Opinion
No. COA09-973
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 11 July 2008 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Glover Peterson, P.A., by Ann B. Peterson, for defendant-appellant.
New Hanover County No. 05 CRS 20784-85.
Tyrone Matthew Delgado ("defendant") appeals from judgments entered 11 July 2008 after a jury found him guilty of first degree burglary and first degree murder in connection with the death of Melissa Mooney ("Mooney"). After careful review, we find no error.
Background
In August 1999, Mooney was 28 years old and worked as an administrative officer in the Wilmington, North Carolina field office of the FBI. Mooney had been living in an apartment in the Canterbury Woods apartment complex in Wilmington, but had purchased a new home located in the Apple Valley subdivision in Castle Hayne, North Carolina in July 1999. Mooney planned to spend her first night in her new home on 5 August 1999.
Receipts found in Mooney's house revealed that on 5 August 1999 Mooney rented two movies from Blockbuster at approximately 4:25 p.m. and purchased food at Food Lion at 5:07 p.m. Mooney then bought picture hangers at Lowe's at 6:40 p.m. Telephone records established that Mooney received a telephone call from John Osburg ("Osburg"), a man with whom Mooney was intimate, at 7:16 p.m. and again at 9:47 p.m. One of Mooney's neighbors in the Canterbury Woods apartment complex reported seeing Mooney in Canterbury Woods between 10:00 and 10:30 p.m. Mooney returned one of the movies to Blockbuster at 12:30 a.m.
The following morning, Mooney was supposed to meet with FBI agent Harold Schmidle ("Agent Schmidle") and operations analyst John Wolski ("Wolski") at the office at 8:00 a.m. Agent Schmidle and Wolski had agreed to help Mooney move some items from her apartment to her new house; however, Mooney did not arrive at the scheduled time on the morning of 6 August 1999. Wolski and FBI agent Paul Cox ("Agent Cox"), concerned that Mooney did not come to the office as planned, drove to Mooney's new house to look for her. When they arrived, they saw that the front door had been forcibly opened and a muddy footprint was left on the door. The men entered the house and Agent Cox discovered Mooney's body on the master bedroom floor near the foot of the bed.
When the crime scene was inspected, it was discovered that the cord connecting the kitchen telephone to the wall outlet had been pulled out of the wall. Additionally, it was observed that Mooney's hair was wet and there was a damp spot on the mattress. Based on the angle of the mattress and the position of Mooney's feet against the wall, it appeared that Mooney's body had been pulled off the mattress. There was no mattress cover, sheets, or pillows on the bed. The top of the mattress was cut off the bed by crime scene investigators for further examination. Boot prints were found on the kitchen floor and in the field behind Mooney's house, but police were never able to match the prints to a specific type of boot.
An autopsy was performed and it was determined that Mooney died of strangulation caused by either a ligature, manual force, or both. On the front and sides of Mooney's neck, there was an abrasion and bruising consistent with strangulation through use of a long thin ligature, such as a cord or wire. A portion of the hyoid bone was broken and other marks were present on the neck, which evidenced manual strangulation. Bruising was also noted on the interior of Mooney's thighs and scrapes were present on both wrists. There were no internal or external injuries to her genitals and no evidence of semen or lubricants were discovered.
Police originally focused their investigation on Mooney's ex-husband, Roger Mooney ("Roger"), because Mooney had expressed her fear of Roger to friends and co-workers and there were incidents of domestic violence during their marriage. Roger was cooperative, extensively investigated, and ultimately eliminated as a suspect. Osburg and Jose Cintron ("Cintron"), men with whom Mooney had personal relationships until shortly before her death, were also investigated and eliminated as suspects.
Defendant and his wife, Ana Cruz Delgado ("Ana") moved into the Apple Valley subdivision in May 1999. Ana testified that, prior to selecting Apple Valley, she and defendant toured a house that had carpet but was unfurnished sometime between 20 November 1998 and 10 February 1999. Ana was unsure if the house they toured was the same house subsequently purchased by Mooney. The listing agent for Apple Valley testified that a prospective buyer would be allowed to tour a "spec home" that would not be carpeted. Mooney's house was a spec home, but defendant and Ana's house was actually completed before Mooney's. The listing agent claimed that she had never taken defendant into Mooney's house.
Ana testified that on the night of 5 August 1999, defendant was already in bed when she joined him at around 10:00 p.m. She stated that defendant was in bed the next morning when she awoke, though she was unsure whether he left the house during the night. Ana claimed that defendant would usually get up during the night and go out to a club or bar two or three times a week. On the nights that defendant went out, Ana would call his employer the following morning and say that he was sick and could not come into work. On the morning of 6 August 1999, defendant and Ana did not go to work. While canvassing the neighborhood as part of the investigation into Mooney's murder, the police questioned defendant and Ana. Defendant claimed that he did not know that anyone was moving into Mooney's house and that he had never seen Mooney. At the time of the investigation, defendant was not considered a suspect; however, Ana later testified that defendant believed he was a suspect. Soon after Mooney's death, defendant began subscribing to the local newspaper for the first time. According to Ana, defendant would cut out articles regarding Mooney's death and save them. Sometime in late 1999 or early 2000, Ana asked defendant why he believed that he was a suspect in Mooney's murder. Defendant became enraged and fired a gun into the kitchen ceiling.
