U.S. v. Powers

• Decision Date: 14 July 1995
• Docket Number: No. 93-5944,93-5944
• Citation: 59 F.3d 1460
• Parties: 42 Fed. R. Evid. Serv. 645 UNITED STATES of America, Plaintiff-Appellee, v. Grady William POWERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1460

59 F.3d 1460

42 Fed. R. Evid. Serv. 645

UNITED STATES of America, Plaintiff-Appellee, v. Grady William POWERS, Defendant-Appellant.

No. 93-5944.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1994.

Decided July 14, 1995.

ARGUED: Bruce Alexander Elmore, Jr., Elmore & Elmore, P.A., Asheville, NC, for appellant. Deborah Ann Ausburn, Asst. U.S. Atty., Asheville, NC, for appellee. ON BRIEF: Mark T. Calloway, U.S. Atty., Asheville, NC, for appellee.

Before WILKINS and WILLIAMS, Circuit Judges, and LAY, Senior United States Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge WILKINS concurred. Senior Judge LAY wrote a separate, dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

Grady William Powers appeals his conviction for aggravated sexual abuse of a minor in violation of 18 U.S.C. Sec. 2241(c) (1988). Powers challenges several of the district court's evidentiary rulings, alleging on appeal that the district court erred in admitting evidence of Powers' prior bad acts, in excluding evidence of the victim's sexual behavior, and in excluding testimony of Powers' expert witnesses. Finding no error, we affirm.

I.

Powers was accused in 1992 of repeatedly raping his daughter, Brandi Powers, over the course of ten months between November 1989 and September 1990 when she was nine and ten years old. During the time of the alleged rapes, Powers lived with Brandi, her brothers and sisters, and her mother Joyce Powers--now Joyce Powers Gregory (Gregory)--on the Cherokee Indian Reservation in Robbinsville, North Carolina. In November 1989, Powers had returned to his family in Robbinsville after working in Florida. The testimony at trial reflected that Powers repeatedly raped and molested Brandi, often several times a day, and that he would send her brother Brent out of the house so that he could sexually assault her. The record further reflects that, in the fall of 1990, Brandi told her brother Brent that she did not want to be left alone with her father because he had been sexually molesting her. Brent told their mother, who confronted Powers. Powers initially denied Gregory's allegation about the incest, but then admitted to molesting Brandi. Gregory told him to move out of the house. Gregory and Powers were later divorced. Gregory reported the rapes to the authorities in 1992.

Powers was indicted on ten counts of engaging in sexual acts with a person under the age of twelve within the territorial jurisdiction of the United States in violation of 18 U.S.C. Sec. 2241(c). ¹ He pled not guilty and went to trial. A jury convicted Powers on all ten counts on September 24, 1993. On January 10, 1994, the district court sentenced Powers to 480 months imprisonment. Powers timely filed a notice of appeal.

II.

Powers first argues that the district court erred in admitting evidence of his prior bad acts of family violence that he believes were intended to impugn his character under Federal Rule of Evidence 404(b). Powers contends that the district court should have excluded the following evidence of his violence towards his family and, in particular, towards Brandi: ² Brandi testified that Powers "just got real mean" after they moved to North Carolina and would whip her and his other children with a belt, a hickory stick, or his hands almost every day. (J.A. 19-22.) According to Brandi, Powers whipped his children three or four times a day "for no reason at all" and often left bruises. (J.A. 20-21.) Brandi also testified that Powers hit her mother "[a] lot," (J.A. 38), that he once knocked her brother Brent off the porch with a two-by-four, and after Powers returned to Robbinsville from Florida in late 1989, he continued to whip his children "[a]t least once a day." (J.A. 26.) She further stated that Powers disciplined them by making them eat hot peppers, and he once threatened "to burn the house up" with the children and his wife inside. (J.A. 21-22.) Brent Powers gave similar testimony. Gregory also testified that Powers frequently beat her and their children, and that after Powers returned to Robbinsville in late 1989, "he still whooped the younguns like he always did." (R. 220.)

Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Thus, " 'the prosecution may not introduce evidence of extrinsic offenses to demonstrate the defendant's propensity to commit unlawful acts or to prove that the defendant committed the crime with which he is presently charged.' " United States v. Percy, 765 F.2d 1199, 1203 (4th Cir.1985) (quoting United States v. Davis, 657 F.2d 637, 639 (4th Cir.1981)). Such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b).

