State v. Pickens, 2022-NCCOA-527, ___ N.C. App. ___ (Aug. 2, 2022)

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.