Appeal by defendant from judgments dated 15 June 2001 by Judge
Ronald E. Spivey in Forsyth County Superior Court. Heard in the
Court of Appeals 13 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
J. Clark Fischer for defendant appellant.
GREENE, Judge.
Bobby Osmold Curry (Defendant) appeals judgments dated 15 June
2001 entered consistent with a jury verdict finding him guilty of
statutory rape, four counts of statutory sexual offense, and five
counts of taking indecent liberties with a student.
On 19 May 2000, a warrant for Defendant's arrest was issued on
charges of indecent liberties with a student and indecent liberties
with a child, C.C., a fourteen-year-old who attended the school
where Defendant coached. Between 14 August and 6 November 2000,
Defendant was indicted for statutory rape, statutory sexual
offenses, and indecent liberties with a student. On 19 January
2001, Defendant filed a motion to suppress statements made by him
during the “course of plea discussions with the District Attorney
from the Prosecuting Authority,” which he claimed were protected byN.C. Gen. Stat. § 8C-1, Rule 410.
At the pre-trial motion hearing, Defendant's attorney, David
Freedman (Freedman)
(See footnote 1)
, testified he had spoken to an assistant
district attorney sometime after the issuance of initial arrest
warrant. At this time, the assistant district attorney told him
“there may be possibilities of [Defendant] pleading to a string of
indecent libert[y] [charges] although that was not an offer.” The
assistant district attorney emphasized she was “not in a position
to make an offer because [the district attorney] had taken an
interest in the case and anything . . . would have to go through
him.” She further stated that “in order to consider [an] offer,
[Defendant] would have to be completely cooperative in the
investigation.” Subsequently, Freedman advised his client that “if
he [were] fully cooperative, . . . hopefully [they] could work out
a plea to something less than a charge of statutory rape.”
Defendant's attorney stressed that they did not have a firm offer
and therefore “not a guarantee.” Thereafter, Defendant agreed to
a police interview. During the interview, held 16 June 2000,
Defendant admitted to having fondled and digitally penetrated C.C.
four to six times but denied having had vaginal intercourse with
her. Defendant repeated this statement when he took part in a
polygraph test on 5 July 2000.
The two law enforcement officers who interviewed Defendant on
16 June 2000 testified at the motion hearing that Defendant signeda “Miranda Rights Waiver” before they spoke to him. They also
explained that they did not have any authority from the district
attorney to negotiate a plea and did not convey to Defendant the
impression they possessed such authority. Furthermore, neither
Defendant nor Freedman attempted to negotiate with the law
enforcement officers for a plea in any way.
At the conclusion of the motion hearing, the trial court
denied Defendant's motion to suppress his statements to the law
enforcement officers because (1) Defendant's motion to suppress was
untimely and (2) Rule 410 had not been violated. The trial court
also denied Defendant's motion to have certain witness testimony
excluded pursuant to N.C. Gen. Stat. § 8C-1, Rules 404(b) and 403.
In support of this ruling, the trial court found that the testimony
Defendant sought to have excluded was
strikingly similar, in that the ages of the
proffered witnesses . . . , the sexual
activity engaged in by the witnesses and . . .
Defendant[,] the nature of the relationship
between the witnesses and . . . Defendant[,]
. . . Defendant's position of leadership,
trust or care with the witness[es][,] even the
locale of some of the sexual activities was
remarkably similar to those on trial . . . .
The trial court further noted that “due to the nature of the
matters, they [were] not so remote in time as to make them
inadmissible” and found the evidence proper to “prove intent . . .
and common plan or scheme.”
At trial, C.C. testified she attended Forsyth Country Day
School (Forsyth) when she met Defendant. Defendant, who was the
track coach at Forsyth, had asked C.C. in August 1999 to join thetrack team and help manage the football team. These activities
brought C.C. into contact with Defendant “on a fairly regular
basis.” In time, Defendant began to drive C.C. home after practice
on a daily basis and often waited at her home until C.C.'s mother
arrived. On these occasions, Defendant frequently brought his
seven-year-old son along, whom C.C. would babysit from time to
time. Sometime around February 2000, Defendant began an intimate
relationship with C.C., which included vaginal intercourse, oral
sex, and digital penetration.
Over Defendant's objection, the State introduced into evidence
Defendant's incriminating statements made to law enforcement on 16
June and 5 July 2000. The State also presented testimony, again
over Defendant's objection, of five other females with whom
Defendant had had sexual contact of the type allegedly engaged in
with C.C. dating as far back as 1990. The females were between
thirteen and fourteen years old at the time of the alleged acts,
and Defendant was usually in some position of authority over them.
Four of the five females were involved in athletics with Defendant.
Similar to C.C.'s experience, Defendant began his relationship with
two of them when both were high school students and recruited by
Defendant to join the track team he coached. Defendant offered all
five females transportation to and from school and asked three of
them to babysit his son.
______________________________
The issues are whether the trial court erred: (I) in denying
Defendant's motion to suppress his statements to law enforcement on16 June and 5 July 2000 and (II) in allowing the State to offer
404(b) witnesses to testify about their sexual activities with
Defendant.
I
Assuming without deciding that Defendant's motion to suppress
his statements to law enforcement was timely, we will analyze the
substantive ground for the trial court's denial of Defendant's
motion. The admissibility of statements made during plea
negotiations is governed by N.C. Gen. Stat. § 8C-1, Rule 410. This
rule is identical to Fed. R. Evid. 410. Thus, the case law that
evolved under the federal rule is highly illustrative for our
purposes.
