State v. Godfrey

• Decision Date: 18 December 2018
• Docket Number: No. COA18-565,COA18-565
• Parties: STATE OF NORTH CAROLINA v. JOSEPH HARLON GODFREY
• Court: North Carolina Court of Appeals

STATE OF NORTH CAROLINA v. JOSEPH HARLON GODFREY

No. COA18-565

COURT OF APPEALS OF NORTH CAROLINA

December 18, 2018

Caldwell County, No. 17 CRS 50087

Appeal by defendant from judgment entered 8 December 2017 by Judge Gregory R. Hayes in Caldwell County Superior Court. Heard in the Court of Appeals 31 October 2018.

Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J. Weese, for the State.

Gillette Law Firm PLLC, by Jeffrey W. Gillette, for defendant-appellant.

ZACHARY, Judge.

Defendant Joseph H. Godfrey appeals from a judgment entered upon a jury verdict finding him guilty of first-degree sex offense with a child. Defendant argues that his guilty verdict resulted from the trial court having improperly allowed the jury to hear evidence of his prior bad acts, and that therefore he is entitled to a new trial. We find no error.

Background

Defendant is the victim's uncle by marriage. In December 2016, the victim reported to the Caldwell County Sheriff's Office that Defendant had sexually assaulted her "many times" when she was a child, including a final incident that took place on or about 1 May 2004 when the victim was twelve years old (the "May 2004 incident"). This was the first time that the victim had told anyone about the assaults. According to the victim, she decided to come forward in 2016 because "[i]t was brought to [her] attention . . . that there was someone within the family, at a young age, that was groped." Detective Roger Crosby was assigned to the case.

In an attempt to obtain evidence to corroborate the victim's account some twelve years after the fact, the victim "volunteered to the idea of placing a recording device upon her person and approaching [Defendant] at his residence . . . in order to get him to have a casual conversation about what happened to her when she was young." Detective Crosby agreed to this plan, which the victim successfully executed on 5 January 2017. The victim recorded Defendant making various incriminating statements, and Defendant was thereafter arrested and indicted for one count of first-degree sex offense with a child, specifically for the May 2004 incident. Defendant was tried before a jury beginning on 4 December 2017.

At trial, the victim testified that Defendant had served as her "sole care provider" during childhood while her father was incarcerated for fifteen years and her mother "worked two and three jobs to support [the victim and her] brother." In May 2004, the victim was staying with Defendant at his home and was twelve years old. The victim recalled that she was outside playing with her cousins and that whenshe ran inside to grab something to drink, Defendant came up to her, stuck his hands in each of her pockets, and pulled her into the laundry room. The victim testified that Defendant "removed my clothing. He removed my underwear. He removed my pants. And he set me up on top of his washing machine." According to the victim, Defendant then "chose to use his middle finger . . . on his hand, and insert[ed] it in my vagina." This happened for "a few minutes" until the victim "started to freak out on [Defendant]," because he had "pulled his finger out" and "his pants all the way down," which the victim believed meant that he was about to rape her. At that point the victim kicked Defendant and ran. As she ran out of the front door, she fell and broke her wrist. The victim testified that she began crying and that a few moments later Defendant came up behind her and asked her what was wrong. The victim did not remember anything further about the incident.

The victim was able to estimate the date on which the May 2004 incident occurred based on the date that the doctor treated her broken wrist, which was just before her brother's birthday. The victim also testified that she kept getting urinary tract infections after the incident, but that she never told anyone why because she "was scared and . . . had nobody that [she] felt like [she] could trust." The victim testified that there was no further sexual contact between her and Defendant after the May 2004 incident.

In addition, the victim testified concerning the "bed incident," which occurred about a month or two prior to the May 2004 incident, but was not charged in Defendant's indictment. The victim testified that she stayed the night at Defendant's house and was sharing a bed with her younger cousin, Defendant's daughter. While her cousin was asleep, Defendant "comes and crawls in the . . . bed where I am, to be beside of me . . . . And he started feeling on my legs, and at that time, he stuck his middle finger in my vagina." This lasted "a few minutes" and afterward she "freaked out, just as I always do. I got up and ran towards the kitchen area . . . and he went to the bathroom that was closest to the bed, to wash his hands." She did not tell anyone about that incident because, she explained, "I was scared. And once again, I didn't have anyone that I actually trusted that would believe me."

