STATE OF NORTH CAROLINA
v
.
FRANKIE RAY SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Jill B. Hickey, for the State.
Cheshire, Parker, Schneider, Wells & Bryan, by Joseph B.
Cheshire, V, and John Keating Wiles, for defendant-appellant.
CAMPBELL, Judge.
Defendant was indicted on two counts of taking indecent
liberties with a child and one count of first degree sex offense
with a female child under the age of thirteen. Following a jury
trial, defendant was convicted on all three counts. Defendant was
sentenced to three concurrent terms of imprisonment. Defendant
appeals.
The State's evidence tended to show that the alleged victim,
“A.R.,” was twelve years old at the time of the alleged sexual
offenses and fourteen years old at the time of the trial. A.R.
testified that defendant, her stepfather, often made comments about
the way she dressed (“[Y]ou should wear pants that are tighter
because they look better on your butt.”), about her breasts, and
about her “butt.” These comments made A.R. feel uncomfortable. On22 February 1999, A.R.'s mother spent the night away from home,
while A.R. stayed at home with defendant and defendant's daughter,
Julie. Sometime around midnight, A.R. was lying in bed when she
heard defendant come down the hallway and into her bedroom.
Defendant allegedly pulled down the covers, ran his hand up A.R.'s
shirt, and rubbed her left breast for approximately ten minutes.
A.R. did not move and did not let defendant know that she was awake
because she was afraid that he would hurt her. A.R. did not
initially tell anyone about this first alleged incident of sexual
abuse.
The second alleged incident of sexual abuse occurred on 1
April 1999. A.R. testified that her mother had not returned home
from work and that she and Julie were packing for a trip to
Virginia. A.R. went into defendant's bedroom to tell him that
Julie's bed had broken. A.R. sat down on the hope chest while
defendant was lying in bed watching television. A.R. testified
that she got a cramp in her calf and started rubbing it. Defendant
then picked her up from the hope chest and laid her on the bed on
her stomach. Defendant began rubbing her calf and then “worked his
way up and into [her] shorts and into [her] underwear.” Defendant
then stuck his finger in A.R.'s vagina and kept it there for “maybe
five minutes.” After he removed his finger from A.R.'s vagina,
defendant asked her, “Are you mad at me? Did I hurt you? Are you
mad at me, [A.R.]?” A.R. pretended to be asleep because she was
afraid of what defendant might do to her. Defendant went into the
bathroom and A.R. remained on the bed pretending to be asleep. When defendant came out of the bathroom, he again asked, “[A.R.],
are you mad at me? [A.R.], did I hurt you?” A.R. continued to act
as if she were asleep. Defendant then picked her up, carried her
into her own bedroom, and laid her on the bed.
Jacqueline Joiner (“Jacqueline”), A.R.'s aunt, testified that
A.R. told her about the April 1 incident approximately three days
after it occurred. According to Jacqueline's testimony, A.R.'s
exact words to her were, “[Defendant] stuck his finger in me.”
Jacqueline told A.R.'s mother, Denise Joiner, about the alleged
April 1 incident the following day.
Denise Joiner (“Denise”) testified that she remembered coming
home on the night of 1 April 1999 and noticing that A.R. had been
crying. Denise asked what was wrong, to which A.R. responded, “I
just don't feel well, mom . . . I just--I don't know, I just don't
feel good.” Denise further testified that, when she questioned
A.R. about the alleged April 1 incident, A.R. described the
incident consistently with her testimony at trial. Denise reported
the alleged sexual abuse to the Dare County Sheriff's Office and
took A.R. to see a therapist. During the investigation, A.R.
reported the alleged February incident in which defendant had
rubbed her left breast.
Two of defendant's co-workers, Jeff Moss (“Moss”) and Donald
Rouse (“Rouse”), also testified for the State. Both Moss and Rouse
testified that defendant had made sexual comments about A.R. while
at work. Moss testified that defendant had made comments about
A.R.'s breasts and “how well she looked for her age,” and thatdefendant told him that he had once become aroused due to the T-
shirt and underwear that A.R. wore around the house. Further, Moss
testified that defendant had made the comment “that there was no
blood in the child to him, that it could lead to something.”
