First defendant argues that the court erred in admitting, over
his objections, evidence of other alleged bad acts, pursuant to
Evidence Rule 404. N.C. Gen. Stat. § 8C-1, Rule 404. Defendant
contends that this evidence was improperly admitted to show his
propensity or disposition to commit the crime with which he was
charged. As discussed below, we disagree.
Evidence of other crimes or acts is not admissible for the
purpose of showing the character of the accused or for showing his
propensity to act in conformity with a prior act. N.C. Gen. Stat.
§ 8C-1, Rule 404(b) (2001). However, such evidence may be
admissible for other purposes, such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment, or accident.”
Id. Our Supreme
Court has held that Rule 404(b) is a rule of inclusion.
State v.
Golphin, 352 N.C. 364, 443, 533 S.E.2d 168, 221 (2000),
cert.
denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001)). “Indeed, North
Carolina's appellate courts have been markedly liberal in admitting
evidence of similar sex offenses to show one of the purposes
enumerated in Rule 404(b).”
State v. Brothers, 151 N.C. App. 71,
76, 564 S.E.2d 603, 607 (2002),
appeal dismissed and disc. review
denied, 356 N.C. 681, 577 S.E.2d 895 (2003)
(internal quotation
marks omitted). The two limits on the use of evidence under Rule
404(b) are similarity and temporal proximity. Further, “[w]hensimilar acts have been performed continuously over a period of
years, the passage of time serves to prove, rather than disprove,
the existence of a plan.”
State v. Frazier, 344 N.C. 611, 616, 476
S.E.2d 297, 300 (1996) (internal quotation marks omitted).
In
State v. Curry, we held admission of prior bad acts proper
under Rule 404(b) based on a similar set of facts. In that case,
“the ages of the victims, the manner in which Defendant pursued
them and gained their trust through a combination of sports,
babysitting, and rides to and from school and the sexual conduct in
which Defendant had engaged with the victims are all sufficiently
similar to be probative of Defendant's intent and common plan or
scheme.”
State v. Curry, 153 N.C. App. 260, 265, 569 S.E.2d 691,
695 (2002).
Here, the court allowed the State to present evidence about
defendant's sexual misconduct with D.C., J.R., and R.S., over
defendant's objections. After hearing
voir dire testimony and
arguments, the court ruled the evidence was probative of
defendant's common scheme or plan, modus operandi, intent, design,
and motive, and thus, admissible. All four boys were close in age,
and each suffered from learning disabilities and school problems.
Defendant had a mentoring relationship with each of the boys,
during which he engaged in various recreational activities with
them. The alleged abuse occurred during those recreational
activities, and involved defendant touching the boys' genitals and
other body parts. All of the incidents were alleged to have taken
place between 1997 and early 2001. As in
Curry, we conclude thatthe trial court did not err in ruling that the evidence involving
defendant's acts against D.C., J.R., and R.S. was sufficiently
similar to the charged conduct to permit its admission.
In a related argument, defendant contends that the court erred
or committed plain error in instructing the jury that the evidence
of prior bad acts showed defendant's “unnatural disposition” and
could be considered for “general corroboration.” We disagree.
Defendant requested the pattern jury instruction regarding
Rule 404(b) evidence (N.C.P.I. Crim. 104.15), and the court
instructed the jury as follows:
Now members of the jury, during the course of
this trial, certain evidence has been received
which if believed by you, the jurors, tends to
show the Defendant committed various sexual
acts with persons other than the individual
named in the bills in this case, or subject to
the charges of this case.
Now, this evidence was received for narrow and
limited purposes. More specifically, for the
purpose of showing that the Defendant had a
modus operandi in the commission of various
offenses charge[d] in the case; that the
Defendant had the intent, which is a necessary
element of the crime charged, for the crimes
charged in the case; and that there existed in
the mind of the Defendant a plan, scheme,
system, or design involving the crimes charged
in this case; and that the, the, for, and
further for the purpose of showing the
unnatural disposition of the Defendant towards
adolescent young males.
Furthermore, you may consider such evidence
for the purpose of general corroboration of
the, of the crime charged.
Now if you believe, the evidence, then you may
consider it, but only for the narrow purposes
for which it is received.
