STATE OF NORTH CAROLINA
v
.
DARRELL LOVE
Attorney General Roy Cooper, by Assistant Attorney General
Diane G. Miller, for the State.
Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse,
Jr., for the defendant-appellant.
WYNN, Judge.
Following his convictions for first degree sexual offense and
first degree kidnapping of a female minor, the defendant brings the
following issues on appeal of whether the trial court erred by (I)
admitting evidence of an alleged sexual act by defendant on the
female minor's mother nearly twenty years before the present
charge, (II) admitting an officer's testimony concerning a
statement he took from the female minor's mother, (III) giving a
jury instruction on corroboration regarding the female minor's
mother's statement to the officer; (IV) overruling defendant's
objections to the admission of statements he made that were not
provided to him through discovery, and (V) finding the indictment
for first degree sexual offense constitutionally valid. For the
reasons stated below, we find no error in his trial. The State's evidence tended to show that on the evening of 15
July 1999, a six-year-old child was playing outdoors with her
brother, two sisters and two cousins. Defendant was nearby and
asked the female minor to help him find his dog's collar. After
searching for the collar, defendant told the female minor to come
and clean his house and told the other children to go home.
Defendant grabbed the female minor's arm and took her into his
house. Once inside, defendant pulled down the female minor's pants
and panties and performed oral sex on her. Defendant told her not
to tell her mother what had happened. Afterwards, the female minor
unlocked the door and started walking home, holding a dollar bill
that defendant gave her.
In the meantime, the other children went to the female minor's
home and told her mother that the female minor was with defendant.
As the female minor's mother started walking towards defendant's
house, she saw her daughter whom she asked if defendant did
anything to her. Initially, the female minor answered no, and
stated that defendant wanted her to clean his house. Later,
however, the female minor told her mother what defendant did to
her; consequently, her mother contacted the police. Following
conviction by a jury, the trial court imposed a sentence of 230
months to 285 months for the first degree sexual offense conviction
and arrested judgment on the first degree kidnapping conviction.
On appeal, defendant first contends that the trial court
committed reversible error by admitting irrelevant and inflammatory
evidence of an alleged sexual act by him on the female minor'smother nearly twenty years before the present charge. We disagree.
Under Rule 404(b):
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) (2001). Thus, Rule 404(b)
allows admission of conduct evidence so long as it is offered for
a purpose other than to show that defendant had the propensity to
engage in the charged conduct. See State v. Morgan, 315 N.C. 626,
637, 340 S.E.2d 84, 91 (1986). Moreover, if specific acts are
relevant and competent as evidence of something other than
character, they are not inadmissible because they incidentally
reflect upon character. See State v. Penley, 6 N.C. App. 455, 466,
170 S.E.2d 632, 639 (1969).
When the evidence is offered for a proper purpose, the
ultimate test of admissibility is whether the incidents are
sufficiently similar to those in the case at bar and not so remote
in time as to be more prejudicial than probative under the Rule 403
test. See State v. Cotton, 318 N.C. 663, 665, 351 S.E.2d 277, 279
(1987). The similarities between the acts do not have to be unique
or bizarre; rather, they must tend to support a reasonable
inference that the same person committed both acts. See State v.
Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Remoteness
in time generally affects the weight to be given to the evidence,
but not its admissibility. See id. at 307, 406 S.E.2d at 893. Further, remoteness in time is less important when the prior act is
used to show intent, motive, knowledge, or lack of mistake. See
State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998),
cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). “With
respect to prior sexual offenses, we have been very liberal in
permitting the State to present such evidence to prove any relevant
fact not prohibited by Rule 404(b).” State v. White, 331 N.C.
604, 612, 419 S.E.2d 557, 561 (1992).
In the present case, the trial court conducted a voir dire
hearing, to determine the admissibility of the testimony of the
female minor's mother concerning alleged sexual abuse by defendant
After voir dire, the trial court concluded in a written order that
the testimony of the female minor's mother was admissible to show
the identity of the man who abused her on 15 July 1999, common
scheme or plan, or modus operandi, intent on the part of defendant
in that he intentionally abused the female minor. The trial court
further concluded the testimony was admissible under Rules 403 and
404(b) of the North Carolina Rules of Evidence.
At trial, the mother of the female minor testified, on direct
examination over defendant's objection, that when she was about
nine years old defendant engaged in sexual acts with her on three
or four occasions. She also testified that defendant told her not
to tell anyone about the occurrences and that she was scared. The
trial court allowed into evidence this testimony to show proof of
identity, a common scheme or plan or modus operandi, and intent.
Later in the trial, Lieutenant John Sifford testified anddescribed his interview with the female minor's mother on 17 July
1999. During the interview, she told the officer what defendant
did to her when she was a child. The officer took a detailed
statement from her and read the statement to the jury without
objection. Because this evidence was later admitted by Lieutenant
Sifford without objection, defendant has waived any objection he
may have previously raised as to its admissibility. See State v.
Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989)(benefit of
objection lost when same or similar evidence has been admitted or
is later admitted without objection); State v. Moses, 316 N.C. 356,
362, 341 S.E.2d 551, 555 (1986) (benefit of defendant's objection
to introduction of letter lost when defendant later read from
letter).
Even assuming arguendo that defendant did not waive his
objection, the trial court did not err in allowing the testimony of
the female minor's mother. The evidence presented at trial was
substantial, the female minor's testimony was corroborated in part
by her mother, siblings, and cousins.
Nonetheless, defendant contends that the acts against the
female minor's mother were too remote; he relies on State v. Jones,
322 N.C. 585, 369 S.E.2d 822 (1988), where our Supreme Court found
that a span of seven to twelve years renders a prior sexual act too
remote. However, since Jones, our Courts have permitted testimony
of prior acts of sexual misconduct which occurred greater than
seven to twelve years earlier. See State v. Frazier, 344 N.C. 611,
616, 476 S.E.2d 297, 300 (1996) (testimony showed that defendant'sprior acts of sexual abuse occurred over a period of approximately
twenty six years); State v. Penland, 343 N.C. 634, 654, 472 S.E.2d
734, 745 (1996) (a ten-year gap between instances of similar sexual
misbehavior did not render them so remote in time as to negate the
existence of a common plan or scheme); State v. Shamsid-Deen, 324
N.C. 437, 379 S.E.2d 842 (1989) (sexual misconduct occurred during
a twenty-year period).
In Frazier, the testimony in question tended to prove that
the defendant's prior acts of sexual abuse occurred a over a period
of approximately twenty-six years and in a strikingly similar
pattern. In the present case, the testimony of the minor female's
mother also indicated a strikingly similar pattern of sexual abuse
acts by defendant. Both mother and daughter were young children,
in each instance, defendant made the victim sit on his face and
licked the child's genitalia, and both victims were related to
defendant. Moreover, the trial court made the findings in its
order that this was similar to the incident involving the child.
Defendant further argues that the evidence at issue does not
show that his alleged bad acts constituted a continuous pattern
which our courts require. However, in considering the question of
a continuous pattern,“[w]hen there is a period of time during which
there is no evidence of sexual abuse, the lapse does not require
exclusion of the evidence if the defendant did not have access to
the victims during the lapse.” State v. Frazier, 121 N.C. App. 1,
11, 464 S.E.2d 490, 495 (1995), decision affirmed, 344 N.C. 611,
476 S.E.2d 297 (1996). Moreover, our Court has found evidence ofother crimes committed in an unusual and similar manner admissible.
See State v. Wortham, 80 N.C. App. 54, 62, 341 S.E.2d 76, 81
(1986), reversed in part on other grounds, 318 N.C. 669, 351 S.E.2d
294 (1987); see also State v. Riddick, 316 N.C. 127, 134, 340
S.E.2d 422, 427 (1986) (remoteness in time less important when
modus operandi so strikingly similar); State v. Lloyd, 354 N.C. 76,
89, 552 S.E.2d 596, 609 (2001) (similar evidence properly admitted
to show lack of accident); State v. Penland, 342 N.C. 634, 654, 472
S.E.2d 2d 734, 745 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed.
2d 725 (1996)(ten-year gap between incidents not too long given
distinct and bizarre behaviors that suggest ongoing plan). The
record in this case shows that the alleged sexual acts that
occurred to the minor female and her mother although separated by
a long period were strikingly similar.
Defendant also argues that the evidence should have been
excluded under Rule 403 which provides,
relevant evidence may be excluded if its
probative value is substantially outweighed by
the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
N.C. Gen. Stat. § 8C-1, Rule 403 (2001).
However, a trial court's decision to admit evidence under Rule
403 will not be grounds for relief on appeal unless it is
"manifestly unsupported by reason or is so arbitrary it could not
have been the result of a reasoned decision." State v. Syriani,
333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948,126 L. Ed.2d 341 (1993). Moreover, to show prejudice arising from
an evidentiary ruling under Rule 403, “defendant must persuade this
Court that had the trial court not admitted the [evidence], a
different outcome likely would have been reached.” State v. Mann,
355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (citing N.C. Gen.
Stat. § 15A-1443(a) (1999)); See State v. Mason, 315 N.C. 724, 340
S.E.2d 430 (1986).
In the present case, the probative value of the testimony
about defendant's earlier sexual misconduct was admissible and the
record fails to show evidence reflecting that the trial court
abused its discretion in determining that the probative value
outweighed the prejudicial effect. Thus, this assignment of error
is rejected.
