An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-739


Filed: 17 May 2005


v .                         Rowan County
                            No. 02 CRS 56911
NATHAN POWELL EVERHART             02 CRS 56912

    Appeal by defendant from judgment entered 15 January 2004 by Judge Christopher M. Collier in Rowan County Superior Court. Heard in the Court of Appeals 26 January 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Teresa L. White, for the State.

    Mercedes O. Chut for defendant-appellant.

    ELMORE, Judge.

    Nathan Everhart (defendant) appeals his conviction of two counts of attempted abduction of children. We determine that the trial court erred by admitting testimony regarding the condition of defendant and his residence upon arrest, and therefore remand for a new trial.
    Defendant was accused of attempting to abduct two young girls, ages four and ten at the time, that lived in his neighborhood. The girls testified that a man pulled up in front of the yard at the house where they were playing and asked them to get in the car with him. The younger girl, N.B., testified he offered some candy as inducement and the older girl, J.M., said she was offered a dollar. The male never got out of the car, and the girls viewed him throughthe passenger's window. They refused the man's offers, and he drove away. After going across the street and informing N.B.'s grandmother, Juanita Redmon, of the events, Ms. Redmon called the police.
    Officer M.P. Benjamin of the Salisbury Police Department responded within two minutes of the call. Together the girls described the man who attempted to abduct them as old, having long white hair, and wearing a blue jacket. The girls differed as to whether the man had a moustache. They did agree he was driving a red or burgundy “beat up” car. Officer Benjamin took the girls and Ms. Redmon in his patrol car around the block where the two girls identified a car parked at the curb as the same car they saw. The officer then got back into the patrol car and drove back toward the Redmon home.
    In the meantime, Officer Benjamin had radioed a description of the male and vehicle to other officers that were also in the area. Based on this information, the location of the car, and various neighborhood children who said that the car belonged to defendant, officers approached defendant's home. This police response was within approximately fifteen minutes from having received the call from Ms. Redmon.
    Officer T.J. Crews went to the front door while Officer Sides went to the back. Officer Crews was knocking on the front door when Officer Sides called out from the back that he could see defendant in the window. Officer Crews testified that when he got to the back of the house, defendant was crouched down with just hishead appearing above the window. He and Officer Sides, with weapons drawn, asked defendant to stand up. He complied and the officers entered the back door of the house to find defendant naked. Officer Crews told defendant to put some clothes on. Defendant grabbed some clothes near a recliner in a den near where he was standing. Officer Crews searched the jeans defendant picked up and found two condoms in the pocket. Officer Crews further testified that during this time a pornographic program was playing on the television and the front curtains of the house were drawn. Officer Crews took defendant through the house and out the front door just onto the lawn.
    Officer Benjamin took Ms. Redmon and the two young girls by the front of the house in his patrol car for an identification. It was approaching dusk, and the street was about fifteen to twenty- five feet from where defendant was standing, loosely surrounded by uniformed officers. The girls identified defendant as the male who had attempted to get them into his car.
    Defendant also testified at trial. He admitted to driving down the girls' street to get to his home, but denied stopping to talk to anyone. He also testified that after working at a construction site he ran a few errands and went home. Due to his clothes being very dirty, defendant testified that he placed all of them into the washing machine on the back porch. At that point, when he was naked, he said he saw an officer coming up toward his back door.    Defendant was found guilty of attempting to abduct the two young girls. He appeals his conviction to this Court arguing that the trial court erred in allowing Officer Crews to testify that he was found naked, with pants containing two condoms, and a pornographic movie playing on TV. We agree.
    Defendant brought a motion in limine arguing that the manner and circumstances of defendant's arrest should not be admissible in his trial. The State argued that under Rule 404(b) the evidence of defendant's arrest went to his motive for abducting the children. The trial court agreed and allowed the evidence to be admitted at trial, filing a written order to that effect. At trial defendant objected to the admissibility of the evidence, thus preserving his right to appeal. Accordingly, we address whether defendant's state of undress, the fact that a pornographic movie was playing, and that defendant's clothes contained two condoms was admissible.
    “As a general rule, evidence of a defendant's prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion.” State v. Smith, 152 N.C. App. 514, 521, 568 S.E.2d 289, 294, disc. review denied, 356 N.C. 623, 575 S.E.2d 757 (2002). Yet, Rule 404(b) permits the State to introduce evidence of defendant's other wrongs, crimes, or acts to show some other permissible purpose. See N.C. Gen. Stat. § 8C-1, Rule 404(b); State v. Dunston, 161 N.C. App. 468, 473, 588 S.E.2d 540, 544 (2003). Motive, as the State has argued, is oneof those permissible purposes. Id. But here, we can discern no connection between the circumstances of defendant's arrest and a potential motive for the attempted abduction. Thus, we see no legally relevant use for the introduction of the circumstances of defendant's arrest other than to suggest that he enjoys pornography and must have been acting in conformity therewith in attempting to abduct the two girls. See Smith, 152 N.C. App. at 522-23, 568 S.E.2d at 294-95. Defendant was accused of attempting to abduct two young girls by offering them a dollar and candy. The evidence introduced by the State was that upon defendant's arrest, inside his home, he was naked, there was a pornographic movie playing on TV, and the pants he put on had two condoms in them. Absent these facts, there is no evidence in the record to suggest that defendant had impure sexual desires of children, and that defendant was acting on this motive in attempting to abduct the two young girls.
    In State v. Maxwell, 96 N.C. App. 19, 24, 384 S.E.2d 553, 556 (1989), disc. review denied, 326 N.C. 53, 389 S.E.2d 83 (1990), a sexual abuse case, we held that evidence stating defendant enjoyed sleeping and walking around in the nude was not proper under Rule 404(b). In Smith, 152 N.C. App. at 521-23, 568 S.E.2d at 294-95, we held that defendant's possession of pornography was not admissible under Rule 404(b) in a sex crimes case, absent a showing that defendant in some way used the pornography with the victim. Also, in State v. Bush, 164 N.C. App. 254, 261-62, 595 S.E.2d 715, 719-20 (2004), a case involvingsexual assault, the majority found that defendant's possession of pornographic videos was not admissible under Rule 404(b). Each of these cases presented a closer question of whether the evidence was properly used under 404(b) than the case at bar; Maxwell, Smith, and Bush all involved sex crimes, whereas this defendant was charged with attempted abduction: a crime in and of itself having no fact of consequence linked to sex. If similar evidence in those cases was not admissible, we see no way to discern its relevance in this case. Accordingly, we hold that the trial court erred in admitting the evidence.
    Much like Maxwell and Dunston, we find the error here was prejudicial, requiring a new trial. Where the credibility and truthfulness of defendant's denials is at issue, allowing the State to portray him as a “sexual deviant” is prejudicial. See Maxwell, 96 N.C. App. at 25, 384 S.E.2d at 557 (“In the absence of this extensive, highly prejudicial evidence, which was of questionable relevance and which tended to make defendant appear to be a sexual deviant, we cannot say that a different result could not have been reached.”); Dunston, 161 N.C. App. at 473-74, 588 S.E.2d at 545 (evidence that defendant, who was charged with sexual offense, liked consensual anal sex with adults was “inflammatory” and prejudicial). Defendant denied the allegations, and the jury had to determine whether the girls' testimony or defendant's testimony was truthful and accurate. We cannot say that defendant being found in the nude with condomsand a pornographic movie on TV had little influence on the jury's decision on whom to believe.
    New trial.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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