Defendant argues that the court's reference to defendant's
“unnatural disposition” and “general corroboration” was error
because it suggested to the jury that the purpose for admitting the
prior bad act testimony was to prove his character in order to show
he acted in conformity therewith in violation of N.C. Gen. Stat. §
8C-1, Rule 404(b). The phrases “unnatural disposition” and
“general corroboration” are taken from a footnote to the pattern
jury instruction, listing circumstances in which the Pattern Jury
Instruction Committee recommended not using the instruction.
Defendant did not object to the instruction when originally
given, nor when it was repeated in response to a question from the
jury. However, he contends the instruction is not identical to the
current pattern instruction, and that because of the variance, his
issue is preserved for review under the ordinary standard. Because
the court gave the section of the pattern jury instruction
requested by defendant, and because the defendant failed to object,
we review for plain error.
State v. Hardy, 353 N.C. 122, 131, 540
S.E.2d 334, 342 (2000),
cert. denied, 534 U.S. 840, 151 L. Ed. 2d
56 (2001); N.C. R. App. P. 10(b)(2) (“A party may not assign as
error any portion of the jury charge or omission therefrom unless
he objects thereto before the jury retires to consider its verdict
. . .”).
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to adenial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. McCarty, 326 N.C. 782, 785-6, 392 S.E.2d 359, 361 (1990)
(internal quotation marks and citations omitted). “[E]ven when the
'plain error' rule is applied, '[i]t is the rare case in which an
improper instruction will justify reversal of a criminal conviction
when no objection has been made in the trial court.'”
Hardy, 353
N.C. at 131, 540 S.E.2d
at 342 (quoting
State v. Odom, 307 N.C.
655, 660-61, 300 S.E.2d 375, 378 (1983)).
In
McCarty, the defendant argued “it was error for the court
to charge that the testimony was admitted to show 'that there
exists in the minds of the defendants . . . the unnatural lust of
the defendants in the alleged commission of the crimes charged'”
because it encouraged the jury to consider his character and
whether he had acted in conformity therewith.
Id. at 785, 392
S.E.2d at 361. The Court found no prejudicial error in the jury
charge, noting that it did not rise to the level of plain error.
Similarly, here, we do not believe that any error in the
instruction was so grave and fundamental that it likely altered the
outcome. We overrule this assignment of error.
Defendant argues in the alternative that, to the extent that
trial counsel did not properly preserve this issue for our review,
it constitutes ineffective assistance of counsel. We disagree. To show ineffective assistance of counsel, a defendant must
prove two things:
First, the defendant must show that counsel's
performance was deficient. This requires a
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires a showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,
104 S. Ct. 2052 (1984). In essence, “[t]he defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.”
Id. at 694, 80 L. Ed. 2d at 698. Here, defendant does
not explain how counsel's failure to object, even if deficient
performance, raises a reasonable probability that the trial outcome
would have been different. We find no merit in this argument.
Defendant next argues that the court committed plain error in
receiving Dr. Frazier as an expert in the diagnosis of child sexual
abuse and in allowing him to testify that J.R.'s history was
“consistent with” his having been abused. We disagree.
“An objection to a witness's qualifications as an expert in a
given field or upon a particular subject is waived if it is not
made in apt time upon this special ground. . . .”
State v. Hunt,
305 N.C. 238, 243, 287 S.E.2d 818, 821 (1982). Here, because
counsel made no objection at trial to Dr. Frazier's qualifications,these objections were waived. He also contends alternatively that
this ruling was plain error. As noted above, the plain error rule
is to be applied cautiously and only in the exceptional case where
the error is so fundamental that justice cannot have been done.
State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806 (1983).
This is not the exceptional case where, in light of the other
evidence presented, any error in admitting Dr. Frazer as an expert
witness was so prejudicial that it amounted to plain error. We
overrule this assignment of error.
Defendant also contends that the court erred by admitting
certain testimony from the doctor. “In a sexual offense
prosecution involving a child victim, the trial court should not
admit expert opinion that sexual abuse has
in fact occurred
because, absent physical evidence supporting a diagnosis of sexual
abuse, such testimony is an impermissible opinion regarding the
victim's credibility.”
State v. Stancil, 355 N.C. 266, 266-67, 559
S.E.2d 788, 789 (2002) (emphasis in original). “However, an expert
witness may testify, upon a proper foundation, as to the profiles
of sexually abused children and whether a particular complainant
has symptoms or characteristics consistent therewith.”
