An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-461


Filed: 17 May 2005


v .                         Moore County
                            No. 01 CRS 50286

    Appeal by defendant from judgment entered 28 August 2003 by Judge Steve A. Balog in the Superior Court in Moore County. Heard in the Court of Appeals 7 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State.

    Russell J. Hollers, III, for 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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