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1. Constitutional Law--right to confrontation_-prior sexual assault--testimonial evidence_-photo lineup--harmless error
Although the trial court violated defendant's right to confrontation in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and habitual misdemeanor assault case by allowing the admission of evidence regarding an alleged prior sexual assault obtained from a detective's testimony that a prior victim identified defendant as her assailant when the prior victim was unavailable at trial, it was harmless error beyond a reasonable doubt because: (1) the victim in this case provided sufficient detail of her rape and identified defendant as her attacker; and (2) the sexual assaults upon two prior victims were properly admitted to show defendant's modus operandi, common plan or scheme, intent, and knowledge.
2. Evidence--prior crimes or bad acts--sexual assaults--modus operandi--common plan or
The trial court in a prosecution for second-degree rape, kidnapping and other offenses properly admitted evidence of two alleged prior sexual assaults by defendant under N.C.G.S. § 8C-1, Rules 403 and 404 for the purpose of showing defendant's modus operandi, common plan or scheme, intent and knowledge because: (1) in regard to the similarity of this case to one of the prior victims, in both cases defendant initiated contact with a woman whom he had known for several years; both women had substance abuse problems and defendant told both of them that he had drugs they could use; in both cases defendant struggled with the women once they arrived at their destinations, he removed their clothes, he placed at least one of his hands on their neck, and he engaged in sexual intercourse; both women indicated they did not believe defendant would harm them prior to their attacks since they had known defendant for several years, they were friends, and he had treated them nicely; and a time disparity of seventeen months is not too remote for Rule 404(b) purposes; and (2) in regard to the similarity of this case with another prior victim, although a rape had not occurred at the time the police arrived, the evidence parallels what happened to the victim in this case earlier in the same evening.
3. Evidence--pornographic magazines--criminal citation--harmless error
The trial court committed harmless error in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and habitual misdemeanor assault case by admitting an officer's testimony regarding pornographic magazines and a criminal citation found in defendant's motel room, because: (1) although the pornographic magazines could be considered prejudicial, a different outcome would not have resulted if these magazines had not been presented to the jury; and (2) although the citation indicated defendant illegally possessed acrack pipe and a half ounce of marijuana which was irrelevant to the issues in this case, the State could prove beyond a reasonable doubt that defendant raped the victim based upon her testimony alone which was also supported by the N.C.G.S. § 8C-1, Rule 404(b) evidence demonstrating defendant's modus operandi, common plan or scheme, intent, and knowledge.
4. Sentencing--remand--erroneous use of rape conviction to elevate kidnapping charge
Although defendant neither objected to the sentence he received nor raised his two constitutional arguments in the trial court in a double second-degree rape, first-degree kidnapping, possession of cocaine, possession of drug paraphernalia, and habitual misdemeanor assault case, the Court of Appeals used its inherent authority under N.C. R. App. P. 2 and remanded the case to the trial court for resentencing, because: (1) the State conceded that one of defendant's rape convictions was erroneously utilized to elevate second-degree kidnapping to first-degree kidnapping; and (2) the State acknowledged that this dual use of one of defendant's rapes of the victim is restricted by State v. Stinson, 127 N.C. App. 252 (1997).
Appeal by defendant from judgments entered 8 August 2003 by
Judge Zoro J. Guice in Buncombe County Superior Court. Heard in
the Court of Appeals 2 March 2005.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Amar Majmundar, for the State.
Eric A. Bach for defendant-appellant.