Rouse also testified that defendant made comments about A.R.'s
breasts. In addition, Rouse testified that defendant told him of
an occasion on which A.R. got out of the shower and was walking
through the living room with an oversized T-shirt on and that
defendant made the comment “that if she didn't stop dressing like
that that something was going to happen.” Rouse further testified
that defendant once made the comment, “Old enough to bleed, old
enough for me.” As a result of defendant's sexual comments, Rouse
filed a complaint against defendant with social services.
Michelle Zimmerman (“Zimmerman”), a psychiatrist certified as
a specialist in child psychiatric nursing and tendered and accepted
as an expert in child sexual abuse, testified that she examined
A.R. over the course of several months beginning in August 1999.
Zimmerman stated that A.R. told her that defendant had come into
her room in February and put his hands up her sweatshirt, and that
on 1 April 1999 she had been digitally penetrated by defendant.
Zimmerman diagnosed A.R. as suffering from post-traumatic
stress disorder, and testified that sexual assault was a common
cause of post-traumatic stress disorder. Zimmerman further
testified that it was not unusual for a child sexual abuse victim
not to immediately disclose the abuse due to fear of getting in
trouble or retaliation. Jennifer Marquis (“Marquis”) also testified for the State.
Marquis stated that she knew defendant when she was a teenager and
would occasionally babysit for him. On one occasion when Marquis
was fifteen years old, she went over to defendant's house to
babysit. Defendant left for a short time and then returned to fix
supper. Marquis and defendant ate supper and defendant made them
mixed drinks. After drinking a mixed drink, Marquis went out on
the patio with defendant and smoked some marijuana. The two then
came back inside and defendant started trying to fool around with
Marquis but Marquis was not interested. Defendant pulled Marquis'
pants off and performed oral sex on her. Marquis testified that
she did not want defendant to do so but that she did not fight him
off. The next day Marquis was lying on defendant's bed while he
took a shower. When he got out of the shower, defendant lay down
beside Marquis and began trying to talk her into “doing stuff.”
Marquis again told defendant that she did not want to mess around
with him. Nonetheless, defendant pulled Marquis' pants down and
had sexual intercourse with her. Marquis testified that she told
defendant she did not wish to have sex with him, but that she did
not “hit him or anything like that” in an attempt to fight him off.
Marquis did not report her two sexual encounters with defendant
until the investigation of defendant's alleged sexual abuse of A.R.
She testified that she did not feel like she had been raped and
that she felt she had put herself in position to allow defendant's
actions to occur. She further testified that she continued to see
defendant from time to time following the two sexual encounters butthat she never had another sexual encounter with him. Marquis'
testimony was admitted under Rule 404(b) of the North Carolina
Rules of Evidence for the purpose of showing an absence of mistake
on the part of defendant, defendant's unnatural attraction to young
girls, and a common plan or scheme to take advantage of young girls
in situations where he had parental or adult responsibility over
them.
Over defendant's numerous objections, the State also admitted
testimony concerning defendant's possession of pornographic
magazines and videos at home and at work.
Defendant denied all allegations of sexual misconduct and
presented witnesses who testified about his reputation. Defendant
also presented testimony attacking the credibility of several of
the State's witnesses, including the victim, Donald Rouse and
Jennifer Marquis. Defendant contended that A.R. had fabricated the
allegations against him and that A.R. had previously made false
accusations of a somewhat similar nature against another man.
Defendant raised twenty-six assignments of error in the record
on appeal, several of which defendant has failed to support with
argument in his brief. Those assignments of error are deemed
abandoned pursuant to N.C. R. App. P. 28(b)(6) and we only address
those assignments of error brought forward in defendant's brief.
Defendant first contends that the trial court erred in
admitting evidence of his possession of pornographic magazines and
videos. Defendant contends that such evidence was not relevant to
the question of whether defendant committed the alleged sexualoffenses, and in the alternative, even if the evidence were
relevant, its probative value was substantially outweighed by the
danger of unfair prejudice under Rule 403 of the North Carolina
Rules of Evidence. Defendant additionally alleges that “[t]he only
purpose of such inquiries was to besmirch the Defendant's
character.”
The State argues that defendant waived his right to object to
the admission of the evidence concerning his possession of
pornographic magazines and videos, and in the alternative, the
evidence was relevant and admissible under Rule 404(b) to show
“defendant's intent to engage in a sexual relationship with
[A.R.].” The State additionally contends that the evidence was
admissible to corroborate the voir dire testimony of Jennifer
Marquis.
