State Carolina v. Brown

• Decision Date: 03 May 2011
• Docket Number: No. COA09–1693.,COA09–1693.
• Citation: 710 S.E.2d 265
• Parties: STATE of North Carolinav.Henry Eugene BROWN.
• Court: North Carolina Court of Appeals

710 S.E.2d 265

STATE of North Carolina

v.Henry Eugene BROWN.

No. COA09–1693.

Court of Appeals of North Carolina.

May 3, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from judgments entered 17 July 2009 by Judge Dennis J. Winner in Jackson County Superior Court. Heard in the Court of Appeals 18 August 2010.

Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defendant Kristen L. Todd, for Defendant.

STEPHENS, Judge.

Factual and Procedural Background

On 31 October 2005, Defendant Henry Eugene Brown (“Brown”) was indicted on one count of indecent liberties with a child and one count of first-degree sex offense with a child.¹ Brown was tried before a jury at the 13 July 2009 Criminal Session of Jackson County Superior Court, the Honorable Dennis J. Winner presiding. The evidence presented by the State at trial tended to show the following: Brown and his wife have three children, Sally, the victim in this case, Frank, and Jessica.² Sally, the oldest, was ten years old at the time of trial. Sally testified that, during September 2005, Brown took her into his bedroom, removed her clothes, got on top of her, and put his “worm” inside her “private” and moved up and down. She then demonstrated what had happened with dolls. Sally identified pictures she had drawn of herself and her parents illustrating her mother's “kitty” and her father's “worm.” Sally stated that this event only happened once. She said that she had reported this event to her mother and her teacher Dorothy Coone (“Coone”) and that she later spoke with a social worker and the police. After reviewing her drawings on redirect examination, Sally indicated that her sister Jessica was on the floor when the event occurred and that when she held her father's penis she could see her mother's breasts. Several health care and counseling professionals who had met with Sally corroborated Sally's story by testifying as to what Sally had told them. Dr. Cynthia Brown (“Dr. Brown”), a child abuse specialist who examined Sally, testified that she found no physical evidence of vaginal or anal penetration, but that finding no evidence of penetration was not inconsistent with a report of sexual abuse, particularly after a lengthy passage of time. Coone testified that Sally had been telling fifth grade boys that her father had raped her.

Amanda Parker (“Parker”), a friend of Brown's wife whom the Browns used as a caretaker, testified that sometime in early fall 2005, Brown's wife showed Parker “Family Letters,” an erotic publication containing anonymous “letters” purporting to describe the correspondents' sexual experiences with other family members. Graphic illustrations accompanied the “letters.” Although the publication upset Parker, she continued to take care of the children.

During the weekend of 25 September 2005, Parker and her sister took the Browns' children to Asheville for a weekend outing to the fair and mall. Because their outing finished late in the evening, they spent the night at a motel room. While watching a movie in their motel room, Sally told Parker that her father sexually abused her. A discussion between Parker, her sister, and all three children followed. Upon their return to Jackson County on 27 September 2005, Parker reported the abuse allegations to Kim Davis (“Davis”), a foster care social work supervisor at the Jackson County Department of Social Services (“DSS”). The report triggered an immediate DSS investigation.

Davis and Detective Celeste Holloman (“Detective Holloman”) went to the children's school to interview them. Initially, the statements they received from Sally were consistent with the reported conversations the children had with Parker. After interviewing the children at school, Davis and Detective Holloman went to the Browns' home to inform the Browns of the allegations and explain the available custody options. Detective Holloman and Davis were allowed into the Browns' home and Detective Holloman received permission from the Browns to search the premises. Brown's collection of adult erotic literature, including Family Letters, was seized during the search. Detective Holloman testified that Brown told her that Family Letters belonged to the Browns.

Brown moved the court to exclude Family Letters from evidence, but the trial court denied Brown's motion and admitted Family Letters as evidence of Brown's “intent or motive with respect to the alleged crimes.” The trial court contemporaneously instructed the jury that they could consider the publication only if the jury found the publication relevant to Brown's motive or intent to commit the charged crimes.

