STATE OF NORTH CAROLINA
v. Pitt County
Nos. 04 CRS 050602
PHILLIP ERVIN HIGGS, 04 CRS 050603
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Belinda A. Smith, for the State.
Paul T. Cleavenger for defendant-appellant.
WYNN, Judge.
Although evidence may tend to show other crimes, wrongs, or
acts by the defendant and his propensity to commit them, it is
admissible under Rule 404(b) of the North Carolina Rules of
Evidence so long as it also “relevant for some purpose other than
to show that defendant has the propensity for the type of conduct
for which he is being tried.” State v. Morgan, 315 N.C. 626, 637,
340 S.E.2d 84, 91 (1986). In this case, Defendant contends that
the testimony of a witness was improperly admitted under Rule
404(b). As there were substantial similarities between the crime
being charged and the incident the witness testified about, the
trial court did not abuse its discretion in admitting thetestimony.
The State's evidence at trial tended to show the following:
Defendant operated an automotive repair shop in Greenville, North
Carolina, which also served as a local hangout for the children in
the community. The children played at a basketball court behind
the shop and Defendant set up a hotdog stand that he allowed the
children to run. Although Defendant paid for the hotdogs and
supplies to run the stand, he allowed the children to keep all of
the money made at the stand.
The child in this matter was fifteen years old at the time the
offenses occurred. Defendant knew the child because she spent time
at his repair shop and he had mentored her brother in basketball.
On the evening of 10 January 2004, Defendant offered to drive the
child to the home of one of her friends. After driving past the
friend's home and circling back, Defendant stopped his vehicle two
lots before the friend's home. He told the child she was beautiful
and he wanted to ask her a question. The child informed Defendant
she did not want him to ask her a question. Defendant then told
the child not to tell anyone, which prompted her to turn her head
and look at him. When she did so, she saw that Defendant had
pulled his erect penis out of his pants and held it in his hands.
Four additional witnesses, including the law enforcement
officer with the Greenville Police Department who investigated the
incident, testified that the child had informed them that Defendant
had exposed himself to her.
Over Defendant's objection, the State sought to offer evidenceof Defendant's other acts of indecent exposure through the
testimony of Lauren
(See footnote 1)
. After a voir dire hearing, the trial court
ruled that Lauren's testimony was admissible under Rule 404(b) of
the North Carolina Rules of Evidence.
Lauren testified she was sixteen years old at the time of the
offenses against the child. Lauren and her family lived rent-free
in a trailer behind Defendant's house. She was friends with
Defendant's son and spent time at Defendant's repair shop. Lauren
also depended upon Defendant to drive her places. Lauren testified
that on 9 January 2004, Defendant asked her to ride in his vehicle
with him to a store to pick up some automotive parts. On the way
back to Defendant's repair shop, Defendant took his erect penis out
of his pants and masturbated in front of her. On 10 January 2004,
the same day as the incident with the child, Lauren rode with
Defendant in his vehicle to a restaurant. Defendant masturbated in
the vehicle while they were on the way to the restaurant and asked
Lauren to touch his penis. Lauren refused. On 11 January 2004,
Lauren again rode with Defendant in his vehicle to a restaurant.
She testified that Defendant again masturbated in front of her and
asked her to touch his penis while they were in the vehicle. When
she refused to do so, Defendant offered her money to touch his
penis and asked her to pull down her jeans and expose herself.
Lauren refused. At various times when Defendant exposed himself to
Lauren, he told her not to tell anyone. Lauren further testifiedthat several weeks before the incident with Lauren, Defendant
engaged in sexually inappropriate behavior with her including
turning his television to a pornographic channel when Lauren was at
Defendant's house, kissing her while the two were in Defendant's
vehicle, and touching her breast.
On 20 April 2005, a Pitt County jury found Defendant Phillip
Ervin Higgs guilty of indecent exposure and taking indecent
liberties with a child. On 21 April 2005, the trial court entered
judgments sentencing Defendant to sixty days imprisonment for the
offense of indecent exposure and to a suspended sentence of
nineteen to twenty-three months imprisonment for taking indecent
liberties with a child. From the judgments entered, Defendant
appeals.
__________________________________________
In his sole assignment of error, Defendant contends the trial
court committed reversible error in allowing the testimony of
Lauren pursuant to Rule 404(b) of the North Carolina Rules of
Evidence. We disagree.
