1. Evidence--prior acts or crimes--sexual acts--remoteness--intent and absence of
accident
The trial court did not abuse its discretion in a first-degree statutory rape and taking
indecent liberties case by admitting the testimony of two of the State's witnesses concerning
defendant's prior sexual acts with minor females some twelve and fourteen years prior to these
incidents, because: (1) the evidence was admissible under N.C.G.S. § 8C-1, Rule 404(b) to show
defendant's intent and the absence of any alleged accident; (2) the lapse of time in this case since
the prior sexual acts does not sufficiently diminish the striking similarities between the acts and
goes to the weight of the evidence rather than to its admissibility; and (3) the trial court
concluded defendant's prior sexual acts were not so remote in time as to be more prejudicial than
probative under N.C.G.S. § 8C-1, Rule 403.
2. Evidence--prior acts or crimes--sexual acts--common intent, scheme and design, and
opportunity
The trial court did not abuse its discretion in a first-degree statutory rape and taking
indecent liberties case by admitting the testimony of two of the victims concerning defendant's
prior sexual acts, because: (1) the testimony was relevant to show common intent, scheme and
design, and opportunity insofar as they involved incidents of a sexual nature with children; and
(2) the statements by both children indicated the incidents occurred no more than two years prior
to the incident in April 1998.
3. Criminal Law--mental capacity of defendant--sufficiency of evidence
The trial court did not err in a first-degree statutory rape and taking indecent liberties case
by allegedly failing to take appropriate measures sua sponte to evaluate defendant's mental state
and capacity under N.C.G.S. § 15A-1002(a), because there was insufficient evidence before the
trial court indicating defendant's mental incompetence.
4. Constitutional Law--effective assistance of counsel--failure to move for severance of
charges--failure to take measures regarding defendant's mental state and capacity
A defendant was not denied the effective assistance of counsel based on his counsel's
alleged failure to move for a severance of the indecent liberties and rape charges and failure to
take appropriate measures regarding defendant's mental state and capacity to proceed, because:
(1) defendant has failed to show how he was prejudiced when the charges had a transactional
connection; and (2) there was insufficient evidence at trial of defendant's incompetency.
Attorney General Michael F. Easley, by Assistant Attorney
General Sarah Ann Lannom, for the State.
Homesley, Jones, Gaines, Homesley & Dudley, by L. Ragan
Dudley, for the defendant-appellant.
WYNN, Judge.
Defendant appeals from his convictions for two counts of
taking indecent liberties with a child under N.C. Gen. Stat. § 14-
202.1 (1999), and one count of first degree statutory rape of a
female child under thirteen years of age under N.C. Gen. Stat. §
14-27.2(a)(1) (1999). We find no prejudicial error.
The evidence presented by the State tends to show that while
his friends, a husband and wife, left town for a wedding, defendant
stayed at their residence with their two minor children, and with
an acquaintance of theirs, a thirteen-year old female friend.
One evening while defendant and the children watched a movie,
defendant masturbated in front of the children. Later that
evening, after the children had gone to bed, defendant allegedly
raped the thirteen-year old female friend. Following indictment
and trial, defendant was convicted of two counts of taking indecent
liberties with each of his friends' children, and the statutory
rape of the thirteen-year old female friend.
[1]Defendant appeals from these convictions arguing first
that the trial court committed reversible error by admitting the
testimony of two of the State's witnesses. At trial, the State
called two female witnesses to testify regarding certain prior acts
of the defendant under N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999).
Upon defendant's objection, the trial court conducted voir dire
examinations of the proposed witnesses and heard arguments fromcounsel. The trial court then overruled defendant's objections and
allowed both witnesses to testify before the jury.
The first female witness testified on voir dire that she had
been good friends with defendant's daughter when they were in
elementary school. She would visit defendant's daughter and often
stayed overnight at defendant's house. She testified that
defendant would frequently expose his genitals and play with his
penis in front of her and his daughter. She recalled that
defendant exposed himself and masturbated in front of her in 1983
or 1984.
In her voir dire testimony, the second female witness
testified she was also a good childhood friend of defendant's
daughter and stayed overnight at defendant's house on occasion.
