STATE OF NORTH CAROLINA
v
.
Rowan County
No. 02 CRS 56911
NATHAN POWELL EVERHART 02 CRS 56912
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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