State Carolina v. Gray

• Decision Date: 05 April 2011
• Docket Number: No. COA10–307.,COA10–307.
• Citation: 709 S.E.2d 477
• Parties: STATE of North Carolinav.Ralph Edward GRAY.
• Court: North Carolina Court of Appeals

709 S.E.2d 477

STATE of North Carolina

v.Ralph Edward GRAY.

No. COA10–307.

Court of Appeals of North Carolina.

April 5, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from judgments entered 11 June 2009 by Judge John G. Caudill in Superior Court, Cleveland County.Heard in the Court of Appeals 12 October 2010.

Attorney GeneralRoy Cooper, by Assistant Attorney GeneralR. Kirk Randleman, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, Durham, for Defendant–Appellant.

McGEE, Judge.

Defendant was indicted by a grand jury on 22 September 2008 on one count of first-degree sex offense and one count of taking indecent liberties with a child.A jury found Defendant guilty of both charges on 11 June 2009.The trial court found Defendant to have a prior record level II, and sentenced Defendant to consecutive active sentences of 288–315 months for the first-degree sex offense and to 19–23 months for taking indecent liberties with a child.

Trial testimony indicated the following: At the time of the alleged incident, the alleged victim (the child) was five years old and lived with her maternal grandparents (the grandparents).The child's uncle also lived with the grandparents.The uncle had befriended Ralph Edward Gray(Defendant), and Defendant and the uncle spent a lot of time together, including time at the grandparents' house.The child's mother testified that she was at the grandparents' house one day in June or July of 2008.As she approached a bedroom in the grandparents' house, she“observed [the child] lying across the bed and ... saw her like kick a leg.I couldn't actually see [Defendant] until I came around the corner; then that's when he jumped back.”The mother clarified that she“couldn't see if [Defendant] was standing or what.All I know is I saw him jump back and I saw her like kick her leg and I came around the corner....And that's all I saw.”The mother then questioned the child about the incident, and the child said that Defendant“was trying to touch her.”The mother testified that the child told her Defendant had touched the child inside her vagina.The child also told her mother that she felt “stinging” in her vaginal area.The mother testified that it was not unusual for the child, or girls in general, to feel “stinging” in that area on occasion.

The mother took the child home with her.The mother kept the shorts, shirt, and underwear that the child had been wearing and did not wash them.The mother subsequently gave those clothes to a detective.The mother gave the child a bath that night after the alleged incident, but did not “notice anything” abnormal while bathing the child.The following morning, the mother called the Children's Clinic in Shelby to have the child “checked out.”

Dr. Charles Hayek(Dr. Hayek) of the Children's Clinic testified that he examined the child on 12 August 2008.Dr. Hayek testified that the child complained “about holding her urine and burning with urination[.]”Dr. Hayek testified that burning with urination was a very common complaint with younger girls and was often the result of improper wiping after urination, which could cause a yeast infection.Dr. Hayek further stated that in the summer, a burning sensation was a particularly common complaint due to the wearing of bathing suits or other wet clothing.When asked by the prosecutor whether a burning sensation was “particularly indicative of sexual abuse[,]” Dr. Hayek answered: “No, ma'am.”The child had previously been treated by Dr. Hayek for the same burning sensation complaint.Dr. Hayek did testify that digital penetration of the child's vagina could have caused the burning sensation.

Dr. Hayek was informed by the mother that the child might have been sexually assaulted the day before.Dr. Hayek asked the child why she was at the Children's Clinic and the child replied that her uncle's friend ¹(the man) had been rubbing her bottom when the child was at the grandparents' house.When asked to show where the man had been rubbing her, the child pointed to both her bottom and her vaginal area.The child also told Dr. Hayek that the man had inserted his finger in her “cat,” which the child identified as her vagina.The child told Dr. Hayek that when that happened, her clothes were on and the man had reached underneath her clothes to touch her.