According to Rule 410, “[a]ny statement made in the course of
plea discussions with an attorney for the prosecuting authority
which do not result in a plea of guilty or which result in a plea
of guilty later withdrawn” is inadmissible at trial. N.C.G.S. §
8C-1, Rule 410(4) (2001). Hence, “[p]lea negotiations, in order to
be inadmissible, must be made in negotiations with a government
attorney or with that attorney's express authority.”
United States
v. Porter, 821 F.2d 968, 977 (4th Cir. 1987);
United States v.
Grant, 622 F.2d 308, 313 (8th Cir. 1980) (statements made to law
enforcement officials who had received express authority from the
prosecuting attorney to make an offer to a defendant are statements
made “in the course of plea discussions”). “In addition,
conversations with government agents
do not constitute plea
discussions unless the defendant exhibits a subjective belief thathe is negotiating a plea, and that belief is reasonable under the
circumstances.”
Sitton, 968 F.2d at 957
;
United States v.
Robertson, 582 F.2d 1356, 1367 (5th Cir. 1978). In ascertaining a
defendant's subjective belief, “[t]he trial court must focus
searchingly on the record to determine whether the accused
reasonably had such a subjective intent, examining all of the
objective circumstances.”
Robertson, 582 F.2d at 1367.
In this case, Freedman was told by an assistant district
attorney “there may be possibilities of [Defendant] pleading to a
string of indecent libert[y] [charges] although that was not an
offer.” The assistant district attorney made it clear that she had
no authority to negotiate a plea bargain but indicated that the
State might consider an offer if Defendant cooperated in the
investigation. Based on this conversation, Freedman told Defendant
to cooperate in the hope that they “could work out a plea to
something less than a charge of statutory rape.”
In light of the assistant district attorney's representation
that she lacked the authority to enter plea discussions, there is
no evidence to substantiate a reasonable, subjective belief on the
part of Defendant that he was “negotiating a plea” by cooperating
with law enforcement. “Negotiation is [the] process of submission
and consideration of offers until [an] acceptable offer is made and
accepted,”
Black's Law Dictionary 1036 (6th ed. 1990), but
necessarily requires the parties engaged in any type of negotiation
to be authorized to do so. Moreover, “[p]lea bargaining implies an
offer to plead guilty upon condition.”
Porter, 821 F.2d at 976-77. Neither the assistant district attorney, provided she had or
purported to have the authority, made an offer to Defendant nor did
Freedman or Defendant express an intent to plead guilty to certain
charges. As no offer had been laid on the table, Defendant's
statement to law enforcement could not have been made “in the
course of plea discussions with an attorney for the prosecuting
authority.” Accordingly, the trial court did not err in denying
Defendant's motion to suppress.
II
Rule 404(b) is designed to prevent the admission into evidence
of other crimes, wrongs, or acts “to prove the character of a
person in order to show that he acted in conformity therewith.
[Such evidence] 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.G.S. § 8C-1, Rule 404(b) (2001);
see State v.
Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (describing
Rule 404(b) as a rule of inclusion). “'When evidence of the
defendant's prior sex offenses is offered for the proper purpose of
showing plan, scheme, system, or design . . . the “ultimate test”
for admissibility has two parts: First, whether the incidents are
sufficiently similar; and second, whether the incidents are too
remote in time.'”
State v. Harris, 140 N.C. App. 208, 212, 535
S.E.2d 614, 617 (citation omitted),
appeal dismissed and disc.
review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). If, however,
“'similar acts have been performed continuously over a period ofyears, the passage of time serves to prove, rather than disprove,
the existence of a plan.'”
State v. Frazier, 344 N.C. 611, 616,
476 S.E.2d 297, 300 (1996) (defendant's prior acts of sexual abuse,
which occurred continuously over a period of approximately
twenty-six years and in a strikingly similar pattern, were properly
admitted into evidence to show a common plan or scheme) (citation
omitted). Moreover, in instances where such evidence is offered to
prove a defendant's intent to commit the similar sexual offense
charged, our Supreme Court has stated a rule of liberal admission.
See State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561-62
(1992) (citing
State v. Boyd, 321 N.C. 574, 578, 364 S.E.2d 118,
120 (1988) (evidence the defendant was found in bed naked with a
young female relative on a prior occasion was admissible to
demonstrate the defendant's intent or scheme to take sexual
advantage of young female relatives left in his custody)).
The admissibility of evidence under Rule 404(b) is further
“subject to the weighing of probative value versus unfair prejudice
mandated by [N.C. Gen. Stat. § 8C-1,] Rule 403.”
State v. Agee,
326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). Because evidence
that is probative of the State's case is necessarily prejudicial to
the defendant, the question remains one of degree.
Coffey, 326
N.C. at 281, 389 S.E.2d at 56. “Whether to exclude evidence under
Rule 403 is a matter left to the sound discretion of the trial
court.”
Id.
In this case, the ages of the victims, the manner in which
Defendant pursued them and gained their trust through a combinationof sports, babysitting, and rides to and from school and the sexual
conduct in which Defendant had engaged with the victims are all
sufficiently similar to be probative of Defendant's intent and
common plan or scheme. These acts, which were continuously
performed over the course of ten years cannot be said to be too
remote in time to be inadmissible.
See Frazier, 344 N.C. at 616,
476 S.E.2d at 300.
Furthermore, in light of the strong
similarities between the alleged acts, the probative value of
admitting the evidence far exceeds any unfair prejudice to
Defendant.
See N.C.G.S. § 8C-1, Rule 403 (2001). As such, the
trial court properly ruled on the admissibility of the witnesses'
testimony.
No error.
Judges TIMMONS-GOODSON and HUNTER concur.
Footnote: 1