STATE OF NORTH CAROLINA
v. Avery County
No. 99CRS2215
DAVID LEE CALLOWAY
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
David Childers for defendant-appellant.
BIGGS, Judge.
David Lee Calloway (defendant) was charged with indecent
liberties with a child and second degree rape. The State's
evidence tended to show the following: On or about 29 September
1999, defendant drove with his niece (the victim) to the grocery
store. After leaving the grocery store, defendant drove the victim
to a secluded area where he attempted to put her hand on his penis,
rubbed her breasts and vagina, and kissed her. Defendant also
engaged in non-consensual intercourse with the victim, who was
thirteen years old. The victim testified that she was yelling, and
demanding that defendant stop, and that if he did not get off of
her, she was going to get out of the car and walk home. Moreover,though she tried to push defendant off of her, he was stronger.
After the incident, defendant apologized to the victim, and told
her that he would give her $20 if she did not tell anyone and that
he would take both she and her friends out to a movie if she didn't
say anything about the incident. The victim also testified that 29
September 1999 was not the first time that defendant had made
sexual advances towards her. Defendant had rubbed her breasts and
vagina on two prior occasions.
Defendant testified on his own behalf at trial and stated that
he was 37 years old, and that he had never engaged in any improper
sexual conduct with the victim. He further testified that prior to
the incident in question, he had confronted the victim about
“messing around” with his son. At that time, defendant testified
that the victim told him, “I'll fix you any way I can; I'll get
even with you.” When questioned by the prosecutor on cross-
examination, over the objection of defense counsel, defendant
denied ever inappropriately touching other children. In response
to similar questions, defendant's character witness also denied
knowledge of such allegations against defendant on cross-
examination.
The jury subsequently found defendant guilty of indecent
liberties, but acquitted him of the charge of second degree rape.
The trial court imposed an intermediate punishment of 36 months
supervised probation. Defendant appeals.
On appeal, defendant argues that the trial court erred in
allowing the prosecutor to question him and one of his characterwitnesses about allegations that he had previously touched other
children improperly. Defendant argues that the evidence was
inadmissible under N.C.R. Evid. 403, 404(b), and/or 608(b).
Defendant contends that “[t]he only possible purposes for the
unsupported, alleged acts with other children by the defendant
herein, were to show that the defendant acted in conformity
therewith; to excite the emotions of the jury unfairly; and to
prejudice the defendant unfairly.”
Rule 608(b) provides:
Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting his credibility, other than
conviction of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They
may, however, in the discretion of the court,
if probative of truthfulness or
untruthfulness, be inquired into on cross-
examination of the witness (1) concerning his
character for truthfulness or untruthfulness,
or (2) concerning the character for
truthfulness or untruthfulness of another
witness as to which character the witness
being cross-examined has testified.
N.C.R. Evid. 608(b). While Rule 608(b) addresses the admissibility
of specific instances of conduct, Rule 404(b) addresses more
general evidence of “other crimes, wrongs, or acts.” N.C.R. Evid.
404(b). Rule 404(b) provides pertinently:
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). Both Rule 608(b) and Rule 404(b) evidence issubject to the balancing test of N.C.R. Evid. 403. Rule 403
prohibits the admission of relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. N.C.R. Evid. 403.
The decision to exclude evidence under Rule 403 is left to the
discretion of the trial court. State v. Hoffman, 349 N.C. 167,
184, 505 S.E.2d 80, 91 (1998).
In the instant case, the prosecutor cross-examined defendant
and his character witness, C.L. “Butch” Hughes, about defendant
allegedly having engaged in inappropriate behavior with other minor
girls. When defense counsel objected, citing N.C.R. Evid. 608 (b),
counsel's objections were overruled. The trial court subsequently
made specific findings as to the admissibility of those
prosecutor's questions when addressing counsel's objections and
resulting motion for mistrial:
1. That the cross-examination objected to by
the defendant relates to acts or conduct which
are alleged to have occurred on the part of
the defendant with other minor children.
. . . .
4. That the questions asked by Assistant
District Attorney, Jerry Wilson, were . . .
asked . . . in good faith with a factual basis
existing for his asking of such questions.
5. That cross-examination under the law of
North Carolina is unrestricted provided that
the questions are asked in good faith and
further provided that there is a factual basis
for the said questions being asked.
6. That the specific acts complained of by
the defendant are acts of conduct and of
conduct on the part of the defendant and are a
proper subject for cross-examination of adefendant after a defendant has elected to
take the witness stand in his own behalf.