Next, defendant contends that he is entitled to a new trial
because of the erroneous and prejudicial admission of a non-
corroborative hearsay statement of the mother. We disagree.
As we stated previously, defendant did not object to the trial
court allowing Lieutenant Sifford to read into the record a
statement he took from the female minor's mother concerning the
alleged sexual abuse by defendant. After the officer testified,
the trial court sua sponte instructed the jury that the officer's
statement was admitted to corroborate the mother's testimony.
Defendant failed to object and waived his right to challenge
the introduction of this evidence. Since there was no objection to
the introduction of this evidence, defendant must establish plain
error by showing that it was a “fundamental error, something sobasic, so prejudicial, so lacking in its elements that justice
cannot have been done.” United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513
(1982); see also State v. Dale, 343 N.C. 71, 468 S.E.2d 39 (1996).
Before granting relief based on the plain error rule, “the
appellate court must be convinced absent the error the jury
probably would have reached a different verdict.” State v. Walker,
316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
“It is well-settled that a witness' prior consistent
statements are admissible to corroborate the witness' sworn trial
testimony.” State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d
493, 497 (2000). “Corroborative evidence by definition tends to
'strengthen, confirm, or make more certain the testimony of another
witness.'” Id. (quoting State v. Adams, 331 N.C. 317, 328-29, 416
S.E.2d 380, 386 (1992). “Slight variances or inconsistencies in
and between the corroborative testimony and that sought to be
corroborated, however, do not render the corroborative testimony
inadmissible.” State v. Burns, 307 N.C. 224, 230, 297 S.E.2d 384,
387 (1982). Corroborative testimony may contain additional
information when it strengthens or adds credibility to the
testimony in which it corroborates but it may not contradict trial
testimony. See id.
Defendant specifically argues that Lieutenant Sifford's
statement was erroneously admitted because it contained new
material that was grossly prejudicial to him and did not add weight
or credibility to the testimony of the mother. He specificallyobjects to the parts of the statement where she told the officer
that defendant “would give me candy and dollars in return,” that
“one of the incidents occurred in the woods,” that defendant “did
proposition me many times to let him do this to me again,” and that
defendant “still continued to proposition me about this and did so
about two months ago.” “In the ordinary course of things, an
individual will not describe the same event in precisely the same
way on any two occasions. Nor is it necessary that a person do so
in order that his prior consistent statements be admissible to
corroborate his testimony at trial.” State v. Burns, 307 N.C. at
230, 297 S.E.2d at 387.
In the present case, the variations in the mother's testimony
at trial do not directly contradict her statement given to
Lieutenant Sifford; rather, the information in the statement was
"substantially similar to and tended to strengthen and confirm" her
testimony at trial regarding the alleged sexual abuse. State v.
McCord, 140 N.C. App. 634, 657, 538 S.E.2d 633, 647
(2000)(citations omitted), review denied, __ N.C. __, 547 S.E.2d 33
(2001). Accordingly, we reject this assignment of error.
Next, defendant contends that the trial court did not properly
define corroboration for the jury and that the trial court should
have instructed the jury pursuant to N.C.P.I. - Crim. 105.20, the
pattern jury instruction for corroboration. We disagree.
The trial court instructed the jury as follows:
Ladies and gentlemen, the evidence
you just heard, that is a statement
that the lieutenant just talked
about before, it was offered for thepurpose of corroborating the
testimony of [the female minor's
mother] and for no other purpose.
The failure of the trial court to define corroboration in a jury
instruction is not error. See State v. Lee, 248 N.C. 327, 328, 103
S.E.2d 295, 296 (1958); State v. Hill, 32 N.C. App. 261, 231
S.E.2d 682, 684 (1977); State v. Satterfield, 27 N.C. App. 270, 218
S.E.2d 504 (1975). For example, our Supreme Court held that a
trial court's instruction that stated "if you find that this
statement does corroborate his/her testimony," to be sufficient.
State v. Alston, 307 N.C. 321, 332, 298 S.E.2d 631, 640 (1983)
(citing State v. Detter, 298 N.C. 604, 630, 260 S.E.2d 567, 585
(1979); See also State v. Case, 253 N.C. 130, 136, 116 S.E.2d 429,
433 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 717, 5 L. Ed.2d
707 (1961)). We find this instruction similar to the instruction
given in the present case. Moreover, the record shows that
defendant did not object to this instruction, nor did he request an
additional instruction. “The admission of evidence which is
competent for a restricted purpose without limiting instructions
will not be held to be error in the absence of a request by the
defendant for such limiting instructions.” State v. Coffey, 326
N.C. 268, 286, 389 S.E.2d 48, 59 (1990). Therefore, this
assignment of error is rejected.
