State v. Frazier

• Decision Date: 11 October 1996
• Docket Number: No. 17A96,17A96
• Citation: 476 S.E.2d 297,344 N.C. 611
• Parties: STATE of North Carolina v. John Billy FRAZIER.
• Court: North Carolina Supreme Court

Page 297

476 S.E.2d 297

344 N.C. 611

STATE of North Carolina v. John Billy FRAZIER.

No. 17A96.

Supreme Court of North Carolina.

Oct. 11, 1996.

Michael F. Easley, Attorney General by Sondra C. Panico, Associate Attorney General, for State.

Steven F. Bryant, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was found guilty of ten counts of taking indecent liberties with a child and two counts of first-degree rape. The trial court sentenced him to two consecutive life sentences. The victims were his two adolescent stepgranddaughters, identified here as L.B. and S.B.

At trial, fourteen-year-old L.B. testified that defendant began touching her inappropriately on her breasts and buttocks when she was nine or ten. Defendant sexually molested her several times a week when no one else was present. When L.B. was ten years old, defendant raped her. He raped her a second time when she was between the ages of eleven and twelve. L.B. testified that on occasion, defendant would give her money and buy her candy, telling her it was for helping him out. She further testified that she did not tell anyone because defendant had threatened to send her away if she did.

Eventually, L.B. confided to her cousin that defendant had been sexually abusing her. This disclosure occurred after Polly, defendant's wife, took L.B. to a doctor who told them L.B. needed to be on birth control pills. L.B. also told her sister, S.B., who stated that defendant had "messed with her" as well. L.B. then disclosed the sexual abuse to a school psychiatrist and a police detective.

Sixteen-year-old S.B. also testified at trial. She stated that defendant sexually molested her two or three times a week from the time she was thirteen years old until she was fifteen. Defendant would kiss her on the lips, fondle her breasts, and put his hands down her pants. S.B. stated that during the time period over which defendant abused her, defendant gave her money, bought her things, and taught her how to drive his truck. S.B. testified that defendant told her not to tell anyone about the sexual activity.

Over defendant's objection, the trial court admitted the testimony of three other female members of defendant's family who recounted how defendant had sexually abused them when they were young. This testimony is the subject of defendant's first assignment of error. Defendant argues that the trial court violated Rule 404(b) of the North Carolina Rules of Evidence by admitting the testimony of these witnesses.

The first witness, one of Polly's daughters and the stepmother of L.B. and S.B., testified that she first met defendant around 1964 when she was approximately four years old, after defendant married her mother. When she was sixteen and began "filling out," defendant started "feeling" her around her waist, breasts, buttocks, and vagina. On occasion, defendant kissed her "in the mouth [and] on the face." She lived with an aunt for a year while defendant and Polly traveled with defendant's company. Defendant and Polly returned when the witness was seventeen, and defendant resumed touching her inappropriately.

This witness married her first husband when she was twenty and lived with him until she was twenty-one. Their son was born shortly after they separated. In 1983 or 1984, after she married her second husband (the father of L.B. and S.B.), defendant paid many of their expenses. In return for his financial contributions, defendant told her she needed to show him "some affection" or he would take her son away from her. Eventually, defendant had sexual intercourse with her while her husband was at work, her children were at school, and Polly was away. Defendant threatened to have S.B. and L.B. sent away and to raise her son himself if she told anyone about the sexual incidents.

The second witness, the first witness's sister and Polly's other daughter, also testified for the State. She stated that when she was young, defendant would kiss her on the mouth instead of the cheek. In approximately 1966, when she was twelve or thirteen, defendant got in the shower with her and began caressing her. He then placed her arms on the wall, lifted her leg, and had sexual intercourse with her in the shower. Defendant made it clear to her that if she told anyone, he would no longer protect her from the beatings Polly often gave her.

The third female family member to testify against defendant stated that she first met defendant when she was twelve years old because she and the second witness were good friends. When she was fourteen, she married Larry Frazier, defendant's sixteen-year-old son. The couple had a baby a short time later. Defendant began stopping by daily to check on the baby. When the witness was fifteen, defendant pulled her into the bedroom and had sexual intercourse with her while Larry was at work. Thereafter, Larry began working the third shift, and defendant came by almost every morning between five and six o'clock to have sexual intercourse with her. She testified that she did not want this to happen but that she was too young and afraid to say anything. This conduct continued for approximately two years until she finally told the second witness about it.

Rule 404(b) provides:

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) (1992). 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. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988). Here, the State argues that the three witnesses' testimony was admissible to demonstrate the existence of a common plan or scheme by defendant to sexually abuse adolescent female family members. The test for determining whether such evidence is admissible is whether the incidents establishing the common plan or scheme are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403. State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988).

Defendant contends that the testimony of these three witnesses was inadmissible to prove the existence of a common plan or scheme because the prior acts are alleged to have occurred over a time period of seven to twenty-seven years before the trial for the present charges. They are therefore too remote in time to be relevant or probative. In making this argument, defendant relies on State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988), a case involving alleged sexual abuse by a stepfather against his stepdaughter. In Jones the defendant was charged with first-degree rape and taking indecent liberties with a minor. The State presented the testimony of a female who stated that she had been subjected to similar sexual acts by defendant approximately seven years earlier. This Court held that the prior acts of sexual misconduct were too remote in time to be admissible under Rule 404(b). For the reasons that follow, we hold that Jones does not control here and that the trial court properly admitted the testimony in question.

This Court has been liberal in allowing evidence of similar offenses in trials on sexual crime charges. State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990). Subsequent to Jones, it has permitted testimony as to prior acts of sexual...