offered testimony from the victim in this matter regarding the sexual assaults she experienced in or around August or September of 2015. The State then called the Rule 404(b) witness to testify about an alleged sexual assault by defendant that she experienced in in February of 2015, in Durham. Both the victim and the other witness were students at middle schools where defendant was a teacher. The trial court allowed testimony from the Rule 404(b) witness in front of the jury.
The Court of Appeals considered defendant’s argument that the Rule 404(b) testimony was not similar to the crime charged and was unduly prejudicial, noting that Rule 404(b) is generally an inclusive rule if the evidence is relevant to any issue besides propensity to commit the crime charged. Slip Op. at ¶ 17. Additionally, the court noted that North Carolina precedent regarding the admissibility of Rule 404(b) evidence in sexual assault cases has been “very liberal.” Slip Op. at ¶ 20, quoting State v. White, 331 N.C. 604, 612 (1992). Because the crimes charged in this matter and the assault described by the Rule 404(b) witness were sufficiently similar and not too remote in time, the court found no error in admitting the testimony.
Considering defendant’s second argument regarding sentencing, the court found error due to the trial court’s improper consideration of defendant’s choice to receive a trial by jury. At the sentencing hearing, the trial court addressed defendant regarding the victim and 404(b) witness, saying “[a]nd in truth, they get traumatized again by being here, but it’s absolutely necessary when a defendant pleads not guilty. They didn’t have a choice and you, Mr. Pickens, had a choice.” Slip Op. at ¶ 32. Immediately after this quote, the trial court imposed consecutive sentences. The Court of Appeals found a clear inference that the trial court imposed consecutive sentences because defendant did not plead guilty and went to trial. As such, the court vacated the sentence and remanded for resentencing.
Judge Murphy dissented by separate opinion.
In this Wake County case, the defendant was charged with incest and second-degree forcible rape for an offense committed against his niece. The defendant pled guilty to incest, but had a jury trial on the rape charge. At trial, the State offered testimony from a witness, Brittany Mack, who alleged that she had previously been forcibly raped by the defendant numerous times, including five days prior to the acts giving rise to the defendant’s current charge. The defendant filed a motion in limine seeking to exclude that testimony under Rule 404(b). The trial court heard arguments on that motion but reserved ruling on it until after the victim in the present case testified at trial. After the present victim testified that the defendant had intercourse with her while she was blacked out after drinking alcohol, the trial court ruled that the 404(b) evidence of the defendant’s sexual assault on Brittany Mack would be admissible for the limited purposes of showing the absence of mistake, lack of consent and intent. The trial court also conducted a Rule 403 balancing test and concluded that the proffered evidence was sufficiently similar and close in time to be more probative than prejudicial. After Mack testified, the trial court instructed the jury that her testimony could be considered solely for the purpose of showing an absence of mistake or that the defendant had the intent to commit the crime charged in this case. The defendant was convicted. On appeal, he argued that the trial court erred in allowing testimony regarding the prior alleged rapes because they were not relevant to any material element of the present charge of second-degree forcible rape, and that the trial court abused its discretion in weighing the testimony’s prejudicial effect.
(1) The Court of Appeals concluded that the trial court did not err when it deemed Mack’s testimony relevant under Rule 401. Though the type of force allegedly applied in the prior incident (Mack testified that the defendant “threw her on his bed” and forced her to have sex against her will) was different from the evidence of physical helplessness at issue in the present case, the Court of Appeals noted that physical helplessness still implies force and a lack of consent. Because force and consent are relevant issues in any second-degree forcible rape case, the Court held that the testimony about the prior alleged offense was relevant to prove that the defendant did not mistake the present victim’s actions and inactions as consent.
(2) The Court also concluded that the trial court did not abuse its discretion when weighing the probative value of Mack’s testimony against the danger of unfair prejudice. The trial judge heard testimony on voir dire, instructed the jury on the limited purpose of the testimony, and acknowledged that the prior alleged acts most recently occurred five days prior to the present offense. The Court of Appeals thus found no error and affirmed the defendant’s conviction.
The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.
(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.
The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.
(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.
The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.
(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:
[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.
The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.
(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.
Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.
