State v. Jacob

• Decision Date: 15 February 1994
• Docket Number: No. 9221SC1311,9221SC1311
• Citation: 439 S.E.2d 812,113 N.C.App. 605
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff-Appellee, v. Wilbur Harry JACOB, Jr., Defendant-Appellant.

Page 812

439 S.E.2d 812

113 N.C.App. 605

STATE of North Carolina, Plaintiff-Appellee, v. Wilbur Harry JACOB, Jr., Defendant-Appellant.

No. 9221SC1311.

Court of Appeals of North Carolina.

Feb. 15, 1994.

Atty. Gen., Michael F. Easley by Special Deputy Atty. Gen., Henry T. Rosser, Raleigh, for the State.

Wilson, DeGraw & Johnson by Thomas A. Fagerli, Winston-Salem, for defendant appellant.

COZORT, Judge.

Defendant Wilbur Harry Jacob, Jr., was convicted of two counts of first-degree statutory rape. Defendant appeals the judgments entered 23 July 1992, contending (1) the trial court erred in denying defendant's motion in limine to suppress the introduction of evidence of the molestation of one of defendant's other daughters; and (2) the trial court erred in sentencing defendant to consecutive terms of life imprisonment. We conclude defendant received a fair trial free from prejudicial error.

At trial the State's evidence included testimony by defendant's daughter, "A.J.," who testified to three acts of sexual intercourse between her and her father when she was ten years old. A.J. testified that on each occasion, her father came into her room, forced her to pull down her pants and lie face down on the bed, and raped her. A.J. did not come forth with accusations that defendant had sexual intercourse with her until her older stepsister, B.L., revealed that B.L. had been sexually molested by defendant when she was nine years old. When the accusations by B.L. came to light, A.J.'s mother confronted A.J., who admitted that defendant had sexually molested her.

Dr. Michael Lawless, an expert in pediatrics, testified that he examined A.J., and, in his opinion, she had been sexually molested. Dr. Lawless based his opinion not only on his physical examination, but also on A.J.'s story, "what she said, how she told it," and because the injury pattern was "consistent with sexual molestation."

B.L. testified that she was the victim's stepsister. B.L., who was twenty-two years old at the time of trial, testified that she experienced flashbacks to when her father abused her as a young girl. B.L. testified that her dreams triggered memories of her father coming into her bedroom, putting her face down on the bed, and then "when I got up to use the bathroom it would burn." She testified that the only statement she remembered him making was that "when I started my period he'd have to stop." As a result, B.L. told her mother that she had started her menstrual period when she was nine years old, when in actuality, she began menstruating at age eleven.

Toni Southern testified that she was defendant's daughter and B.L.'s younger sister. Ms. Southern testified that during visits with their father when the girls were nine or ten years old, he would climb into bed with them. Ms. Southern stated that on one such occasion, "I was against the wall and I had my leg over [B.L.'s] and once he got in the bed he pushed my leg off of hers and whenever--that's all that I remember but whenever he left the room, she was crying and then after we had got up there was blood on the sheets."

Defendant testified denying all allegations of sexual abuse.

Defendant first contends the trial court erred in denying defendant's motion in limine to suppress the evidence of molestation of defendant's daughter B.L. Specifically, defendant objected to the introduction of evidence of prior bad acts pursuant to N.C.R. Evid. 404(b), alleging the events were too remote in time to the acts which were the subject of this prosecution. Defendant also alleges that, even if the testimony was admissible under Rule 404, its probative value was outweighed by its prejudicial effect, in violation of N.C.R.Evid. 403.

N.C.Gen.Stat. § 8C-1, Rule 404(b) permits evidence of other crimes, wrongs or acts to be introduced to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. North Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges. State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990). Evidence of other similar sexual offenses may be admitted to show a common scheme or plan to molest children. See, i.e., State v DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986); State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982), rev'd on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983).

In the present case, pursuant to State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), prior to admitting the evidence, the trial court conducted a voir dire of B.L. to determine the admissibility of her testimony. The trial court subsequently made the following findings of fact:

(1) [B.L.] is the daughter of the defendant by his previous wife Vicky Hilton.

(2) [B.L.] was living in the same home as the defendant during her prepubescent years.

(3) During the time that [B.L.] was living in the home, the defendant was an adult male in a position of authority.

(4) There came a time at night when the defendant came into the bedroom where [B.L.] was situated. He put her on her stomach, pushed the leg of Toni Southern off of [B.L.] and thereafter took such liberties with her person that blood was observable on the sheets when she got up and that she burned when she urinated after such contact.

(5) The defendant came by night into the bedroom clad only in his underwear.

(6) The defendant told [B.L.] he would have to stop when she started her period.

(7) The defendant's words and deeds were such that [B.L.] was afraid and had dreams as a result.

(8) This type of activity took place on more than one occasion.

(9) Approximately one year ago in July, [B.L.] disclosed to her mother Vicky Hilton, then divorced from the defendant, that "daddy had molested her when she was young several times."

(10) These assaults by the defendant took place when [B.L.] was nine or ten years old but she was not menstruating at the time.

(11) [B.L.'s] sister Toni Southern was in the bedroom when the defendant entered on one occasion and recalls the defendant pushing her leg off of [B.L.]. She observed [B.L.] crying after the defendant had been there and observed blood on the sheets when [B.L.] got up although the defendant did not touch her (Toni Southern) at that time.

(12) At the time he assaulted [B.L.] and at the time he assaulted [A.J.], the defendant harbored a common plan and scheme to molest his minor prepubescent daughters by way of initiation and instruction in sexual intercourse and to take sexual advantage of them as a result.

(13) The defendant confirmed his ongoing plan to molest his minor prepubescent daughters and his unnatural disposition toward them in a conversation with Alma Shore when he stated to her "when my daughters get old enough to know about love, he was going to be the one to teach them."

(14) This on-going plan and scheme to molest his minor prepubescent daughters and his unnatural disposition toward them existed at the time he assaulted [B.L.] and thereafter carried over and continued unabated and undiminished during the interval of time between the last assaultive episode against [B.L.] and the start of the first of the assaultive behavior against [A.J.].

Based on the foregoing findings, the trial court concluded that the evidence was admissible to show a common plan or scheme by defendant to molest his prepubescent daughters and to disclose the defendant's unnatural lust on his part toward his daughters, which remained unabated and undiluted by the passage of time. The trial court further concluded that the ongoing plan or scheme transcended the time between the last assaultive episode against B.L. and the time of the first assaultive behavior toward the victim, since the plan was for defendant to be the first individual to initiate sexual intercourse with his daughters whenever, in his eyes, they came of age.

In McCarty, a case with facts similar to the case at bar, our Supreme Court found no error where the victim's twenty-two-year-old stepsister testified that the defendant father had molested her from the time she was nine years old until she was 18. The Court determined that the testimony was admissible to show a scheme or plan by defendant to molest his stepdaughter and daughter. McCarty, 326 N.C. at 785, 392 S.E.2d at 361. In order to be admissible, evidence of prior sexual misconduct admitted to show a common plan or scheme must be sufficiently similar in nature and not too remote in time. State v. Davis, 101 N.C.App. 12, 19, 398 S.E.2d 645, 649 (1990), disc. review...