Appeal by defendant from judgments entered 15 August 2000 by
Judge Sanford L. Steelman, Jr. in Rowan County Superior Court.
Heard in the Court of Appeals 22 January 2002.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Laura E. Crumpler, for the State.
Richard D. Locklear for defendant-appellant.
HUNTER, Judge.
Mark Stephan Patterson (“defendant”) appeals his convictions
and sentencing for contributing to the delinquency of a juvenile,
taking indecent liberties with a child, second degree kidnapping,
and third degree sexual exploitation. We find no error.
The evidence presented at trial tended to establish that the
bulk of the crimes of which defendant was convicted involved four
girls ages thirteen and fourteen: Sharon Solomon (“Solomon”);
Amanda Trull (“Trull”); Amanda Mauney (“Mauney”); and Rebecca
Benton (“Benton”).
Defendant lived in a mobile home in North Carolina with his
friend Tonya Anderson (“Tonya”) and often spent time at Kate's
Skating Rink in Salisbury, North Carolina, where Tonya worked.
Defendant and Tonya would introduce themselves to others at Kate'sas brother and sister. They befriended Trull and Solomon, who also
frequented Kate's. In April of 1999, Tonya invited Solomon to
spend the night with her because defendant was going to be out of
town. Solomon invited Trull to accompany her. The original plan
was for the three of them to watch movies and drink wine coolers
but Trull invited some boys over who also brought alcohol. That
night they all sat around talking, drinking, and listening to
music. After the boys left, Solomon and Trull spent the night.
Defendant returned from Delaware the next day and Solomon and Trull
also spent that night at defendant's house.
Trull and Solomon continued to spend more time and nights with
defendant and Tonya. On one occasion, when Trull was staying over,
defendant climbed into bed, nude, with her and asked for oral sex
and began touching her “privates.” After she refused and pushed
his hand away, they went to sleep. Defendant photographed Trull
and Solomon posing in their underwear on numerous occasions and at
one point he told Solomon that he liked to get young girls drunk in
order to photograph them and have sex with them.
Later that year, defendant and Tonya decided to have a big
party. In addition to Solomon and Trull, there were boys at this
party, along with Benton and Mauney. Defendant and Tonya provided
alcohol and marijuana to the teens. As the young girls consumed
alcohol, defendant encouraged them to remove their clothing and
pose for pictures in their underwear. Defendant later encouraged
Benton and Mauney, both wearing only t-shirts and panties, tosimulate lesbian sex acts in the spare bedroom while he took
pictures.
A few weeks after this party, Solomon and Trull called the
police and defendant and Tonya were arrested. The police executed
search warrants of the house and seized numerous photographs of
young girls, included Solomon, Trull, Mauney, and Benton, in
various stages of undress, consuming alcohol, and in some cases
performing simulated sex acts. The police also seized a seventeen
year-old videotape of defendant engaging in sexual acts with a
fourteen year-old girl.
On 15 August 2000, defendant was convicted on eight (8) counts
of contributing to the delinquency of a juvenile, five (5) counts
of taking indecent liberties with a child, four (4) counts of
second degree kidnapping, and one (1) count of third degree sexual
exploitation. Defendant was sentenced to consecutive sentences of
ninety (90) days for the contributing to the delinquency of a
juvenile convictions, a minimum of 95 months and a maximum of 115
months for the taking indecent liberties with a child convictions,
a suspended sentence of between forty-six (46) and seventy-four
(74) months for the second degree kidnapping convictions, and a
suspended sentence of between six (6) and eight (8) months for the
third degree sexual exploitation conviction. Defendant appeals.
Defendant brings forth five assignments of error on appeal:
(1) the trial court erred by refusing to allow defendant to
question witnesses concerning the alleged victims' sexual activity
involving a co-defendant where the co-defendant was unavailable;(2) reversible error was committed when the prosecutor failed to
correct what she knew, or should have known, was inadmissible
evidence; (3) reversible error was committed as a consequence of
defense counsel's untimely objection to defendant's statement when
the statement contained information concerning prior convictions;
(4) the trial court erred in allowing the introduction of evidence
under N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999) concerning
defendant's prior bad acts and criminal convictions while living in
Delaware; and (5) defendant was unfairly prejudiced under N.C. Gen.
