State v. Carpenter, COA00-1416.

• Decision Date: 04 December 2001
• Docket Number: No. COA00-1416.,COA00-1416.
• Citation: 147 NC App. 386,556 S.E.2d 316
• Parties: STATE of North Carolina v. Kam Richard CARPENTER.
• Court: North Carolina Court of Appeals

556 S.E.2d 316

147 NC App. 386

STATE of North Carolina v. Kam Richard CARPENTER.

No. COA00-1416.

Court of Appeals of North Carolina.

December 4, 2001.

Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defenders Mark D. Montgomery and Anne M. Gomez, for defendant-appellant.

MARTIN, Judge.

Defendant was charged, in proper bills of indictment, with five counts of taking indecent liberties with children and with three counts of first degree sexual offense. A jury found him guilty as charged. Defendant appeals from the judgment entered upon the verdicts.

Briefly summarized, the State's evidence at trial tended to show that sometime after 1 August 1994, B.J.D., the alleged victim, (hereinafter "Bobby") accompanied his mother to her alcohol treatment classes and met defendant, his mother's fellow classmate. Defendant told Bobby's mother that he did ministry work and that he often spent time with children on the weekends taking them camping and doing various church activities with them. Shortly thereafter, Bobby, who was approximately eleven years old at the time, began spending weekends with defendant. When Bobby stayed at defendant's residence overnight, he would sleep with defendant in defendant's water bed. Bobby testified that on the second weekend that he stayed with defendant, defendant performed fellatio on him in defendant's bedroom. Bobby was lying on his back naked while defendant was kneeling on the floor. Bobby also testified that defendant rubbed KY Jelly on his penis and ejaculated on the floor.

After Bobby's mother had a violent fight with her boyfriend with whom she was living, she and Bobby moved in with defendant. Bobby slept with defendant in defendant's bed while his mother slept in the living room. Bobby testified that after he moved in with defendant, the sexual abuse became more frequent, occurring every night and every day. These acts of abuse included Bobby performing fellatio on defendant, defendant performing fellatio on Bobby in the shower, defendant performing anal intercourse on Bobby, and defendant kissing Bobby on the mouth with his tongue. Additionally, Bobby testified that while riding in defendant's vehicle, defendant would periodically put his hand into Bobby's pants and feel Bobby's penis. Defendant begged Bobby not to tell anybody about these acts of abuse so that he would not have to return to prison. Bobby did not report the alleged abuse until May 1997, during an interview with Mecklenburg County police officers.

Bobby testified that he thought of defendant as his father, especially since he had never met his biological father. Defendant apparently considered Bobby as his son since he introduced him as "Bobby Carpenter." During the relationship, defendant took Bobby camping, to Carowinds, to the water park, to Celebration Station, and taught Bobby how to shoot a rocket.

Bobby and his mother lived with defendant for three or four months, until they moved out in 1995 to live with the mother's new boyfriend in Rock Hill, South Carolina. After moving to Rock Hill, Bobby continued to spend time with defendant on the weekends. Bobby, his mother, and her boyfriend lived in Rock Hill for about a year and then moved to Greensboro. Defendant remained in contact with Bobby after the move. Bobby described a specific incident in which defendant picked him up at his bus stop one morning in Greensboro and put him in the back of his van. Defendant drove to a wooded area, parked, and then, while in the back of the van, pulled Bobby's pants down and lay on top of Bobby placing his penis between Bobby's legs.

While living in Greensboro, Bobby's mother admitted Bobby into Charter Hospital three times for anger and behavior problems. While in Charter Hospital the first time in February 1997, Bobby was diagnosed as having unspecified psychosis with hallucinations and major depression. Prior to Bobby's second hospitalization at Charter Hospital in June 1997, Bobby had expressed suicidal wishes and had grabbed his stepfather by the throat. During this second hospitalization, the hospital became aware of and provided therapy to address the alleged sexual molestation. Bobby was diagnosed with recurrent major depression. He was admitted to Charter Hospital for a third time in July 1998 after taking an overdose of his medications; he was diagnosed again with recurrent major depression. After this third hospitalization, the Department of Social Services placed Bobby in foster care since his mother refused to pick him up.

