State v. Harris

• Decision Date: 03 October 2000
• Docket Number: No. COA99-1081.,COA99-1081.
• Citation: 535 S.E.2d 614,140 NC App. 208
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jimmie Lee HARRIS.

535 S.E.2d 614

140 NC App. 208

STATE of North Carolina v. Jimmie Lee HARRIS.

No. COA99-1081.

Court of Appeals of North Carolina.

October 3, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General Joyce S. Rutledge, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

LEWIS, Judge.

Defendant was indicted on 6 April 1998 for one count of second-degree rape, one count of second-degree kidnapping, one count of second-degree sexual offense, one count of crime against nature, and for being an habitual felon. He was subsequently tried at the 19 October 1998 Criminal Session of Buncombe County Superior Court. On 22 October 1998, the jury returned a verdict of guilty as to all the substantive offenses, except that, as to the crime against nature charge, the jury only found defendant guilty of attempted crime against nature. Defendant thereafter pled guilty to the status of being an habitual felon. The trial judge then sentenced defendant to three consecutive life sentences without the possibility of parole, plus an additional term of 120 days, also to be served consecutively. Defendant now appeals, bringing forth six arguments.

At trial, the State's evidence tended to show the following. On 24 July 1996, while she was visiting a friend's house, the victim asked defendant, who was also there visiting, for a ride to a car she was borrowing. The car was not there when they arrived, so defendant promised the victim they would return later to check on the car after they stopped by his house. After going by his house, defendant retrieved some marijuana from the back of his truck and then stopped off to purchase some beer. The victim told defendant she did not mind if he smoked marijuana when he asked her. Defendant drove to a cemetery and smoked some marijuana, while the victim drank some of the beer.

After smoking the marijuana at the cemetery, defendant became aggressive and began making sexual advances towards the victim, who asked him to stop and tried to push defendant away. Ultimately, however, her efforts were to no avail, as defendant forcibly penetrated the victim, both digitally and with his penis. Having done these acts, defendant "acted like he hadn't done anything" and "went back to the casual attitude that he had before any of it started." (1 Tr. at 53). Defendant told the victim he would take her wherever she wanted to go. She asked to be taken to her friend's house.

The victim's friend convinced her to go to the hospital and report the attack. An Asheville police officer testified a rape kit was taken so that it could be sent to the State Bureau of Investigation laboratory for investigation. A Reserve Deputy from Buncombe County Sheriff's Department later clarified the rape kit was never actually sent to the laboratory because there was no suspect kit for comparison since the defendant could not be located until a year and a half later.

Defendant first contends the trial court improperly admitted evidence of his two prior rape convictions, in violation of Rule 404(b). Specifically, the State presented as witnesses C and I, who each testified to being raped by defendant in 1991 and 1994, respectively. The trial court admitted this testimony to show lack of consent by the victim involved here and to show a common plan or scheme.

Rule 404(b) prohibits the introduction of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show he acted in conformity therewith. N.C.R. Evid. 404(b). However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation or plan. Id. This Court has previously pointed out that "the list of exceptions contained in Rule 404(b) is not exclusive and that extrinsic evidence of conduct is admissible if `relevant for [any ] purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.'" State v. Pruitt, 94 N.C.App. 261, 266, 380 S.E.2d 383, 385 (quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)), disc. review denied, 325 N.C. 435, 384 S.E.2d 545 (1989). Moreover, in cases involving prior sex offenses, including rape, our courts have been markedly liberal in the admission of 404(b) evidence. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989),vacated on other grounds, 494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990).

