Opinion
No. COA14–1404.
11-17-2015
STATE of North Carolina, v. Franklin CRUZ, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General John R. Green, Jr., for the State. Paul F. Herzog for defendant-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General John R. Green, Jr., for the State.
Paul F. Herzog for defendant-appellant.
Opinion
Appeal by defendant from judgments entered 4 March 2014 by Judge R. Allen Baddour in Orange County Superior Court. Heard in the Court of Appeals 1 June 2015. Orange County, Nos. 10 CRS 53388–89, 10 CRS 53987–93.
GEER, Judge.
Defendant Franklin Cruz appeals from judgments sentencing him for convictions related to three sexual attacks on two female victims. On appeal, defendant argues that the trial court erred in joining all of the charges for trial. However, we hold that if the charges had been tried in separate trials, the evidence of each sexual attack would have been admissible in the other trials under Rule 404(b) of the Rules of Evidence, and, therefore, defendant has failed to show that he was prejudiced by the trial court's decision to join the charges. We, therefore, find no prejudicial error.
Facts
The State's evidence tended to show the following facts. In June 2004, defendant and his wife moved to Carrboro, North Carolina and resided in either apartment H4 or H8 at Abbey Court Apartments. On 6 November 2005, S.M. was living by herself in Apartment E2 at Abbey Court Apartments, a ground-floor apartment. The E and H buildings face each other and are separated by a distance of about 75 yards across a parking lot. That evening, around 11:00 p.m., S.M. was reading a book and about to go to bed when the lights in her apartment went out because defendant had cut the power in S.M.'s breaker box. The security lights came on outside S.M.'s apartment, and she could see defendant, whom she did not know, through her window. Defendant appeared to be on his cell phone. S.M. thought defendant might be one of her neighbors calling Duke Power about what S.M. believed was a power outage.
Moments later, S.M. heard a knock at her front door and, peering through the peephole, recognized the person at her door as the man she had seen talking on his cell phone. S.M. opened the door a little, and defendant said something in Spanish to her about the electricity being out. After defendant told S.M. that he had called Duke Power, S.M. thanked him. However, as S.M. was about to close the front door, defendant pushed S.M. back from the door and shoved his way into her apartment. As a result of defendant cutting S.M.'s power, it was completely dark in her apartment.
S.M. struggled with defendant, but defendant overpowered her. Defendant pushed S.M. down to the ground in her kitchen, and S.M.'s glasses flew off. While S.M. was struggling, her hand grazed defendant's head and she felt that he had short hair. While S.M. was pinned down, defendant tried to cover her mouth and said, in very good English but with a heavy Spanish accent, “If you don't be quiet, I am going to kill you.” S.M. feared for her life, so she became still. Defendant lifted up S.M.'s shirt and started fondling her breasts.
Defendant then picked S.M. up, marched down her hallway into her bedroom, and pushed her face down into the bed. Defendant told S.M. not to move and then pulled off S.M.'s pajama bottoms and panties and unzipped his pants. Defendant inserted his fingers into S.M.'s vagina and then began licking her vagina. After that, defendant penetrated S.M.'s vagina with his penis, stroked a few times, but then slipped out. Defendant then penetrated S.M.'s anus with his penis, but when S.M. begged him not to continue, he pulled out. Defendant again penetrated S.M.'s vagina and ejaculated. After ejaculating, defendant told S.M. not to move and then left. After a few moments, S.M. got up to make sure defendant was not in the apartment, and then she called the police. Investigators were able to lift fingerprints from S.M.'s front door. S.M. was taken to the hospital where a rape kit was collected.
