State v Robinson, 154 NC App 206 (01-1354) 11/19/2002

Appeal by defendant from judgment dated 6 April 2001 by Judge James L. Baker, Jr. in Superior Court, Swain County. Heard in the Court of Appeals 14 August 2002.

Attorney General Roy Cooper, by Assistant Attorney General Laura Crumpler, for the State.

Kay S. Murray for defendant-appellant.

McGEE, Judge.

James William Robinson (defendant) was convicted on 6 April 2001 of two counts of statutory sexual offense and was sentenced to two concurrent terms of 288 to 355 months in prison. Evidence presented by the State at trial tended to show that defendant lived in Bryson City, North Carolina, with his wife, Anita Robinson, and her two children. One of the children, N.C., was a fourteen-year- old girl. On the night of 12 May 2000, N.C. fell asleep on the couch and was awakened by defendant who had partially removed her shorts and was licking her crotch. Defendant inserted his finger inside N.C.'s vagina. N.C. noticed defendant's penis was erect and told defendant to leave her alone. N.C. went outside to call her grandmother to come get her. N.C. went into her mother's room andtold her what defendant had done. N.C.'s mother attempted to comfort her. N.C.'s grandmother arrived and took N.C. to the grandmother's house.
Defendant was charged with two counts of statutory sexual offense in violation of N.C. Gen. Stat. § 14-27.7A and one count of taking indecent liberties with a child, N.C. Gen. Stat. § 14-202.1. Defendant filed a motion for continuance dated 22 March 2001, ten days before trial was scheduled to begin. This motion was denied by the trial court. Defendant also filed a motion in limine on 28 March 2001, seeking to exclude testimony by N.C. concerning (1) an incident where it was alleged defendant washed his hand by putting it in the shower while N.C. was taking a shower, and (2) a statement defendant allegedly made to his wife that he no longer wanted to be with her, but instead "wanted to be with [N.C.], and let [N.C.] have his 14 kids." The trial court denied the motion in limine and at trial defendant did not object to the evidence. At the close of the State's evidence, defendant moved for a mistrial on the basis of the admission of statements made by defendant's wife, which was denied. A jury convicted defendant of two counts of statutory sexual offense and found defendant not guilty of indecent liberties with a child. Defendant appeals from the conviction.

    Defendant argues in his first assignment of error that the trial court erred in denying his motion to continue, violating his constitutional right to due process and effective assistance ofcounsel. Generally, we review the denial of a motion to continue using an abuse of discretion standard. State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000); State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131, appeal dismissed, 354 N.C. 221, 554 S.E.2d. 646 (2001). However, if the denial raises a constitutional issue, our review is de novo. Rogers, 352 N.C. at 124, 529 S.E.2d at 675. Even under the de novo standard, defendant must show "the denial was erroneous and that he suffered prejudice as a result of the error." Id. (citing State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (1982)); see also Barkley, 144 N.C. App. at 523, 551 S.E.2d at 137 (citing State v. Hill, 116 N.C. App. 573, 578, 449 S.E.2d 573, 576, disc. review denied, 338 N.C. 670, 453 S.E.2d 183 (1994)).
    In Rogers, our Supreme Court discussed the appropriate inquiry where ineffective assistance of counsel is alleged due to a denial of a motion to continue:
        "While a defendant ordinarily bears the burden of showing ineffective assistance of counsel, prejudice is presumed 'without inquiry into the actual conduct of the trial' when 'the likelihood that any lawyer, even a fully competent one, could provide effective assistance' is remote. A trial court's refusal to postpone a criminal trial rises to the level of a Sixth Amendment violation 'only when surrounding circumstances justify' this presumption of ineffectiveness. 'To establish a constitutional violation, a defendant must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense.'"