She testified that defendant frequently exposed himself to the
children, and on one occasion in May 1986, defendant entered the
room where she and his daughter were sleeping, sat on the edge of
her bed, picked up her hand and began “playing with himself.”
Evidence of other bad acts is inadmissible under Rule 404(b)
if its sole purpose is “to prove the character of a person in order
to show that he acted in conformity therewith.” N.C. Gen. Stat. §
8C-1, Rule 404(b). Thus, even if evidence tends to show a
defendant's propensity to commit bad acts, such evidence is
nonetheless admissible under Rule 404(b) if it is relevant for some
other purpose, such as to show, for example, opportunity, intent,
knowledge, identity, or absence of mistake or accident. See id.
The State contends that the challenged evidence was relevant toshow defendant's intent and the absence of any alleged accident.
“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.” State v. West, 103 N.C. App. 1, 9, 404 S.E.2d 191, 197
(1991); see N.C. Gen. Stat. § 8C-1, Rule 403 (1999).
The gravamen of the offense of taking indecent liberties under
N.C. Gen. Stat. § 14-202.1(a)(1) is the defendant's purpose in
undertaking the prohibited act. State v. Hartness, 326 N.C. 561,
567, 391 S.E.2d 177, 180 (1990); N.C. Gen. Stat. § 14-202.1(a)(1)
(providing that the prohibited acts must have been undertaken, or
attempted, “for the purpose of arousing or gratifying sexual
desire”). A defendant's purpose in performing an act, like intent,
is a mental attitude, and is rarely demonstrable by direct
evidence; ordinarily it must be inferred. State v. Jones, 89 N.C.
App. 584, 598, 367 S.E.2d 139, 147 (1988), overruled on other
grounds, State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000);
West, 103 N.C. App. at 9, 404 S.E.2d at 197. As prior similar acts
are admissible to show intent, so may they be admitted to show a
defendant's purpose under N.C. Gen. Stat. § 14-202.1(a)(1). See
West, 103 N.C. App. at 9, 404 S.E.2d at 197. Thus, the evidence of
prior sexual acts by defendant was offered for a proper purpose
under Rule 404(b).
Defendant contends, however, that the testimony by the twofemale witnesses in this case referred to incidents that
were too
remote and thus ran afoul of the balancing test in Rule 403. N.C.
Gen. Stat. § 8C-1, Rule 403; see West. The first female witness's
testimony concerned alleged prior acts of defendant occurring in
1983 or 1984, at least fourteen years earlier than the acts
occurring in April 1998 for which defendant was on trial. The
second female witness's testimony concerned acts occurring some
twelve years prior to the alleged incidents in April 1998.
While the period of elapsed time since the prior sexual acts
is an important part of the Rule 403 balancing process, and the
passage of time may slowly erode the commonalities between the
prior acts and the acts currently charged, the lapse of time in
this case does not sufficiently diminish the striking similarities
between the acts. See State v. Roberson, 93 N.C. App. 83, 85, 376
S.E.2d 486, 487-88, disc. review denied, 324 N.C. 435, 379 S.E.2d
247 (1989) (involving nearly five-year lapse of time between sexual
acts); State v. Frazier, 121 N.C. App. 1, 464 S.E.2d 490 (1995),
aff'd, 344 N.C. 611, 476 S.E.2d 297 (1996); State v. Blackwell, 133
N.C. App. 31, 514 S.E.2d 116, cert. denied, 350 N.C. 595, 537
S.E.2d 483 (1999). Furthermore, “remoteness is less significant
when the prior conduct is used to show intent, motive, knowledge,
or lack of accident.” State v. Hipps, 348 N.C. 377, 405, 501
S.E.2d 625, 642 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d
114 (1999). Accordingly, we conclude that the lapse of time
between the defendant's sexual acts in the instant case goes to the
weight of the evidence, not to its admissibility. See id. Nonetheless, defendant, relying heavily upon S
tate v. Jones,
322 N.C. 585, 369 S.E.2d 822 (1988) and State v. Jacob, 113 N.C.
App. 605, 439 S.E.2d 812 (1994), contends that this Court and our
Supreme Court have consistently ruled “that the trial courts of
North Carolina [must] make specific and meaningful findings
regarding remoteness.” In Jacob, this Court stated that “[t]he
trial court [in Jones, 322 N.C. 585, 369 S.E.2d 822] failed to
make specific findings indicating the significance of the
remoteness factor, and the omission was found to be error.” Jacob,
113 N.C. App. at 610, 439 S.E.2d at 815. In contrast, the
transcript in the case at bar clearly indicates that the trial
court carefully considered the remoteness factor, concluding that
defendant's prior sexual acts were “not so remote in time as to be
more prejudicial than probative for the purpose of proving
. . . absence of mistake or intent.” As the transcript evidences
the trial court's careful consideration of the remoteness factor,
defendant's argument is without merit.