On 6 August 2001, two years after Mooney's murder, the Sheriff's Department, SBI, and FBI agreed to renew investigation efforts, beginning with a re-canvassing of the Apple Valley neighborhood. SBI agent Janet Storm ("Agent Storm"), along with an agent from the FBI, questioned defendant about the night of the murder. Unlike the other neighbors, defendant refused to provide his telephone number or social security number. After the interview, Agent Storm's suspicions were raised and she requested that a background check be run on defendant. The background check revealed charges of sexual assault in August 1994 against a woman named Lorraine Frew ("Frew"). At that point, defendant became a suspect in the murder investigation.
In late 2001, after learning that the FBI was questioning his neighbors and co-workers, defendant called FBI agent Craig Ackley ("Agent Ackley") and angrily told him to stop harassing him. Agent Ackley asked defendant if he would allow officers to search his house and if he would agree to an interview. Defendant said that the officers could search his house for thirty minutes. Agent
Ackley and several detectives from the Sheriff's office immediately went to defendant's house and defendant gave verbal consent to search. After approximately fifteen minutes, defendant revoked consent when he observed one of the detectives writing down the brand names of the boots in defendant's closet. Defendant worked at a metal-fabricating plant where he was required to wear steel-toed boots. The officers were not able to take any of the boots with them. After the search ended, Agent Ackley sat with defendant at the kitchen table and began to ask him some questions. Defendant got up from the table and picked up a nearby cane that contained a hidden sword. When defendant began to pull out the sword, Agent Ackley reached for his gun and began to stand up. Defendant put down the sword and said, "`[j]ust f___ing with you.'" At that point, the interview was concluded.
In March 2002, defendant was incarcerated in the New Hanover County Jail on unrelated charges. A fellow inmate, William McMillan ("McMillan"), testified at trial that defendant told him that there was a woman at The Pantry convenience store that he found attractive and he intended "`to get him some of that.'" Defendant told McMillan that he enjoyed asphyxiating women by using a pillow, belts, cords, or his hands. Defendant claimed that he liked to choke a woman while standing behind her and pinching her nose. Defendant further stated that he liked to watch the expression on a woman's face while he choked her during sex and that once she passed out, he would continue having sex with her. Defendant asked McMillan if he had ever "`had any cold pussy.'"
In July 2002, defendant was incarcerated with a man named Jimmy Hollingsworth ("Hollingsworth"), who testified at trial. One evening, Hollingsworth said to defendant, "man, you ain't no killer." Defendant then told Hollingsworth that he had killed a female FBI secretary. Defendant claimed that he met the woman while she was moving into her house and that he had helped her at some point. Defendant told Hollingsworth that he had planned on having sex with the woman's body after he killed her, but someone knocked on the door of her house and he fled.
At trial, the only forensic evidence linking defendant to the scene of Mooney's murder was a 2 to 3 centimeter body hair fragment recovered from the mattress top. The sample was so small that only a mitochondrial DNA test could be performed. The mitochondrial DNA sequence from the hair fragment was the same as defendant's; however, mitochondrial DNA, unlike nuclear DNA, does not match only one individual. The mitochondrial DNA from the hair fragment was rare and likely would not be found in more than .17% of the Caucasian population, .39% of the Hispanic population, and .26% of the African-American population.
On 5 December 2005, defendant was indicted on charges of first degree murder and first degree burglary. Prior to trial, the prosecution identified five women whom the State intended to call at trial to testify regarding assaults perpetrated against them by defendant. The trial court conducted a pre-trial conference at which voir dire testimony was provided by the women. Defendant argued that the testimonies should be deemed inadmissible character evidence and excluded at trial. The trial court ruled that the testimonies were admissible. Trial began on 12 May 2008. On 11 July 2008, defendant was found guilty of all charges. Defendant was sentenced to life imprisonment without parole for the first degree murder conviction and 103 to 133 months imprisonment for the first degree burglary conviction. Defendant timely appealed to this Court.
Analysis
Defendant's sole argument on appeal is that the trial court erred in allowing Tracy Parker ("Parker"), Ana, Frew, Patricia Salituri ("Salituri"), and Gabrielle Billman ("Billman"), to testify concerning physical and sexual assaults perpetrated against them by defendant. Specifically, defendant claims that the women's testimonies constituted inadmissible character evidence under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009) and were unduly prejudicial pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2009).