At about 5:00 a.m. on 21 January 2006, while it was still dark outside and S.M. was still sleeping, defendant broke in through a window in an unused bedroom in S.M.'s apartment. As S.M. awoke, she rolled over onto her back and saw defendant, although at first she did not know who it was. Defendant told S.M. to be quiet, and he put a pillow over S.M.'s face. Defendant threatened S.M.: “Keep the pillow over your face. I have a screwdriver and I will hurt you .” S.M. promised that she would not look, but she recognized the voice of the intruder as the same voice as the intruder on 6 November 2005. The pillow covered S.M.'s nose and eyes, and S.M. had to breathe through her mouth. Defendant pulled down S.M.'s pants and underwear, got on top of her, and inserted his fingers into S.M.'s vagina. He then vaginally penetrated S.M. with his penis. After that, defendant inserted his penis into S.M.'s mouth, began stroking, and ejaculated. When defendant stroked, S.M. could not breathe because he blocked her airway.
Defendant then stopped and commented that he admired a picture S.M. had in her apartment because it was a picture of defendant's brother or cousin. Defendant then told S.M. to turn over on her stomach and raise her hips. Defendant penetrated S.M.'s vagina with his penis from behind, pulled out, and started to penetrate S.M.'s anus. When S.M. told defendant that it hurt, he reinserted his penis into S.M.'s vagina and ejaculated.
Defendant told S.M. to get up, and as she pulled the pillow off, defendant pulled S.M.'s shirt over her head. Defendant marched S.M. into her shower, and S.M. turned the water on. As defendant lifted up S.M.'s shirt, he told S.M. to keep her eyes covered, and she complied. Defendant told S.M., “Keep your hand over your eyes. But I want you to wash down there. Wash down there. Wash everything.” After S.M. washed herself, defendant told her not to move. S.M. heard defendant struggling to get out the front door, although she eventually heard the door close.
Defendant carried some of the shards of broken glass from the window he broke to a fence some distance behind S.M.'s apartment and dropped them there. S.M. swabbed her vagina, anus, and mouth with Q-tips, placed them in plastic bags and labeled the bags. She then called the police. After the police arrived, they took S.M. to the hospital where they collected another rape kit. Investigators lifted prints from the window where defendant entered, and after collecting the shards of glass by the fence, lifted prints from those as well.
In the early hours of the morning of 4 March 2006, M.P. was asleep in her apartment at Sterling Bluff Apartments in Carrboro. Defendant broke into M.P.'s apartment through one of her windows, although he was able to leave the glass intact. After entering, defendant removed his clothes. M.P. was awakened when defendant kicked a popcorn tin that M.P. kept in the middle of the floor. Shortly after waking, while still in bed, M.P. realized that defendant had a knife at her throat. Defendant said, “I'm going to kill you if you don't do what I say.”
After defendant ripped off M.P's clothes, M.P. screamed loudly, flailed her arms, and shined a lamp directly into defendant's face. Defendant became angry, smashed the lamp, and pushed M.P. violently to the ground. Defendant told M.P. to shut up, pinned her to the ground, and began punching the left side of her face and jaw. M.P. could not breathe and thought she would suffocate. Although M.P. tried to get the knife out of defendant's hand, defendant cut M.P.'s neck during the struggle. Eventually, defendant told M.P. to kiss him. However, when M.P. refused to kiss him, defendant bit M.P.'s lip and made her bleed. M.P. noticed that defendant spoke English with a heavy Spanish accent and that he had a shaved head. She continued to scream loudly.
M.P.'s right breast became exposed during the struggle, and defendant began to lick it. M.P. grabbed defendant's penis to try to hurt him, but defendant punched M.P.'s arm, and she lost her grip. Defendant then violently spread M.P.'s legs and “jammed” his fingers into her vagina. While M.P. punched defendant, he removed his fingers from her vagina and painfully spread her legs apart using the force of his weight. Defendant then “jammed” his penis into M.P.'s vagina. After attempting to anally penetrate her, defendant continued to rape M.P. for some time. However, after hearing a noise in the upstairs apartment, defendant abruptly left, grabbing his clothes. M.P. then called the police, and when they arrived the police took her to the hospital where they collected a rape kit.
