STATE OF NORTH CAROLINA
v
.
Davidson County
No. 98 CRS 12971
JOHNNY WAYNE WILLIAMSON
Attorney General Roy Cooper, by Assistant Attorney General
Diane A. Reeves, for the State.
Charles H. Harp II for the defendant-appellant.
WYNN, Judge.
Defendant appeals from his conviction of second-degree rape
arguing first that the trial court committed reversible error by
admitting under Rule 404(b) testimony of certain prior acts of
defendant. N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999). We
disagree with his contention.
Under Rule 404(b), evidence of other bad acts must be excluded
if its sole purpose is “to prove the character of a person in order
to show that he acted in conformity therewith.” N.C. Gen. Stat. §
8C-1, Rule 404(b). Such evidence “is admissible so long as it is
relevant to any fact or issue other than the character of the
accused.” State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793
(1986). Thus, evidence of defendant's prior bad acts is admissiblefor 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 first argues that “the time period between the
alleged prior acts of defendant and the acts upon which this appeal
is based is of such a span that any similarity between the [] acts
is severely attenuated.” The acts giving rise to the charge of
second-degree rape in this case took place in the fall of 1975 or
1976. The victim testified to other acts of a sexual nature taking
place in the summer months of 1974 and 1975. The second witness
testified concerning an incident of a sexual nature occurring in
June 1974. The third witness recalled incidents of a sexual nature
occurring in the summer of 1985. All three witnesses are related
to defendant.
To determine the admissibility of these witnesses' testimony
under Rule 404(b), the trial court conducted voir dire examinations
of the proposed witnesses and heard arguments from counsel. At
that hearing, the alleged victim--defendant's nine- or ten-year-old
niece--testified that during the summer months of 1974 and 1975,
defendant gave her swimming lessons. She testified that defendant
would catch her when she jumped in the pool and would then fondle
her under the water, rubbing her breasts and her vagina. Defendant
would also slide his finger inside her vagina. She testified that
defendant did similar things when she was learning to float. She
also mentioned an incident occurring at defendant's home in the
fall of 1975 or 1976. The second female witness, also a niece of defendant,
testified on voir dire that in June 1974, she was helping defendant
do some work in the attic of her home. Her parents told her to
assist defendant by holding a flashlight. When defendant lifted
her up into the attic, he rubbed her vaginal area. When they were
in the attic together, defendant told her to come closer and to
shine the light toward him. When she did, she saw that defendant
had his penis out and was masturbating. He then put his hand in
her shorts and inserted his finger into her vagina while continuing
to masturbate. At the time of this incident the witness was twelve
years old.
The third female witness testified on voir dire identifying
defendant as her great-uncle. In the summer of 1985, when she was
four or five years old, defendant put her on his shoulders and
placed his hand behind his neck inside her panties and rubbed her
vagina. She recalled another incident when she was alone with
defendant in his house. While she sat in defendant's lap watching
television, defendant placed his hand in her panties and rubbed her
vagina.
Following voir dire, the trial court ruled that the challenged
testimony was relevant to show defendant's motive, intent, common
plan or scheme, and absence of mistake or accident; these are all
proper purposes for admitting evidence of other bad acts under Rule
404(b). Nonetheless, even when other bad acts “are offered for a
proper purpose [under Rule 404(b)], the ultimate test of
admissibility is whether they are sufficiently similar and not soremote as to run afoul of the balancing test between probative
value and prejudicial effect set out in Rule 403.” State v. West,
103 N.C. App. 1, 9, 404 S.E.2d 191, 197 (1991); see N.C. Gen. Stat.
§ 8C-1, Rule 403 (1999). Rule 403 requires the exclusion of
otherwise relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice[.]”
N.C. Gen. Stat. § 8C-1, Rule 403. “Whether to exclude relevant but
prejudicial evidence under Rule 403 is a matter left to the sound
discretion of the trial court.” State v. Handy, 331 N.C. 515, 532,
419 S.E.2d 545, 554 (1992). Such a decision will not be disturbed
unless it “is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.”
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
The period of elapsed time between the events giving rise to
the current charge and the other incidents is at most ten years.
The prior incidents described by the alleged victim and the second
witness occurred less than three years prior to the incident
forming the basis for the charge. We note that “remoteness is less
significant when the prior conduct is used to show intent, motive,
knowledge, or lack of accident,” State v. Hipps, 348 N.C. 377, 405,
501 S.E.2d 625, 642 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed.
2d 114 (1999), and conclude that the lapse of time in this instance
does not sufficiently diminish the similarities between the acts.
