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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA06-1351


Filed: 5 June 2007


     v.                             Forsyth County                                     No. 05 CRS 60128

    Appeal by defendant from judgment entered 5 May 2006 by Judge Andy D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 26 April 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Lauren Clemmons, for the State.

    Paul F. Herzog for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals judgment entered consistent with a jury verdict finding defendant guilty on second-degree sexual offense charges and sentencing defendant to 60 to 81 months' imprisonment.
    On 31 October 2005, David Todd Knowles (“defendant”) was indicted for one count of second-degree sexual offense, one count of assault on a female and one count of assault by strangulation. On 3 May 2006, a jury trial was commenced in Forsyth County Superior Court in which the State presented the following evidence:
    In August of 2005, both Tara Greer (“Ms. Greer”) and defendant were employed by Sun State Security at Winston Towers. Ms. Greer was also a student at Gardner-Webb University and often asked defendant to fill in for her at work in order to go to school full-time and fulfill her internship requirements. Defendant agreed to work for Ms. Greer on 8 August 2005, and she received a call on Saturday 6 August 2005 from defendant stating that he needed to borrow her access key card in order to work for her on Monday because he had loaned his card out to another coworker. Ms. Greer and defendant arranged for Ms. Greer to bring the key card to defendant at his house on Saturday, 6 August 2005.
    When Ms. Greer arrived at defendant's residence, defendant invited her upstairs to give her a true crime book to read. Once Ms. Greer entered defendant's room, defendant closed, locked and began to push a large chair against the door. Defendant then grabbed Ms. Greer by the shoulder and arms and threw her onto his bed. Defendant then took off Ms. Greer's pants and began touching her while he held her arms back against her will. Ms. Greer was screaming and in response to her screams, defendant would choke her. Defendant then straddled Ms. Greer and forced her to perform oral sex on him. During the course of the events, Ms. Greer was screaming and crying and at some point, in an attempt to protect herself, she bit defendant several times on his hands. Defendant then attempted to perform anal sex on Ms. Greer, but before he could do so, she persuaded him to let her off the bed in order to strip for him.
    Once defendant let Ms. Greer off the bed, she attempted to get out of the door but defendant grabbed her. Ms. Greer again offered to “bend over” for defendant and while he masturbated, she was able to escape from the room. Defendant was able to catch up with Ms.Greer before she was able to make it down the stairs, but after biting him and grabbing him, she was able to get away.
    The State introduced photographs at trial depicting injuries to Ms. Greer's neck and lip and bruises on her arm as a result of the attack on her by defendant. Ms. Greer testified that she did not consent to defendant throwing her on the bed, putting his hands on her body or putting his penis in her mouth. At trial, Ms. Greer identified defendant as the man who attacked her.
    Corporal Dobey testified that he took Ms. Greer's statement on the day of the incident and further independently investigated the events. When Corporal Dobey went to defendant's residence to speak with defendant, he observed a bite wound on defendant's left index finger, bite marks on defendant's thumb, bloody marks on defendant's middle finger, and a fresh scratch on his forearm. Defendant gave Corporal Dobey his recounting of the events in which he alleged that Ms. Greer came to his house to trade oral sex for drugs. He stated that during the course of the events he became too rough with her, forcefully grabbing her head, and that Ms. Greer became upset and told him to stop. When he would not stop, she bit him.
    Corporal Dobey testified on direct examination, without objection by defendant, that he searched defendant's room with the permission of defendant in which he observed videotapes with covers depicting naked men and women engaged in sexual acts and magazines with naked men and women on the cover. Doris Johnson, defendant's landlord, also testified that, when defendant moved out, she had toclean his room and in the process found magazines and videotapes with naked men and women on the covers. Ms. Johnson further identified several true crime books as books coming from defendant's room, and such books were admitted into evidence over the objection of defendant.
    At trial, defendant testified on his own behalf in which he reiterated that Ms. Greer came to his house on 6 August 2005 to trade oral sex for Vicodin pills as she had done before. Defendant stated that Ms. Greer offered to perform a strip tease for him and then began performing oral sex. Defendant testified that at some point during the oral sex, he and Ms. Greer fell onto the floor and that she bit him several times. He further testified that he had been too rough with her during the sexual encounter and had lost control.
    On cross-examination, the State questioned defendant, over his objection, regarding the titles of his true crime books. The jury returned a guilty verdict on the charge of second-degree sexual assault and a verdict of not guilty on the charges of attempted second-degree rape and second-degree kidnapping. The trial court entered judgment sentencing defendant to 60 to 81 months' imprisonment. Defendant appeals.