Defendant also contends that the testimony of the two female
witnesses, while it may have been admissible in connection with the
indecent liberties charges, was inadmissible under Rule 403 with
respect to the rape charge as it was not sufficiently similar for
its probative value to outweigh any prejudice. We disagree.
In ruling on the admissibility of the testimony of the two
female witnesses, the trial court recognized that their testimony
was not corroborative of or similar to the testimony offered by the
thirteen-year old alleged victim in this case relating to the rapecharge, “insofar as actual penetration is concerned.” We note
that
defendant did not oppose the State's motion to join the cases for
trial and voiced no objection to the trial court's limiting
instructions following the testimony by the two female witnesses.
We, therefore, conclude that the trial court did not abuse its
discretion in admitting the testimony by the two female witnesses
regarding defendant's prior sexual acts. See Hipps, 348 N.C. at
405-06, 501 S.E.2d at 642 (“[t]he determination of whether relevant
evidence should be excluded under Rule 403 is a matter that is left
in the sound discretion of the trial court, and the trial court can
be reversed only upon a showing of abuse of discretion”).
[2]Defendant next contends that the trial court erred by
admitting testimony by his friends' two children--a minor male and
female--regarding prior acts of defendant. Both children testified
that defendant frequently “played with himself” and masturbated in
their presence, often when their mother, who worked nights, was
asleep and their father was out working. Furthermore, the two
children testified that defendant had asked them on occasion to
touch his penis and told them not to say anything of these
incidents or they would get in trouble and he would go to jail.
One of the children stated during voir dire examination that he did
not remember when defendant began masturbating in front of him but
was unwavering in his testimony that defendant had done so numerous
times.
Defendant argues that these prior acts were in no way similar
to the alleged rape of the thirteen-year old alleged female victim,
and “were only relevant to the indecent liberties charges.” Heargues further that these prior acts, when viewed as a whole, were
not sufficiently similar and were too remote in time, such that
their probativity did not outweigh their prejudice to defendant
under Rule 403. The trial court concluded that the testimony was
relevant and admissible as to the rape charge as well as the
indecent liberties charges “to show common intent, scheme and
design” and opportunity insofar as they involved incidents of a
sexual nature with children. Defendant emphasizes that the two
children of his friends could not remember the precise dates and
times when defendant performed the prior acts. However, statements
by both children indicated that the incidents to which they were
testifying occurred no more than two years prior to the incident in
April 1998. Under the circumstances, we conclude that the trial
court did not abuse its discretion in permitting the testimony by
the two children as to defendant's prior sexual acts in their
presence.
[3]Next, defendant asserts that the trial court erred by
failing to take appropriate measures sua sponte to evaluate
defendant's mental state and capacity. Defendant also argues that
the trial court erred in denying his motion for appropriate relief,
which raised this same argument. We find no error.
N.C. Gen. Stat. § 15A-1001 (1999) provides:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
reasonable manner.
Under N.C. Gen. Stat. § 15A-1002(a) (1999), the question of a
defendant's capacity to proceed may be raised on motion by the
trial court. In State v. Heptinstall, 309 N.C. 231, 306 S.E.2d 109
(1983), our Supreme Court recognized that “circumstances could
exist where the trial court has a constitutional duty to make such
an inquiry.” Id. at 235-36, 306 S.E.2d at 112 (emphasis added)
(citing State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977)).
However, Young stated that “'[A] trial court has a
constitutional duty to institute, sua sponte, a competency hearing
if there is substantial evidence before the court indicating that
the accused may be mentally incompetent.'” 291 N.C. at 568, 231
S.E.2d at 581 (quoting Crenshaw v. Wolff, 504 F.2d 377 (8th Cir.