At the close of the State's evidence, the trial court dismissed the first-degree sex offense charge. Brown then took the stand and denied having any sexual contact with Sally and denied ownership of Family Letters. Brown claimed DSS and other agencies had coached Sally into making the allegations against him and presented evidence of a conversation between Sally and Davis in which Sally stated that her friends told her to lie about what happened and that Brown had not sexually abused her. At the time of the conversation, Sally was living with friends of Brown, and his wife and Brown did not have custody of Sally. Joyce Freeman, Brown's mother-in-law, testified that when Sally was in her care, Sally stated that her friends told her to lie about sexual abuse and that no such abuse had occurred. James Freeman, Joyce Freeman's husband, testified that he had heard Sally recant on a different occasion.

At the close of all evidence, Brown was convicted of indecent liberties with a child and first-degree rape. Brown was sentenced to 240 to 297 months on the first-degree rape charge and 13 to 16 months on the indecent liberties charge, which sentences were to run consecutively. Brown was also ordered to register as a lifetime sex offender and to enroll in satellite-based monitoring (“SBM”) upon his release from prison. Brown gave timely oral notice of appeal.

Discussion

I. Trial

On appeal, Brown first argues that the trial court erroneously “allowed into evidence the ‘Family Letters' book because it was irrelevant, inadmissible character evidence and substantially more prejudicial than probative.” Brown contends that because “there was no evidence that [he] ever showed the ‘Family Letters' book, or any type of pornographic material, to [Sally,]” “[t]he ‘Family Letters' book was not[ ] relevant to any issue other than [Brown's] character, and should have been excluded” under North Carolina Rule of Evidence 404(b).

Rule 404(b) provides that while 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,” such evidence is 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) (2009). In this case, the trial court denied Brown's motion in limine to exclude Family Letters because the court found the evidence to be “circumstantial evidence” “bear[ing] upon [Brown's] intent and motive [ ] with respect to the alleged crimes.” On appeal, however, Brown argues that denial of his motion was error because evidence that a defendant “simply possessed pornographic materials” is inadmissible under Rule 404(b) absent “evidence that the defendant used the materials during the perpetration of the alleged offense or showed the materials to the victim at or near the time of the crimes.” We disagree. That such evidence is inadmissible under Rule 404(b) absent the existence of such limited circumstances is a misapplication of the rule.

“Rule 404(b) is ‘a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, 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. Locklear, 363 N.C. 438, 447, 681 S.E.2d 293, 301–302 (2009) (quoting State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990)) (emphasis in original). Accordingly, rather than evidence of possession of pornography being generally inadmissible under Rule 404(b) unless the pornography was shown to the victim or involved in the commission of the offense, evidence of possession of pornography is generally admissible if it provides relevant “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).

In arguing that Family Letters was inadmissible because it was not shown to Sally or was not “used in the commission of the offense,” Brown relies on previous decisions by this Court holding that evidence of possession of pornography, or evidence of deviant sexual conduct, was inadmissible because the evidence in each case did not serve an appropriate Rule 404(b) purpose. See State v. Bush, 164 N.C.App. 254, 595 S.E.2d 715 (2004) (evidence of the possession of pornography); State v. Smith, 152 N.C.App. 514, 523, 568 S.E.2d 289, 295 (evidence of defendant's possession of pornographic materials), disc. review denied, appeal dismissed, 356 N.C. 623, 575 S.E.2d 757 (2002); State v. Doisey, 138 N.C.App. 620, 626, 532 S.E.2d 240, 244–45 (2000) (evidence that defendant placed a camcorder in a bathroom used by children and others which taped the activities in the bathroom); State v. Maxwell, 96 N.C.App. 19, 24, 384 S.E.2d 553, 556–57 (1989) (evidence that defendant frequently appeared nude in front of his children and fondled himself in the presence of his adopted daughter). ³ However, these holdings, in light of the inclusive nature of Rule 404(b), cannot be read to create any broadly-applicable rule with respect to the...