There was evidence at trial that Bobby had a history of lying. Bobby testified that his mother wanted him to stay with defendant on weekends because she was having a hard time with him since he was lying and stealing. Bobby contacted the Department of Social Services and told them that his mother beat him up but he admitted at trial that he had lied about the incident. Additionally, Bobby testified that his mother made him go to Charter Hospital because he was lying and kept running away and was stealing. Bobby also admitted that he lied in group therapy several times while in Charter Hospital. In fact, one of his therapy goals was to "... discuss how [his] lies affect other people." In addition, Bobby admitted to lying under oath in juvenile court.

During the trial, Quentin Holton and Thomas Williams each testified that defendant had sexually abused them. Quentin lived with his mother, his mother's boyfriend and the boyfriend's family when the alleged sexual abuse occurred. Defendant, who was living nearby at the time, approached the family posing as a Bible student, and offered to take Quentin, Thomas, and Thomas's brother Ray to church. Defendant took the boys to church, took them to toy stores, and shot bottle rockets with them in the park.

Quentin described an incident that occurred while Quentin was at his older brother's home with defendant. According to Quentin, defendant took him by the arm and pulled him into defendant's bedroom. Defendant placed his hand down into Quentin's shorts and fondled his penis. Quentin testified regarding another act of abuse which occurred while he, defendant, and Holton's brother were at Celebration Station. While Quentin's brother went to the bathroom, defendant took Quentin outside to defendant's van, where he stuck his hand inside Quentin's shorts and felt his penis. Defendant told Quentin not to tell anyone. At the time of the alleged abuse, March 1996, Quentin was in the second grade and was eight years old.

Thomas Williams was living with his grandmother at the time he met defendant. Thomas testified that on several occasions defendant would stick his hand into Thomas' pants and touch his genitals. On trips to toy stores with Quentin, Thomas, and Ray, defendant would drop Quentin and Ray off while he and Thomas would go find a parking space. Thomas described one incident in particular when he and defendant were alone in the Toys `R Us parking lot when defendant fondled his penis. On a different occasion, the evidence tended to show that defendant pulled Thomas into the back of his van when it was parked beside defendant's house and touched Thomas' genitals. Defendant told Thomas not to tell anybody about what had occurred. The alleged abuse took place during the summer before Thomas entered the second grade in 1995 or 1996.

Defendant did not offer evidence.

I.

Defendant first assigns error to the admission of evidence concerning prior alleged acts of sexual misconduct by defendant. Evidence of prior acts is not admissible to prove the character of the accused in order to show that he had the propensity to act in conformity with the crime charged. N.C. Gen.Stat. § 8C-1, Rule 404(b) (1999). Such evidence "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." Id. The North Carolina Supreme Court has held that Rule 404(b) is a general rule of inclusion. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1380, 149 L.Ed.2d 305 (2001). Additionally, North Carolina's appellate courts have been "markedly liberal in admitting evidence of similar sex offenses to show one of the purposes enumerated in Rule 404(b)." State v. Scott, 318 N.C. 237, 247, 347 S.E.2d 414, 419 (1986) (citations omitted). However, in order for evidence of prior acts to be relevant and admissible under Rule 404(b), the acts must be sufficiently similar to and not too remote from the incident for which defendant is currently on trial. State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988).

In the present case, the State offered testimony from Quentin Holton and Thomas Williams regarding defendant's prior acts of sexual misconduct with them, to show that defendant had a motive for the commission of the crime charged, that defendant had the necessary intent, and there existed in the mind of defendant a plan, scheme, system or design involved in the crime charged in the case. There are numerous similarities between the testimony of Bobby, Quentin, and Thomas. For example, all three boys were in the custody of single women when they were allegedly abused and defendant used ministry and church activities as an excuse for spending time with them. Additionally, defendant did similar activities with the boys—shot off rockets in the park and visited amusement parks. The places where the sexual abuse occurred and the manner allegedly used by defendant were also common factors; defendant allegedly abused the children in either his bedroom or his vehicles. Further, defendant fondled all three boys' genitals by slipping his hand into their pants or shorts and defendant asked all three boys not to tell anyone about the incidents.

The...