1974), cert. denied, 420 U.S. 966, 43 L. Ed.2d 445 (1975)). Upon
careful review of the record, we conclude that there was
insufficient evidence before the trial court in the instant case
indicating defendant's mental incompetence, and the trial court
was, therefore, under no constitutional duty to institute a
competency hearing sua sponte under G.S. § 15A-1002(a). We
conclude further that the trial court committed no error in denying
defendant's motion for appropriate relief on this basis.
[4]Defendant next contends that he was denied the effective
assistance of counsel, based on his trial counsel's failure to move
for a severance of the indecent liberties and rape charges, and his
failure to take appropriate measures regarding defendant's mental
state and capacity to proceed. We disagree. A defendant's constitutionally-guaranteed right to counsel
includes the right to the effective assistance of counsel. See
State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000). To establish
a claim for ineffective assistance of counsel, a defendant must
show that his counsel's assistance was deficient under the
circumstances, and that such deficiencies prejudiced the defense.
See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674
(1984); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985);
Grooms, 353 N.C. at 64-65, 540 S.E.2d at 722-23.
Defendant has failed to satisfy this test in the instant case.
Assuming arguendo that defendant's counsel erred by failing to
oppose the State's motion to join the charges against defendant for
trial or by failing to move for a severance of the charges under
N.C. Gen. Stat. § 15A-927 (1999), defendant has failed to show that
he was prejudiced thereby. N.C. Gen. Stat. § 15A-926 (1999)
permits the joinder of offenses within the discretion of the trial
court, and such joinder will only be disturbed on appeal where
defendant demonstrates that joinder denied him a fair trial. See
State v. Wilson, 108 N.C. App. 575, 424 S.E.2d 454, appeal
dismissed, disc. review denied, 333 N.C. 541, 429 S.E.2d 562
(1993).
The trial court's consolidation of charges with a
transactional connection will only be disturbed upon a showing of
an abuse of discretion. See State v. Monk, 132 N.C. App. 248, 511
S.E.2d 332, appeal dismissed, disc. review denied, 350 N.C. 845,539 S.E.2d 1 (1999). Our courts have previously held in vari
ous
circumstances that it was not error for the trial court to
consolidate multiple sexual offense charges against a defendant
where such offenses were transactionally connected. See State v.
Swann, 322 N.C. 666, 370 S.E.2d 533 (1988) (holding that trial
court's consolidation for trial of four sexual offenses allegedly
occurring in two episodes a week apart was not error); State v.
Bruce, 90 N.C. App. 547, 369 S.E.2d 95, disc. review denied, 323
N.C. 367, 373 S.E.2d 549 (1988) (trial court's consolidation of
four sexual offenses for trial was not error where all charges
involved acts of sexual abuse by defendant under similar
circumstances); see also Monk, 132 N.C. App. at 254-55, 511 S.E.2d
at 336.
“A defendant is not prejudiced by the joinder of two crimes
unless the charges are 'so separate in time and place and so
distinct in circumstances as to render the consolidation unjust and
prejudicial to defendant.'” State v. Howie, 116 N.C. App. 609,
615, 448 S.E.2d 867, 871 (1994) (citations omitted). We cannot
conclude in the instant case that the two counts of taking indecent
liberties and the single count of statutory rape were sufficiently
separate and distinct circumstantially to render their
consolidation prejudicial to defendant. Furthermore, as it was not
error for the trial court to consolidate the charges, we cannot
find error in defendant's counsel's decision not to argue for the
severance of such charges. This assignment of error is without
merit. As to defendant's argument that he was denied the effective
assistance of counsel by his counsel's failure to demand a hearing
on defendant's competency, we note, as above, that there was
insufficient evidence at trial of defendant's incompetency.
Indeed, defendant's counsel testified at the hearing on defendant's
motion for appropriate relief that defendant was very intelligent,
comprehended the charges and proceedings against him, and
effectively assisted counsel in defending him. See N.C. Gen. Stat.
§ 15A-1001. Defendant has therefore failed to show that his
counsel was deficient in failing to demand a competency hearing.
See id. Defendant's remaining assignments of error are without
merit.
No error.
Judges CAMPBELL and BIGGS concur.
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