Stat. § 8C-1, Rule 403 (1999) when the trial court allowed the jury
to view portions of a seventeen year-old videotape of defendant
having sex with a minor. For reasons stated herein, we conclude
defendant's trial was free of error.
I.
Defendant first argues that the trial court erred in refusing
to allow him to question the State's witnesses concerning the
victims' sexual activity with others at the party. Specifically,
defendant challenges the trial court's refusal to allow him to
cross-examine Detective Tonya Rusher about alleged sexual activity
between the victims and other males at the parties. Defendant
contends that he was simply a passive observer who took photographs
of normal teenage behavior at parties: dancing, drinking, and
stripping off their clothing.
During the trial, defendant asked Detective Rusher:
Q. Now, without identifying or revealing the
names of the victim, if you could tell us what
other young men were charged and what were the
charges.
[PROSECUTOR]: Objection.
THE COURT: Sustained.
Q. Have the charges against these young men
been resolved, been to trial?
A. I believe one.
Q. And what was the disposition to that?
[PROSECUTOR]: Objection.
THE COURT: Sustained.
There is nothing in the record to indicate what response the
witness would have provided to these questions, nor what
information further cross-examination would have revealed. “An
exception to the exclusion of evidence cannot be sustained where
the record fails to show what the witness's testimony would have
been had he been permitted to testify.” State v. Barts, 321 N.C.
170, 178, 362 S.E.2d 235, 239 (1987) (citations omitted). In
addition, the evidence presented at trial showed that defendant was
not merely a passive observer, he provided the alcohol, encouraged
the victims to remove their clothing and pose for pictures, and
attempted to engage in sexual acts with some of the victims. He
also admitted that he liked to get young girls drunk in order to
photograph them and to engage in sexual acts with them.
During a pre-trial discussion, defendant did ask the trial
court for permission to cross-examine witnesses about possible
sexual conduct between the victims and others at the party. The
trial court declined to rule at that time and suggested that
defendant request a voir dire hearing so that the trial court could
properly consider the proffered evidence if there came a pointwhere defendant wanted to pursue this line of questioning.
Defendant never requested a voir dire hearing at the time he wanted
to pursue this line of questioning.
Because the record does not indicate what the cross-
examination would have revealed, and because the evidence elsewhere
tends to show that defendant would not be helped by this testimony,
we conclude that defendant was not prejudiced by the denial of
opportunity to cross-examine further. See State v. Lynch, 337 N.C.
415, 423, 445 S.E.2d 581, 584 (1994) (when there is nothing in the
record to indicate what the answers would have been, and it is not
apparent that the witness would have answered as the defendant
wanted him to answer, the court cannot rule favorably for the
defendant on this question). Defendant also failed to follow the
trial court's instruction to request a voir dire hearing so that
the trial court could properly assess the proffered evidence. This
assignment of error is overruled.
II.
Defendant next argues that reversible error was committed when
the prosecutor failed to prevent what she knew, or should have
known, was inadmissible evidence from being published to the jury.
During the trial, Detective Rusher was asked to read a handwritten
statement that had been given to Detective Rusher by defendant
after he was read his rights. In this statement, defendant
mentions his 1986 convictions for contributing to the delinquency
of a minor in Delaware. Prior to Detective Rusher's reading of the
statement, it was properly admitted into evidence and published tothe jury, without objection. When Detective Rusher read “[a]bout
mid or late 80's, I was charged with several counts,” defendant
objected and the trial court sustained the objection and instructed
the jury to disregard that portion of the statement in their
deliberation. The portion of the statement not read aloud to the
jury was:
About mid or late 80's I was charged with
several counts of contributing to the
delinquency of a minor. I was also charged
with giving kids drugs to take to school &
sell and with giving them alcohol. I plead
guilty to two counts of contributing to the
delinquency of a minor. I got 5 years
probation for that.
