Appeal by defendant from judgment entered 23 February 2000 by
Judge Timothy S. Kincaid in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 29 November 2001.
Attorney General Roy Cooper, by Assistant Attorney General
Dennis P. Myers, for the State.
Allen W. Boyer for defendant-appellant.
McGEE, Judge.
Timothy Stephen Belcher (defendant) was convicted of second
degree rape on 23 February 2000 and was sentenced to 116 to 149
months in prison.
The evidence presented by the State at trial tended to show
the victim was evicted from her home on 13 September 1997. Later
that day, she met defendant at a McDonald's restaurant in
Charlotte, North Carolina. Defendant offered to help her. When
the victim could not reach any friends, defendant invited her to
stay with him, and she accepted. They shared a single mattress in
a room where defendant worked, but the victim told defendant,
"don't touch me." The next day the victim was still unable to find
a place to stay. As a result, she and defendant stayed together ata different location, again sharing a mattress. When the victim
prepared to leave, defendant grabbed her and threw her on the
floor. He began to choke her and ordered her to take off her
clothes, which she did. Defendant raped her. The victim told
defendant she needed to go to the bathroom. She ran through the
door and across the street to a gas station. She told the
attendant she had just been raped, and she called 911. Defendant
arrived at the gas station, but left when the attendant told him
the police were on the way. After the police arrived, the victim
was taken to a hospital and a rape kit was prepared. She was
examined by Dr. E. Parker Hays (Dr. Hays). Dr. Hays testified the
victim was "distraught and disheveled." He observed that she had
bruising to her genital area which was consistent with an assault
having occurred within the past twenty-four hours. Mr. Louis
Coleman (Mr. Coleman), defendant's boss, testified that he and
defendant had a confrontation on the day prior to the alleged rape.
During this confrontation, defendant choked Mr. Coleman. Defendant
did not present any evidence. Defendant appeals from the judgment
entered 23 February 2000.
I.
Defendant first argues the trial court erred in denying
defendant's motion for a mistrial following testimony by Officer
Susan Kendall (Officer Kendall) of the Charlotte-Mecklenburg Police
Department that defendant was a known sex offender. Defendant
contends the limiting instruction the trial court gave to the jury
following defendant's objection to the testimony was inadequate tocure the prejudicial effect of the testimony. We disagree.
The trial court "must declare a mistrial upon [a] defendant's
motion if there occurs during the trial an error or legal defect in
the proceedings, or conduct inside or outside the courtroom,
resulting in substantial and irreparable prejudice to the
defendant's case." N.C. Gen. Stat. § 15A-1061 (1999). "The
decision to grant or deny a mistrial rests within the sound
discretion of the trial court. . . . Consequently, a trial court's
decision concerning a motion for mistrial will not be disturbed on
appeal unless there is a clear showing that the trial court abused
its discretion."
State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145,
152 (1991).
In general, "in a prosecution for a particular crime, the
State may not offer evidence that the defendant has committed other
separate offenses."
State v. Gregory, 37 N.C. App. 693, 696, 247
S.E.2d 19, 21 (1978). However, "[w]here a trial court sustains a
defendant's objection to the answer of a witness, strikes same, and
instructs the jury not to consider it, the jury is presumed to have
heeded the instruction and any prejudice is removed."
Id., 37 N.C.
App. at 697, 247 S.E.2d at 22. This theory is "based [on] the
assumption that the trial jurors are [people] of character and of
sufficient intelligence to fully understand and comply with the
instructions of the court, and are presumed to have done so."
State v. Moore, 276 N.C. 142, 149, 171 S.E.2d 453, 458 (1970).
"Whether curative instructions can remove the prejudice depends on
the nature of the evidence and the particular circumstances of thecase."
Gregory, 37 N.C. App at 697, 247 S.E.2d at 22.
In
State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), our
Supreme Court held an officer's reference to the defendant's prior
indictment for murder prejudiced the jury as to the defendant's
charge of armed robbery. The Court held the incompetent testimony
prejudiced the defendant, and "the court's instruction did not
remove from the minds of the jurors the prejudicial effect of the
knowledge they had acquired . . . that [the defendant] had been or
was under indictment for murder."