Rather, the lapse of time goes to the weight of the evidence, not
to its admissibility. See id. Accordingly, we conclude that the
trial court did not abuse its discretion in admitting the testimonyregarding defendant's prior sexual acts. See id. at 405-06, 501
S.E.2d at 642 (“[t]he determination of whether relevant evidence
should be excluded under Rule 403 is a matter that is left in the
sound discretion of the trial court, and the trial court can be
reversed only upon a showing of abuse of discretion”).
Lastly, defendant argues that the trial court committed plain
error in its jury instructions. “In deciding whether a defect in
the jury instruction constitutes 'plain error,' the appellate court
must examine the entire record and determine if the instructional
error had a probable impact on the jury's finding of guilt.” State
v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983) (citation
omitted). In the instant case, a review of the whole record
reveals no “plain error” requiring a new trial for defendant.
At the beginning of the charge conference, the trial court
indicated that it intended to instruct the jury so as to require
the State to prove three elements beyond a reasonable doubt as
follows:
First, that the defendant carnally knew the
alleged victim, that is, that the defendant
engaged in vaginal intercourse with the
victim. Vaginal intercourse is penetration,
however slight, of the female sex organ by the
male sex organ. The actual emission of semen
is not necessary. Second--because of the
wording of the indictment--second, that the
defendant abused the alleged victim. Vaginal
intercourse with a 12-year-old child would be
abuse in and of itself. And, third, that the
victim was under 12 years of age at the time
of the alleged occurrence.
Given the opportunity, defendant's counsel made no comment or
request for additional instruction. Following closing arguments,the trial court instructed the jury concerning the elements of
second-degree rape. Regarding the second element of abuse, the
trial court instructed the jury that it must find:
that the defendant abused the alleged victim.
I instruct you that vaginal intercourse with a
child under the age of 12 would be abuse in
and of itself.
Defendant's counsel made no request for additional instructions on
the elements of second-degree rape.
Defendant now argues that “by instructing that vaginal
intercourse is itself abuse, the trial court merged elements one
(1) and two (2), thereby removing the fact finding from the jury.
By adding this wording, the judge removed the State's burden of
proof on the element of abuse.” As it existed at the time of the
incident giving rise to the charge here, N.C. Gen. Stat. § 14-21
(repealed effective 1 January 1980 by N.C. Sess. Laws ch. 682, § 7)
provided as follows:
Every person who ravishes and carnally knows
any female of the age of 12 years or more by
force and against her will, or who unlawfully
and carnally knows and abuses any female child
under the age of 12 years, shall be guilty of
rape, and upon conviction, shall be punished
as follows:
(a) First-Degree Rape--
(1) If the person guilty of rape is more
than 16 years of age, and the rape victim
is a virtuous female child under the age
of 12 years, the punishment shall be
death; or
(2) If the person guilty of rape is more
than 16 years of age, and the rape victim
had her resistance overcome or her
submission procured by the use of a
deadly weapon, or by the infliction ofserious bodily injury to her, the
punishment shall be death.
(b) Second-Degree Rape--Any other offense of
rape defined in this section shall be a
lesser-included offense of rape in the first
degree and shall be punished by imprisonment
in the State's prison for life, or for a term
of years, in the discretion of the court.
See State v. Perry, 291 N.C. 586, 591, 231 S.E.2d 262, 265 (1977).
Defendant is essentially arguing that “abuse” is an essential
element of the crime of rape under this statute. We disagree. In
State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902), our Supreme Court
construed the then-existing rape statute, which defined rape, in
part, as “unlawfully and carnally knowing and abusing any female
child under the age of 10 years[.]” 130 N.C. at 698, 41 S.E. at
789. Our Supreme Court stated that:
the gravamen of the offense is the “knowing”--
penetration with his person--without which
there is no rape.
The “abusing” is no part of the common (or
statute) law definition of rape. . . .
The “abusing” construed with the “carnally
knowing” means the imposing upon, deflowering,
degrading, ill-treating, debauching and
ruining socially, as well as morally, perhaps,
of the virgin of such tender years, who, when
yielding willingly, does so in ignorance of
the consequences and of her right and power to
resist. . . . [T]he statute does not declare
it to be an element of the crime to [] abuse
the organs.
Id. at 700, 41 S.E. at 790. Despite the changes to the rape
statute effected by N.C. Sess. Laws 1973 (Second Session 1974), ch.
1201, which divided the crime of rape into two separate offenses
(first-degree and second-degree), the definition of rape per se didnot change. Perry, 291 N.C. at 591, 231 S.E.2d at 265-66.
Defendant's argument is without merit.
(See footnote 1)
No error.
Judges HUDSON and THOMAS concur.
Report per Rule 30(e).
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