STATE OF NORTH CAROLINA
v. Forsyth County
No. 05 CRS 60128
DAVID TODD KNOWLES
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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