    Defendant contends on appeal that the trial court erred, or in the alternative committed plain error, in admitting evidence of the existence of pornographic tapes and magazines in defendant's room through the testimony of Corporal Dobey in violation of the Rules of Evidence.     A review of the transcript reveals that defendant failed to object at trial to the testimony of Corporal Dobey regarding magazines and videotapes which depicted naked men and women engaged in sexual acts on the covers. Because counsel failed to object to the testimony at trial, we review any error under a plain error standard. See State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (applying plain error standard even when alleged error was constitutional).
    Plain error is “error 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). “'[P]lain error' does not simply mean obvious or apparent error[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). Our Supreme Court has explained that the plain error rule must be applied cautiously and only in exceptional cases where, “'after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.”'” State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999) (citations and emphasis omitted).
Under Rule 401 of the North Carolina Rules of Evidence, “'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to thedetermination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005). As a general rule, evidence of a defendant's prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion. See N.C. Gen. Stat. § 8C-1, Rule 404(a) (2005). However, such evidence of prior conduct is admissible so long as it is relevant to some purpose other than to show the character of the defendant and the defendant's propensity for the type of conduct for which he is being tried. See State v. Rael, 321 N.C. 528, 534, 364 S.E.2d 125, 129 (1988); State v. Doisey, 138 N.C. App. 620, 626, 532 S.E.2d 240, 244, disc. review denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 1177, 148 L. Ed. 2d 1015 (2001). Examples of such proper purposes include “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).
    This Court held in State v. Smith, that “[e]vidence of defendant's mere possession of pornographic materials does not tend 'to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.'” State v. Smith, 152 N.C. App. 514, 522, 568 S.E.2d 289, 294 (citation omitted), disc. review denied, appeal dismissed, 356 N.C. 623, 575 S.E.2d 757 (2002). However, even assuming arguendo that such evidence was admitted in violation ofthe Rules of Evidence, such error cannot be said to amount to plain error where it is improbable that the exclusion of such evidence would have resulted in the jury reaching a different verdict.
    The jury found defendant not guilty of attempted second-degree rape and second-degree kidnapping but found defendant guilty of second-degree sexual assault under N.C. Gen. Stat. § 14-27.5 (2005). Under N.C. Gen. Stat. § 14-27.5 one is guilty of a second- degree sexual offense where they engage in “a sexual act with another person: (1) [b]y force and against the will of the other person[.]” N.C. Gen. Stat. § 14-27.5(a)(1). The State presented evidence at trial through the testimony of Corporal Dobey showing that defendant admitted that he became violent and forceful, grabbing Ms. Greer's head during the commission of oral sex; that she became upset and asked him to stop; and that when he failed to desist, she bit him. In light of defendant's own admission to Corporal Dobey that he forcefully engaged in oral sex with Ms. Greer against her will, it cannot be said that the exclusion of evidence regarding magazines and videotapes depicting sexual images would have resulted in the jury reaching a different verdict.
    Further defendant's landlord, Ms. Johnson, testified, without objection by defendant, that after defendant moved out of his room, she boxed up items he left behind, including magazines and tapes which depicted naked people on the covers and sleeves. State v. Wingard, 317 N.C. 590, 599, 346 S.E.2d 638, 644 (1986) (“It is a well-settled rule that 'if a party objects to the admission of certain evidence and the same or like evidence is later admittedwithout objection, the party has waived the objection to the earlier evidence.'”) (citation omitted). Therefore, this assignment of error is overruled.
    Defendant further contends that the trial court erred, or in the alternative committed plain error, in allowing the State to cross-examine defendant regarding the titles of nine true crime books found in defendant's room.
    The record reveals that the State cross-examined defendant regarding true crime books admitted previously into evidence during the State's case-in-chief by eliciting the titles to the books. The State elicited the title to each of the books in a separate question to defendant regarding whether each book was his and whether he had an interest in the books. The State elicited the following titles of books which defendant admitted he possessed: When She Was Bad, The Killers Next Door, Little Lost Angel, Body Dump, Innocent Prey, Fatal Error, The Sunset Murders, Deadly Deception and Murder Most Rare. Counsel for defendant objected to the admission of evidence regarding the first two titles of the book, however the following seven were admitted without any objection by defendant.
    We accordingly review the error set forth by defendant under the plain error standard as articulated, supra. It cannot be said that the admission of such evidence would have likely resulted in the jury reaching a different verdict. The evidence of defendant engaging in a sexual act with Ms. Greer by force and against her will remains plenary. Further, defendant has not assigned error tothe admission of the actual true crime books into evidence, and therefore it appears that he has waived any right to assert any error with regard to the titles of the books being received into evidence. Therefore, this assignment of error is overruled.
    Accordingly, we hold that defendant received a trial free from prejudicial error.
    No prejudicial error.
    Judges BRYANT and STROUD concur.
    Report per Rule 30(e).

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