In this child sexual assault case, the trial court did not err by admitting 404(b) evidence. In 2016, the victim reported to law enforcement that the defendant sexually assaulted her many times when she was a child, including a final incident on or about May 2004 when she was 12 years old. During the ensuing investigation, the victim recorded the defendant making incriminating statements. The defendant was indicted for first-degree sex offense with a child for the 2004 incident. At trial, the victim testified to the May 2004 incident, describing digital penetration. The victim also testified to an incident of digital penetration by the defendant that occurred a month or two prior to the May 2004 incident (“the bed incident”), and to another incident of digital penetration about two years earlier (the “Lick Mountain incident”). The victim also testified about watching pornography with the defendant on multiple occasions prior to the May 2004 incident during which the defendant would put her hand on his penis. Additionally the recorded conversation between the victim and the defendant was introduced at trial. In that recording the defendant asked the victim if she remembered “[t]he first hand [ride] you ever took” and admitted remembering watching pornography with the victim. The defendant was found guilty and he appealed.
The court found that evidence of the bed incident and the Lick Mountain incident were properly admitted under Rule 404(b). All three incidents involved the same victim, the same type of penetration, and all occurred while the victim was under the defendant’s supervision. Thus the incidents were sufficiently similar to the one in question to show a common scheme or plan to take advantage of the victim by digitally penetrating her while she was under his control.
The court rejected the defendant’s argument that the Lick Mountain incident was too remote in time to the May 2004 incident. Although that incident occurred 2 or 3 years prior, that period of time did not eliminate the probative value of the incident, particularly in light of its striking similarity to the May 2004 incident.
The court also rejected the argument that the trial court abused its discretion by allowing evidence of the bed incident and Lick Mountain incidents over a Rule 403 objection.
With respect to the portion of the recording regarding the “hand ride,” the defendant argued that this evidence was inadmissible because the date of the incident was not provided. The court concluded however that because of the similarity of this incident to the other events, the trial court did not err by admitting the statement on grounds of temporal proximity.
With respect to the evidence regarding watching pornography together, the court held that even assuming this evidence was erroneously admitted, the defendant failed to establish prejudice in light of the overwhelming evidence of guilt.
In this child abuse case, the trial court did not abuse its discretion by admitting evidence regarding consensual sexual activity between the defendant and his wife. Here, after the child described to the wife a sexual act performed by the defendant, the wife signed a statement indicating that she and the defendant had engaged in the same act. The act in question was to turn her over on her stomach and “hump” and ejaculate on her back. The wife’s testimony was admissible to show common scheme or plan, pattern and/or common modus operandi and was sufficiently similar to the child’s allegation of sexual abuse. The court distinguished this case from one involving “a categorical or easily-defined sexual act” such as anal sex. Here, the case involved “a more unique sexual act.”
In this felony indecent exposure case where the defendant exposed himself to a 14-year old boy, his mother and grandmother, the trial court did not err by admitting 404(b) evidence from two adult women who testified that the defendant exposed himself in public on other occasions. The court rejected the defendant’s argument that the other acts were insufficiently similar to the charged conduct and only “generic features of the charge of indecent exposure,” noting that the 404(b) testimony revealed that the defendant exposed himself to adult women, who were either alone or in pairs, in or in the vicinity of businesses near the courthouse in downtown Fayetteville, and each instance involved the defendant exposing his genitals with his hand on or under his penis. The court also rejected the defendant’s argument that because the current charge was elevated because the exposure occurred in the presence of a child under 16 and the prior incidents involved adult women, the were not sufficiently similar, noting that the defendant acknowledged in his brief that in this case he did in fact expose himself to an adult woman as well. The court also rejected the defendant’s argument that the evidence should have been excluded under the Rule 403 balancing test.
In this child sexual abuse case, the trial court properly admitted 404(b) evidence from several witnesses. As to two of the witnesses, the defendant argued that the incidents they described were too remote and insufficiently similar. The court concluded that although the sexual abuse of these witnesses occurred 10-20 years prior to trial, the lapses of time between the instances of sexual misconduct involving the witnesses and the victims can be explained by the defendant's incarceration and lack of access to a victim. Furthermore, there are several similarities between what happened to the witnesses and what happened to the victims: each victim was a minor female who was either the daughter or the niece of the defendant's spouse or live-in girlfriend; the abuse frequently occurred at the defendant's residence, at night, and while others slept nearby; and the defendant threatened each victim not to tell anyone. When considered as a whole, the testimony shows that the defendant engaged in a pattern of conduct of sexual abuse over a long period of time and the evidence meets Rule 404(b)’s requirements of similarity and temporal proximity. Testimony by a third witness was properly admitted under Rule 404(b) where it “involved substantially similar acts by defendant against the same victim and within the same time period.” The trial court also performed the proper Rule 403 balancing and gave a proper limiting instruction to the jury.