Defendant was subsequently arrested. With respect to S.M., defendant was indicted for two counts of first degree burglary, four counts of second degree rape, two counts of first degree kidnapping, five counts of second degree sexual offense, two counts of attempted second degree sexual offense, and two counts of communicating threats. With respect to M.P., defendant was indicted for one count of first degree burglary, one count of first degree rape, one count of first degree kidnapping, one count of first degree sexual offense, one count of misdemeanor assault on a female, and one count of communicating threats.
Prior to trial, the State moved to consolidate the charges against defendant for trial, while defendant objected and moved to sever the charges. The trial court granted the State's motion, and defendant was tried on all the charges at the 24 February 2014 session of Orange County Superior Court. At trial, the State presented the testimony of each victim. The State also presented evidence that following the 6 November 2005 assault of S.M., a fingerprint of defendant's left ring finger was lifted from the outside of S.M.'s front door. Following the 21 January 2006 attack of S.M., defendant's fingerprints were found on the inside and outside of the glass at the window where the break-in occurred and also on one of the glass shards of S.M.'s window found by the fence. DNA analysis of a rectal swab from S.M. taken following the January attack concluded that defendant could not be excluded as the perpetrator of that attack. With respect to M.P, analysis of DNA obtained from M.P.'s right nipple following her attack indicated a match to defendant, meaning that the chance of that DNA belonging to anyone other than defendant was greater than one in one trillion. Defendant did not present any evidence.
Defendant was convicted of all charges except for kidnapping M.P. The trial court sentenced defendant to the following presumptive-range terms of imprisonment: one term of 120 days, five consecutive terms of 77 to 102 months, seven consecutive terms of 100 to 129 months, and two consecutive terms of 288 to 355 months. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court erred by joining the charges for all three incidents for trial and that the court instead should have conducted three separate trials. We first note, however, that at the hearing on the motion to sever, when the trial court asked defense counsel whether he was requesting three separate trials—two trials for the two assaults on S.M. and one trial for the assault on M.P.—defense counsel clarified that he was only requesting that the court conduct one trial for the charges involving S.M. and a second trial for the charges involving M.P.
Defendant failed, therefore, to preserve for appellate review any contention that the charges involving S.M. should have been tried in two separate trials. See N.C.R.App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make [.]” (emphasis added)). Consequently, we limit our review to the question whether the trial court should have severed the charges into two trials, one addressing the charges involving S.M., and the other addressing the charges involving M.P.
N.C. Gen.Stat. § 15A–926(a) (2013) governs the joinder of offenses:
Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.
This statute “requires a two-step analysis: (1) a determination of whether the offenses have a transactional connection, and (2) if there is such a connection, ‘consideration then must be given as to whether the accused can receive a fair hearing on more than one charge at the same trial.” ’ State v. Perry, 142 N.C.App. 177, 180–81, 541 S.E.2d 746, 748 (2001) (quoting State v. Montford, 137 N.C.App. 495, 498, 529 S.E.2d 247, 250 (2000)).
Even assuming, without deciding, that the trial court should not have joined the charges involving S.M. and the charges involving M.P for trial because of a lack of any transactional connection, we hold that defendant has failed to establish that he was prejudiced by the joinder. “A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen.Stat. § 15A–1443(a) (2013). Defendant bears the burden of showing prejudice. Id.
In deciding whether joinder was unjust and prejudicial, one consideration is whether evidence in each incident “would have been admissible in the separate trials of the others[.]” State v. Corbett, 309 N.C. 382, 388, 307 S.E.2d 139, 144 (1983). Defendant argues that there was “scant evidence” identifying him as the perpetrator of the attacks on S.M. He contends that the joinder was, therefore, unjust and prejudicial to him because, under Rule 404(b) of the Rules of Evidence, the evidence incriminating him for assaulting M.P. would not be admissible in the separate trial for the assaults on S.M. and, therefore, it would be unlikely that he would be found guilty of assaulting S.M. We disagree.