On direct examination, the State asked A.R. if defendant had
ever asked her to look at a pornographic videotape. A.R. testified
that defendant once handed her a video and said, “Watch this.”
A.R. asked defendant what the video was and defendant responded,
“Just watch it.” A.R. testified that she refused to watch the
video because she thought it was a pornographic movie. Defendant's
timely objection to this testimony was overruled by the trial
court. A.R. was then asked, again over defendant's timely
objections, if she knew whether defendant kept pornographic videos
and magazines in the house. A.R. responded, “I think so, I'm
almost positive.” The trial court then allowed defendant's motionto strike to A.R.'s speculation that she thought defendant kept
pornographic videos and magazines in the house.
The State also questioned A.R.'s mother, Denise Joiner, about
whether defendant kept pornographic videos and magazines in the
house and whether he watched the videos. Over defendant's timely
objections, Denise answered in the affirmative to both questions.
Denise described the pornographic magazines as “Playboy, Hustler-
type magazines.”
The State also questioned two of defendant's co-workers, Jeff
Moss and Donald Rouse, about whether defendant kept pornographic
magazines at his workplace. Defendant again objected and the co-
workers testified that defendant kept pornographic magazines in his
toolbox. Defendant's sister, Serena Sellers, was also questioned
by the State whether defendant kept pornographic materials in the
townhouse in which the two of them lived. As with the other
instances, defendant made a timely objection.
During the State's cross-examination of defendant, he was
asked whether he kept pornographic magazines and videotapes in the
house he shared with A.R. Defense counsel again objected and was
overruled. Defendant then answered the State's questions in the
affirmative but asked if he could explain his answer, which the
trial court allowed. Defendant then testified:
I have two--I had three years of Playboy
magazines still in the plastic, okay, for
purposes of collector items or what not. I
had these magazines since the first three
months I lived with Denise and [A.R.]. I had
these things packed in a box about yea big
(demonstrating) wrapped in duct tape. They
stayed in the shed out back away from thehouse in Chesapeake and downstairs where you
drive your car up underneath the beach box-
type house we lived in there was four storage
doors. That is where that box with the two
movies and the pornographic magazines were
packed up.
Defendant went on to testify that he had one pornographic magazine
in the house, but no pornographic videos, and that he had never
asked A.R. to watch at a pornographic video. Defendant also
testified that he had one Penthouse magazine in his toolbox at
work.
Under Rule 401 of the North Carolina Rules of Evidence,
“'[r]elevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C. R. Evid. 401 (2001). As a
general rule, evidence of a defendant's prior conduct, such as the
possession of pornographic videos and magazines, is not admissible
to prove the character of the defendant in order to show that the
defendant acted in conformity therewith on a particular occasion.
N.C. R. Evid. 404(b) (2001). However, such evidence of prior
conduct is admissible so long as it is relevant to some purpose
other than to show the character of the defendant and the
defendant's propensity for the type of conduct for which he is
being tried. See State v. Rael, 321 N.C. 528, 534, 364 S.E.2d 125,
129 (1988); State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91
(1986); State v. Doisey, 138 N.C. App. 620, 626, 532 S.E.2d 240,
244, disc. review denied, 352 N.C. 678, 545 S.E.2d 434 (2000),
cert. denied, 531 U.S. 1177, 148 L. Ed. 2d 1015 (2001). Examplesof such proper purposes include “proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake, entrapment, or accident.” N.C. R. Evid. 404(b).
After careful review of the record, we are unable to agree
with the State's contention that the evidence of defendant's
possession of pornographic magazines and videos was properly
admitted as evidence of “defendant's intent to engage in a sexual
relationship with [A.R.],” or as evidence of defendant's
preparation, plan, knowledge or absence of mistake. See Doisey,
138 N.C. App. at 626, 532 S.E.2d at 244 (evidence that the
defendant placed a camcorder in a bathroom used by children and
taped the activities in the bathroom was not properly admitted to
show “design or scheme to take sexual advantage of children”);
State v. Hinson, 102 N.C. App. 29, 36, 401 S.E.2d 371, 375 (1991)
(evidence that the defendant possessed photographs depicting
himself in women's clothing, dildos, lubricants, vibrators and two
pornographic books, was not properly admitted to show “proof of
intent, preparation, plan, knowledge and absence of mistake,” in
sexual offense case involving seven-year-old victim); State v.