Id., 270 N.C. at 273, 154 S.E.2d
at 61. Defendant relies on
Aycoth in arguing Officer Kendall's
comments materially prejudiced his rights.
However,
Aycoth has been distinguished in other cases. In
State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970), a witness
repeatedly testified over sustained objections that the defendant
had previously killed at least one man. Our Supreme Court,
however, upheld the trial court's denial of the defendant's motion
for a mistrial because the trial court had provided an appropriate
limiting instruction.
In [
Aycoth], the unresponsive statement was
that the defendant had been
indicted for
murder. Here the statement was only that
defendant had "killed one person." Was the
killing accidental, in self-defense, or
felonious? The statement contained no
suggestion that the homicide was the result of
a criminal act or that defendant had been
prosecuted for it. Furthermore, no
subsequent
events tended to emphasize this inconclusive
testimony that defendant "had killed one man."
We do not, therefore, deem this evidence so
inherently prejudicial that its initial
impact--whatever it was--could not have been
erased by the judge's prompt and emphatic
instructions that the jury should not considerthe testimony for any purpose whatsoever.
Moore, 276 N.C. at 149, 171 S.E.2d at 458. In
Gregory, a witness
testified he had "worked" a theater for the defendant.
Gregory, 37
N.C. App. at 696, 247 S.E.2d at 22. After giving the jury a
limiting instruction, the trial court denied the defendant's motion
for a mistrial. Our Court affirmed and distinguished the facts as
not rising to the seriousness of the facts in
Aycoth.
Gregory, 37
N.C. App. at 697, 247 S.E.2d at 22.
In the case before us, no subsequent events or testimony at
trial emphasized this statement. Although Officer Kendall's
testimony was inadmissible evidence, we hold the prejudicial effect
did not rise to the level of prejudice found in
Aycoth, and the
trial court's limiting instruction was sufficient to overcome any
prejudice the statement may have caused. We overrule this
assignment of error.
II.
Defendant next argues the trial court erred in denying
defendant's motion to elicit testimonial evidence on cross-
examination of the State's witness of prior sexual behavior of the
complainant under N.C. Gen. Stat. § 8C-1, Rule 412(b)(2).
Rule 412(b)(2) states "the sexual behavior of the complainant
is irrelevant to any issue in the prosecution unless such behavior
. . . [i]s evidence of specific instances of sexual behavior
offered for the purpose of showing that the act or acts charged
were not committed by the defendant[.]" N.C. Gen. Stat. § 8C-1,
Rule 412(b)(2) (1999). This statute was designed to protect the witness from
unnecessary humiliation and embarrassment
while shielding the jury from unwanted
prejudice that might result from evidence of
sexual conduct which has little relevance to
the case and has low probative value.
However, . . . the statute was not designed to
shield the prosecuting witness from her own
actions which have a direct bearing on the
alleged sexual offense.
State v. Younger, 306 N.C. 692, 696, 295 S.E.2d 453, 456 (1982).
Defendant contends the victim's choice to engage in consensual sex
three days prior to the alleged sexual assault has a direct bearing
on the alleged sexual assault with which defendant was charged. We
disagree.
In
Younger, the defendant sought to introduce evidence of an
inconsistent statement by the prosecuting witness which affected
her credibility at trial. Likewise, in
State v. Johnson, 66 N.C.
App. 444, 311 S.E.2d 50 (1984), the prosecuting witness made
inconsistent statements to the examining physician and at a
pretrial hearing. Our Court relied on
Younger and admitted the
evidence.
In the case before us, however, there is no inconsistent
statement by the victim.
See State v. McCrimmon, 89 N.C. App. 525,
528, 366 S.E.2d 572, 578 (1988) (holding neither
Younger nor
Johnson apply because the "present case does not concern such
inconsistent statements by the prosecutrix about her sexual
activity."). The victim stated to Dr. Hays that she had consensual
sex three days before the alleged attack, and her statement has
never changed. Defendant apparently would contend the marks and
bruising on the victim's body could have resulted from this earlierencounter. However, Dr. Hays, who treated the victim shortly after
the assault, testified that the bruising she sustained in her
genital area was consistent with a sexual assault having occurred
within the previous twenty-four hours. He also testified that in
the thousands of gynecological exams he has performed for women,
many "have had consensual sex in times within minutes to hours of
the time of [the] examination, and [he has] not seen evidence of
bruising, in any of those instances." The evidence here shows
serious injuries to the victim's face, neck and genital areas.