Rogers, 352 N.C. at 125, 529 S.E.2d at 675 (quoting State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 336-37 (1993) (quotingUnited States v. Cronic, 466 U.S. 648, 659-62, 80 L. Ed 2d. 657, 668-70 (1984))) (internal citations omitted).
    Upon review of the record, we find that defendant had sufficient time to prepare his case. Although the Constitution does not mandate a specific amount of time that constitutes a "reasonable time" to prepare a case, defendant here had almost a year to prepare his case. Tunstall, 334 N.C. at 329, 432 S.E.2d at 337. In the present circumstances, the time period in question constituted a sufficient time to prepare defendant's case. See id. ("'whether [the] defendant is denied due process must be determined upon the basis of the circumstances of each case'") (quoting State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976)). This case does not present a situation, as in Rogers, where the likelihood is remote that any lawyer could render effective assistance. See Rogers, 352 N.C. at 125, 529 S.E.2d at 675. We hold that there was no constitutional violation as a result of the denial of defendant's motion to continue.

    Defendant argues in his second assignment of error that the trial court committed plain error in denying defendant's motion in limine to exclude allegations of certain statements and acts by defendant. Defendant sought to exclude testimony by N.C. of an incident where defendant allegedly stuck his hand in the shower while N.C. was taking a shower and testimony by N.C. that defendant said he "wanted to be with [N.C.], and let [N.C.] have his fourteen kids." Defendant argued that neither of the above instances wererelevant to the crimes he was charged with and that the introduction of the evidence would be highly prejudicial to him. The State argued that the evidence was admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), and that the N.C. Gen. Stat. § 8C-1, Rule 403 balancing test should not exclude it. The trial court denied defendant's motion.
    Defendant argues that there is no basis under N.C.G.S. § 8C-1, Rule 404(b) for the admission of the evidence. However, N.C.G.S. § 8C-1, Rule 404(b) has been held to be a "rule of inclusion of relevant evidence of other crimes, wrongs or acts." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001) states that:
        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.

