State v. Love

• Decision Date: 03 September 2002
• Docket Number: No. COA01-1275.,COA01-1275.
• Citation: 568 S.E.2d 320,152 NC App. 608
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Darrell LOVE.

568 S.E.2d 320

152 NC App. 608

STATE of North Carolina v. Darrell LOVE.

No. COA01-1275.

Court of Appeals of North Carolina.

September 3, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Diane G. Miller, for the State.

Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, for the defendant-appellant.

WYNN, Judge.

Following his convictions for first degree sexual offense and first degree kidnapping of a female minor, the defendant brings the following issues on appeal of whether the trial court erred by (I) admitting evidence of an alleged sexual act by defendant on the female minor's mother nearly twenty years before the present charge, (II) admitting an officer's testimony concerning a statement he took from the female minor's mother, (III) giving a jury instruction on corroboration regarding the female minor's mother's statement to the officer; (IV) overruling defendant's objections to the admission of statements he made that were not provided to him through discovery, and (V) finding the indictment for first degree sexual offense constitutionally valid. For the reasons stated below, we find no error in his trial.

The State's evidence tended to show that on the evening of 15 July 1999, a six-year-old child was playing outdoors with her brother, two sisters and two cousins. Defendant was nearby and asked the female minor to help him find his dog's collar. After searching for the collar, defendant told the female minor to come and clean his house and told the other children to go home.

Defendant grabbed the female minor's arm and took her into his house. Once inside, defendant pulled down the female minor's pants and panties and performed oral sex on her. Defendant told her not to tell her mother what had happened. Afterwards, the female minor unlocked the door and started walking home, holding a dollar bill that defendant gave her.

In the meantime, the other children went to the female minor's home and told her mother that the female minor was with defendant. As the female minor's mother started walking towards defendant's house, she saw her daughter whom she asked if defendant did anything to her. Initially, the female minor answered no, and stated that defendant wanted her to clean his house. Later, however, the female minor told her mother what defendant did to her; consequently, her mother contacted the police. Following conviction by a jury, the trial court imposed a sentence of 230 months to 285 months for the first degree sexual offense conviction and arrested judgment on the first degree kidnapping conviction.

On appeal, defendant first contends that the trial court committed reversible error by admitting irrelevant and inflammatory evidence of an alleged sexual act by him on the female minor's mother nearly twenty years before the present charge. We disagree.

Under Rule 404(b):

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. Gen.Stat. § 8C-1, Rule 404(b) (2001). Thus, Rule 404(b) allows admission of conduct evidence so long as it is offered for a purpose other than to show that defendant had the propensity to engage in the charged conduct. See State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). Moreover, if specific acts are relevant and competent as evidence of something other than character, they are not inadmissible because they incidentally reflect upon character. See State v. Penley, 6 N.C.App. 455, 466, 170 S.E.2d 632, 639 (1969).

When the evidence is offered for a proper purpose, the ultimate test of admissibility is whether the incidents are sufficiently similar to those in the case at bar and not so remote in time as to be more prejudicial than probative under the Rule 403 test. See State v. Cotton, 318 N.C. 663, 665, 351 S.E.2d 277, 279 (1987). The similarities between the acts do not have to be unique or bizarre; rather, they must tend to support a reasonable inference that the same person committed both acts. See State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Remoteness in time generally affects the weight to be given to the evidence, but not its admissibility. See id. at 307, 406 S.E.2d at 893. Further, remoteness in time is less important when the prior act is used to show intent, motive, knowledge, or lack of mistake. See State v. White, 349 N.C. 535, 553, 508 S.E.2d 253, 265 (1998), cert. denied, 527 U.S. 1026, 119 S.Ct. 2376, 144 L.Ed.2d 779 (1999). "With respect to prior sexual offenses, we have been very liberal in permitting the State to present such evidence to prove any relevant fact not prohibited by Rule 404(b)." State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992).

In the present case, the trial court conducted a voir dire hearing, to determine the admissibility of the testimony of the female minor's mother concerning alleged sexual abuse by defendant After voir dire, the trial court concluded in a written order that the testimony of the female minor's mother was admissible to show the identity of the man who abused her on 15 July 1999, common scheme or plan, or modus operandi, intent on the part of defendant in that he intentionally abused the female minor. The trial court further concluded the testimony was admissible under Rules 403 and 404(b) of the North Carolina Rules of Evidence.

At trial, the mother of the female minor testified, on direct examination over defendant's objection, that when she was about nine years old defendant engaged in sexual acts with her on three or four occasions. She also testified that defendant told her not to tell anyone about the occurrences and that she was scared. The trial court allowed into evidence this testimony to show proof of identity, a common scheme or plan or modus operandi, and intent.

Later in the trial, Lieutenant John Sifford testified and described his interview with the female minor's mother on 17 July 1999. During the interview, she told the officer what defendant did to her when she was a child. The officer took a detailed statement from her and read the statement to the jury without objection. Because this evidence was later admitted by Lieutenant Sifford without objection, defendant has waived any objection he may have previously raised as to its admissibility. See State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989)(benefit of objection lost when same or similar evidence has been admitted or is later admitted without objection); State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 555 (1986) (benefit of defendant's objection to introduction of letter lost when defendant later read from letter).

Even assuming arguendo that defendant did not waive his objection, the trial court did not err in allowing the testimony of the female minor's mother. The evidence presented at trial was substantial, the female minor's testimony was corroborated in part by her mother, siblings, and cousins.

Nonetheless, defendant contends that the acts against the female minor's mother were too remote; he relies on State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988), where our Supreme Court found that a span of seven to twelve years renders a prior sexual act too remote. However, since Jones, our Courts have permitted testimony of prior acts of sexual misconduct which occurred greater than seven to twelve years earlier. See State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (testimony showed that defendant's prior acts of sexual abuse occurred over a period of approximately twenty six years); State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme); State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989) (sexual misconduct occurred during a twenty-year period).

In Frazier, the testimony in question tended to prove that the defendant's prior acts of sexual abuse occurred a over a period of approximately twenty-six years and in a strikingly similar pattern. In the present case, the testimony of the minor female's mother also indicated a strikingly similar pattern of sexual abuse acts by defendant. Both mother and daughter were young children, in each instance, defendant made the victim sit on his face and licked the child's genitalia, and both victims were related to defendant. Moreover, the trial court made the findings in its order that this was similar to the incident involving the child.

Defendant further argues that the evidence at issue does not show that his alleged bad acts constituted a continuous pattern which our courts require. However, in considering the question of a continuous pattern,"[w]hen there is a period of time during which there is no evidence of sexual abuse, the lapse does not require exclusion of the evidence if the defendant did not have access to the victims during the lapse." State v. Frazier, 121 N.C.App. 1, 11, 464 S.E.2d 490, 495 (1995),decision affirmed,344 N.C. 611,476 S.E.2d 297 (1996). Moreover, our Court has found evidence of other crimes committed in an unusual and similar manner admissible. See State v. Wortham, 80 N.C.App. 54, 62, 341 S.E.2d 76, 81 (1986),reversed in part on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987); see also State v. Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427 (1986) (remoteness in time less important when modus operandi so strikingly similar); State v. Lloyd, 354 N.C. 76, 89, 552 S.E.2d 596, 609 (2001) (similar evidence properly admitted to show lack of accident); State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996),cert. denied, 519 U.S. 1098, 117 S.Ct. 781, 136 L.Ed.2d 725 (1996)(ten-year...