Maxwell, 96 N.C. App. 19, 24, 384 S.E.2d 553, 556 (1989) (evidence
that the defendant frequently appeared nude in front of his
children and had fondled himself in presence of daughter was not
properly admitted to show “defendant's plan or scheme to take
advantage of his daughter”). Evidence of defendant's mere
possession of pornographic materials does not tend “to make the
existence of any fact that is of consequence to the determinationof the action more or less probable than it would be without the
evidence.” N.C. R. Evid. 401. The only evidence that defendant
attempted to expose A.R. to pornographic materials was A.R.'s
testimony that defendant once asked her to watch a video but would
not tell her what the video was about. A.R. then speculated that
she thought the video was a pornographic movie. However, the trial
court allowed defendant's motion to strike A.R.'s speculation.
There was no evidence presented that defendant showed A.R.
pornographic materials at the time of the alleged crimes or that
the two of them had ever viewed pornographic materials together.
Without more, A.R.'s mere speculation that defendant had attempted
to get her to watch what she thought was a pornographic movie, is
not enough to make the evidence of defendant's possession of
pornographic materials relevant to the crimes with which he was
charged. But see Rael, 321 N.C. at 534, 364 S.E.2d at 129
(evidence of pornographic videos and magazines seized from the
defendant's house properly admitted to corroborate the victim's
testimony that the defendant had shown him such material at the
time of the alleged crimes); State v. Williams, 318 N.C. 624, 632,
350 S.E.2d 353, 358 (1986) (evidence that the defendant had taken
his daughter, the victim, to an x-rated movie and told her to watch
the scenes depicting graphic sexual acts properly admitted to prove
the defendant's "specific sexual intent, preparation and plan with
regard to his daughter").
We agree with defendant's contention that the only purpose of
such evidence was to impermissibly inject defendant's characterinto the case to raise the question of whether defendant acted in
conformity with his character at the times in question. As a rule,
substantive evidence of a defendant's past misconduct is generally
excluded when its only logical relevancy is to suggest the
defendant's propensity or predisposition to commit the type of
offense for which he is charged. State v. Shane, 304 N.C. 643,
653-54, 285 S.E.2d 813, 820 (1982); Maxwell, 96 N.C. App. at 25,
384 S.E.2d at 557. We hold that evidence of defendant's possession
of pornographic materials, without any evidence that defendant had
viewed the pornographic materials with the victim, or any evidence
that defendant had asked the victim to look at pornographic
materials other than the victim's mere speculation, was not
relevant to proving defendant committed the alleged offenses in the
instant case and should not have been admitted by the trial court.
We further disagree with the State's contention that the
evidence was admissible to corroborate the voir dire testimony of
Jennifer Marquis that she and defendant had once looked at a
pornographic magazine together. This testimony was never presented
to the jury and thus cannot be the basis for admission of otherwise
irrelevant testimony. Finally, we disagree with the State's
contention that defendant waived any objection to the admission of
evidence concerning his possession of pornographic materials by
testifying on cross-examination as to such possession. The record
shows that defense counsel consistently objected to questions
concerning defendant's possession of pornographic materials
throughout the trial. When the State asked defendant on cross-examination whether he kept pornographic magazines in the house,
defense counsel again objected. The trial court overruled defense
counsel's objection and defendant answered the question. Defendant
then testified to his possession of both pornographic magazines and
videotapes. Having timely objected when the State began its line
of questioning concerning defendant's possession of pornographic
materials, defendant was not required to enter another objection.
Accordingly, defendant did not waive objection to the admission of
this evidence.
However, we agree with the State that the trial court's
admission of evidence of defendant's possession of pornographic
material does not rise to the level of prejudicial error under N.C.
Gen. Stat. § 15A-1443. The State presented A.R.'s testimony that
defendant came into her room in February 1999, placed his hand up
her shirt, and rubbed her breast. A.R. further testified that on
1 April 1999, defendant inserted his finger in her vagina. A.R.'s
mother testified that when she came home on the night of 1 April
1999 she noticed that A.R. had been crying and that something was
wrong. A.R.'s mother also testified that A.R.'s statements to her
concerning what defendant had done on April 1 were consistent with
A.R.'s testimony at trial. Michelle Zimmerman also testified that
A.R.'s statements to her concerning the alleged sexual abuse were
consistent with A.R.'s testimony at trial. Zimmerman also
provided expert testimony that, following the alleged instances of
sexual abuse, A.R. suffered from post-traumatic stress disorder,
which Zimmerman testified can be caused by sexual assault. Finally, the State presented evidence that defendant had made
sexually graphic and suggestive comments about A.R. to two of his
co-workers. In light of this evidence, we hold that defendant has
not shown a reasonable possibility that, had the trial court not
admitted evidence of his possession of pornographic videos and
magazines, a different result would have been reached at the trial.
