STATE OF NORTH CAROLINA
v
.
Moore County
No. 01 CRS 50286
STANLEY H. CRAWFORD,
Defendant.
HUDSON, Judge.
At the 25 August 2003 criminal session of superior court, a
jury found defendant Stanley H. Crawford guilty of second-degree
rape. The court sentenced defendant to 100-120 months in prison.
Defendant appeals. We see no error.
The evidence tended to show that, in January 2001, the victim
Emily E. and her two children visited a friend's trailer where
defendant, her friend's uncle, and others lived. After the victim
spoke to her friend, defendant asked to speak with her in his
bedroom. Defendant made sexual advances on the victim and invited
her to spend the night with him, but she declined. When she tried
to leave the bedroom, defendant blocked the way and forced her to
have sex with him for two hours as the others watched television inthe living room. After several hours, she ran out of the room and
the trailer, and called police from a nearby home.
Defendant first argues that the court erred in not admitting
certain exhibits. We do not agree.
The victim made two statements to police about the alleged
rape; one to Deputy Crutchfield at the hospital, and another to
Detective Ferguson, who made hand-written notes of their interview.
The State turned over Detective Ferguson's notes during discovery,
but misidentified them as having been made by Deputy Crutchfield.
The day before trial, the State notified the defense of this error.
At trial, the defense used Detective Ferguson's notes to cross-
examine the victim about her account of the alleged rape. The
victim acknowledged speaking to Detective Ferguson, but said she
could not recall saying some of the things in the notes. Later, on
re-direct, the State marked the notes as an exhibit and also
questioned the victim about them, but did not offer the notes into
evidence. Defendant then sought to offer the notes as a prior
inconsistent statement, but the State objected based on hearsay and
lack of foundation. The court sustained the objection. Defendant
contends that he had a right to call Detective Ferguson to the
stand to lay the foundation for the admission of the notes, but was
unable to do so because the State did not correctly identify
Ferguson as the author of the notes until the day before trial.
Defendant also asserts that the notes were a valid substitute for
Detective Ferguson's testimony under terms of N.C. Gen. Stat. § 8C-1, Rule 803 (6) and (8) (1999). The trial court ruled otherwise,
and the notes were included in the record as an offer of proof.
“[W]here there is testimony that a witness fails to remember
having made certain parts of a prior statement . . . our courts
have allowed the witness to be impeached with the prior
inconsistent statement.” State v. Riccard, 142 N.C. App. 298, 303,
542 S.E.2d 320, 323, cert. denied, 353 N.C. 530, 549 S.E.2d 864-65
(2001). However, “it is clear a prior inconsistent statement may
not be used to impeach a witness if the questions concern matters
which are only collateral to the central issues.” State v.
Najewicz, 112 N.C. App. 280, 288, 436 S.E.2d 132, 137 (1993), disc.
review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). “'[M]aterial
facts involve those matters which are pertinent and material to the
pending inquiry,' while 'collateral' matters are those which are
irrelevant or immaterial to the issues before the court.” Riccard,
142 N.C. App. at 302, 542 S.E.2d at 323 (quoting State v. Whitley,
311 N.C. 656, 663, 319 S.E.2d 584, 589 (1984)).
Here, the victim testified that she had been wearing
underpants the night of the rape, but this fact was not included in
the notes purportedly made by Detective Ferguson. The victim also
testified that she had never been alone with defendant in his
bedroom prior to the rape. As neither issue went directly to
whether defendant raped the victim, the matters were collateral.
Further, defendant fails to show a reasonable probability that the
outcome of the trial would have been different had the prior
statements from the victim about wearing panties and being alonewith defendant been admitted. Whitley, 311 N.C. at 664, 319 S.E.2d
at 589 (citing N.C. Gen. Stat. § G.S. 15A-1443(a)). Thus, the
court's refusal to admit the prior inconsistent statement was not
error.
Defendant also asks this Court to consider this assignment of
error as a Motion for Appropriate Relief based on ineffective
assistance of counsel due to defense counsel's failure to subpoena
Detective Ferguson. “A defendant's right to counsel includes the
right to the effective assistance of counsel. When a defendant
attacks his conviction on the basis that counsel was ineffective,
he must show that his counsel's conduct fell below an objective
standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561-
62, 324 S.E.2d 241, 247-48 (1985) (internal citations omitted). On
the record before this Court, we are unable to adequately determine
this issue. We dismiss this assignment of error without prejudice
to defendant's right to file a Motion for Appropriate Relief in the
superior court. State v. Stroud, 147 N.C. App. 549, 554, 557
S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758
(2002), (“Our Supreme Court has instructed that should the
reviewing court determine the IAC claims have been prematurely
asserted on direct appeal, it shall dismiss those claims without
prejudice to the defendant's rights to reassert them during a
subsequent MAR proceeding”) (internal quotation marks omitted).
Defendant next argues that the court erred in applying Rule
404(b) to admit testimony from two women, Sandy C. and Kimberly A.,about prior sexual conduct toward them. N.C. Gen. Stat. § 8C-1,
Rule 404(b) (2001). We disagree.
Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. -- 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.
“This rule is a general rule of inclusion of relevant evidence of
other crimes, wrongs, or acts by a defendant, subject to the one
exception requiring exclusion if its only probative value is to
show the defendant had a propensity or disposition to commit an
offense like the one charged.” State v. Matheson, 110 N.C. App.
577, 581, 430 S.E.2d 429, 431 (1993). North Carolina courts have
liberally in allowed evidence of similar sex offenses in trials on
sexual offenses. State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d
359, 361 (1990).
