STATE OF NORTH CAROLINA
v. Iredell County
Nos. 99 CRS 11470
KEITH DOUGLAS ROBINSON 99 CRS 11471
99 CRS 11472
Attorney General Roy Cooper, by Assistant Attorney General
William McBlief, for the State.
Deborah P. Brown for defendant-appellant.
THOMAS, Judge.
Defendant appeals from convictions of first-degree rape,
first-degree sexual offense, and first-degree kidnapping. The
trial court consolidated the rape and kidnapping counts for
judgment and sentenced defendant to 339 to 416 months of
imprisonment. The court imposed an additional, consecutive
sentence of 339 to 416 months for the sexual offense.
Complainant, who is the cousin of defendant's ex-wife,
testified that in the early afternoon of 21 June 1999, she drove
past defendant as he was walking along Gardner Bagnal Boulevard in
Statesville, North Carolina. Complainant slowed her car and asked
defendant if he needed a ride. He asked her to drive him to hishome on Salisbury Road. When they arrived, complainant asked if
she could use defendant's telephone. They went inside, and she
made two phone calls. At some point, complainant saw defendant
take pills. As she was leaving, defendant grabbed her and put his
hand over her mouth. Defendant then put a box cutter to her neck
and told her that she had “two choices[:]” either she would “do
what he wanted[,]” or he would kill her.
Defendant took complainant into his bedroom and ordered her to
undress. When she had finished, defendant made her get on the bed,
telling her to “[l]ay here and act like you like it and don't
scream[,]” and to “show [defendant] the love that you have for your
kids.” Defendant kept the box cutter at complainant's neck while
he had vaginal intercourse with her. After he ejaculated inside
her, defendant told complainant to put on her clothes. He then
made complainant perform fellatio upon him.
Defendant told her not to tell his ex-wife or anyone else what
had happened. She swore she would not tell anyone. Defendant
walked into the front room and picked up the telephone. Believing
she had a brief window of opportunity in which to escape,
complainant repeated her promise not to tell as she “was easing to
the door.” When she turned the knob, defendant ran to her. After
a struggle, complainant ran to a neighbor's house. She beat on the
door until she was allowed inside by a woman she did not know.
This neighbor, Shirley Smith, locked the door and called the
police. They arrived within fifteen minutes and took complainant
to Iredell Memorial Hospital. Complainant's testimony was corroborated by consistent
statements she gave the day of the alleged attack to Smith, Iredell
County Sheriff's Department Detectives Bill Hamby and Julie Gibson,
victim advocate Brenda Swicegood, and Marie Meetie, a registered
nurse, who examined complainant at the emergency room.
The State introduced a box cutter for illustrative purposes.
Complainant confirmed that the box cutter resembled the weapon used
by defendant, and that the blade on defendant's weapon appeared to
be sharp.
Defendant's ex-wife testified that defendant had “put a knife
to [her] throat and forced [her] to have sex with him” in the same
bedroom approximately one week before the incident involving
complainant. Defendant ordered his ex-wife to undress and lie down
on the bed. Holding a butcher knife to her neck, defendant got on
top of her, told her that she “had better respond,” and threatened
to kill her children if she screamed. Defendant kept his ex-wife
in the bedroom for two to three hours, forcing her to have sex
three times. After he had finished, defendant took some pills that
had been prescribed for his ex-wife.
After hearing the testimony on voir dire, the trial court
ruled evidence of this prior alleged rape admissible pursuant to
N.C. R. Evid. 404(b), due to the “unusual facts present in both
crimes.” In written findings, the trial court noted the temporal
proximity of the two assaults, the fact that both women were
relatives to whom defendant had “ready access[,]” and defendant's
use of a sharp bladed weapon which he held to the women's necks. The trial court further found that in both instances the women were
already in the house with defendant when he assailed them. The
events occurred in the same bedroom and involved vaginal
intercourse performed from the same position. Moreover, defendant
ordered both women to remove their clothes, and to “respond” as if
they “liked it.” He also mentioned both women's children.
Finally, the trial court found that defendant “took a number of
pills” on both occasions. Based on these findings, the trial court
concluded that the incidents were sufficiently similar to be
admissible under Rule 404(b) to show a plan, scheme, or intent as
well as a “certain modus operandi[.]” The trial court also
concluded that the events were “not too remote in time” and that
“the probative val[u]e of the proffered evidence substantially
outweighs any prejudice to the defendant.”
In addition to her testimony regarding the alleged rape,
defendant's ex-wife further confirmed that, at the time she moved
in with her mother, defendant kept a box cutter in the house.