The trial testimony of the victim included another incident that she claimed occurred about two years earlier, when the victim was staying with Defendant at his place in Lick Mountain (the "Lick Mountain incident"). That incident was not charged in Defendant's indictment. The victim explained the Lick Mountain incident as follows:

If I'm not mistaken, I did have strep, and I had a high fever and a very nauseous stomach. And I'd asked him repeatedly to call my mother to come get me, and he would not do so. He started wrest—like, he started off tickling me on the floor, and he went to, like, wrestle around with me and carried me to his bed.

When Defendant got her to his bed, "[h]e, once again, penetrated my vagina with his middle finger." The incident lasted "just a few minutes" and she did not tell anybody about it because she "didn't have trust that people would believe [her]."

Detective Crosby's report following the victim's initial statement did not include any indication that the victim had disclosed that digital penetration occurred during the May 2004 incident. Defendant's daughter—with whom the victim said she was sharing a bed during the bed incident—also testified at trial. Defendant's daughter testified that she had no recollection of anything similar to what the victim had testified to, and that

I'm a very light sleeper, and I think if she would have got up and run like she said, I would have definitely woke up. I had a little, single-size bed that my grandmother gave me. It's a day bed, and so I could barely fit in it, let alone if she was with me, my dad. No way could he have fit.

The State also offered the audio recording and transcript of the seventy-five minute conversation between the victim and Defendant into evidence. The victim eventually prompted Defendant to talk about their earlier sexual encounters by telling Defendant that "I wish we would have, like, done more." When she asked what he remembered, Defendant responded, "[t]he first hand [ride] you ever took." The victim and Defendant proceeded to talk about the May 2004 incident, the bed incident, and the Lick Mountain incident, each of which Defendant said he remembered. Later in the conversation, Defendant told the victim that he "had a holedrilled in th[e] wall" at his Lick Mountain house and "used to watch [the victim] take showers" in order to see her digitally penetrating herself. The victim also testified at trial about watching pornography with Defendant on multiple occasions prior to the May 2004 incident, during which Defendant "would put my hand on his erected penis." Defendant admitted in the recorded conversation that he remembered watching pornography with the victim when she was young.

Defendant repeatedly objected to the introduction of evidence of the bed incident and the Lick Mountain incident, as well as various portions of the recorded conversation. Defendant argued that the challenged evidence must be excluded under Rule 404(b) of the North Carolina Rules of Evidence because it was being offered to influence the jury "to simply convict him based on all of the other allegations that he's not charged with." Additionally, Defendant argued that the circumstances surrounding the May 2004 incident and the circumstances surrounding the two other incidents were not sufficiently similar and were too remote in time from one another, thus rendering the admission of this evidence unduly prejudicial under Rule 403. The State, however, argued that the prior incidents were admissible under Rule 404(b) because they were being offered to show "a common plan or scheme," rather than Defendant's propensity to commit the charged offense. The State noted that each of the incidents involved digital penetration, all occurred "in a very compact area oftime," and that the victim's young age "show[ed] the escalation for grooming" for sexual acts.

The trial court concluded that Defendant's prior acts could be admitted for the proper purpose of showing, inter alia, that Defendant had a "common plan or scheme" to digitally penetrate the victim. The trial court found that both of the earlier incidents were sufficiently similar to, and not too remote in time from, the May 2004 incident for which Defendant was on trial. The court concluded that while the prior acts were "of course prejudicial," they were "more probative on the issue of whether or not . . . there was a common plan or scheme and whether or not that relates to the 2004 incident." The trial court therefore admitted evidence of each of the prior acts into evidence. The trial court repeatedly instructed the jury that it was to consider the evidence of Defendant's prior acts solely for the limited purposes for which the evidence was offered.

The jury found Defendant guilty of first-degree sex offense with a child on 8 December 2017. Defendant was sentenced to 288 to 355 months' imprisonment based on the sentencing provisions in effect in 2004. Defendant gave oral notice of appeal in...