The list of purposes for which prior bad acts may be admitted under Rule 404(b) is illustrative rather than exclusionary. Percy, 765 F.2d at 1203. Consequently, we have construed the exceptions to the inadmissibility of prior bad acts evidence broadly, and characterize Rule 404(b) "as an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition." Id. (emphasis added); United States v. Russell, 971 F.2d 1098, 1106 (4th Cir.1992) ("evidence of prior bad acts is admissible unless it is introduced for the sole purpose of proving criminal disposition"), cert. denied, --- U.S. ----, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993).

Evidence of prior bad acts is admissible if it is (1) relevant to an issue other than character, (2) necessary to show an essential part of the crime or the context of the crime, and (3) reliable. United States v. Rawle, 845 F.2d 1244, 1247 & n. 4 (4th Cir.1988). If these criteria are met, the evidence is admissible unless its "probative value is substantially outweighed by its prejudicial effect." Morgan v. Foretich, 846 F.2d 941, 944 (4th Cir.1988) (emphasis in original); Rawle, 845 F.2d at 1247; Fed.R.Evid. 403. The district court's decision to admit evidence under Rule 404(b) is discretionary, and we will not overturn its decision unless it is "arbitrary or irrational." United States v. Haney, 914 F.2d 602, 607 (4th Cir.1990).

We conclude that the evidence of Powers' violence against Brandi and her family members was admissible to explain Brandi's submission to the acts and her delay in reporting the sexual abuse. See State v. Wilson, 60 Wash.App. 887, 808 P.2d 754, 757 (physical abuse of victim admissible under state's version of Rule 404(b) in sex abuse case to explain, among other things, the delay in reporting the sexual abuse), rev. denied, 117 Wash.2d 1010, 816 P.2d 1224 (1991); State v. Bates, 784 P.2d 1126, 1127-28 (Utah 1989) (doctor's testimony as to delays in reporting of abuse admissible under state's version of Rule 404(b) where victim testified that her failure to report crime was that she was afraid of defendant). ³

A.

Applying Rawle to this case, we first must consider whether evidence of prior bad acts is relevant to an issue other than character. The threshold for relevancy is relatively low. According to Fed.R.Evid. 401, relevant evidence is that "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, under Rule 404(b), "[i]n order for evidence to be relevant, it must be sufficiently related to the charged offense." Rawle, 845 F.2d at 1247 n. 3 (citing United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984)).

The general relevance of this evidence to the sexual abuse is clear to us. Evidence of the beatings of both Brandi and her family provides a cogent explanation for Brandi's failure to report the sexual abuse for almost eighteen months. Thus evidence of the beatings makes it more probable that Brandi failed to report the sexual abuse not because it never took place, but because of her fear of retribution. ⁴ Thus, admission of the evidence is relevant to the issue of Powers' guilt.

Comparing the general character of physical violence, of the evidence at issue, and of rape, we further conclude that, in this case at least, the beatings were sufficiently related to the nature of the offense charged. In short, rape, as much as any beating suffered by Brandi and her family, is an act of violence. A majority of commentators now recognize the principle that rape is a violent act, ⁵ and more recently, the North Carolina Supreme Court acknowledged that "[t]he more enlightened view [is] that rape is always a crime of violence, no matter what the circumstances of its commission." State v. Green, 336 N.C. 142, 443 S.E.2d 14, 30 (1994) (quoting United States v. Myers, 22 M.J. 649, 650 (A.C.M.R.1986), rev. denied, 23 M.J. 399 (C.M.A.1987)); see United States v. Hammond, 17 M.J. 218, 220 n. 3 (C.M.A.1984) (one of the "common misconceptions about rape is that it is a sexual act rather than an act of violence."). Given the essentially violent character of both rape and physical abuse, we conclude that, for the purposes of this case, the sexual abuse to which Brandi was subjected and the beatings imposed upon the entire family are sufficiently related to satisfy the requirements of 404(b).

Before finishing our consideration of relevance, we pause to discuss one point of disagreement with the dissent: the dissent claims that the beatings were not sufficiently temporally related to satisfy the relevancy requirement under Rawle. Dissenting op. at 1476-77. We disagree. The evidence presented at trial clearly showed that Powers' return to Robbinsville predated the sexual abuse by no more than one month. Importantly, Brandi...