Id. at 267,
559 S.E.2d at 789. In discussing the propriety of expert testimony
that a child victim's physical examination is consistent with his
history, our Supreme Court noted that the testimony “did not
comment on the truthfulness of the victim or the guilt or innocence
of defendant. . . . [but only assisted] the jury in understanding
the results of the physical examination and their relevancy to thecase being tried.”
State v. Aguallo, 322 N.C. 818, 823, 370 S.E.2d
676, 678 (1988); N.C. Gen. Stat. § 8C-1, Rule 702 (2001).
In his testimony here, Dr. Frazer did not comment on the
victim's truthfulness. Rather, Dr. Frazer testified that J.R.'s
physical examination was normal and that this result was consistent
with J.R.'s history. The court did not err in admitting this
testimony.
Defendant next argues that the court erred in overruling
defendant's objections to the State's use of leading questions
during the testimony of J.A. and J.R., and in allowing Dr. Frazer
and Dr. Bowman to present corroborative testimony. We do not
agree.
“It is within the sound discretion of the trial judge to allow
leading questions on direct examination, and in cases involving
children or an inquiry into delicate subjects such as sexual
matters, the judge is accorded wide latitude to exercise that
discretion.”
State v. Chandler, 324 N.C. 172, 190, 376 S.E.2d 728,
739 (1989);
see also State v. Dalton, 96 N.C. App. 65, 70, 384
S.E.2d 573, 576 (1989) (holding leading questions appropriate where
“the prosecuting witness . . . was fifteen years old at the time of
trial. . . . [and] her testimony, in open court, pertained to
sexual matters of a delicate, sensitive, and embarrassing nature”)
.
The boys questioned here were not only young (13 and 14 years old),
but also suffered from learning disabilities (J.R.) and mental
retardation (J.A.). The questions asked concerned embarrassing
sexual matters and were asked before a courtroom full of strangers. The court did not abuse its discretion by permitting this leading
of the witnesses.
Defendant also contends that the court improperly admitted
testimony from Dr. Frazer and Dr. Bowman recounting the victims'
prior consistent statements, for corroborative purposes. “Although
hearsay is inadmissible except as provided by statute or the Rules
of Evidence, N.C.G.S. § 8C-1, Rule 802 [], an exception to this
general rule allows admission of a prior consistent statement.
Under this exception, a witness' prior consistent statements may be
admitted to corroborate the witness' sworn trial testimony.”
State
v. Lloyd, 354 N.C. 76, 103, 552 S.E.2d 596, 616-17 (2001) (internal
citations and quotations marks omitted). “[P]rior consistent
statements are admissible even though they contain new or
additional information so long as the narration of events is
substantially similar to the witness' in-court testimony.”
Id. at
104, 552 S.E.2d at 617. “A trial court has wide latitude in
deciding when a prior consistent statement can be admitted for
corroborative, nonhearsay purposes.”
Id. (internal quotation marks
omitted).
Here, the doctors' testimony was substantially similar to the
testimony given by J.A. and J.R. Defendant contends that because
J.A.'s and J.R.'s testimony in response to leading questions should
be disregarded, there was no testimony to be corroborated. As
discussed above, the leading questions were not improper. This
argument is without merit and we overrule it. Defendant also argues that the court committed plain error in
instructing the jury on character evidence of untruthfulness of the
State's witnesses. We disagree.
The court instructed the jury that it could consider evidence
of a witness's character for untruthfulness in deciding whether to
believe that witness's testimony, tracking the pattern jury
instruction. N.C.P.I.-Crim. 105.30. Defendant contends, however,
that the court erred in failing to instruct the jury that it could
consider the evidence of J.R.'s and R.S.'s character for
untruthfulness in deciding whether to believe their hearsay
declarations. Because defendant did not object to the instruction
at trial, we review under the plain error standard as previously
discussed. Because this is not that exceptional case in which the
claimed error is so prejudicial as to be fundamentally unjust, we
overrule this assignment of error.
In addition, defendant argues that his trial counsel provided
ineffective assistance by failing to object to the instruction. We
do not believe that defendant has met his burden of establishing
either element of
Strickland.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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