In Corbett, the defendant was charged with crimes relating to assaults on three different dates:
[T]he state's evidence tend[ed] to show that during the early morning of 16 August 1981, defendant forced [the first victim's] car off the road in Graham. He then kidnapped [her], drove her behind a house, and raped her. Further, on 2 September 1981 between 2:00 a.m. and 4:00 a.m., defendant kidnapped [the second victim] at knifepoint from a telephone booth in Burlington and drove her out into the country. He then forced her to drink two cups of liquor and raped her at knifepoint. Finally, in the early morning hours of 10 September 1981, defendant forced himself into [the third victim's] car just after she had pulled into a parking place. He forcibly restrained [her] and unsuccessfully attempted to start her car before running from the scene.
309 N.C. at 388, 307 S.E.2d at 144.
While the Supreme Court concluded that the consolidation of all the charges against the defendant in Corbett was error, it nonetheless held that the error was not prejudicial because these offenses were “sufficiently similar” that evidence of each offense would have been admissible in separate trials of the other offenses under the rule that “evidence is admissible if it is relevant to show the identity of the perpetrator of the crime charged.” Id. at 388, 389, 307 S.E.2d at 144. Although this evidentiary rule predated the enactment of the Rules of Evidence, that principle was subsequently codified as part of Rule 404(b) of the Rules of Evidence, and this Court has since relied upon Corbett for the proposition that “should the trial court allow joinder, and on appeal that joinder be deemed error, this Court should review any resulting prejudice with reference to Rule 404(b).” State v. Bowen, 139 N.C.App. 18, 30, 533 S.E.2d 248, 256 (2000).
Rule 404(b) permits the admission of evidence of “other crimes, wrongs, or acts” in order to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Under this Rule, “ ‘evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.’ “ State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852–53 (1995)).
“Evidence of a prior bad act generally is admissible under Rule 404(b) if it constitutes ‘substantial evidence tending to support a reasonable finding by the jury that the defendant committed the similar act.’ “ State v. Al–Bayyinah, 356 N.C. 150, 155, 567 S.E.2d 120, 123 (2002) (quoting State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876, 890 (1991)). As this Court has explained, “[o]ur Supreme Court [has] emphasized that, when used to prove identity, admission of evidence under Rule 404(b) ‘is constrained by the requirements of similarity and temporal proximity.’ “ State v.. Golden, 224 N.C.App. 136, 144, 735 S.E.2d 425, 431 (2012) (quoting Al–Bayyinah, 356 N.C. at 154, 567 S.E.2d at 123). “Prior acts are sufficiently similar ‘if there are some unusual facts present in both crimes' that would indicate that the same person committed them.” Beckelheimer, 366 N.C. at 131, 726 S.E .2d at 159 (quoting Stager, 329 N.C. at 304, 406 S.E.2d at 890).
Here, there are a number of unusual facts shared between the assault on M.P. and the assaults on S.M. Each incident involved a Hispanic male and occurred while it was dark outside in first floor apartments in complexes in the small town of Carrboro. These apartments were occupied solely by single women. In each assault, the perpetrator forced his way into the apartment, catching his victims off guard; first by engaging in a friendly conversation with S.M. and then shoving his way into her apartment; and in the later assaults, by waking the victims up while they were sleeping after entering through a window. Once inside, the perpetrator used physical force to subdue each victim while threatening to kill or harm her.
The perpetrator undressed each victim and inserted his fingers into her vagina. He then engaged in vaginal intercourse with each victim which was followed by attempted anal sex. Additionally, in the first assault on S.M., the perpetrator fondled the victim's breast, and in the assault on M.P., he licked her breast. He also appeared to try to normalize the rapes: in the first assault on S.M., by fondling her breast; in the second assault on S.M., by engaging S.M. in the conversation; and in the third assault, by attempting to kiss M.P.
