STATE OF NORTH CAROLINA
v. Nash County
Nos. 02 CRS 8318-19
BILLY RAY EZZELL
Attorney General Roy Cooper, by Assistant Attorney General R.
Kirk Randleman, for the State.
Samuel L. Bridges for defendant.
LEVINSON, Judge.
Billy Ray Ezzell (defendant) was charged with seven counts of
first degree statutory rape and two counts of taking indecent
liberties with a child. The State's evidence tended to show that
defendant committed various sex acts against his biological
daughter, T.J. (the minor victim). At the time of trial, defendant
was 38 years old and the minor victim was 15 years of age. The
minor victim testified that at the time of the incidents, she was
living with her mother and Donald Jones, who she considered to be
her “daddy”, her two sisters and defendant. Jones was a truck
driver for Merita Bakeries who was rarely at home at night. The
minor victim's mother, a crack addict, often left the children athome with defendant at night.
The minor victim testified that defendant first started having
sexual intercourse with her when she was eight years old. On this
occasion, Jones was at work and the minor victim's mother had left
their Rocky Mount home. The victim was at home with her two
sisters and defendant when defendant woke her and asked her to come
and watch television with him. Defendant subsequently asked the
minor victim to join him in his bedroom, which he shared with the
minor victim's mother, to scratch his back. Once in the bedroom,
defendant removed the minor victim's pajamas and underwear, removed
his own clothing, and penetrated her vagina with his penis. The
minor victim stated that she was scared during the episode, and
explained that she did not tell her mother about the sexual abuse
because she was afraid that defendant would hurt her.
Over defendant's objection, the minor victim was allowed to
further explain her fear of defendant:
Q. WHY DID YOU THINK HE WOULD HURT YOU?
A. THE WAY HE WAS TOWARD MY MOM.
Q. WHAT DO YOU MEAN THE WAY HE WAS TOWARD
YOUR MOTHER?
A. BEFORE HE TRIED TO CUT HER THROAT.
. . . .
[DEFENSE COUNSEL]: OBJECTION. THIS IS
IRRELEVANT TO THIS CASE.
[PROSECUTOR]: IT HAS TO DO WITH HER FEAR,
JUDGE.
THE COURT: OVERRULED.
Q. DID YOU TRY TO PROTECT YOUR MOTHER? A. WHEN HE USED TO HIT HER.
Q. TELL THE JURY ABOUT THE TIME YOU SAID HE
TRIED TO CUT HER.
A. IN WINSTEAD TRAILER PARK IN ROCKY MOUNT,
I REMEMBER MY LITTLE SISTER, SHE WAS A
BABY AND MY MOM CAME RUNNING INTO MY ROOM
AND SHE LOCKED THE BEDROOM DOOR AND BILLY
RAY WAS TRYING TO GET IN. AND SHE SENT
MY OLDER SISTER . . ., OUT OF THE WINDOW
TO CALL THE POLICE. WHEN THE POLICE GOT
THERE, BILLY RAY WAS UP IN A TREE.
Q. BUT YOU SAID HE TRIED TO CUT HER?
A. HE TRIED TO CUT HER THROAT.
[Q]. DID YOU SEE ANYTHING THAT MADE YOU THINK HE TRIED
TO CUT HER THROAT?
A. SHE WAS CRYING AND SHE CAME IN THERE AND
TOLD US.
Q. HAD YOU EVER SEEN AT THAT TIME - UP TO
THAT TIME, HAD YOU EVER SEEN THE
DEFENDANT BE VIOLENT IN ANY OTHER WAY?
A. WHEN HE USED TO HIT MY MOM.
The minor victim continued testifying that defendant had
sexual relations with her on at least ten more occasions between
her ninth and thirteenth birthday in their Rocky Mount, Red Oak and
Spring Hope residences. The incidences of sexual abuse usually
occurred in the residence, but on one occasion, defendant took the
minor victim to a motel under the pretense of celebrating one of
her cousin's fifteenth birthday. The minor victim testified that
defendant told her that if she were ever questioned about being
sexually active, she was to say that she was having sex with her
cousin, Randy Ezzell. The sexual abuse was discovered when the minor victim, then
thirteen, was questioned by Jones as to whether she was sexually
active. Defendant told Jones that she was having sex with a
boyfriend by the name of Roy. The minor victim testified that she
initially told Jones, as instructed by defendant, she was having
sex with her cousin Randy Ezzell, but subsequently told Jones the
truth. The minor victim later told deputies with the Nash County
Sheriff's Department and detectives with the Rocky Mount Police
Department about defendant's sexual abuse. There was no one who
could corroborate the minor victim's testimony about defendant's
sexual abuse, and the minor victim admitted that she never went to
the doctor for any treatment other than for a pap smear and to
obtain birth control.