When Dr. Hayek examined the child, he noticed an injury to her hymen that had healed.He testified that this type of injury would be consistent with “a penetrating injury ... or a stretching.”Dr. Hayek explained that this kind of injury could be consistent with the insertion of a man's finger into a child's vagina, or something else that penetrated the vagina.Dr. Hayek testified that the injury to the child's hymen was consistent with what the child had told him concerning the touching.Dr. Hayek testified that this kind of scarring on the hymen would have led him to report possible sexual abuse even had there been no suspicion of sexual abuse prior to the examination.The scarring Dr. Hayek observed on the child's hymen “would have had to [have] been ... at least several weeks old.”It was not a fresh injury “because it was already healed [.]”The injury could have been sustained as early as October 2005.

Terre Bullock(Bullock) from the Children's Advocacy Center conducted a forensic interview with the child on 28 August 2008.Bullock testified that the child was “very, very smart[,]” and that the child knew “all of her family members and—and could name them.In fact, she could name them faster than I could write.”Bullock also testified that the child “could even tell [Bullock] those that were—that didn't have children yet but had one on the way[.]”

The child testified at trial.The child described the events surrounding the alleged assault in multiple ways, but did not waver in her core testimony that Defendant had touched her inside her vagina.

The jury returned guilty verdicts on both charges on 11 June 2009 and Defendant was sentenced to consecutive active sentences of 288–315 months for first-degree sex offense and 19–23 months for taking indecent liberties with a child.Defendant appealed.Subsequent to the filing of Defendant's notice of appeal, the trial court modified Defendant's sentence for first-degree sex offense to 288–355 months because the original sentence for this charge did not fall within the guidelines of N.C. Gen.Stat. § 15A–1340.17(2009).Additional relevant facts will be discussed in the body of the opinion.

I.

We find Defendant's first argument dispositive.Defendant argues that the trial court committed prejudicial error by admitting evidence that Defendant had sexually assaulted a four-year-old boy eighteen years before the alleged sexual assault in this case.We agree.

The State called as a witness Elizabeth Carroll(Carroll), a retired investigator from the Sheriff's Department of York County, South Carolina.Pursuant to Rule 404(b) of the North Carolina Rules of Evidence, the State sought to admit, through Carroll, evidence that Defendant had “admitted responsibility for conducting lewd or sexual acts with [a four-year-old boy]” in April of 1990.This evidence was supported by records from South Carolina showing that Defendant had been convicted of “assault & battery, high & aggravated nature” in December of 1990.After a voir dire of Carroll, and over Defendant's objection, the trial court allowed the State to present Carroll's testimony for the purposes of proving identity, intent, and a common scheme or plan.

In State v. Carpenter,361 N.C. 382, 646 S.E.2d 105(2007), our Supreme Court reviewed the law governing the admission of evidence of prior crimes or bad acts pursuant to Rule 404(b).In Carpenter, our Supreme Court held that evidence of a 1996 conviction for selling cocaine was improperly admitted in a defendant's trial where the defendant had been charged in 2004 with possession of cocaine with intent to sell.The Court further held that the improper admission of the prior conviction was prejudicial, and ordered a new trial.Id.The Court in Carpenter began with a thorough analysis of Rule 404(b):

North Carolina Rule of Evidence 404(b) provides:

(b)Other crimes, wrongs, or acts.—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.

We have characterized Rule 404(b) as a “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. Coffey,326 N.C. 268, 278–79, 389 S.E.2d 48, 54(1990).However, we have also observed that Rule 404(b) is “consistent with North Carolina practice prior to [the Rule's]enactment.”State v. DeLeonardo,315 N.C. 762, 770, 340 S.E.2d 350, 356(1986);accordState v. McKoy,317 N.C. 519, 525, 347 S.E.2d 374, 378(1986).Before the enactment of Rule 404(b), North Carolina courts followed “[t]he general rule ... that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.This is true even though the other offense is of the same nature as the crime charged.”State v. McClain,240 N.C. 171, 173, 81 S.E.2d 364, 365(1954)(citations omitted);see alsoDeLeonardo,315 N.C. at 769, 340 S.E.2d at 355(“Since State v. McClain ... it has been accepted as an established principle in North Carolina that ‘the State may not offer proof of another crime independent of and distinct from the crime for which defendant is being...