However, this statement had already been offered into evidence and
published to the jury without objection and without a motion to
suppress. The only objection came when the statement was being
read aloud by Detective Rusher.
Defendant concedes that he was provided with a copy of the
statement during the discovery process and that it was properly
reviewed at that time. Because defendant allowed this statement to
be published to the jury without objection, and does not argue the
admission to be plain error, he cannot now say it was error for the
statement to be published without first redacting the mention of
prior charges. N.C.R. App. P. 10(c)(4).
Even if it were error to provide the jury with the excluded
portion of the statement, for the reasons stated in III below, the
trial court cured any error by instructing the jury to disregard
that portion of the statement. This assignment of error is
overruled.
III.
In his next assignment of error, defendant argues that the
trial court erred in not granting a mistrial after defendant
objected to the continued reading of defendant's statement by
Detective Rusher when that objection was sustained but the jury had
already been provided with copies of the statement without the
improper content having first been redacted. As noted in II above,
these unredacted copies were provided to the jury without objection
from defendant.
Defendant did not move for a mistrial so the failure of the
trial court to grant one is not an error properly preserved for
appellate review. See N.C.R. App. P. 10(b)(1).
Even if this argument had been properly preserved, the
defendant's own cited authority shows that a motion for a mistrial
must only be granted if “there occurs an incident of such a nature
that it would render a fair and impartial trial impossible under
the law.” State v. McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179
(1980) (citation omitted). Even if the publication of the
statement was in error, the jury was instructed to disregard the
portion of the statement not read aloud. “When a jury is
instructed to disregard improperly admitted testimony, the
presumption is that it will disregard the testimony.” Id. at 610,
268 S.E.2d at 179 (defendant's motion for mistrial was properly
denied when the trial judge instructed the jury to disregard
testimony of a prior arrest). This assignment of error is
overruled.
IV.
In his fourth assignment of error, defendant argues that the
trial court erred under N.C. Gen. Stat. § 8C-1, Rule 404(b) by
allowing the introduction of evidence of defendant's prior bad acts
and convictions while living in Delaware. Defendant had been
convicted of crimes in Delaware that involved meeting young teenage
girls at a skating rink, inviting them to his home for parties,
providing drugs and alcohol to these teens at these parties, and
photographing them in various stages of undress.
Defendant argues introduction of this evidence violated Rule
404(b) which provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b). Defendant argues that since
the identity of defendant was not at issue, identity evidence is
not admissible under 404(b).
See State v. White, 101 N.C. App.
593, 401 S.E.2d 106,
appeal dismissed and disc. review denied, 329
N.C. 275, 407 S.E.2d 852 (1991). Defendant further argues that
this evidence was admitted solely to show that defendant had the
propensity or disposition to commit the crime charged. We
disagree.
“Rule 404(b) is one of '
inclusion of relevant evidence of
other crimes . . . subject to but
one exception requiring its
exclusion if its
only probative value is to show that the defendanthas the propensity or disposition to commit an offense of the
nature of the crime charged.'”
State v. Faircloth, 99 N.C. App.
685, 689, 394 S.E.2d 198, 201 (1990) (quoting
State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)). “[S]uch evidence is
admissible as long as it is relevant to any fact or issue other
than the defendant's propensity to commit the crime.”
State v.
Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635,
appeal
dismissed and disc. review denied, 353 N.C. 382, 546 S.E.2d 114
(2000). Here, the trial court allowed the prior bad acts to be
admitted under Rule 404(b) “as evidence of the motive of the
defendant, the intent of the defendant, and of a common scheme of
[sic] plan.”
The test for determining whether evidence showing a common
scheme or plan is admissible is “whether the incidents establishing
the common plan or scheme are sufficiently similar and not so
remote in time as to be more probative than prejudicial under the
balancing test of N.C.G.S. § 8C-1, Rule 403.”