See N.C.G.S. § 15A-1443. Admission of the evidence, therefore, was
not prejudicial error entitling defendant to a new trial.
Defendant next contends that the trial court erred in not
allowing testimony from A.R.'s mother that A.R. had watched the
movie Crush. Defendant argues that testimony about the movie Crush
would have corroborated defendant's theory of defense--that A.R.
had fabricated the allegations against him in order to further her
own interests.
On cross-examination, defense counsel asked Denise Joiner if
A.R. had watched Crush a day or two before the alleged April 1
incident. The State objected. The trial court removed the jury
from the courtroom and conducted a voir dire hearing. Denise
testified that she and A.R. had watched the movie together, that
A.R. had seen the movie more than once, but that she wasn't sure
about the time frame between the last time A.R. watched Crush and
the alleged April 1 incident. Denise also testified about the plot
of the movie as follows:
It's a girl who has a crush on this man
that moved into their guesthouse or whatever,
she had a crush on him and she wanted him to
pay her attention and he didn't. I mean, he
did pay her attention but not to the--the
magnitude that she wanted and she did uglythings to people that were in his life, his
girlfriend and things like that. And
initially she said that he had raped her when
he had not.
After hearing Denise's testimony, the trial court sustained the
State's objection to the admission of any evidence concerning the
fact that A.R. had watched the movie. The record does not state
the basis of the trial court's decision to sustain the State's
objection.
Defendant contends that evidence that A.R. had watched the
movie Crush was relevant to corroborate other evidence tending to
show that A.R. was disgruntled over her mother's marriage to
defendant, was unhappy about moving to North Carolina, and wanted
to return to Virginia. We disagree.
The testimony before the trial court concerning the movie
Crush only showed that A.R. had watched it on more than one
occasion and that the plot involved a girl who made a false rape
accusation against an older man who would not pay enough attention
to her. There was no testimony tending to show that the details of
the movie's plot were similar to the facts in the instant case. In
fact, the two situations appear to be dissimilar, in that here A.R.
was allegedly sexually abused by her stepfather, to whom there is
no evidence that she was in any way attracted, while in the movie
the young girl was attracted to the older man and was upset that
the man would not pay enough attention to her. In addition, there
was no evidence presented that A.R. had discussed the movie with
her mother, or others, or had in any way indicated that the movie
made her consider making an accusation against defendant in orderto further her own interests. Accordingly, we agree with the State
that evidence concerning A.R.'s viewing of Crush was not relevant
and was properly excluded.
Defendant next contends that the trial court erred in not
allowing testimony by A.R.'s former neighbor that A.R. had falsely
accused him of an improper touching four years prior to defendant's
alleged acts of sexual abuse. Defendant maintains that the
neighbor's testimony was admissible to show A.R.'s knowledge of how
a young girl could raise accusations against a man with impunity
and her intent and plan to make such accusations against defendant.
On cross-examination, defense counsel attempted to ask A.R.
about her earlier accusation of improper touching against the
neighbor. The State objected and the jury was removed from the
courtroom. Defense counsel explained that he intended to question
A.R. about the accusation and that he also intended to call the
neighbor to the stand to deny that the alleged incident took place.
The trial court conducted a voir dire hearing in which A.R.
testified that the neighbor touched her on the abdomen, kissed her
on the cheek, and told her how pretty she was. The alleged
incident occurred when A.R. was nine years old. Following
arguments of counsel, the trial court first ruled under Rule 412 of
the North Carolina Rules of Evidence that it would not allow the
testimony of the neighbor, but that it would allow defendant to
question A.R. about the accusation. Before bringing the jury back
in, the trial court reconsidered the issue and ultimately concluded
under Rule 403 of the North Carolina Rules of Evidence that hewould not allow defendant to question A.R. about the prior
accusation because of the likelihood that it would confuse the
jury.
