v
.
Nash County
Nos. 04 CRS 52849-51, 52323
ROBERT EUGENE SMITH
Attorney General Roy Cooper, by Jane T. Hautin, Special Deputy
Attorney General, and William P. Hart, Special Deputy Attorney
General, for the State.
William D. Spence for defendant.
LEVINSON, Judge.
Defendant (Robert Eugene Smith) appeals his convictions and
judgments on four counts of taking indecent liberties with a child.
We find no error.
The relevant evidence presented at trial may be summarized as
follows: Defendant's twelve year old granddaughter B.B. testified
that, when she was eleven years old, on four separate occasions in
2003 when she was visiting defendant's house, defendant rubbed her
breasts and genitals. Sometime between Christmas 2003 and New
Year's 2004, while defendant and B.B. were lying on the couch
together watching a movie, defendant began rubbing her breasts
under her shirt. Defendant continued to rub her breasts with hishand until the movie was over. B.B. was not wearing a bra under
her shirt. “[H]e would stop and like leave his hand there and then
it would be like five minutes afterwards he'd keep rubbing and then
he'd stop and then keep going.” Another time that same fall of
2003, when defendant and B.B. were lying down together on the couch
watching a movie, after B.B. had taken a shower, defendant “reached
under my shirt and started fondling my breasts. He would play with
-- he would rub them . . . and then he'd stop, rub them and stop,
[b]ut he'd keep them in place. He wouldn't move his hand.” B.B.
testified that she occasionally slept in defendant's waterbed with
him. Once in the fall of 2003, defendant told her the waterbed was
too cold to sleep in and he lay down with her on the f1oor to
sleep. B.B. “woke up to him rubbing over my panties.” Another
time in the summer of 2003, B.B. testified, defendant touched her
“on [her] top area” inside her halter top. B.B. testified that
sometimes her brother and sister were around but they were never in
the same room with her when defendant rubbed her. Defendant told
B.B. not to tell anyone what he was doing. Defendant called her
brother and sister “snitches”. “[H]e would say that they would
tell our little secret.” B.B. further testified that defendant had
been touching her chest and “front area between [her] legs” since
she was six years old. He would touch her when she was clothed and
unclothed. When she was clothed, defendant would touch her under
her clothing.
Defendant's thirty-four year old daughter and the aunt of B.B.
(hereafter “the aunt”) testified first on voir dire, and then attrial, that, from the time she was five years old until she was
fourteen or fifteen years old, defendant rubbed her breasts and
vagina. Sometimes the aunt was clothed when defendant rubbed her
and at other times unclothed. When she was clothed, defendant
would touch her inside her clothing. Sometimes defendant would
take the aunt into the bed he shared with her mother and rub her
while her mother slept.
Officer Miste Strickland of the Nash County Sheriff's
Department testified. She interviewed B.B. on 23 March 2004
concerning her allegations. B.B. told her defendant had touched
her inappropriately for years. B.B. told the officer that
defendant had massaged her breasts and vagina under her clothing.
B.B. stated that it happened every weekend that she had stayed with
her grandfather. Strickland interviewed defendant the day after
she met with B.B. Defendant told Strickland he wrestled with B.B.
a lot. Though defendant stated that he would not fight the charges
against him, defendant did not admit to any wrongdoing. Defendant
told Strickland that B.B. fabricated these allegations because she
was mad at him for not coming to her birthday party.
Defendant presented evidence. Sergeant Jeff Lucas of the Nash
County Sheriff's Department testified. Lucas testified that he
spoke to B.B. and the aunt on 22 March 2004. B.B. told him that
when she was seven or eight years old defendant would touch her top
and bottom. B.B. also told Lucas that “[n]othing happened during
that time” she stayed with defendant before Christmas 2003. Linda Catherine Holmes Dickie, an investigator with the Nash
County District Attorney's Office, had interviewed B.B. Dickie
testified that her notes reflected that, sometime before Christmas,
defendant watched the victim bathing and “tried to pull her to him,
but she resisted[.]” Dickie further testified on cross-examination
that, on the day she interviewed B.B., she “was so upset I'm not
sure that anything she told me was divided into individual assaults
that day.”
Defendant testified. He denied all the material allegations,
and stated that B.B. lied about the abuse because she was angry
that he missed her birthday party. Defendant testified that B.B.
told him that her step-father had “put his finger inside her
private area[.]” Defendant testified that because B.B. sleepwalked
when she was younger, she would come into bed with him at night.
Defendant denied ever calling B.B.'s brother and sister “snitches”
or saying that they would tell “our little secret.” Defendant was
not questioned about the acts he was alleged to have committed on
B.B.'s aunt.
Defendant was found guilty on four counts of taking indecent
liberties with a child and sentenced to four consecutive prison
terms of 15 to 18 months. From these convictions and judgments
defendant now appeals.
_____________________________
Defendant contends the trial court erred by (1) failing to
dismiss the charges against him for insufficiency of the evidence,
and (2) allowing the State to introduce testimony from the auntconcerning defendant's inappropriate touching of her 22 years
earlier.