Jack P. Moore (defendant) presents the following issues for
our consideration: Did the trial court erroneously allow the State
to offer (I) statements from a previous rape accuser through the
hearsay testimony of a police officer and emergency room physician
in violation of the Sixth Amendment of the United States
Constitution as interpreted by Crawford v. Washington, 541 U.S. 36,158 L. Ed. 2d 177 (2004); (II) evidence of three additional sexual
encounters between defendant and other women pursuant to Rules 401,
403, and 404 of the North Carolina Rules of Evidence; and (III)
testimony regarding pornographic magazines and a criminal citation
as it was inadmissible under Rule 401 and 403. Defendant also
presents two constitutional issues for consideration: Did the
trial court violate his constitutional rights by (I) sentencing
defendant to consecutive sentences on two counts of second degree
rape and one charge of habitual misdemeanor assault when the
assault indictment charged the same conduct alleged in the rape
indictments; and (II) sentencing defendant to consecutive sentences
for second degree rape and first degree kidnapping when the
kidnapping offense was elevated to the first degree with the same
sexual assault allegation contained in the rape indictment. After
careful review, we find no prejudicial error occurred in the trial
below, but remand for resentencing as to first degree kidnapping.
The evidence tends to indicate that on 23 October 2002, L.S. was in Asheville, North Carolina, in an area near the Interstate Motel looking for marijuana. She saw defendant, with whom she had been acquainted for over twenty years, on the street. During her conversation with defendant, she told him she was looking for marijuana. Defendant told her he had some marijuana in his motelroom and that he would sell it to her for $10.00. L.S. walked with defendant to his motel room at the Interstate Motel.
Upon entering the motel room, defendant went into the bathroom. After defendant exited the bathroom, defendant grabbed L.S., threw her down on a bed, and began removing her clothes. L.S. asked defendant to stop, but he continued. Defendant raped L.S. He then allowed L.S. to wash and dress, but before L.S. could leave the room, he forced her onto a bed and raped her again. After the second rape, L.S. left the room and subsequently called the police.
Meanwhile, defendant saw M.O., a woman with whom he had been acquainted for several years, in the Interstate Motel. During his conversation with M.O., M.O. informed him she was looking for some alcohol to drink. Defendant invited M.O. to his room for a drink. Upon entering the room, he grabbed M.O., threw her onto a bed, and began removing her clothes. He held M.O. by her neck while he removed his pants. Before he could penetrate M.O., the police knocked on his door and defendant jumped up. M.O. answered the door, put her clothes on, and left the motel room.
Defendant was subsequently indicted on two counts of second degree rape, and one count of first degree kidnapping, possession of cocaine, possession of drug paraphernalia, habitual misdemeanor assault, and for being an habitual felon. Defendant was convictedof all charges and was sentenced to two consecutive sentences of 133-169 months for each rape conviction, 133-169 months for kidnapping to run concurrently to the rape convictions, 133-169 months for possession of cocaine to run consecutively after the kidnapping sentence, and 133-169 months for habitual misdemeanor assault to run consecutively after the possession of cocaine sentence. Defendant appeals.
 We first address defendant's contention that the trial court erroneously allowed the admission of evidence regarding an alleged prior sexual assault in violation of the Confrontation Clause to the United States Constitution. Specifically, defendant challenges the admission of statements made by T.M., an alleged prior victim, to a police detective and a medical doctor regarding her rape. Prior to defendant's trial in this case, T.M. died and was therefore unavailable to testify at defendant's trial.
The Sixth Amendment to the United States Constitution guarantees that [i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him[.] U.S. Const. amend. VI. Our review of whether defendant's Sixth Amendment right of confrontation was violated is three-fold: (1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity tocross-examine the declarant. State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (2004). In this case, it is undisputed that T.M. was unavailable at defendant's trial because she was deceased. It is also undisputed that defendant did not have a prior opportunity to cross-examine T.M. Thus, our analysis is limited to whether T.M.'s statements were testimonial in nature.
According to testimony, on 18 October 2000, T.M. reported to the police that she had been sexually assaulted. Detective Paula Barnes (Detective Barnes) contacted T.M. at the hospital and interviewed her regarding the sexual assault. T.M. provided Detective Barnes with a description of the sexual assault and indicated a man by the name of Jimmy Jackson committed the assault. Dr. Stace Horine (Dr. Horine) testified that he was an emergency room physician and that he treated T.M. on 18 October 2000 for an alleged rape. During the treatment, T.M. gave an account of the alleged rape. However, she did not name her assailant. Detective Barnes testified that there were several officers looking for the assailant that evening and that later in the evening, the police showed T.M. a photographic line-up of six individuals. After viewing the pictures, T.M. identified defendant as the person who assaulted her.