Later in the trial, during the direct examination of defense
witness Serena Sellers, defendant's sister, the trial court
excluded her testimony concerning A.R.'s previous “allegation
against [the] neighbor for some touching that proved to be false.”
However, on redirect examination, Serena Sellers testified without
objection that Denise Joiner, A.R.'s mother, told her that A.R.'s
previous allegation against the neighbor was a “false report.”
Serena Sellers then testified at length about the issue on redirect
and recross.
At the close of defendant's case, apparently as a result of
the testimony of Serena Sellers, the trial court informed the jury
that it had reconsidered its earlier ruling and would now allow
defendant to question A.R. concerning the previous accusation
against the neighbor. A.R. was then questioned by both defense
counsel and the State concerning the previous accusation.
Following A.R.'s testimony, defendant did not ask the trial court
to further reconsider its earlier ruling that the neighbor not be
allowed to testify. Having failed to offer the testimony of the
neighbor, or otherwise request that the trial court allow the
neighbor to testify at that time, defendant waived his right to
argue on appeal that the trial court erred in excluding the
neighbor's testimony. Defendant next contends that the trial court erred in allowing
the testimony of Jennifer Marquis concerning defendant's previous
sexual activity with her when she was fifteen years old.
On voir dire, Marquis testified that she had two sexual
encounters with defendant while she was babysitting for him. One
night, after the two of them consumed mixed drinks and smoked
marijuana together, defendant started trying to fool around with
Marquis. Marquis testified that she told defendant she was not
interested. Nonetheless, defendant pulled Marquis' pants off and
performed oral sex on her. Marquis testified that she told
defendant she did not want him to do so but that she didn't fight
him off. The next morning, Marquis was lying on defendant's bed
waiting for him to take a shower so he could take her home. When
defendant got out of the shower, he lay down beside Marquis and
tried to start “messing around.” Marquis again testified that she
told defendant she was not interested. Defendant pulled down her
pants and had sexual intercourse with her. Marquis again testified
that the sexual encounter was not consensual but that she did not
attempt to fight defendant.
Following Marquis' testimony on voir dire, the trial court
decided to allow Marquis' testimony under Rule 404(b). The trial
court concluded that the evidence was relevant to show absence of
mistake and a common plan or scheme, specifically that defendant
took advantage of young girls in situations where he had parental
or adult responsibility for them. The evidence was also admitted
to show defendant's unnatural attraction to young girls. FollowingMarquis' testimony to the jury, the trial court gave a proper
limiting instruction that the evidence was only to be considered
for the limited purpose of showing an absence of mistake and
defendant's plan, scheme, or design.
The courts of this State have been markedly liberal in
admitting evidence of prior sexual misconduct of a defendant for
the purposes cited in Rule 404(b). See State v. Artis, 325 N.C.
278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds by
Artis v. North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990);
State v. Frazier, 319 N.C. 388, 390, 354 S.E.2d 475, 477 (1987).
The use of evidence permitted under Rule 404(b) is guided by two
constraints: similarity and temporal proximity. Artis, 325 N.C. at
299, 384 S.E.2d at 481. When the features of the earlier act are
similar to the offenses with which the defendant is currently
charged and the stretch of time between the instances is not too
remote, such evidence has probative value. Id. The similarity
between the prior conduct and the crime with which the defendant is
charged “need not rise to the level of the unique and bizarre, but
must tend to support a reasonable inference that the same person
committed both the earlier and the later acts.” State v. Gary, 348
N.C. 510, 521, 501 S.E.2d 57, 65 (1998).
In the instant case, defendant was charged with sexual
misconduct with a twelve year old which consisted of rubbing her
breast and digitally penetrating her vagina. Marquis testified
that, when she was fifteen years old, defendant had sexual
intercourse and performed oral sex on her without her consent. While this Court appreciates the age difference between Ms. Marquis
and the victim in the instant case, and the fact that Ms. Marquis
never reported the alleged sexual encounters between her and
defendant to the authorities until the investigation in the instant
case, we conclude that those distinctions go to the weight of Ms.
Marquis' testimony and not to its admissibility. We conclude that
defendant's conduct with the two women was sufficiently similar and
proximate in time to support its admission under Rule 404(b).
