An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1205
            
                                          &nb sp; 
NORTH CAROLINA COURT OF APPEALS
        
                                        
Filed: 16 August 2005



STATE OF NORTH CAROLINA

         v.                        Nash County
                                Nos. 02 CRS 8318-19
BILLY RAY EZZELL
    

    Appeal by defendant from judgments entered 11 February 2004 by Judge Clifton W. Everett, Jr. in Nash County Superior Court. Heard in the Court of Appeals 15 August 2005.

    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).

*** Converted from WordPerfect ***