Defendant argues the admission of Detective Barnes's and Dr. Horine's testimony regarding statements made by T.M. violated hisSixth Amendment right to confrontation because T.M.'s statements were testimonial in nature. In their appellate briefs, the parties discuss at length whether statements made to a medical doctor are testimonial in nature, and they also present argument regarding the statements made to Detective Barnes. It is unnecessary for this Court to resolve these issues because T.M. did not name her assailant in those statements. Rather, the police utilized T.M.'s statements in their investigation and eventually presented T.M. with a photographic line-up from which she identified defendant. This Court has held that the information obtained from [a] photo line-up and offered at trial through [a police officer is] testimonial evidence. State v. Lewis, 166 N.C. App. 596, 602, 603 S.E.2d 559, 563 (2004). Thus, Detective Barnes's testimony that T.M. identified defendant as her assailant was inadmissible under the Sixth Amendment to the United States Constitution because T.M. was unavailable at trial and defendant did not have a prior opportunity to cross-examine.
A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless. N.C. Gen. Stat. § 15A-1443(b) (2003). In light of the other evidence in this case, we conclude theconstitutional error was harmless beyond a reasonable doubt. Indeed, L.S. provided sufficient detail of her rape and identified defendant as her attacker. Also, as explained below, the sexual assaults upon M.O. and S.J., prior victims of defendant, were properly admitted to show defendant's modus operandi, common plan or scheme, intent, and knowledge. The jury could conclude beyond a reasonable doubt from this evidence that defendant committed the charged offenses.
 Next, we address defendant's contentions that the trial court erroneously admitted evidence under Rules 403 and 404 of two alleged prior sexual assaults of S.J. and M.O. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003), provides:
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.
Id. Rule 404(b) is one of inclusion. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Where [prior bad act] evidence reasonably tends to prove a material fact in issue in the crime charged, it will not be rejected merely because it incidentally proves the defendant guilty of another crime, but [it will be rejected] if the sole logical relevancy of that evidence is to suggest defendant'spredisposition to commit the type of offense with which he is presently charged.
State v. Jeter, 326 N.C. 457, 458, 389 S.E.2d 805, 806 (1990) (quoting State v. Johnson, 317 N.C. 417, 425, 347 S.E.2d 7, 12 (1986)). Whether evidence is admissible under Rule 404(b) is constrained by the requirements of similarity and temporal proximity. State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.
State v. Bidgood, 144 N.C. App. 267, 271-72, 550 S.E.2d 198, 201 (2001) (citation omitted).
Although evidence may be admissible under Rule 404(b), the probative value of the evidence must still outweigh the danger of undue prejudice to the defendant to be admissible under Rule 403. State v. Frazier, 319 N.C. 388, 390, 354 S.E.2d 475, 477 (1987). This issue is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when itis shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision. Bidgood, 144 N.C. App. at 272, 550 S.E.2d at 202. We note, however, that our Supreme Court has stated that '[t]he dangerous tendency of this class of evidence to mislead and raise a legally spurious presumption of guilt requires that its admissibility should be subjected to strict scrutiny by the courts.' Jeter, 326 N.C. at 458, 389 S.E.2d at 806 (quoting Johnson, 317 N.C. at 430, 347 S.E.2d at 15).
Our Courts have been very liberal in permitting the State to present evidence to prove any relevant fact not prohibited by Rule 404(b) with respect to prior sexual offenses. See State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992). This is particularly true where the fact sought to be proved is the defendant's intent to commit a similar sexual offense for which the defendant has been charged. Id. at 612, 419 S.E.2d at 561-62.
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