State v. Bagley

• Decision Date: 02 December 1987
• Docket Number: No. 637PA86,637PA86
• Citation: 362 S.E.2d 244,321 N.C. 201
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bruce BAGLEY.

Page 244

362 S.E.2d 244

321 N.C. 201

STATE of North Carolina v. Bruce BAGLEY.

No. 637PA86.

Supreme Court of North Carolina.

Dec. 2, 1987.

Lacy H. Thornburg, Atty. Gen. by Laura E. Crumpler, Asst. Atty. Gen., Raleigh, for the State.

Thomas F. Loflin, III, Durham, for defendant-appellant.

MITCHELL, Justice.

The defendant contends on appeal that the trial court erred in permitting the State to introduce evidence tending to show that he committed a separate sexual offense unrelated to the first-degree sexual offense for which he was on trial and in instructing the jury with regard to such evidence. He also argues that the trial court erred in failing to permit the jury to consider verdicts for certain lesser included offenses. The defendant further argues, inter alia, that the trial court committed "plain error" in its instructions to the jury. We find no error.

The defendant was tried upon a proper indictment for first-degree sexual offense. The jury returned a verdict finding the defendant guilty as charged of first-degree sexual offense in violation of N.C.G.S. § 14-27.4. The trial court entered judgment sentencing the defendant to the mandatory sentence of life imprisonment. The defendant gave notice of appeal to this Court. On 12 September 1984, the trial court appointed the defendant's trial counsel to represent him on appeal. Counsel failed to perfect the appeal, however, and on 3 October 1986, the Superior Court, Durham County removed him as attorney for purposes of perfecting this appeal. At the same time, Thomas F. Loflin, III, was appointed as attorney of record for the defendant for the purpose of seeking appellate review of the defendant's trial and conviction. He immediately filed a petition for writ of certiorari on the defendant's behalf, which was allowed by this Court on 5 November 1986.

The evidence for the State tended to show, inter alia, that on 26 March 1984, the victim, an adult female, met the defendant Bruce Bagley while playing a video game at a place called "Go-Speedio." The defendant requested that she give him a ride to the North Hyde Park area of Durham, and she complied. On the way, she stopped at a 7-11 store where the defendant bought seventy-three cents worth of gas which he pumped into her station wagon. When the victim and the defendant arrived at a house pointed out by the defendant as their destination, the defendant grabbed the victim around the neck and pulled a knife. The victim and the defendant scuffled, and the victim was cut on the hand. The defendant used graphic terms in telling the victim that he did not want to hurt her but only wanted to perform cunnilingus upon her. Fearing the defendant would hurt her further with the knife, the victim stopped struggling. At that point, the defendant performed cunnilingus upon her against her will.

The victim told the defendant they would have more room in the back seat of the station wagon. She testified that she did this in the hope that she could escape if they got out of the vehicle. The victim and the defendant then got in the back seat. In order to make more room, the defendant took the spare tire from the rear of the station wagon and put it in the front seat. At that point, the prosecutrix took the opportunity to unlock her door and escape, although the defendant grabbed for her and cut her on the foot.

The victim went to a house nearby and remained there for about five minutes while she told the residents what had occurred. She then went back to her vehicle accompanied by the man of the house. From there she drove to a 7-11 store and called the police.

The State also introduced evidence tending to show that the defendant had attempted to commit a similar sexual offense against one Foster on 10 June 1984. The defendant chased her until she fell. He told her that he had a knife and wanted to commit cunnilingus upon her, but he fled when other men came to the scene.

The defendant offered evidence in the form of his own testimony. He testified that he and the victim left "Go-Speedio's" to "get high" at a friend's house. After making the gasoline purchase, the defendant asked the victim to have sex with him. He paid her $20.00 which she put "down in her top." They then drove to the defendant's friend's house, but the friend was not home.

The defendant testified that the victim agreed to engage in sex with him. When asked by his trial counsel if he did anything of a sexual nature to the victim, the defendant testified that "we's foreplayin', kissin', and whatnot, and when we got ready to get in the back seat, she just started actin' funny. So, that's--that's when I took my money back." The defendant testified that the victim offered no resistance until they got in the back seat. At that point she acted as though she did not want to touch him and said she had to go. The defendant put his hand in her blouse and got his money. She then got out of the car and was "raisin' hell" and called the defendant "some names."

The defendant denied that he had any weapon. He admitted kissing the victim on her legs and thigh, but denied committing cunnilingus upon her. He said that the only threat he made of any kind was to tell the victim: "Give me my money back, bitch." The defendant also denied having ever seen the witness Foster or knowing anything about the attempted sexual offense against her, which she described as occurring after the offense for which the defendant was on trial.

The defendant first assigns as error the trial court's action in overruling his motion in limine and admitting into evidence testimony of the witness Foster that the defendant had attempted to commit a sexual offense against her some ten weeks after the offense for which the defendant was on trial This assignment is without merit.

The defendant first argues in support of this assignment that the evidence was not admissible under N.C.G.S. § 8C-1, Rule 404(b)--North Carolina Rules of Evidence--to show identity of the defendant as the perpetrator of the offense charged. Because identity was not at issue, the defendant is correct in asserting that the challenged testimony was not admissible for that purpose. We conclude, however, that it was admissible under Rule 404(b) for other purposes, and that the trial court properly instructed the jury to limit its consideration of the testimony to those purposes.

The pertinent part of Rule 404 is as follows:

(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.

N.C.G.S. § 8C-1, Rule 404(b) (1986).

The list of permissible purposes for which such evidence may be introduced as set forth in the statute is not exclusive, and "the fact that evidence cannot be brought within a [listed] category does not necessarily mean that it is inadmissible." State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). "In fact, as a careful reading of Rule 404(b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused." State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986) (quoting 1 Brandis on North Carolina Evidence § 91 (2d rev. ed. 1982)) (emphasis added). " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. § 8C-1, Rule 401 (1986). Thus, even though 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 "is 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) (emphasis in original).

More directly to the point, perhaps, "this Court has been markedly liberal in admitting evidence of similar sex offenses by a defendant for the purposes now enumerated in Rule 404(b)." State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987) (identity). Such evidence is relevant and admissible under Rule 404(b) if the incidents are sufficiently similar and not too remote.

The question before us, then, is whether the testimony of the witness Foster was relevant to some fact or issue other than the character of the defendant. We conclude that it was, and that it was properly admitted by the trial court.

In the present case, the evidence tended to show that the defendant approached the victim in the early morning hours and asked her to give him a ride to Hyde Park. Once they arrived there, the defendant grabbed the victim, pulled a knife from his pocket and stated repeatedly, "[y]ou see this knife, you see this knife; I want you to be stayed still." The defendant took off the victim's shoes and panties and began "messing" with her legs by kissing and licking them. He told the victim he was not going to hurt her and said: "The only thing I want to do is eat your pussy." He then performed cunnilingus upon her.

Foster's testimony as to the defendant's other crime, wrong, or act tended to show that the defendant accosted her in the Hyde Park area. He had something yellow and pointed in his hand, but she could not tell whether it was a knife. She fled the defendant until she fell, at which point he caught her and held her down. She testified that: "He was lickin' me. I said wait a minute, hold it. I was tryin' to talk this fool off of me, you know, and he--kept sayin', I got--I got a knife." He then told her to pull her pants down and said "all I want to do is eat you,...." He continued to...