State v. Frazier

• Citation: 464 S.E.2d 490,121 N.C.App. 1
• Decision Date: 05 December 1995
• Docket Number: No. COA94-1140,COA94-1140
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. John Billy FRAZIER.

Page 490

464 S.E.2d 490

121 N.C.App. 1

STATE of North Carolina v. John Billy FRAZIER.

No. COA94-1140.

Court of Appeals of North Carolina.

Dec. 5, 1995.

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

EAGLES, Judge.

I.

Defendant first argues that the trial court violated Rule 404(b) by admitting the testimony of the State's witnesses Kathy (Susie) Barnes, Vickie Brewer Wright, and Patricia A. Bryant. G.S. 8C-1, Rule 404(b) provides in part:

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.

Rule 404(b) is a rule of inclusion of relevant evidence of prior bad acts unless the only reason the evidence is offered is to show the defendant's propensity to commit a crime like the act charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990); State v. Matheson, 110 N.C.App. 577, 581, 430 S.E.2d 429, 431 (1993); State v. Faircloth, 99 N.C.App. 685, 689, 394 S.E.2d 198, 201 (1990). Here, the State argues that the three witnesses' testimony was admissible to demonstrate a common plan or scheme by defendant to sexually abuse adolescent female family members.

One of the three witnesses whose testimony was offered to show a common plan was Kathy (Susie) Barnes (hereinafter Susie), one of Polly's daughters and the stepmother of L. and S. The State's evidence tended to show that Susie first remembered seeing defendant when she was approximately four years old (approximately 1964) after defendant married her mother. When Susie was sixteen, defendant remarked that he could not wait until she fully developed. After she began "filling out," defendant started "feeling" Susie around her waist, breasts, buttocks, and vagina. Though Susie was still in the fifth grade when she turned sixteen, she quit school. Thereafter, she was often alone with defendant while her mother, Polly, worked. On occasion after Susie quit school, defendant kissed Susie "[i]n the mouth [and] on the face." Susie lived with an aunt for a year while defendant and Polly traveled with defendant's company. Defendant and Polly returned when Susie was seventeen and defendant resumed touching her inappropriately. He told her that "[h]e just wanted to be [her] boyfriend if [she] wanted him to."

Susie married her first husband when she was twenty and lived with him until she was twenty-one. Their son was born shortly after she separated from her husband. Susie had no money so she lived with defendant and Polly in Florida until 1983. During this time, defendant told Susie "[h]e would like to f--- [her]." In 1983 or 1984 after Susie married her second husband, the father of L. and S., defendant paid a substantial portion of their expenses. In return for his financial contributions, defendant said Susie needed to show him "some affection" or he would take her son away from her. Susie, her husband, and L. and S. lived in a trailer near defendant and Polly's trailer. Eventually, defendant had sexual intercourse with Susie in the back bedroom of his trailer while her husband was at work, her children were at school, and her mother was gone. Defendant threatened to have Susie's stepdaughters sent away and raise her son himself if she told anyone.

Patricia A. Bryant (hereinafter Patricia), Susie's sister and Polly's other daughter, also testified for the State. She stated that defendant often intervened on her behalf when her mother would start to whip or beat her. As she got older, defendant began kissing her on the mouth instead of on the cheek. Patricia testified that on one evening when she was twelve or had just turned thirteen (approximately 1966), defendant got into the shower as she was taking her shower and began caressing her. He then placed her arms on the wall, lifted her leg, and had sex with her in the shower. Patricia had previously been sexually abused by her grandfather who had always told her to be submissive, so she was completely submissive with defendant. Defendant made it clear to Patricia that if she told anyone, he would not protect her from her mother anymore. Patricia eventually attempted to commit suicide. When Patricia awoke in the hospital, her mother, Polly, told her that if she revealed the abuse to anyone, she would send her away to an insane asylum. Thereafter, Patricia stayed away from defendant and spent a lot of nights with her brother Larry and his wife, Vickie Brewer Wright (hereinafter Vickie).