Next, defendant contends that the trial court erred in
overruling his objections to the admission of three statements that
were not provided to him through discovery. We disagree.
Defendant specifically argues that admitting these statementswas a discovery violation under N.C. Gen. Stat. § 15A-903. N.C.
Gen. Stat. § 15A-903(a)(2) (2001) which requires a prosecutor to
disclose to a defendant the substance of any relevant statements
made by the defendant, in possession of the State, and the
existence of which is known to the prosecutor. However, a trial
court is not required to impose sanctions for late discovery;
instead, it is a matter of discretion for the trial judge. See
N.C. Gen. Stat. § 15A-910 (2001); State v. Weeks, 322 N.C. 152,
171, 367 S.E.2d 895, 906 (1988); State v. Gardner, 311 N.C. 489,
506, 319 S.E.2d 591, 603 (1984), cert. denied, 469 U.S. 1230, 84 L.
Ed. 2d 369 (1985).
In the present case, defendant objected to the testimony of
the female minor's cousin who testified that she heard defendant
describe the female minor as a “thick juicy plum.” Before it was
offered, defendant objected to this testimony because it was not
provided through discovery. The State responded that it had just
learned about the statement the day before the trial, and because
defendant had been provided with discovery where he had made
similarly sexually suggestive comments about the female minor to
her mother, defendant would not be unfairly surprised by the
cousin's statement. The trial court found that the statement was
a similar and related descriptive phrase and overruled defendant's
objection. Furthermore, there is no showing that this late
revelation upset defendant's overall strategy or that he was
otherwise prejudiced by the late discovery.
Defendant also argues in his brief that a statement made bythe female minor's mother was a discovery violation and constituted
error. At trial, the mother stated that defendant told her, “Your
daughter got those big thighs like you do. You know she's real
thick and got those big thighs like you did when you were little.”
Defendant made an objection. However, the trial court pointed out
that “there were other similar and related descriptive phrases.
I'll overrule the objection at this time.” Defendant also made an
objection to a statement made by the female minor's aunt, who
testified that she heard defendant say to other females, “just sit
on my head, make my head feel good.”
“Where, as in the present case, trial testimony is
substantially similar to what in substance was provided during
discovery, and variations are attributable to the addition or
elaboration of detail or merely changes in vocabulary or syntax,
the testimony is admissible, and in full compliance with our
discovery rules.” State v. Pridgen, 313 N.C. 80, 91, 326 S.E.2d
618, 625 (1985).
The record on appeal shows that as to the statement by the
female minor's cousin, the trial court made a determination that
the statement was similar to other statements; and as to the other
two statements, we cannot find that the objection to these
statements was grounded on a discovery violation, or that defendant
was not provided with this information through discovery. “This
Court has held that discretionary rulings of the trial court will
not be disturbed on the issue of failure to make discovery absent
a showing of bad faith by the state in its noncompliance with thediscovery requirements.” State v. McClintick, 315 N.C. 649, 662,
340 S.E.2d 41, 49 (1986). Therefore, this assignment of error is
rejected.
In his final argument, defendant contends that the indictment
for first degree sexual offense was not constitutionally valid
because it failed to allege one of the elements of the offense in
light of Apprendi v. New Jersey. We disagree.
Both our legislature and our courts have
endorsed the use of short-form indictments for
rape and sex offenses, even though such
indictments do not specifically allege each
and every element. N.C. Gen. Stat. § 15-144.1
(1999) (outlining requirements for rape
indictment); N.C. Gen. Stat. § 15-144.2(a)
(outlining requirements for sex offense
indictment); State v. Edwards, 305 N.C. 378,
380, 289 S.E.2d 360, 362 (1982) (upholding
short-form indictments for sex offenses);
State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d
878, 883-84 (1978) (upholding short-form
indictments for rape).
State v. Harris, 140 N.C. App. 208, 215, 535 S.E.2d 614, 619,
review denied, 353 N.C. 271, 546 S.E.2d 122 (2000). The
indictment in this case complied with N.C. Gen. Stat. § 15-144.2
(2001) which authorizes a short-form indictment for the crime of
first-degree sexual offense, and thus, the trial court had subject
matter jurisdiction over defendant. See State v. Wallace, 351 N.C.
481, 503-06, 528 S.E.2d 326, 342-44, cert. denied, 531 U.S. 1018,
148 L. Ed. 2d 498 (2000); State v. Doisey, 138 N.C. App. 620, 628,
532 S.E.2d 240, 246, review denied, 352 N.C. 678, 545 S.E.2d 434
(2000), cert. denied, 531 U.S. 117, 148 L. Ed. 2d 1015 (2001).
Accordingly, we reject this assignment of error.
In summation, we hold that defendant received a fair trial,free from prejudicial error.
No error.
Judges HUDSON and CAMPBELL concur.
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