We write further to voice our disapproval of the trial court's
refusal to let defense counsel question Ms. Marquis on voir dire,
as well as the trial court's failure to show on the record that it
performed the balancing test set forth under Rule 403. However, we
do not feel that either of these mistakes rises to the level of
error. Assuming, arguendo, that these mistakes were error, we
conclude that they do not rise to the level of prejudicial error
under N.C. Gen. Stat. § 15A-1443 in light of the other convincing
evidence presented at trial.
In defendant's final contention, he argues that the trial
court abused its discretion and violated his constitutional right
to be present at trial in refusing to grant a continuance or
mistrial due to defendant's illness. We disagree.
On one of the days of trial, defendant twice ran out of the
courtroom to go to the restroom. Defense counsel subsequently
informed the trial court that defendant was nauseated and moved
that the trial be continued until the next day. The trial court
agreed to let defendant see a doctor but indicated that he wouldnot continue the trial if the only problem was defendant's nervous
stomach. The trial court allowed the examination of the witness on
the stand to be completed and recessed court to allow defendant to
see a doctor.
Defendant was examined by a doctor during the recess. The
doctor wrote the following note, which was presented to the trial
court:
In re: Franklin Smith [Defendant]
Mr. Smith was found to have a highly elevated
blood pressure. He needs further evaluation
by his own physician. In addition, he was
treated for the nausea and vomiting. He
should not continue with his court today.
The note was signed, Walter Holton, M.D. Defense counsel informed
the trial court that the doctor had treated defendant's nausea with
Phenergan 25, which defense counsel contended was a sedative. The
trial court was also informed that defendant's blood pressure was
152 over 118 and approximately fifteen minutes later was 145 over
105.
The State then called to the stand the sheriff's deputy who
had escorted defendant to the doctor. The deputy testified that
defendant had predicted that his blood pressure would be 160 over
108 and that defendant told the nurse that he had suffered from a
blood pressure problem for quite awhile. Following arguments of
counsel, the trial court made the following ruling:
The Court has observed the defendant, has
observed his assistance to you this morning
and in the last five minutes. And also would
make the personal observation that he looks no
different than he has looked the whole week.
Been red-faced the whole week. Also, theCourt will find that he knew about his high
blood pressure, that he has been medicated for
the nausea and that he is able to assist you
in the defense of the matter and the motion to
continue is denied.
Following this ruling, counsel for defendant called his remaining
witnesses and then put defendant on the stand himself to testify.
Prior to defendant taking the stand, defense counsel did not renew
his motion to continue. At the beginning of his testimony,
defendant stated that he felt sleepy and was having trouble putting
words together. Later in his testimony, defendant stated he was
having trouble paying attention and attributed it to the drugs the
doctor had given him. However, at no time during defendant's
testimony did defense counsel renew the motion to continue.
At the close of the evidence, defendant moved for a mistrial
based on the trial court's refusal to continue the trial the
previous day due to defendant's illness. The trial court recited
the events of the previous day and ruled as follows:
The Court was addressed--or notified that
the defendant felt bad yesterday morning, and
had been throwing up but no request was made
of the Court to stop the proceedings at that
point. And the defendant did become
physically ill and the Court allowed him to be
excused and stopped the proceedings twice, I
think, while he did that.
At about 11 o'clock the Court was
requested to stop the proceedings and allow
the defendant to be examined, which the Court
did. The defendant was examined. The
examination revealed that the defendant was
aware of his high blood pressure, symptoms
which he had had for some time and neglected
to treat, knew about before this proceeding.
Defendant was--and testified that the
proceedings had made him physically ill and
Court will take judicial notice that that is a
possibility for any defendant faced with whatthis defendant is facing and the possibilities
of that. And Court has observed the defendant
throughout the proceedings, his physical
appearance has not changed since Monday. And
he has shown--other than getting physically
ill yesterday morning prior to being treated,
he has shown the same physical traits and
conduct that he's shown from the very
beginning of the proceedings on Tuesday.
Court observed the defendant throughout
his testimony and observed that he answered
the questions, understood the questions, had
detailed answers to the questions, supplied
testimony that was responsive to the questions
and gave examples, dates in response to the
questions, and cannot find that the defendant
was unable to proceed with his case or to
assist in his defense and denies the motion to
mis-try the action.
A motion for a continuance, and here the motion for a mistrial
after no continuance was granted, "is ordinarily addressed to the
sound discretion of the trial court and its ruling is not subject
to review absent abuse of discretion." State v. Thomas, 294 N.C.