7. That the evidence complained of by the
defendant by way of cross-examination has a
bearing and a direct relationship as to the
defendant's credibility.
8. That many of the questions, if not all of
the questions, asked by the State on cross-
examination and complained of by the defendant
are incriminating type questions and that in
most all cases of cross-examination by an
Assistant District Attorney of a defendant
that the questions are by way of necessity
incriminating type questions and the defendant
has no basis for complaint based upon the type
of questions asked by the Assistant District
Attorney.
9. That the fact that the defendant got upset
at certain questions asked by the Assistant
District Attorney on cross-examination or got
mad at the asking of the said questions or got
frustrated in giving answers to the said
questions is no reason or a legitimate basis
for which the Court should limit the cross-
examination. That the objections complained
of by the defendant do not constitute and do
not have a legal basis in fact or in law for
the Court sustaining the defendant's objection
or for the Court to allow the motion for a
mistrial.
10. That the questions objected to by the
defendant and asked by the Assistant District
Attorney on cross-examination are not unduly
prejudicial and are proper cross-examination
and are within the normal scope and limits of
proper cross-examination.
The trial court went on to conclude, pertinently that the
prosecutor's inquiry into allegations that defendant had engaged in
inappropriate behavior with other minor girls, was entirely proper
under Rule 608(b) and the balancing test of Rule 403. The trial
court, therefore, overruled defendant's objections and denied his
motion for mistrial. We initially note that many of the trial court's findings of
fact are more of the nature of mixed findings of fact and
conclusions of law. To that end, we conclude that the court's
mixed finding and ultimate conclusion regarding the admissibility
of the prosecutor's line of questioning on cross-examination of
defendant and his character witness, are erroneous. The conduct
inquired into here is in no way probative of defendant's
truthfulness or untruthfulness, and therefore, is not admissible
under Rule 608(b). See State v. Morgan, 315 N.C. 626, 635, 340
S.E.2d 84, 90 (1986) (giving the following examples of conduct
admissible on cross-examination under N.C.R. Evid. 603: “'use of
false identity, making false statements on affidavits, applications
or government forms (including tax returns), giving false
testimony, attempting to corrupt or cheat others, and attempting to
deceive or defraud others.'” 3 D. Louisell & C. Mueller, Federal
Evidence § 305 (1979)); see also State v. Brooks, 113 N.C. App.
451, 457, 439 S.E.2d 234, 237 (1994) (stating that evidence of a
defendant's past abusive behavior is not admissible under N.C.R.
Evid. 608(b), “'because extrinsic instances of assaultive behavior,
standing alone, are not in any way probative of the witness'
character for truthfulness or untruthfulness.'” State v. Morgan,
315 N.C. 626, 635, 340 S.E.2d 84, 90 (1986)); Johnson v. Amethyst
Corp., 120 N.C. App. 529, 538, 463 S.E.2d 397, 403 (1995) (holding
that the plaintiff's prior drug use was not in any way probative to
her credibility under N.C.R. Evid. 608(b)).
While the prosecutor's line of questioning was not properunder Rule 608(b), said questions were completely proper under Rule
404(b). Significantly, the trial court indicated during an
exchange with counsel (outside of the jury's presence) that the
prosecutor's line of questioning as to defendant's alleged
inappropriate touching of other minor children was admissible under
N.C.R. Evid. 404(b). In fact, the trial court instructed the jury
in that regard:
Now, members of the jury, evidence has been
received tending to show other alleged acts of
the defendant. This evidence was received
solely for the purpose of showing that the
defendant had the intent which is a necessary
element of the crimes charges [sic]; that the
defendant had the knowledge which is a
necessary element of the crimes charged; that
there existed in the mind of the defendant a
plan, scheme, system or design involving the
crimes charged. If you believe this evidence,
you may consider it, but only for the limited
purposes for which it is received.
The court also found and concluded that the probative value of said
questions was not substantially outweighed by the likelihood of
prejudice under N.C.R. Evid. 403.
In sum, we conclude that though the prosecutor's questions
propounded to defendant and his character witness, regarding
defendant's alleged inappropriate touching of minor girls, were not
proper under N.C.R. Evid. 608(b), said questions were admissible
under 404(b). Hence, this argument fails. See State v. McElrath,
322 N.C. 1, 19, 366 S.E.2d 442, 452 (1988) (providing that when a
court's ruling ultimately reaches the correct conclusion but for
the wrong reason, the defendant is not prejudiced by the court's
ruling). Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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