Although defendant contends that “the offenses in Corbett were far more similar and closely related than those in the case at bar[,]” the incidents in Corbett only had in common the use of an automobile and either a completed or attempted kidnapping of a female victim in the early morning by use of a knife. In total, there are more similarities between the S.M. assaults and the M.P. assault than there were between the incidents in Corbett. Further, our appellate courts have found that substantially similar circumstances as those common to the assaults involving S.M. and M.P. justified admitting evidence of other bad acts to prove a perpetrator's identity under Rule 404(b). See State v. Jeter, 326 N.C. 457, 461, 389 S.E.2d 805, 80708 (1990) (holding circumstances of prior alleged assault sufficient to show identity for present charged assault under Rule 404(b), where both assaults occurred after midnight and within six miles of each other; perpetrator flipped both victims onto their stomachs and removed their underpants before forcing them to have vaginal intercourse; perpetrator told victims to “ ‘shut up’ “ and threatened to harm them if they did not comply with his wishes; and in each instance perpetrator held one of victim's own knives against victim, pushing her face from him into pillow).
Defendant nonetheless contends that unlike the approximately three weeks separating the incidents in Corbett, the period of time separating the assaults in this case was too great to satisfy Rule 404(b)'s requirement of temporal proximity. However, “ ‘remoteness in time generally affects only the weight to be given such evidence, not its admissibility.’ “ State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007) (quoting Stager, 329 N.C. at 307, 406 S.E.2d at 893). Even the period of about four months between the first assault on S.M. and the assault on M.P. is within what our courts have found to be sufficiently close in time for admission under Rule 404(b). See Jeter, 326 N.C. at 461, 389 S.E.2d at 807 (holding evidence pertaining to similar assault occurring five months prior admissible under Rule 404(b) to show defendant's identity).
Defendant further attempts to distinguish these incidents from Corbett by pointing out that in Corbett, the defendant presented evidence of an alibi, whereas here, defendant did not present any evidence. The Supreme Court in Corbett, however, discussed the defendant's reliance on an alibi defense solely because it showed that the identity of the perpetrator of those crimes was at “ ‘the very heart of the case.” ’ 309 N.C. at 389, 307 S.E.2d at 144 (quoting State v. Freeman, 303 N.C. 299, 302, 278 S.E.2d 207, 208–09 (1981)). The same is true in this case. Defendant's defense—presented through cross-examination and emphasized in closing arguments—was that the State had failed to prove that defendant was the man who had committed the assaults.
Because of the assaults' factual similarities and temporal proximity, evidence of the assaults on M.P. and S.M. would have been admissible in each separate trial had the trial court denied the State's motion for joinder and ordered separate trials. Because defendant has not shown that there is a reasonable possibility that separate juries would have reached different verdicts if the evidence of M.P.'s assault was admitted in the trial regarding the assaults on S.M., and vice versa, defendant has failed to show prejudice from the joinder of the charges. See Bowen, 139 N.C.App. at 30, 533 S.E.2d at 256 (finding no prejudice from joinder when “defendant suggests no alternate outcome where the jury would have heard evidence of the other charges due to its being admitted under 404(b), but where the charges were not joined”). Therefore, because the evidence of S.M.'s assaults and M.P.'s assault would have still been admissible in each trial if the charges were severed, and defendant has not otherwise demonstrated that he was prejudiced by having to defend one or more of the charges as a result of the joinder, we hold, consistent with Corbett, that defendant received a fair trial.
Defendant further suggests that in consolidating the charges, the trial court violated his federal and state constitutional rights to a fair trial and due process and that such errors are presumed prejudicial. However, defendant abandoned any constitutional argument because, “with the exception of citing the constitutional provisions themselves,” defendant has “failed to advance an argument or cite relevant authority in support of [his] assertion” that his constitutional rights were violated. Libertarian Party of N.C. v. State of N.C., 200 N.C.App. 323, 330, 688 S.E.2d 700, 706 (2009), aff'd in part and modified in part, 365 N.C. 41, 707 S.E .2d 199 (2011). We conclude that defendant has failed to demonstrate any prejudicial error.
NO ERROR.
Chief Judge McGEE and Judge TYSON concur.
Report per Rule 30(e).