105, 111, 240 S.E.2d 426, 431 (1978). However, where the motion is
based on a constitutional right, "the question presented is one of
law and not discretion, and the ruling of the trial court is
reviewable on appeal." Id. "Whether a defendant bases his appeal
upon an abuse of judicial discretion or a denial of his
constitutional rights, he must show both that there was error in
the denial of the motion and that he was prejudiced thereby before
he will be granted a new trial." Id. at 111, 240 S.E.2d at 431-32.
In State v. Rhodes, 202 N.C. 101, 161 S.E. 722 (1932), the
defendant moved for a continuance on 5 March 1931 on the ground
that he was not physically able to go to trial, and produced two
certificates, each signed by a reputable physician, indicating thedefendant's “highly nervous state” and the probability of a nervous
collapse or breakdown. The motion was denied and the case was set
for trial the following Monday, 9 March 1931. The case was not
called at that time but the trial court requested that a physician
examine the defendant. The physician found no organic disease,
attributed the defendant's condition to large doses of hypnotic
drugs, and expressed the opinion that under certain conditions the
defendant would soon be able to undergo the trial. The case was
finally called on 11 March 1931 and the defendant's motion to
continue was again overruled. On appeal, the Supreme Court held
that the trial court's denial of the defendant's motion for a
continuance was not an abuse of discretion, because the trial court
“made a careful and patient investigation of the circumstances
pending the several motions of the defendant and refused a
continuance after sufficient opportunity for reflection.” Id. at
103, 161 S.E. at 723.
In State v. Ipock, 242 N.C. 119, 86 S.E.2d 798 (1955), the
defendant moved for a continuance on the ground that he was
physically unable to attend court. In support of the motion, the
defendant presented a doctor's note advising home care. The
Supreme Court held that, since the doctor's note did not say that
the defendant was unable to stand trial or that a trial would
endanger his health, the trial court did not abuse its discretion
in denying the defendant's motion to continue.
In State v. Bacon, 326 N.C. 404, 390 S.E.2d 327 (1990), the
defendant became ill during jury selection. A doctor was summoned who examined the defendant and reported that the defendant's blood
pressure was fine, his pulse “was a little high which is
understandable,” and “I think he's basically fit to undergo the
trial.” Id. at 415, 390 S.E.2d at 333. Jury selection resumed.
Defendant objected and was allowed to state how he felt on the
record. The defendant indicated that he had a headache and an
upset stomach and was having difficulty paying attention to what
the jurors were saying, but that his condition had not affected his
abilitiy to understand the charges against him. The trial court
noted that the defendant appeared well and refused to grant a
continuance. The trial court requested that defense counsel let it
know if the defendant was unable to communicate with him. Defense
counsel never so informed the trial court. The Supreme Court
stated that the defendant failed “to demonstrate even one occasion
where he was unable to comprehend the proceedings or to communicate
his opinions of the jurors to his counsel as a result of his
alleged illness.” Id. at 416, 390 S.E.2d at 334. Accordingly, the
Supreme Court found no abuse of discretion by the trial court.
In the case sub judice, the trial court allowed defendant to
be examined by a doctor who indicated that defendant “should not
continue with his court today,” due to his elevated blood pressure
and his treatment for nausea and vomiting. The doctor's note did
not state that defendant was physically unable to stand trial or
that the trial would endanger defendant's health. See Ipock, 242
N.C. at 120, 86 S.E.2d at 800. The record shows that the trial
court considered the doctor's opinion, but then reached its ownconclusion based on its personal observation that defendant was
able to assist in his defense. Defendant was then called to the
stand and testified. The trial court observed defendant throughout
his testimony and concluded that defendant understood the
questions, gave detailed answers to the questions, and was able to
assist in his defense. Having reviewed defendant's testimony, we
agree with the trial court that defendant was responsive to
counsel's questions and provided clear testimony. Accordingly, we
conclude that the trial court did not err in denying defendant's
motion for a continuance and subsequent motion for a mistrial.
In conclusion, we hold that the trial court erred in admitting
evidence of defendant's possession of pornographic materials but
this error was not prejudicial under N.C. Gen. Stat. § 15A-1443.
Defendant's remaining assignments of error are overruled.
No prejudicial error.
Judges MARTIN and TIMMONS-GOODSON concur.
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