    Our Supreme Court has noted that even though evidence may tend to show other crimes, wrongs, or acts by a defendant and his propensity to commit them, it is admissible under Rule 404(b) "so long as the evidence is relevant for some purpose other than to show that [the] defendant has the propensity for the type of conduct for which he is being tried." State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). Defendant contends that the "absence of mistake" purpose does not apply in the present case. Defendant argues in his brief that "he did not claim to be mistaken in any act he is charged with committing" against the allegedvictim. Defendant argues that his statement, "if I did [it], in my mind's eye I thought it was Anita," is merely an attempt by defendant "to come up with an explanation for a situation he finds to be inexplicable." Defendant chooses to focus on the word "if" in his statement, endeavoring to show that, along with his other statements, he never believed he committed such an act to begin with. Defendant effectively claims that the Rule 404(b) "absence of mistake" purpose only applies if defendant acknowledged he committed a sexual act but claimed that he thought he was perpetrating the act on someone other than the alleged victim. We do not agree with this reading of N.C.G.S. § 8C-1, Rule 404(b), nor do we find that the State's sole purpose for seeking admission of the evidence was to show that defendant had the propensity or disposition to commit an offense of the nature of the crime charged.
    However, the inquiry under N.C.G.S. § 8C-1, Rule 404(b) does not end here. Evidence of prior acts admitted under N.C.G.S. § 8C- 1, Rule 404(b) must be "'sufficiently similar'" to the acts charged for it to be admissible. State v. Terry, 329 N.C. 191, 198, 404 S.E.2d 658, 661-62 (1991) (quoting State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)). Defendant claims that the evidence is not sufficiently similar to the acts with which defendant is charged to meet this similarity requirement.
    We first note that our Supreme Court has been "markedly liberal" in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in N.C.G.S. § 8C-1, Rule404(b). State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987); State v. Sills, 311 N.C. 370, 378, 317 S.E.2d 379, 384 (1984); see also State v. Thompson, 139 N.C. App. 299, 303, 533 S.E.2d 834, 838 (2000); State v. Blackwell, 133 N.C. App. 31, 35, 514 S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999). As stated in Sills, our Supreme Court has been particularly willing to admit evidence of similar sex crimes by a defendant against the same victim. 311 N.C. at 378, 317 S.E.2d at 384 (citations omitted).
    The State argues that since all of the incidents in question represent sexual overtures towards N.C., the evidence defendant seeks to exclude is sufficiently similar to the charges against defendant to meet the similarity requirement of N.C.G.S. § 8C-1, Rule 404(b). However, defendant contends that the evidence is not sufficiently similar and cites State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) and State v. White, 135 N.C. App. 349, 520 S.E.2d 70 (1999), to support his argument. In Stager, our Supreme Court noted that "it is not necessary that the similarities between the two situations 'rise to the level of the unique and bizarre.' Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts." 329 N.C. at 304, 406 S.E.2d at 891 (quoting State v. Green, 321 N.C. 594, 604, 365 S.E.2d 587, 593 (1988)).
    In White, our Court held that there was not sufficient similarity between two instances of sexual acts by the defendant. 135 N.C. App. at 353, 520 S.E.2d at 73. The defendant sought toexclude evidence of commission of a prior sexual act against a different young girl in a case where he was charged with first- degree rape. Id. at 351-53, 520 S.E.2d at 72-73. We noted that "[e]xcept for the fact that both incidents involve[d] young females who were allegedly assaulted in their own homes, there [were] few points of similarity." Id. at 353, 520 S.E.2d at 73. "'When the features of the . . . act [offered under Rule 404(b)] are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value.'" Id. at 354, 520 S.E.2d at 73 (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)). Our Court based its decision in White in part on the fact that the alleged incidents involved two different girls. Id. at 353-54, 520 S.E.2d at 73. As noted above, our Supreme Court has been particularly willing to hold evidence of similar sex crimes against the same victim admissible. Sills, 311 N.C. at 378, 317 S.E.2d at 384 (citations omitted).
    However, we need not decide whether there is sufficient correlation between the facts in White and those in the present case to justify a finding that the evidence is not "sufficiently similar" to the crimes with which defendant is charged. Erroneous admission of evidence "is not always so prejudicial as to require a new trial." Sills, 311 N.C. at 378, 317 S.E.2d at 384 (citations omitted). "Unless such error infringes upon a criminal defendant's constitutional rights, the defendant has the burden of showing that he was prejudiced by the error and that there was a reasonablepossibility that a different result would have been reached at trial if the error had not been committed." Id. (citations omitted). Assuming, arguendo, that the admission of these statements was error, the State correctly points out that defendant did not object to the admission of evidence of other similar incidents. Defendant has not met his burden of showing how the exclusion of the two pieces of evidence complained of would create a reasonable probability that the result at trial would have been different. See id. at 378-79, 317 S.E.2d at 384; State v. Martin, 322 N.C. 229, 238-39, 367 S.E.2d 618, 623-24 (1988). Therefore, we hold no prejudicial error was committed by the trial court by denying defendant's motion in limine.

    Defendant argues in his third assignment of error that he received ineffective assistance of counsel in that trial counsel failed to object in the presence of the jury to the admission of the evidence discussed in his second assignment of error.
    In State v. Anderson, our Supreme Court recently reiterated the two-part test for determining ineffective assistance of counsel claims:
            "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
355 N.C. 136, 143, 558 S.E.2d 87, 93 (2002) (quoting State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). The first prong of this test requires a defendant to show that his counsel's conduct "fell below an objective standard of reasonableness. Second, once [the] defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different." State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (2002) (citing Braswell, 312 N.C. at 561-63, 324 S.E.2d at 248). As our Court explained, "'[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Quick, ___ N.C. App. ___, ___, 566 S.E.2d 735, 737 (2002), appeal dismissed and disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2002) (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698; citing State v. Montford, 137 N.C. App. 495, 502, 529 S.E.2d 247, 252, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000)). If it can be "determine[d] at the outset that there is no reasonable probability that in absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient." Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
    As noted above, defendant did not object to the admission of evidence of other similar events. In light of the other evidence in the record, we are able to determine that there is no reasonableprobability that the result of the proceedings would have been different if counsel had objected at trial to the admission of the challenged evidence. Additionally, even with the lesser burden that would have attached in defendant's second assignment of error if counsel had objected at trial, defendant would still be unable to show prejudicial error from the admission of the statements. Thus, we find that defendant's third assignment of error is without merit.

IV.