Defendant testified that complainant initiated consensual sex
with him in exchange for his assistance in paying her electric
bill. Defendant denied threatening her with a box cutter or any
kind of weapon. Regarding his ex-wife's allegations, defendant
testified as follows:
. . . I went and got a knife. And it wasn't
to harm her. It was just to get her to talk
to me. I wanted to know. And what she didn't
do. And we had sex. I didn't force her to
have sex. But with the knife in my hand,
that's how she felt. She asked me to put the
knife away before we began. And I did move it
away. She was laying down, and it was kind ofdark in the room, and she didn't know whether
I had the knife in my hand or not.
Through Detective Hamby, defendant also introduced a statement he
gave on the day of his arrest, in which he claimed complainant had
sex with him for money to pay her electric bill. The property
manager of the apartments where complainant lived in June 1999
testified that complainant had been in danger of having her
electricity turned off for non-payment and was subsequently evicted
in November 1999, for failing to pay her rent.
The trial court denied defendant's motion to dismiss the
charges at the conclusion of the State's evidence and at the
conclusion of all the evidence.
By defendant's first assignment of error, he argues the trial
court erred in allowing his ex-wife to testify about the alleged
rape that occurred in the week prior to 21 June 1999. Defendant
contends this evidence tended to show nothing more than his general
propensity to engage in such acts and was, therefore, inadmissible
under N.C. R. Evid. 404(b). We disagree.
Rule 404(b) provides as follows:
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. R. Evid. 404(b) (2001). We have previously characterized this
rule as a “rule of inclusion of relevant evidence of other crimes,
wrongs, or acts which is subject to but one exception, evidenceshould be excluded if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged.” State v. Blackwell, 133 N.C.
App. 31, 34, 514 S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537
S.E.2d 483 (1999) (citing State v. Jeter, 326 N.C. 457, 459-60, 389
S.E.2d 805, 807 (1990)). In order to be admissible against a
defendant, Rule 404(b) evidence must be both sufficiently similar
to and not too remote in time from the charged offense. “The
similarities . . . need not be 'unique and bizarre,' but rather
must simply tend to support a reasonable inference that the same
person committed both the earlier and later acts.” Blackwell, 133
N.C. App. at 35, 514 S.E.2d at 119 (quoting State v. Sneeden, 108
N.C. App. 506, 509, 424 S.E.2d 449, 451 (1993), aff'd, 336 N.C.
482, 444 S.E.2d 218 (1994)).
We agree with the trial court that the challenged evidence was
sufficiently similar and close in time to be admissible under Rule
404(b). As found by the court, defendant's wife and complainant
are cousins. Both assaults occurred in the same bed in defendant's
house. Defendant ordered both women to disrobe, demanded them to
“respond” or “enjoy it,” and alluded to their children. Defendant
had vaginal intercourse while on top of both women and while
holding a sharp blade to their necks. Defendant took pills after
both encounters. Finally, the incidents occurred within a week of
each other. The distinctive details and the temporal proximity of
the two events make the challenged testimony probative of
defendant's modus operandi, scheme, or plan. See State v. White,331 N.C. 604, 612-13, 419 S.E.2d 557, 562 (1992) (finding a
“similar instrument was allegedly used by defendant against each of
the women[,]” where he held a box cutter to one woman's neck while
threatening to kill her and cut the second woman's neck with a
knife several times” in committing his sexual assaults); State v.
Harris, 140 N.C. App. 208, 212, 535 S.E.3d 614, 617, appeal
dismissed and rev. denied, 353 N.C. 271, 546 S.E.2d 122 (2000).
Defendant also asserts that the risk of undue prejudice
arising from the challenged evidence outweighed its probative value
and required its exclusion under N.C. R. Evid. 403. He concedes,
however, that rulings on the admissibility of evidence under Rule
403 are left to the trial court's discretion. See State v.
Robertson, 115 N.C. App. 249, 255, 444 S.E.2d 643, 646 (1994). A
trial court's decision on this issue is controlling 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.
McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)
(citation omitted).
We find no abuse of discretion here. As discussed above, the
two events occurred very close in time and bore significant factual
similarities probative of a modus operandi or plan. Moreover, the
trial court gave an appropriate limiting instruction to the jury
prior to its deliberations. Cf. State v. Hutchinson, 139 N.C. App.
132, 137, 532 S.E.2d 569, 573 (2000).
By defendant's second assignment of error, he argues the trial
court erred in denying his motion to dismiss. We disagree. Specifically, defendant asserts there was “no concrete
evidence” that he displayed a weapon in his encounter with
complainant. However, complainant's testimony was sufficient
evidence to show defendant's use of a deadly weapon. See State v.
