An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1653


Filed: 18 November 2003

                                    Wake County
v .                                 Nos. 01CRS036793

    Appeal by defendant from judgment entered 13 June 2002 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 13 October 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General John G. Barnwell, for the State.

    Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for defendant-appellant.

    HUNTER, Judge.

    Mackson Brodie (“defendant”) appeals from a judgment dated 13 June 2002 entered consistent with a jury verdict finding him guilty of first degree rape and first degree kidnapping. Judgment was arrested on the kidnapping charge and defendant was sentenced only on the first degree rape conviction. Consequently, defendant was sentenced to a minimum term of imprisonment of 384 months and a maximum term of 470 months. We conclude there was no prejudicial error.
    The evidence presented at trial tends to show that on the night of 30 November 2000, the victim was confronted by a man she identified as defendant who asked her to “go with him and get high.” The victim declined and walked away from defendant. Defendant grabbed the victim, covered her mouth with his hands so she could not breathe, and dragged her to a secluded area where there were blankets and coats. Defendant threatened the victim with a rock and repeatedly raped the victim throughout the night releasing her the next morning after he ejaculated. Throughout the rape, defendant repeated the phrase, “I got to get this nut.” The victim reported the rape to the police and was treated at a hospital where a rape kit was prepared. DNA testing of spermatozoa recovered from the victim revealed a match with defendant.
    Two other women testified that a man they identified as defendant had previously raped them in a fashion similar to that testified to by the victim. In one instance, the rapist repeated the phrase, “'[y]ou can't go until I get this nut[,]'” and in the other instance the rapist repeatedly said “'I am going to do this until I get my nut. Until I nut[,]'” and “'I am gonna nut, and when I nut, I am gonna let you go.'” One of the victims had initially misidentified a man she saw while in a jail holding cell from “pretty far” away as her rapist, but after being shown a photographic lineup including defendant, identified defendant as the rapist. The other woman also identified defendant as her rapist from a photographic lineup. The trial court admitted the testimony of these two women solely under Rule 404(b) of the Rules of Evidence.
    On direct examination, the investigating police officer testified that she “was reading [defendant] his charges and he would ask me questions because he did lawyer up -- lawyer up.” TheState further inquired what “lawyer[ing] up” meant, and the officer testified that it meant that she “[b]asically read him his Miranda rights and he wanted a lawyer.” Defendant did not object to this testimony or move to strike it, however, upon a later objection, the trial court refused to allow any further testimony on the matter.
    The issues are whether (I) evidence of the prior rapes was admissible under Rule 404(b), and (II) testimony that defendant “lawyered up” after being read his Miranda rights constituted plain error.


    Defendant first contends that admission of the testimony of the two other women about being raped by defendant under Rule 404(b) of the North Carolina Rules of Evidence violated his state and federal constitutional rights. Defendant did not, however, object to the constitutionality of admitting this testimony under Rule 404(b) and does not assign plain error to its constitutionality. Thus, defendant has waived any constitutional argument on appeal. See State v. Walters, 357 N.C. 68, 85-86, ___ S.E.2d ___, ___ (2003).
    Defendant further contends that this evidence was inadmissible under Rule 404(b) of the North Carolina Rules of Evidence. Under this rule, evidence tending to show a defendant committed other wrongs, crimes, or acts and his propensity to commit such acts is, nevertheless, admissible as long as it is relevant for some purpose other than to show the propensity of a defendant to commit thecrime charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Examples of purposes for which evidence of other crimes, wrongs, or acts is admissible include: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. Gen. Stat. § 8C- 1, Rule 404(b) (2001). “Under Rule 404(b) a prior act or crime is 'similar' if there are '“some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.”'” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991) (citations omitted).
    In this case, all three women were raped repeatedly under similar circumstances by a man they all identified as defendant and testified that in each rape he repeatedly used a phrase similar to “I got to get this nut.” The similarity of the rapes and the phrases repeated by defendant in each instance creates a reasonable inference that the person who raped the victim was the same person who raped the other two women, and both of the other women ultimately identified defendant as the rapist. As such, evidence of the prior rapes tended to prove the identity of the person who raped the victim in the present case.
    Defendant also argues that the probative value of this evidence was substantially outweighed by its prejudicial effect. The decision whether to exclude relevant but prejudicial evidence under Rule 403 of the North Carolina Rules of Evidence is left to the sound discretion of the trial court. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992); N.C. Gen. Stat. § 8C-1, Rule403 (2001). In the present case, the trial court found that the probative value of this testimony outweighed any prejudicial effect and we conclude there was no abuse of discretion in making this finding. Thus, the trial court did not err in admitting testimony about the other rapes.

    Defendant next argues that the trial court committed plain error in allowing the State to elicit testimony from the investigating officer that defendant “lawyered up” and explaining that meant defendant asked for his lawyer after being read his Miranda rights. Defendant did not object or move to strike this testimony. We assume arguendo that the direct examination about which defendant now complains violates “the implicit assurance contained in the Miranda warnings that silence will carry no penalty.” State v. Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 83 (1986). Where, however, a defendant fails to object to questioning in violation of Miranda rights, that violation is subject only to plain error review on appeal. See id. “The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” Id. at 39, 340 S.E.2d at 83.
    In this case, the evidence against defendant includes both the testimony of the victim describing in detail the rape and identifying him as the rapist as well as DNA evidence revealing hehad sexual intercourse with the victim and testimony of two other victims identifying defendant as the man who raped them in a similar fashion and under similar circumstances. Given this substantial evidence of defendant's guilt, we cannot say that without the investigating officer's testimony that defendant “lawyered up,” the jury probably would have reached a different verdict. Thus, the violation of the implicit assurances of defendant's Miranda rights did not result in plain error. Accordingly, there was no prejudicial error in defendant's trial.
    No error.
    Chief Judge EAGLES and Judge GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***