Vickie was the third witness whose testimony was offered to show a common plan by defendant to sexually abuse adolescent female family members. She was twelve when she first met the defendant. In 1964 when she was fourteen, she married defendant's sixteen-year-old son, Larry Frazier. While the couple were newlyweds, they lived with defendant and Polly. Vickie testified that she looked up to defendant because he took care of her and Larry financially. She also stated that defendant had a "hold over [her]" because he showed her the attention that her husband and father never did. Approximately one week before her first child was born, she and Larry moved in with defendant's sister for a short time. Vickie and Larry then moved into their own home. Defendant began stopping by every evening to see how the baby was. Vickie testified that one day when she was fifteen and her husband was at work, defendant led her into the bedroom and had sexual intercourse with her. After Larry began working third shift, defendant dropped by Vickie's house "a lot of mornings" between five and six and he would have sexual intercourse with her. Vickie testified that she did not want for it to happen, but that she "was too young and afraid to say anything about it." This conduct continued for approximately two years until Vickie finally confided in Patricia.

"North Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges." State v. Jacob, 113 N.C.App. 605, 608, 439 S.E.2d 812, 813 (1994), citing State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990). To be admissible as showing a common plan, the evidence of prior conduct must be similar and not too remote in time. State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988), appeal dismissed and disc. review denied, 328 N.C. 95, 402 S.E.2d 423 (1991).

Defendant first argues that the testimony by Susie and Vickie should not have been admitted because it was not sufficiently similar to the conduct for which defendant stood trial. A prior act or crime is "similar" if it " 'tend[s] to support a reasonable inference that the same person committed both the earlier and later acts.' " State v. Sneeden, 108 N.C.App. 506, 510, 424 S.E.2d 449 451 (1993) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994). In Sneeden, 108 N.C.App. at 510, 424 S.E.2d at 451, this Court found that a 1967 prior act by defendant was sufficiently similar to the 1990 charged act where in both instances, "defendant gained the trust of his victims, lured them into an automobile and then took them to a different location where they were sexually assaulted." Here, all five females testified that defendant looked after them when they were young and began his misconduct by touching them and fondling them. Defendant began to touch them more invasively as they grew older. Defendant had sexual intercourse with all but one of them. Defendant convinced each of them to remain quiet about the abuse by threatening to send them away or by threatening to stop taking care of their financial needs. Based on Sneeden, we conclude the evidence of prior acts of sexual abuse by defendant was sufficiently similar to the acts described by L. and S. to be admissible at trial. All of the witnesses testified to similar forms of abuse which demonstrated a distinct pattern over a protracted period. While Susie's testimony that defendant forced her to have sex with him when she was twenty-four did not precisely parallel the testimony of the other witnesses, we hold that the conduct was not so dissimilar as to render it not part of defendant's pattern of sexual conduct with youthful female family members.

Defendant also argues that the testimony of Susie, Vickie, and Patricia was too remote in time to be admissible. 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 man against his stepdaughter. In Jones, the court held that the testimony of a female who stated she had previously been subjected to similar sexual abuse by the defendant was inadmissible because the prior sexual abuse had occurred seven years earlier and was too remote in time. Jones, 322 N.C. at 591, 369 S.E.2d at 825. Jones does not control here.

Since Jones, our courts have permitted testimony of prior acts of sexual misconduct which occurred greater than seven years earlier. In State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989), our Supreme Court held it was not error for the trial court to admit the testimony of sisters of the victim where the sisters testified that their father had also sexually abused them. There, the defendants' prior sexual misconduct with the sisters occurred during a twenty year period. Shamsid-Deen, 324 N.C. at 447, 379 S.E.2d at 848.

Here, the testimony offered by Susie, Patricia, and Vickie showed that defendant's prior acts of sexual abuse occurred over a period of approximately twenty six years.

While a lapse of time between instances of sexual misconduct slowly erodes the commonality between acts and makes the probability of an ongoing plan more tenuous, the continuous execution of similar acts throughout a period of time has the...