The jury subsequently found defendant not guilty of the seven
counts of first degree statutory rape, but found him guilty of the
two counts of taking indecent liberties with a child. The trial
court then sentenced defendant to consecutive terms of 19-23 months
imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in admitting the testimony of the minor victim regarding
defendant's violence toward her mother. Defendant first contends
that said evidence was inadmissible character evidence in violation
of N.C.R. Evid. 402 and 404(b).
N.C.R. Evid. 401 defines “relevant evidence” as “evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable orless probable than it would be without the evidence.” It is well
settled that only relevant evidence is admissible. N.C.R. Evid.
402. Rule 404(b) 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. . . .
N.C.R. Evid. 404(b). Rule 404(b) has been noted as a rule of
inclusion, “subject to but one exception requiring its exclusion if
its only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of the
crime charged.” State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48,
54 (1990). Where evidence of prior conduct is relevant to an
issue other than the defendant's propensity to commit the charged
offense, the balancing test of N.C.R. Evid. 403 must ultimately be
utilized to determine if the “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.R. Evid. 403. The trial court's determination in
this regard is reversible only upon a showing of an abuse of
discretion, i.e., where it can be shown that “the ruling is so
arbitrary that it could not have resulted from a reasoned
decision.” State v. Stevenson, ___ N.C. App. ___, ___, 611 S.E.2d
206, 209, (2005)(quoting State v. Bidgood, 144 N.C. App. 267, 272,
550 S.E.2d 198, 202 (2001)). In State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993),
this Court noted that in sexual abuse cases, the victim's state of
mind may be particularly relevant. In such cases, evidence tending
to show that the victim is afraid of her abuser or evidence
explaining why the victim failed to report the abuse to anyone is
admissible. Id. at 849, 433 S.E.2d at 781; see also State v.
Barnes, 77 N.C. App. 212, 334 S.E.2d 456 (1985)(holding that the
trial court properly allowed the minor victim to testify that she
was afraid of her father because he was mean, since such testimony
was relevant to show the victim's state of mind).
In the instant case, the minor victim testified that she did
not tell anyone about defendant's sexual abuse because she was
afraid of him. Over defendant's objection, the victim was allowed
to explain that she was afraid of defendant because he used to hit
her mother. The minor victim was allowed to recount an occasion
when defendant chased her mother into the minor victim's room, and
the mother told the minor child that defendant tried to cut her
throat. Contrary to defendant's contention, the testimony was
relevant to show the victim's state of mind, i.e, the reason she
was afraid of defendant. See Bynum, 111 N.C. App. at 849, 433
S.E.2d at 780. Indeed, the State argued at trial that the evidence
“has to do with her fear.” Further, we conclude that the court did
not err by concluding that the probative value outweighed the
prejudicial effect under N.C.R. Evid. 403. See Coffey, 326 N.C. at
281, 389 S.E.2d at 56 (stating that evidence which is probative of
the State's case is necessarily prejudicial to the defendant, butthat “the question is one of degree”).
We next address defendant's contention that the minor child's
testimony about her mother telling her that defendant had tried to
cut her throat was inadmissible hearsay under N.C.R. Evid. 801 and
802. N.C.R. Evid. 801(c) defines “hearsay” as “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” It is well settled that “[h]earsay is not admissible
except as provided by statute or by [the] rules [of evidence].”
N.C.R. Evid. 802.
As previously noted, the minor victim testified about the time
her mother ran into her bedroom, with defendant chasing her. The
minor victim recounted that her mother told her that defendant had
tried to cut her mother's throat. This testimony was in response
to a line of questions from the prosecutor concerning the reasons
the minor victim was afraid of defendant. After reviewing the
record evidence, we conclude that the statement made by the minor
victim regarding defendant's prior attempts to injure her mother
was not hearsay, in that the evidence was not offered to prove the
truth of the matter asserted (that defendant tried to cut her
mother's throat), but to help demonstrate the minor victim's state
of mind.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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