State v. Frazier,
344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996). In the present
case, the similarities between the incidents involving the current
crimes and the actions in Delaware are sufficient to establish a
common scheme or plan. The trial court allowed the evidence to be
admitted after holding a
voir dire hearing. At this
voir dire
hearing, the trial court made extensive findings of fact concerning
defendant's prior acts in Delaware, including:
a. In the 1980's and early 1990's the
defendant resided in the State of
Delaware. The defendant helped to start
a roller skating club known as the“Aces”. The defendant used the skating
club to meet underage females.
b. . . . On weekends, there would be parties
at the home of the defendant. The
defendant provided liquor, marijuana, and
caffeine pills to girls who were minors.
. . . There would be girls at these
parties who were between the ages of 13
and 28 years of age. Strip poker was
played at these parties, and the
defendant would take pictures of girls
during these games, in various stages of
undress. . . . In 1986 the defendant
. . . [was] convicted of multiple counts
of contributing to the delinquency of a
juvenile in the State of Delaware arising
out of this conduct. Despite this
conviction, the parties at the residence
of the defendant continued.
c. . . . Following his separation [from his
wife], the parties at the residence of
the defendant continued and increased,
with more marijuana and nudity.
. . .
e. The defendant kept a log of his sexual
conquests, beginning in 1974, listing the
ages of the girls, and the type of sex
that he had with them.
In the present case, defendant met the victims at a skating
rink, invited them to his home for parties where alcohol and drugs
were provided, and then proceeded to take photographs of the
victims in varying stages of undress. Defendant also attempted to
engage in sexual activities with at least one of the victims. We
hold that the current acts are sufficiently similar to the previous
acts in Delaware.
The second part of the test for admissibility is whether or
not these prior incidents were so remote in time as to no longer be
more probative than prejudicial.
Id. In the present case,defendant's prior crimes and bad acts took place over a number of
years in Delaware and again in North Carolina. As our Supreme
Court noted in
State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842
(1989):
While a lapse of time between instances of
sexual misconduct slowly erodes the
commonality between acts and makes the
probability of an ongoing plan more tenuous,
. . . the continuous execution of similar acts
throughout a period of time has the opposite
effect. When 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.
Id. at 445, 379 S.E.2d at 847. We hold that the prior bad acts,
occurring in Delaware between ten and fifteen years before
defendant's trial, were not too remote to be considered as relevant
evidence of defendant's common scheme or plan to meet young girls
at a skating rink, provide them drugs and alcohol, and photograph
them in varying stages of undress for the purposes of sexual
gratification.
See State v. Miller, 142 N.C. App. 435, 543 S.E.2d
201 (2001) (prior convictions dating back sixteen years are
admissible).
We also find that the trial court did not abuse its discretion
in finding that this evidence of a common scheme or plan was more
probative than prejudicial under the balancing test of Rule 403.
See State v. Coffey, 326 N.C. 268, 389 S.E.2d 48. This assignment
of error is overruled.
V.
Defendant's final argument is that the trial court erred in
allowing portions of a seventeen year-old videotape of defendantengaging in sexual activity with a minor to be played for the jury.
Defendant argues that any probative value of the videotape is
outweighed by its prejudicial effect upon him.
See N.C. Gen. Stat.
§ 8C-1, Rule 403.
“Evidence which is probative of the State's case necessarily
will have a prejudicial effect upon the defendant; the question is
one of degree."
Coffey, 326 N.C. at 281, 389 S.E.2d at 56 (citing
State v. Mercer, 317 N.C. 87, 94, 343 S.E.2d 885, 889 (1986)). The
decision to admit or exclude evidence under Rule 403 is left to the
discretion of the trial court and will only be disturbed upon a
showing of abuse of discretion.
Id. In this case, the trial court
excluded most of the videotape, only allowing portions to be shown
to the jury. The trial court did not abuse its discretion in
allowing portions of the videotape to be shown to the jury.
Even if the admission of the videotape were determined to be
error, it was harmless error. In order to show prejudicial error,
defendant must show that a different result would have been reached
at trial if the evidence had not been admitted. N.C. Gen. Stat. §
15A-1443(a) (1999). In light of the overwhelming evidence against
defendant, it is unlikely that the jury would not have convicted
had they not seen the portions of this videotape that the trial
court allowed. This assignment of error is overruled.
No error.
Judges GREENE and TYSON concur.
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