In his first argument, defendant contends the trial court
erred by not dismissing all charges against him. Specifically,
defendant argues there was insufficient evidence to prove
defendant's alleged rubbing of B.B.'s breasts and genitals was for
the purpose of arousing or gratifying sexual desire. We disagree.
The law governing a trial court's ruling on a
motion to dismiss is well established. [T]he
trial court must determine only whether there
is substantial evidence of each essential
element of the offense charged and of the
defendant being the perpetrator of the
offense. Evidence is substantial if it is
relevant and adequate to convince a reasonable
mind to accept a conclusion. In considering a
motion to dismiss, the trial court must
analyze the evidence in the light most
favorable to the State and give the State the
benefit of every reasonable inference from the
evidence. The trial court must also resolve
any contradictions in the evidence in the
State's favor. The trial court does not weigh
the evidence, consider evidence unfavorable to
the State, or determine any witness'
credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(internal quotation marks and citations omitted).
N.C. Gen. Stat. § 14-202.1 (2005) provides in pertinent part:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either:
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either
sex under the age of 16 years for
the purpose of arousing or
gratifying sexual desire; or (2) Willfully commits or attempts to
commit any lewd or lascivious act
upon or with the body or any part or
member of the body of any child of
either sex under the age of 16
years.
Our Supreme Court, in State v. Hartness, 326 N.C. 561, 567,
391 S.E.2d 177, 180 (1990), construed G.S. § 14-202.1 as follows:
The evil the legislature sought to prevent in
this context was the defendant's performance
of any immoral, improper, or indecent act in
the presence of a child “for the purpose of
arousing or gratifying sexual desire.”
Defendant's purpose for committing such act is
the gravamen of this offense; the particular
act performed is immaterial.
Id. at 567, 391 S.E.2d at 180.
In State v. Bruce, 90 N.C. App. 547, 551, 369 S.E.2d 95, 98
(1988), this Court held there was sufficient evidence that
defendant rubbed the female child victim's chest for the purpose of
gratifying his sexual desire where the evidence showed the
defendant locked the back screen door before entering the bedroom
with the victim, rubbed the victim under her blouse, and stopped
rubbing her when the victim's brother attempted to enter the locked
backdoor. In Bruce, we concluded that, “[f]rom this evidence, the
jury could properly infer that defendant's action in rubbing the
victim's breasts was for the purpose of arousing or gratifying his
sexual desire.” Id. (citing State v. Etheridge, 319 N.C. 34, 352
S.E.2d 673 (1987), and State v. Strickland, 77 N.C. App. 454, 335
S.E.2d 74 (1985)).
Considering the evidence in the light most favorable to the
State in the instant case, the evidence showed that defendant andB.B. were alone together when defendant rubbed her breasts and
genitals. On two occasions, while B.B. and defendant were watching
movies at defendant's house, defendant rubbed her breasts under her
shirt. Once he rubbed her breasts for the entire length of the
movie. On another occasion, B.B. and defendant slept together on
the floor and B.B. awoke to find defendant “rubbing over [her]
panties.” On one occasion, defendant rubbed B.B.'s chest under her
halter top. B.B. testified that, while her brother and sister were
sometimes at defendant's house when she was there, they were never
in the same room with her when defendant was fondling her.
Defendant told B.B. not to tell anyone what he was doing.
According to B.B., defendant called her brother and sister
“snitches” because “he would say that they would tell our little
secret.”
We conclude the evidence was sufficient to withstand
defendant's motion to dismiss. This assignment of error is
overruled.
_________________________________________
In his second argument, defendant contends the trial court
erred by allowing the State to introduce testimony from the aunt
regarding defendant's having fondled her genitals approximately
twenty-two years earlier. Defendant argues the events testified to
by the aunt were too remote in time to be admissible under Rule
404(b) and, even if admissible, should have been excluded under
Rule 403 as overly prejudicial. Generally, “[a]ll relevant evidence is admissible[.]” N.C.
Gen. Stat. § 8C, Rule 402 (2005). N.C. Gen. Stat. § 8C, Rule 401
(2005) 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 or less probable than it
would be without the evidence.” “Although 'the trial court's
rulings on relevancy technically are not discretionary and
therefore are not reviewed under the abuse of discretion standard
applicable to Rule 403, such rulings are given great deference on
appeal.'” Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11,
17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502, 410
S.E.2d 226, 228 (1991)).
N.C. Gen. Stat. § 8C, Rule 404(b) (2005) 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. . . .
It is axiomatic that:
“'Rule 404(b) is one of inclusion of relevant
evidence of other crimes . . . 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. Faircloth, 99 N.C. App.
685, 689, 394 S.E.2d 198, 201 (1990) (quoting
State v. Coffey, 326 N.C. 268, 278-79, 389
S.E.2d 48, 54 (1990)). “[S]uch evidence is
admissible as long as it is relevant to any
fact or issue other than the defendant's
propensity to commit the crime.” State v.
Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d629, 635, appeal dismissed and disc. review
denied, 353 N.C. [269], 546 S.E.2d 114 (2000).
State v. Patterson, 149 N.C. App. 354, 362, 561 S.E.2d 321, 326
(2002).
When the evidence is offered for a proper
purpose, the ultimate test of admissibility is
whether the incidents are sufficiently similar
to those in the case at bar and not so remote
in time as to be more prejudicial than
probative under the Rule 403 test. The
similarities between the acts do not have to
be unique or bizarre; rather, they must tend
to support a reasonable inference that the
same person committed both acts. Remoteness
in time generally affects the weight to be
given to the evidence, but not its
admissibility. Further, remoteness in time is
less important when the prior act is used to
show intent, motive, knowledge, or lack of
mistake.
State v. Love, 152 N.C. App. 608, 612, 568 S.E.2d 320, 323 (2002)
(citations omitted). We note that “[our Supreme] Court has been
liberal in allowing evidence of similar offenses in trials on
sexual crime charges.” State v. Frazier, 344 N.C. 611, 615, 476
S.E.2d 297, 300 (1996) (citation omitted). In Frazier, our Supreme
Court held that testimony by the prosecuting witness's two sisters
that the defendant had sexually abused them “continuously over a
period of approximately twenty-six years and in a strikingly
similar pattern” was admissible. Id. at 616, 476 S.E.2d at 300.
In State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989), our
Supreme Court held that testimony of the prosecuting witness, and
her sisters, of acts of sexual abuse by defendant spanning a
twenty-year period, was admissible and not overly prejudicial. Id.
at 447, 379 S.E.2d at 848. In Love, 152 N.C. App. at 613, 568S.E.2d at 324, this Court determined that the testimony of the
mother of a female child victim regarding similar sexual acts of
abuse by the defendant almost twenty years earlier were not too
remote in time and were admissible to show “proof of identity, a
common scheme or plan or modus operandi, and intent.”
Here, the trial court held an extensive voir dire hearing
regarding the admissibility of the aunt's testimony. The aunt
testified that, beginning when she was five years old, defendant
would take her out onto the couch at night while others in the
house were sleeping and rubbed her chest and vagina with his hands
under her clothing. Defendant would occasionally bring her into
his bed at night. Defendant continued to rub her in this manner
approximately once a month until she was fourteen or fifteen years
old. When she was approximately thirteen years old, defendant
began masturbating while he was rubbing the aunt's breasts and
genitals. When she was fourteen or fifteen years old, defendant
forced her to have sexual intercourse. Defendant told the aunt not
to tell anyone about what he was doing to her.
Following the voir dire, the trial court excluded any
testimony by the aunt that defendant raped her or masturbated while
fondling her, but admitted the balance of her testimony. The court
admitted the aunt's testimony for the limited purposes of proving
defendant's “intent, motive, knowledge or lack of accident.” In
addition the court excluded any testimony regarding defendant's
1988 conviction for molesting the aunt. Our resolution of this Rule 404(b) issue is guided by our
holding in Love. In Love, this Court held that a gap of twenty
years between acts of sexual abuse by a defendant perpetrated on
different victims, where the pattern of abuse was similar, did not
make the prior acts of sexual abuse too remote to be admissible at
trial. Moreover, there are similarities between the events
described by the aunt, deemed admissible by the trial court, and
those testified to by B.B. in this case. Defendant rubbed the
chest and genital area of both B.B. and her aunt when they were
each eleven years old. Defendant reached up under the clothing of
both the aunt and B.B. to rub their chests with his hands.
Defendant brought the aunt into his bed at night to fondle her;
defendant had lain down to sleep with B.B. on the floor for the
night when B.B. woke up to find him rubbing her genitals through
her underpants. Defendant told the aunt not to disclose what he
was doing; he also told B.B. not to tell anyone what he was doing
and he told B.B. that her brother and sister might “tell our little
secret.” Given the similarities between defendant's actions with
the aunt and those with B.B., the twenty-two year gap between
defendant's acts of sexual abuse with the aunt and B.B. does not
necessarily make defendant's acts with the aunt too remote to be
admissible. Applying deferential review to the trial court's
decision to admit testimony as we must, Dunn, supra, we conclude
the trial court did not err in admitting the aunt's testimony
pursuant to Rule 404(b). We next consider whether the trial court erred by failing to
exclude the aunt's testimony pursuant to Rule 403.
N.C. Gen. Stat. § 8C, Rule 403 (2005) provides:
Although relevant, evidence may be excluded if
its 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.
The decision to exclude or not exclude relevant but
prejudicial evidence is a matter within the sound discretion of the
trial court and will be reversed only upon a showing that the trial
court abused its discretion. State v. Baldwin, 330 N.C. 446, 456,
412 S.E.2d 31, 37 (1992). We conclude the trial court did not
abuse its discretion in failing to exclude the aunt's testimony
pursuant to Rule 403. See Love, 152 N.C. App. at 615, 568 S.E.2d
at 325. This assignment of error is overruled.
Defendant's remaining assignments of error are without merit.
No error.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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