In a sexual exploitation of a minor case, the trial court did not commit plain error by admitting evidence that the defendant set up a webcam in a teenager’s room; videotaped her dancing in her pajamas; and inappropriately touched her while they rode four-wheelers. Although the court had an issue with the third piece of evidence, it concluded that any error did not rise to the level of plain error.
In a child sex case, the trial court did not err by allowing a child witness, A.L., to testify to sexual intercourse with the defendant. The court found the incidents sufficiently similar, noting among other things, that A.L. was assaulted in the same car as K.C. Although A.L. testified that the sex was consensual, she was fourteen years old at the time and thus could not legally consent to the sexual intercourse. The court found the seven-year gap between the incidents did not make the incident with A.L. too remote.
In a child sex case, the trial court did not err by admitting 404(b) evidence of the defendant’s prior sexual conduct. The court found the prior acts sufficiently similar and that the requirement of temporal proximity was met.
In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided her home as a place for underage individuals, including the victim, to possess and consume alcohol; that the defendant offered the victim and other underage persons alcohol at parties; that the defendant purchased alcohol at a grocery store while accompanied by the victim; and the defendant was cited for aiding and abetting the victim and other underage persons to possess or consume alcohol one week before the victim’s death. The evidence was relevant to prove plan, knowledge, and absence of mistake or accident.
In a child sex case involving a female victim, the trial court did not err by admitting 404(b) evidence in the form of testimony from another female child (E.S.) who recounted the defendant’s sexual activity with her. The evidence was relevant to show plan and intent. Because the defendant’s conduct with E.S. took place within the same time period as the charged offenses and with a young girl of similar age, it tends to make more probable the existence of a plan or intent to engage in sexual activity with young girls. Additionally, the defendant’s plan to engage in sexual activity with young girls was relevant to the charges being tried. Finally, there was no abuse of discretion under the Rule 403 balancing test. On the issue of similarity, the court focused on the fact both E.S. and the victim were the same age and that the defendant was an adult; there was no discussion of the similarity of the actual acts.
In sexual assault case involving a child victim, no error occurred when the trial court admitted 404(b) evidence that the defendant engaged in sexual contact with another child to show common plan or scheme. The court rejected the defendant’s argument that the acts were not sufficiently similar, concluding that both incidents occurred while the victims were in the care of the defendant, their grandfather; the victims were around the same age when the conduct began; for both victims, the conduct occurred more than once; and with both victims, the defendant initiated the conduct by talking to them about whether they were old enough for him to touch their private parts. The court also determined that the acts met the temporal proximity requirement.
In a case in which the defendant was charged with sexual offense, indecent liberties and crime against nature against a ten-year-old female victim, no plain error occurred when the trial court admitted evidence of the defendant’s prior bad acts against two other teenaged females. The evidence was introduced to show common scheme or plan, identity, lack of mistake, motive and intent. The defendant’s acts with respect to the victim and the first female were similar: the defendant had a strong personal relationship with one of their parents, used the threat of parental disbelief and disapproval to coerce submission and silence, initiated sexual conduct after wrestling or roughhousing, digitally penetrated her vagina, and forced her to masturbate him. Only two years separated the incidents and both involved a similar escalation of sexual acts. As to the evidence of the prior bad acts with the second female — that the defendant kissed her when she was thirteen — the court held that admission of that testimony was not plain error.
In a child sexual abuse case involving a female victim, the trial court did not err by allowing testimony from four individuals (three females and one male) that the defendant sexually abused them when they were children. The events occurred 14, 21, and 27 years prior to the abuse at issue. Citing State v. Jacob, 113 N.C. App. 605 (1994), and State v. Frazier, 121 N.C. App. 1 (1995), the court rejected the defendant’s argument that the evidence lacked sufficient temporal proximity to the events in question. The challenged testimony, showing common plan, established a strikingly similar pattern of sexually abusive behavior by the defendant over a period of 31 years in that: the defendant was married to each of the witnesses' mothers or aunt; the victims were prepubescent; the incidents occurred when the defendant's wife was at work and he was watching the children; and the abuse involved fondling, fellatio, or cunnilingus, mostly taking place in the defendant's wife's bed. Although there was a significant gap in time between the last abuse and the events in question, that gap was the result of defendant's not having access to children related to his wife and thus did not preclude admission under Rule 404(b). Finally, the court held that trial judge did not abuse his discretion by admitting this evidence under Rule 403.