State v Powell, (05-485) 01/17/2006

Appeal by defendant from judgments entered 12 November 2004 by Judge Robert C. Ervin in Caldwell County Superior Court. Heard in the Court of Appeals 9 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randelman, for the State.

Charlotte Gail Blake for defendant appellant.

McCULLOUGH, Judge.

    Defendant Bruce Edmund Powell was charged with five counts of sexual offense, five counts of statutory sexual offense of a person who is 13, 14 or 15 years of age, and ten counts of taking indecent liberties with a child. At the close of all the evidence, the trial court dismissed fourteen charges, including four of the first- degree sexual offenses charges, three of the statutory sexual offenses and seven of the indecent liberties charges. A jury found defendant guilty of three counts of taking indecent liberties with a child, and the trial court entered judgments imposing active terms of imprisonment. Defendant appeals.
    The State's evidence tended to show that defendant lived withhis girlfriend, Linda, her son and daughter for three years until the relationship dissolved in April of 2001. About a year later, Linda's daughter, A.S. told her mother that defendant had “touched [her] in [her] private area.” A.S., who was sixteen years old at the time of the trial, testified that on several occasions, defendant came to her bedroom in the morning after her mother went to work and before her brother woke up. Defendant pulled down the covers, pulled up her nightgown, pulled down her panties and would “stick his finger in me” and “move it in and out.” She further testified that defendant would “mess with my boobs.”
    Dr. Jill DeVries conducted a complete physical examination of A.S. in April of 2002. Dr. DeVries discovered some “vascularity and thickening” of the victim's hymen. Dr. DeVries concluded that the amount of vascularity and thickening was consistent with digital or finger penetration over time.
    Over defendant's objection, defendant's niece by marriage, A.P., was permitted to testify pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). A.P. stated that she went with her grandfather and defendant to find an apartment for defendant after he discontinued his relationship with Linda in April of 2001. A.P. testified that when they returned to her grandparent's home, she and defendant remained downstairs in the basement. Defendant lifted A.P. up and placed her on the clothes dryer. He then hugged A.P. and started rubbing her buttocks with his hands. Defendant then took her off the dryer and they walked toward the steps. A.P. testified that at the steps, defendant hugged her, pulled down her panties and rubbedher buttocks again.
    A.P. further testified that defendant later married and, in 2002, she spent the night at defendant's home with his wife's son and daughter. A.P. stated that she and the daughter threw a stuffed animal at the bathroom door when defendant was in the bathroom. Defendant came out of the bathroom wearing a pink bathrobe that exposed his bottom. A.P. testified that defendant came to the daughter's bedroom with his robe open, exposing his privates. A.P. further testified that defendant returned to the bedroom, removed his underwear and danced. A.P. was twelve years old at the time of trial.
    Defendant denied having inappropriate contact with A.S. Defendant admitted hugging A.P., but denied touching her inappropriately. He further testified that while he was in the bathroom urinating, A.P. threw a stuffed animal at the bathroom door and the door came unlatched.
    Defendant brings forward two assignments of error. Defendant has not presented arguments in support of the remaining nine assignments of error contained in the record on appeal and they are deemed abandoned. N.C.R. App. P. 28(b)(6).
    Defendant contends A.P.'s testimony was inadmissible pursuant to Rule 404(b) of the North Carolina Rules of Evidence because the testimony was not sufficiently similar to the victim's testimony. He further contends that, even if the evidence were admissible under 404(b), it should have been excluded under Rule 403 because any probative value of the testimony is outweighed by itsprejudicial effect upon him.
    Rule 404(b) of the North Carolina Rules of Evidence prevents the admission into evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show that he acted in conformity therewith." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). The North Carolina Supreme Court has held that Rule 404(b) is a rule of inclusion. State v. Golphin, 352 N.C. 364, 443, 533 S.E.2d 168, 221 (2000), certs. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Indeed, North Carolina's appellate courts have been "markedly liberal in admitting evidence of similar sex offenses to show one of the purposes enumerated in Rule 404(b)." State v. Scott, 318 N.C. 237, 247, 347 S.E.2d 414, 419-20 (1986) (citations omitted). Two constraints limit the use of evidence under Rule 404(b): "similarity and temporal proximity." State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The admissibility of evidence under Rule 404(b) is "subject to the weighing of probative value versus unfair prejudice mandated by Rule 403." State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). "Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court." State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990), cert. denied, 421 S.E.2d 360 (1992).
    Here, A.P. first testified that defendant hugged her and rubbed her buttocks. The most important similarities among those prior acts and the offense at issue is that they were committedupon young females and the incidents occurred when the girls were alone with defendant, thus indicating a common scheme of exploiting the victims' availability and susceptibility. Furthermore, the common scheme is not negated by the various sexual acts with A.S. and A.P. See State v. Williams, 303 N.C. 507, 513, 279 S.E.2d 592, 596 (1981) (holding the evidence of the defendant's lifting up the shirt of a twelve-year-old girl and fondling her breast on or about the date he committed cunnilingus and anal intercourse against two other younger girls was admissible to show his intent and plan to commit the latter offenses). Moreover, the two-year lapse between the abuse of A.S. and A.P. does not render the incidents too remote in time to be admissible. See State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (stating that a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725, reh'g denied, 520 U.S. 1140, 137 L. Ed. 2d 366 (1997). We further hold that the testimony passes the balancing test required by Rule 403. While certainly prejudicial to defendant, the evidence is more probative in that it reveals past wrongs by defendant that are strikingly similar and not too remote in time to the alleged crimes here. Although differences exist in the assaults, defendant failed to show that the trial court abused its discretion.
    A.P.'s testimony that defendant engaged in additional acts with her, such as exposing himself to her, however, is conduct dissimilar to the conduct with which defendant was charged. Unlikethe incidents of improper touching, defendant did these things to A.P. in the presence of another person and, therefore, did not tend to show defendant's plan or scheme to sexually assault A.S. See State v. Maxwell, 96 N.C. App. 19, 24, 384 S.E.2d 553, 556 (1989) (evidence the defendant frequently appeared nude in front of his children and had fondled himself in the presence of his daughter was not properly admitted to show "plan or scheme to take advantage of his daughter"), disc. review denied, 326 N.C. 53, 389 S.E.2d 83 (1990). Accordingly, it was error under Rule 404(b) to admit this evidence. In order to show prejudicial error, however, defendant must show that there is a reasonable possibility that a different result would have been reached at trial if the evidence had not been admitted. N.C. Gen. Stat. § 15A-1443(a) (2003). In light of the other overwhelming evidence presented at trial against defendant, there is no “reasonable possibility” that the jury would not have convicted had they not heard the testimony that the trial court allowed.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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