After determining that testimony of prior acts is relevant and
admissible pursuant to Rule 404(b), the trial court must determine
whether it should be excluded pursuant to Rule 403, which provides:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
N.C. Gen. Stat. § 8C-1, Rule 403 (2001). In reviewing testimony
under Rule 403, “[t]he balancing of probative value against thedanger of unfair prejudice is a matter within the sound discretion
of the trial court and will not be disturbed on appeal absent abuse
of that discretion.” Matheson, 110 N.C. App. at 583, 430 S.E.2d at
432-33.
Before the court allowed Sandy C. and Kimberly A. to testify
about defendant's prior sexual conduct toward them, it conducted a
voir dire hearing on the witnesses' testimony. Sandy C. testified
that she began dating defendant in 1991, and that he eventually
began forcing her to have sex with him. They married in 1993.
After she left defendant in 1995, defendant kidnapped and raped
her, but pled guilty to lesser-included offenses. Kimberly A.
testified that defendant had been sexually violent with her during
their relationship, with the last violent episode occurring in
January 2000, just before she left him. Following this voir dire,
the court made findings that the testimony was admissible under
Rule 404(b) for the purpose of showing motive, common scheme, plan
or design. The court then stated:
I don't believe that Rule 404 requires me to
make a detailed order with detailed findings
of fact. [Defense counsel], if your research
indicates differently, I would be glad to do
so, but I don't think it's required.
The court also found that the testimony was relevant and that its
probative value was not substantially outweighed by its prejudicial
effects. Defense counsel did not cite any case law requiring
specific findings nor did he ask for specific additional findings
regarding the voir dire hearing. We note that this Court has upheld the admission of testimony
of prior acts that occurred more than ten years before the
incidents in the case at trial. Matheson, 110 N.C. App. at 583,
430 S.E.2d at 432. Our Supreme Court has explained the reasoning
behind such rulings:
While a lapse of time between instances of
sexual misconduct slowly erodes the
commonality between acts and makes the
probability of an ongoing plan more tenuous,
the continuous execution of similar acts
throughout a period of time has the opposite
effect. When similar 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. Shamsid-Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847
(1989) (internal citation omitted).
Defendant here contends that the court erred in failing to
make specific findings on the issue of remoteness in time of the
prior acts. State v. Jacob, 113 N.C. App. 605, 610, 439 S.E.2d
812, 815 (1994) (citing State v. Jones, 322 N.C. 585, 369 S.E.2d
822 (1988), for the proposition that where the “trial court failed
to make specific findings indicating the significance of the
remoteness factor, . . . the omission was found to be error.”) In
Jacob, this Court relied upon the trial court's finding of an “on-
going plan and scheme to molest” young girls in holding the
testimony was properly admitted. Jacob, 113 N.C. App. at 609, 439
S.E.2d at 814. In Jones, by contrast, the Court noted that “[t]he
period of seven years [between prior acts and those on trial]
substantially negate[s] the plausibility of the existence of an
ongoing and continuous plan to engage persistently in such deviantactivities.” Jones, 322 N.C. at 590, 369 S.E.2d at 824 (internal
quotation marks omitted).
The testimony here, however, revealed a pattern of similar
forcible sexual behavior toward adult acquaintances, over a period
of almost a decade, ending just over one year before the alleged
rape. The trial court found that this testimony showed a “plan,
scheme, system or design” and was thus admissible. We hold that
the evidence of time lapse here did not constitute arguable
remoteness, in light of the similarity of the conduct. As such, no
more specific findings were required. See, State v. Boyd, 321 N.C.
574, 364 S.E.2d 118 (1988) (holding a lapse of twelve months
between the prior act and that at trial was not remote).
In sum, we find no abuse of discretion in the court's ruling
on admissibility of the testimony of Sandy C. and Kimberly A.
pursuant to Rule 404(b) or Rule 403. This assignment of error is
overruled.
Defendant also argues that defendant was denied effective
assistance of counsel where defense counsel failed to object to
testimony from witnesses Sandy C. and Kimberly A. about alleged
criminal and other prior activity by defendant. We dismiss this
assignment of error.
Having ruled that Sandy C. and Kimberly A. could testify about
defendant's prior acts pursuant to Rules 404(b) and 403, the court
warned defense counsel that these witnesses might amplify their
testimony beyond the bounds of its ruling and that the court would
deal with these amplifications when and if it heard objections. Kimberly A. testified that defendant was abusive and intimidating
throughout their relationship, and that she sought a restraining
order on him. Sandy C. testified that defendant humiliated her,
choked and pinched her during sex, threatened her with a pistol,
and threatened to take their sons if she left him. Defense counsel
did not object to any of this testimony. Defendant argues that
defense counsel's failure to object left defendant effectively
without counsel.
On the record before us, we are unable to determine whether
defense counsel provided constitutionally required assistance to
defendant. We dismiss this assignment of error without prejudice
to defendant's right to file a Motion for Appropriate Relief in the
superior court. Stroud, 147 N.C. App. at 554, 557 S.E.2d at 547.
Defendant also argues in his brief that, in allowing the
amplified testimony from Sandy C. and Kimberly A., “the trial court
improperly abandoned its supervision of the course of the trial.”
However, as discussed above, the court had alerted defense counsel
to the possibility that such amplifications might occur and
cautioned him that he would need to object on such occasions.
No error.
Judges MARTIN and JACKSON concur.
Report per Rule 30(e).
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