We first consider whether the evidence of defendant's prior rapes was admissible to show the victim's lack of consent. Earlier cases within our State suggested that evidence of prior rapes was admissible to show the victim's lack of consent. See, e.g., State v. Parish, 104 N.C. 679, 690, 10 S.E. 457, 461 (1889) (allowing evidence of prior rape on same victim to show lack of consent); State v. Gainey, 32 N.C.App. 682, 685, 233 S.E.2d 671, 673 (allowing evidence of prior rape on another victim to show, among other things, lack of consent), disc. review denied, 292 N.C. 732, 235 S.E.2d 786 (1977). However, more recent cases have established that this is not a proper purpose under Rule 404(b), especially if a different victim was involved in the prior rape. See, e.g., State v. Bailey, 80 N.C.App. 678, 681, 343 S.E.2d 434, 436 (1986)

("[E]vidence of other non-consensual activity would not be relevant on the question of [the victim's] consent."); State v. Pace, 51 N.C.App. 79, 83-84, 275 S.E.2d 254, 256-57 (1981) (disallowing evidence of prior rape on another victim to show lack of consent). Pursuant to this more recent authority, the testimonies of C and I were thus inadmissible to show the victim's lack of consent, and the trial court erred by admitting them for that purpose.

We next consider whether this evidence was admissible to show a common plan or scheme. "When evidence of the defendant's prior sex offenses is offered for the proper purpose of showing plan, scheme, system, or design ... the `ultimate test' for admissibility has two parts: First, whether the incidents are sufficiently similar; and second, whether the incidents are too remote in time." State v. Davis, 101 N.C.App. 12, 18-19, 398 S.E.2d 645, 649 (1990), disc. review denied, 328 N.C. 574, 403 S.E.2d 516 (1991). Both parts are satisfied here. As to the first requirement, defendant displayed similar behavior here in comparison to his actions in the two prior rape cases. Specifically, in each situation, defendant befriended the women, took them to a secluded place, pinned the women down, became aggressive with them, sexually assaulted and raped them and afterwards acted like nothing had happened. And as to the second requirement, the two- and five-year gaps between the prior rapes and the present one are not so remote in time as to render the evidence inadmissible, especially considering defendant spent some of this time in prison after pleading guilty to these rapes. See id. at 20, 398 S.E.2d at 650 (holding ten-year-old conviction not too remote in time when defendant spent majority of this time in prison). We thus conclude the testimonies of C and I were admissible to show a common plan or scheme.

Furthermore, because the evidence was admissible for a proper purpose (to show a common plan or scheme), the trial court's error in admitting that same evidence for an improper purpose (lack of consent) is rendered non-prejudicial. See State v. Haskins, 104 N.C.App. 675, 683, 411 S.E.2d 376, 383 (1991)

("Although it is error to admit other crimes evidence for a purpose not supported in the evidence, the error cannot prejudice defendant when the same other crimes evidence is admitted for a purpose which is supported in the evidence."), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992). We thus reject defendant's first argument.

Defendant next argues the trial court erred in submitting the offense of second-degree kidnapping for the jury's consideration because there was insufficient evidence of the element of confinement or restraint. Kidnapping, whether in the first or second degree, requires the unlawful restraint or confinement of a person for the purpose of committing a felony. N.C. Gen. Stat. § 14-39(a)(2) (1999). The unlawful restraint must be an act independent of the intended felony. State v. Mebane, 106 N.C.App. 516, 532, 418 S.E.2d 245, 255,disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). Thus, here, defendant's restraint of the victim must have been independent of the alleged rape, second-degree sex offense, or crime against nature. The test of the independence of the act is "whether there was substantial evidence that the defendant[ ] restrained or confined the victim separate and apart from any restraint necessary to accomplish the acts of rape[, statutory sex offense, or crime against nature]." Id. We conclude there was sufficient evidence of an independent act here.

Significantly, the requisite restraint need not be accomplished solely by physical force. State v. Murphy, 280 N.C. 1, 6, 184 S.E.2d 845, 848 (1971). It may also be accomplished by trickery or by "fraudulent representations amounting substantially to a coercion of the will" of the victim. Id. Here, the evidence permitted a reasonable inference that defendant fraudulently coerced the victim into remaining with him in the car so that he could drive to a secluded place (the cemetery), get high on marijuana, and then sexually assault her. In other words, the requisite restraint here was not defendant's subsequent assault of the victim but his initial act of coercing her to go to the cemetery. We therefore conclude the trial court did not err in submitting the second-degree kidnapping charge to the jury. See also State v. Sexton, 336 N.C. 321, 364-65, 444 S.E.2d 879, 903-04

(stating element of restraint was satisfied when defendant used trickery in order to get a ride from the victim), cert. denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994); ...