Whether the victim had consensual sex three days prior to the
alleged attack is not probative of whether the alleged attack
occurred or whether defendant committed the attack. We overrule
this assignment of error.
III.
Defendant next argues the trial court erred in denying
defendant's motion to suppress the testimony of Mr. Coleman that
defendant choked him on the day prior to the alleged rape.
Defendant contends the choking of Mr. Coleman was different from
the alleged choking by defendant of the victim on the following
day; therefore, this evidence should not have been admitted under
Rule 404(b). We disagree.
Rule 404(b) allows evidence of other crimes or wrongs for
"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) (1999). "The use
of evidence [as permitted] under Rule 404(b) is guided by twoconstraints: 'similarity and temporal proximity. When the
features of the earlier act are dissimilar from those of the
offense with which the defendant is currently charged, such
evidence lacks probative value.'"
State v. Johnson, 145 N.C. App.
51, 58, 549 S.E.2d 574, 579 (2001) (quoting
State v. Artis, 325
N.C. 278, 299, 384 S.E.2d 470, 481 (1989),
vacated on other
grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)). Defendant
argues the two choking incidents in this case are different because
the alleged choking of the victim occurred in order to submit her
to defendant's will, while the choking of Mr. Coleman by defendant
occurred because defendant was angry. We disagree with this
distinction. In both conflicts defendant confronted the person
with physical force which included choking that person. These two
incidents occurred within a day of each other. The trial court
properly admitted this evidence under Rule 404(b) and
Johnson. We
overrule this assignment of error.
IV.
Defendant next argues the trial court erred in not granting
defendant's motion to dismiss based on the insufficiency of the
State's evidence.
When considering a motion to dismiss for insufficiency of the
evidence, the trial court must
consider the evidence in the light most
favorable to the State, take it as true, and
give the State the benefit of every reasonable
inference to be drawn therefrom. . . . When
considering such motion the court is not
concerned with the weight of the testimony but
only with its sufficiency to carry the case to
the jury and sustain the indictment.
State v. McNeil, 280 N.C. 159, 161-62, 185 S.E.2d 156, 157 (1971).
The trial court must determine if there is "substantial evidence of
each essential element of the offense charged" such that "a
reasonable mind might accept as adequate to support a conclusion."
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In
the case before us, defendant does not argue there is no evidence
to support any specific element of the crime charged. Defendant
essentially argues the evidence should not be found to be credible.
However, this Court will not weigh the evidence, nor was the trial
court required to do so. We find there is sufficient evidence in
the record of each element of second degree rape; consequently, we
dismiss this assignment of error.
V.
Defendant next argues the trial court erred in overruling
defendant's objection to the State's argument to the jury that
defendant was destroying evidence at the time of his arrest, even
though no evidence of this destruction was offered to the jury at
trial.
"Trial counsel are allowed wide latitude in jury arguments.
Counsel are permitted to argue the facts based on evidence which
has been presented as well as reasonable inferences which can be
drawn therefrom. Control of closing arguments is in the discretion
of the trial court."
State v. Green, 336 N.C. 142, 186, 443 S.E.2d
14, 39-40,
cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994)
(citations omitted). Furthermore, in order to justify a new trial,
"the prosecutor's comments must have 'so infected the trial withunfairness as to make the resulting conviction a denial of due
process.'"
Id. (quoting
Darden v. Wainwright, 477 U.S. 168, 181,
91 L. Ed. 2d. 144, 157 (1986) (other citations omitted)).
In the case before us, the State presented evidence that
officers located defendant at an automotive shop shortly after the
alleged assault occurred. The officers discovered defendant in a
bathroom washing his hands. A small washer and dryer was located
in the same room as defendant. In the washer, officers found
clothes which matched a description of the clothes defendant was
wearing when he followed the victim to the gas station after the
alleged rape occurred. The State is entitled to make the inference
defendant was washing the clothes to remove evidence. In any
event, the State's argument to the jury does not rise to such a
prejudicial level as to be a denial of due process. We overrule
this assignment of error.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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