Grimes, 96 N.C. App. 489, 493, 386 S.E.2d 214, 217 (1989).
Defendant also claims there was “simply no evidence that the victim
'was not released in a safe place,'” as required to establish
first-degree kidnapping under N.C. Gen. Stat. § 14-39(b) (1999).
This claim is likewise without merit. Complainant testified that
defendant tried to physically restrain her as she attempted to flee
his house. Thus, “[d]efendant never 'released' the victim; she
escaped by her wits. The motion to dismiss was properly denied.”
State v. Mayse, 97 N.C. App. 559, 565, 389 S.E.2d 585, 588 (1990).
By his final assignment of error, defendant argues he received
ineffective assistance of counsel, insisting that his trial
attorney “effectively did nothing to represent [his] interests in
his trial or sentencing.” Defendant claims that his counsel
“failed to object to most of the evidence offered by the State,”
failed to argue the objections she did raise, failed to conduct
adequate cross-examinations, and “failed to preserve for the record
the [d]efendant's mental evaluation, which is mentioned in
sentencing.” Defendant notes that he was never asked on the record
if he intended to waive the insanity defense, despite evidence
showing he “was suffering from some mental defect at the time of
the sexual assaults on [his ex-wife and complainant].” We
disagree. A defendant complaining of ineffective assistance of counsel
must show both that counsel's performance fell below an objective
standard of reasonableness and that counsel's deficiencies had a
probable impact on the outcome at trial. See State v. Braswell,
312 N.C. 553, 561-62, 324 S.E.2d 241, 249 (1985) (citing Strickland
v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 693, reh'g
denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). “[I]f a reviewing
court can determine at the outset that there is no reasonable
probability that in the 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.” Id. at 563, 324 S.E.2d at 249.
Defendant has failed to satisfy either part of the Braswell
standard. He offers no specific suggestion as to how his counsel
could have more effectively objected to the State's evidence or
cross-examined its witnesses. He suggests no subject area that his
counsel either failed to address or should have explored more
thoroughly. We have carefully reviewed the transcript of
defendant's trial and conclude that counsel performed well within
the acceptable range of professional competence. We note that
counsel used cross-examination to establish several facts favorable
to the defense, including the following: (1) police never found a
box cutter, despite searching defendant's residence soon after the
incident; (2) police found a condom wrapper in the residence,
potentially contradicting complainant's account of events; (3) none
of the witnesses other than complainant had any personal knowledgeof what transpired between defendant and complainant; (4)
complainant had no noticeable injuries around her genital area or
on her wrists; (5) the physical evidence was equally consistent
with defendant's claim of consensual sex; and (6) defendant's ex-
wife had not reported her alleged rape to police.
Additionally, there is no deficiency in counsel's handling of
the evidence of defendant's mental illness. The record on appeal
contains the psychological evaluation of defendant prepared on 17
March 2001 by Dr. Faye E. Sultan, who diagnosed defendant as
suffering from “Depression” at the time of the alleged offenses.
Dr. Sultan noted that depression affects an individual's “mood and
cognition” and opined that defendant's condition “significantly
impaired his reasoning and judgment.”
Contrary to defendant's suggestion, the report provided no
basis for a defense during the guilt/innocence phase of trial. In
order to assert a defense of insanity, a defendant must show that
he was laboring “under such a defect of reason, from disease or
deficiency of mind, as to be incapable of knowing the nature and
quality of his act, or if he [did] know this, was [he] by . . .
defect of reason incapable of distinguishing between right and
wrong in relation to such act.” State v. Vickers, 306 N.C. 90, 94,
291 S.E.2d 599, 603 (1982), overruled on other grounds, State v.
Barnes, 333 N.C. 666, 430 S.E.2d 223 (1993). Although Dr. Sultan
found defendant's judgment impaired due to depression, nothing in
her report suggested a belief that he lacked the capacity to
understand the nature and quality of his actions or to distinguishbetween right and wrong. Defendant offered sworn testimony that
complainant initiated and consented to the sexual contact, not that
he was unaware of the nature of his actions or that he could not
tell right from wrong. See State v. Attmore, 92 N.C. App. 385,
393-94, 374 S.E.2d 649, 655 (1988).
We note that defense counsel tendered Dr. Sultan's report to
the trial court at sentencing, asking it to find as a mitigating
factor that “defendant was suffering from a mental condition that
was insufficient to constitute a defense but significantly reduces
[his] culpability for the offense.” Although the trial court
elected to sentence defendant in the presumptive range, counsel
properly made use of the psychological evidence for its only viable
purpose.
Accordingly, we hold defendant received a fair trial free from
error.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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