State v. White
| Decision Date | 12 May 1997 |
| Docket Number | R,C-1 |
| Citation | 135 N.C. App. 349,520 S.E.2d 70 |
| Court | North Carolina Court of Appeals |
| Parties | (N.C.App. 1999) STATE OF NORTH CAROLIN v. TAUREAN WHITE, Defendant. NO. COA98-1315 Filed: 19 October 1999 Appeal by defendant from judgments entered 18 December 1997 by Judge J. B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 9 September 1999. In May 1997, thirteen-year-old Taurean White (defendant) lived with his parents at 4101 Willow Oak Road in Raleigh, North Carolina. Nine-year-old Rema Sider lived with her sixteen-year-old brother Mikey and their mother two houses down the street from defendant. From 1993 to 1997, Mikey and defendant were friends and often visited each other in their respective family homes. On 12 May 1997 Rema arrived home from school around 3:55 p.m. None of her family was home when she arrived. Rema went upstairs to get a drink of water, and on her way back downstairs, defendant "popped out" in front of her with a knife in his hand. Rema thought defendant was playing around, and she told him to leave. Defendant refused and forced her to pull her pants down. Defendant then "put his penis in private." Defendant was convicted of first-degree rape and non-felonious breaking or entering. An active sentence of not less than 192 months nor more than 240 months on the charge of first-degree rape was imposed on the fourteen-year-old defendant. The trial court continued judgment on the charge of non-felonious breaking or entering. Defendant appealed to this Court, assigning error. Attorney General Michael F. Easley, by Assistant Attorney General Teresa L. Harris, for the State. Cheshire, Parker, Schneider, Wells & Bryan, by Joseph B. Cheshire, V, and Bradley J. Bannon, for defendant appellant. HORTON, Judge. Defendant argues that the allegation of sexual assault against Dominique was not admissible under Rule 404(b) of the North Carolina Rules of Evidence. The Rule provides, in pertinent part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show tha |
Appeal by defendant from judgments entered 18 December 1997 by Judge J. B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 9 September 1999.
In May 1997, thirteen-year-old Taurean White (defendant) lived with his parents at 4101 Willow Oak Road in Raleigh, North Carolina. Nine-year-old Rema Sider lived with her sixteen-year-old brother Mikey and their mother two houses down the street from defendant. From 1993 to 1997, Mikey and defendant were friends and often visited each other in their respective family homes.
On 12 May 1997 Rema arrived home from school around 3:55 p.m. None of her family was home when she arrived. Rema went upstairs to get a drink of water, and on her way back downstairs, defendant "popped out" in front of her with a knife in his hand. Rema thought defendant was playing around, and she told him to leave. Defendant refused and forced her to pull her pants down. Defendant then "put his penis in [her] hole." Defendant had the knife in his hand during the entire incident. At one point, she tried to run away, but defendant stopped her. When defendant left, he told Rema not to open the door for anybody or tell anybody what happened. Defendant returned and heard Rema talking to her mother over the telephone; he told Rema to tell her mother that he came over "to borrow some CDS," and threatened to kill her if she told anyone about what just happened.
Ms. Sider was preparing to leave to pick up Rema, when Rema called her on the telephone. Rema was crying and told Ms. Sider what had happened. Rema also told her that defendant had taken some cigarettes from their house that day. Ms. Sider called 911 before going home. When she arrived at her home, a neighbor, who was a deputy sheriff, was at the house comforting Rema, who was upset and crying. At that time Rema again told Ms. Sider what defendant had done.
At trial on direct examination, Ms. Sider made statements of her personal belief in the truth of Rema's story. The court sustained defense counsel's objection to the first statement ("[Rema has] never really lied about this like this[]"), but defense counsel did not object to the other two statements: ;
Dr. Susan Lazurik, a graduate of UNC Medical School, who works for UNC Hospitals in medicine and pediatrics, testified that she examined Rema on 12 May 1997; that Rema denied any vaginal penetration; that her examination revealed no medical evidence of penetration; and that she found Rema to be a credible person.
Defendant testified on his own behalf. He maintained he never left his house on 12 May 1997. Defendant admitted he had been suspended from school because a teacher said defendant assaulted him, but he denied committing an assault. Defendant denied the testimony of Rema, Ms. Sider, and other witnesses who claim he sexually assaulted Rema in May of 1997. On cross-examination, defendant also denied touching any part of his body to the four-year-old foster child staying with Betty Sorto, his father's aunt, in Wake Forest during September of 1997.
In rebuttal, the State presented the following evidence pursuant to Rule 404(b) of the North Carolina Rules of Evidence: Betty Sue Sorto lives in Wake Forest. Defendant's father is her nephew. In September 1997, following the alleged incident with Rema Sider, defendant and his father were living in Ms. Sorto's camper, close to her house, on the weekends. On the night of 28 September 1997, defendant came to her house to watch television. About 10:00 p.m., Ms. Sorto put her foster child Dominique to bed and closed her bedroom door. About 10:45 p.m., defendant asked for permission to go to the bathroom; he was gone about 20-25 minutes. Ms. Sorto asked defendant if Dominique had been sleeping and defendant replied that she had not. The next morning Ms. Sorto asked Dominique what defendant was doing in her room and Dominique said, "he was licking my pee pee." Dominique testified that defendant came into her room and "licked [her] private."
Defendant was convicted of first-degree rape and non-felonious breaking or entering. An active sentence of not less than 192 months nor more than 240 months on the charge of first-degree rape was imposed on the fourteen-year-old defendant. The trial court continued judgment on the charge of non-felonious breaking or entering. Defendant appealed to this Court, assigning error.
Attorney General Michael F. Easley, by Assistant Attorney General Teresa L. Harris, for the State.
Cheshire, Parker, Schneider, Wells & Bryan, by Joseph B. Cheshire, V, and Bradley J. Bannon, for defendant appellant.
Defendant argues that the allegation of sexual assault against Dominique was not admissible under Rule 404(b) of the North Carolina Rules of Evidence. The Rule provides, in pertinent 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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (1992 and Cum. Supp. 1998). If the proffered evidence is admissible under Rule 404(b), the trial court must then consider whether the probative value of the evidence outweighs its prejudicial effects. Our Supreme Court has held that "the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403." State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). For proper admission of those acts which have not resulted in a criminal conviction, the law requires the State to produce "substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such...
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