    Defendant argues in his fourth assignment of error that the trial court erred in admitting statements allegedly made by a non- testifying individual as the statements were hearsay and more prejudicial to defendant than probative. N.C. Gen. Stat. § 8C-1, Rule 802 (2001) prohibits admission of hearsay evidence, unless such statements fit into one of the exceptions to this general rule. The trial court found that the challenged statements were admissible as non-hearsay evidence since they were not offered for the truth of the matter asserted, see N.C. Gen. Stat. § 8C-1, Rule 801 (2001), and that even if they were hearsay, the statements fit into the excited utterance exception to the hearsay prohibition, see N.C. Gen. Stat. § 8C-1, Rule 803(2) (2001).
    In his brief, defendant only makes one conclusory statement that the challenged evidence in this assignment of error constitutes hearsay. He does not cite any authority to support this claim, and in fact puts forth no argument as to why the trial court erred in concluding that the statements were not offered toshow the truth of the matter asserted, or even why the statements do not fall into the excited utterance exception to N.C.G.S. § 8C- 1, Rule 802. Accordingly, we decline to address defendant's claim that the challenged statements constitute inadmissible hearsay. See State v. Stitt, 147 N.C. App. 77, 83, 553 S.E.2d 703, 708 (2001) ("[A]n assignment of error may be deemed abandoned . . . where no reason or argument is stated or authority cited in support of the assignment of error.") (citing Strader v. Sunstates Corp., 129 N.C. App. 562, 567, 500 S.E.2d 752, 755, disc. review denied, 349 N.C. 240, 514 S.E.2d 274 (1998)); N.C.R. App. P. 28(b)(5).
    Defendant, however, does assert that the challenged statements were more prejudicial than probative, and thus should be excluded under N.C.G.S. § 8C-1, Rule 403. Defendant's main argument seems to be that since other statements of a similar nature were already properly admitted into evidence, the challenged statements were unnecessary and were unduly prejudicial to defendant. This argument lacks merit.
    The proper admission of statements by one witness does not make the admission of similar statements by another witness prejudicial. See State v. Parker, 140 N.C. App. 169, 182, 539 S.E.2d 656, 665 (2000), appeal dismissed and disc. review denied, 353 N.C. 394, 547 S.E.2d 37, cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 777 (2001). In light of other similar statements that were admitted unchallenged by defendant, admission of the challenged statements by defendant's wife were not unduly prejudicial. In fact, in his own brief, defendant even contends that thesechallenged statements were not necessary for the State to prove its case, thus showing that any risk of prejudice to defendant was minimal. Any danger of unfair prejudice created by the admission of these statements does not substantially outweigh their probative value. Therefore, we find no error in the trial court's admission of the statements by defendant's wife.

    Defendant argues in his fifth assignment of error that the trial court erred in denying his motion for mistrial in that the admission of evidence defendant contends the trial court should have excluded made it impossible for defendant to receive a fair trial. Our Court recently discussed our role in reviewing a trial court's decision on a motion for a mistrial:
        "The judge must declare a mistrial upon the 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 (2001). The decision to grant or deny a defendant's motion for mistrial rests within the sound discretion of the trial court. State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985). Therefore, a trial court will not be reversed unless its "ruling is clearly erroneous so as to amount to a manifest abuse of discretion . . . ." State v. Sorrells, 33 N.C. App. 374, 377, 235 S.E.2d 70, 72 (1977).

State v. Revels, ___ N.C. App. ___, ___, 569 S.E.2d 15, 18 (2002).     Defendant bases this assignment of error solely on the admission of the statements of defendant's wife addressed in defendant's fourth assignment of error. As noted above, the trial court did not err by admitting her statements and it was not anabuse of the trial court's discretion to deny defendant's motion for a mistrial.

VI.

    Defendant argues in his sixth, and final, assignment of error that his constitutional rights were violated when a plea offer extended by the district attorney was subsequently withdrawn. We hold that this assignment of error is not properly before our Court as defendant never raised this issue at the trial court level. N.C.R. App. P. 10(b).
    Defendant received a fair trial free of prejudicial error.
    No error.
    Judges McCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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