Rule 404(b) provides in relevant part:
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. Gen. Stat. § 8C-1, Rule 404(b) (2005). The North Carolina
Supreme Court has held that Rule 404(b) is a rule of inclusion.
State v. Lloyd, 354 N.C. 76, 88, 552 S.E.2d 596, 608 (2001) (citingState v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)).
Although evidence may tend to show other crimes, wrongs, or acts by
the defendant and his propensity to commit them, it is admissible
under Rule 404(b) so long as it also “relevant for some purpose
other than to show that defendant has the propensity for the type
of conduct for which he is being tried.” Morgan, 315 N.C. at 637,
340 S.E.2d at 91.
The appellate courts in this State liberally admit evidence
of similar sex offenses to show one of the purposes enumerated in
Rule 404(b). State v. Thaggard, 168 N.C. App. 263, 270, 608 S.E.2d
774, 780 (2005) (citing State v. Scott, 318 N.C. 237, 247, 347
S.E.2d 414, 419 (1986)). Here, the trial court concluded that
evidence of Defendant's acts with Lauren were admissible for the
proper purposes of showing Defendant's motive, plan or scheme. We
agree.
When evidence of a defendant's other sex offenses is offered
for a proper purpose, “the ultimate test for determining whether
such evidence is admissible [under Rule 404(b)] is whether the
incidents are sufficiently similar and not so remote in time as to
be more probative than prejudicial under the balancing test of
N.C.G.S. § 8C-1, Rule 403.” State v. Boyd, 321 N.C. 574, 577, 364
S.E.2d 118, 119 (1988); see also State v. Pruitt, 94 N.C. App. 261,
266, 380 S.E.2d 383, 385, disc. review denied, 325 N.C. 435, 384
S.E.2d 545 (1989). Here, the following similarities exist between
the incidents: (1) young females were involved; (2) Defendant was
more than thirty years older than each of the females; (3)Defendant offered both females rides in his vehicle; (4) Defendant
was involved with each female's family in that he provided a free
home for Lauren's family and provided assistance with basketball to
the child's brother; (5) Defendant exposed his erect penis to both
females while they were in his vehicle; and (6) Defendant told each
female not to tell anyone what he had done. Further, one of the
incidents of indecent exposure involving Lauren occurred on the
same day as the incident involving the child. The other incidents
of indecent exposure involving Lauren occurred with within days of
the incident with the child.
Defendant does not argue the incidents with Lauren were not
sufficiently similar to the incident with the child, nor does he
argue the incidents lacked the necessary temporal proximity.
Rather, Defendant argues the admission of Lauren's testimony unduly
prejudiced him because Lauren's direct testimony covered more pages
in the transcript than the direct testimony of the child and the
acts alleged by Lauren were more egregious than the act alleged by
the child. The admission or exclusion of evidence under Rule 403
“is within the sound discretion of the trial court, and the trial
court's ruling should not be overturned on appeal unless the ruling
was manifestly unsupported by reason or [was] so arbitrary that it
could not have been the result of a reasoned decision.” State v.
Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (citations and
internal quotations omitted), cert. denied, 531 U.S. 1114, 148 L.
Ed. 2d 775 (2001).
Here, before allowing Lauren to testify, the trial courtexcused the jury, heard the voir dire testimony of Lauren to
determine its substance, and then considered arguments of counsel
before overruling Defendant's objection to the admission of
Lauren's testimony. Further, the trial court gave a limiting
instruction to the jury regarding Lauren's testimony. Although the
trial court did not make a specific finding that the probative
value of the evidence outweighed its prejudicial effect, the
procedure that was followed demonstrated the trial court conducted
the balancing test under Rule 403 of the North Carolina Rules of
Evidence. As such, we conclude the trial court did not abuse its
discretion in allowing Lauren's testimony. See State v.
Washington, 141 N.C. App. 354, 367, 540 S.E.2d 388, 397-98 (2000),
disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001) (holding
the trial court did not abuse its discretion in failing to make a
specific finding that the probative value of the evidence
outweighed its prejudicial effect where the procedure that was
followed demonstrated the trial court conducted the balancing test
under Rule 403).
We conclude Defendant had a fair trial, free from prejudicial
error.
No error.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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