With the consent of both parties, the trial court conducted a pre-trial hearing during which the court heard voir dire testimony from each woman and arguments of counsel. During the trial, but before each woman testified, the trial court entered a separate written order concerning each woman's purported testimony and determined that the testimonies would be admitted, over defendant's objections, to show
It does not appear from the record that defendant filed a motion in limine requesting that the women's testimonies be excluded.
the identity of the person who committed the crimes charged in these cases, that the defendant had a motive for the commission of the crimes charged, that the defendant had the intent which [is] a necessary element of the crimes charged in these cases, and that there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in this case.
The trial court found that the probative value of the testimonies substantially outweighed the danger of unfair prejudice.
We review a trial court's decision to admit evidence under Rules 404 and 403 for an abuse of discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (2006). "An abuse of discretion occurs when a trial judge's ruling is `manifestly unsupported by reason.'" Id. (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)).
Rule 404(b) of the North Carolina Rules of Evidence states 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). Our Supreme Court has held that Rule 404(b) "`is a clear general rule of inclusion of relevant evidence . . . subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.'" State v. Golphin, 352 N.C. 364, 443, 533 S.E.2d 168, 221 (2000) (quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990)), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 305 (2001). "Such evidence is admissible unless the other offenses were not sufficiently similar or were too remote in time from the commission of the offense charged." State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987). "When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value." State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated on other grounds after remand, 329 N.C. 679, 406 S.E.2d 827 (1991). In admitting evidence of similar acts, the "[s]imilarities need not be bizarre or uncanny; they simply must `tend to support a reasonable inference that the same person committed both the earlier and later acts.'" State v. Murillo, 349 N.C. 573, 593, 509 S.E.2d 752, 764 (1998) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)), cert denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
"`Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice' under Rule 403." Summers, 177 N.C. App. at 697, 629 S.E.2d at 907 (quoting State v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202 (2001)). "In construing this rule, we have said, `all evidence favorable to the [State] will be, by definition, prejudicial to defendants. The test under Rule 403 is whether that prejudice to defendants is unfair.'" Id. (quoting Matthews v. James, 88 N.C. App. 32, 39, 362 S.E.2d 594, 599 (1987) (alteration omitted)). "The term `unfair prejudice' means `an undue tendency to suggest decision on an improper basis[.]'" Id. (quoting State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)).
The evidence in this case tended to show that Mooney was home alone at night. The assailant kicked in the door of Mooney's house, ripped out the telephone cord, and strangled her in what appeared to be an attempted sexual assault given the fact that Mooney was nude when her body was discovered. Mooney also had bruises on her wrists, nose, and inner thigh area, which supports an inference that the assailant restrained her and attempted to separate her legs. According to Hollingsworth, defendant saw Mooney moving in and claimed that he had helped her at some point and subsequently murdered her. We will now review each woman's testimony separately with regard to admissibility under Rule 404(b).
A. Tracy Parker
Parker testified that she lived with defendant for approximately two years between 1991 and 1993. During an argument, Parker locked defendant out of the house and secured the deadbolt. Defendant kicked the door open, grabbed Parker around the neck, and choked her. Parker claimed that several times a week, defendant forced her to have sex with him by grabbing and choking her. When Parker would attempt to use the telephone to call for help, defendant would rip the cord out of the wall.
The trial court found that "[t]he State has produced sufficient, credible and competent evidence of particularly similar acts and circumstances occurring during the assault on Melissa Mooney in 1999 and the assaults on Tracy Parker . . . to support a reasonable inference by the jurors that the same person committed both acts." We agree. Parker's testimony concerning defendant's conduct towards her and the evidence concerning the attack on Mooney contained the following similarities: (1) defendant kicked in the door; (2) defendant choked the victim; (3) defendant prevented the victim from calling for help by ripping out the telephone cord; (4) the victim was not a stranger to defendant; and (5) defendant used force to sexually assault the victim.
B. Ana Cruz Delgado
Ana testified that she and defendant began dating in 1993, subsequently married, and had two children. During the course of their marriage, defendant would forcibly rape Ana, and eventually, she ceased resisting him. Ana testified regarding one particular altercation that occurred between her and defendant on 10 November 2003, about a month after defendant was released from prison. Defendant accused Ana of being unfaithful to him, which she denied. Defendant slapped Ana in the face and then threatened her with a sword. He then choked her while standing in front of her, put his hand over her mouth, and pinched her nose closed so she could not breathe. At one point, Ana attempted to use the cordless telephone to call for help, but defendant drug her to the circuit breaker box and disabled the electrical supply. Defendant then took off his belt and used part of it to tie her hands behind her back and he used the remaining length of the belt to choke her while he stood behind her. Defendant threatened Ana with the sword again and then left the house. Ana called 911 and reported the attack. Photographs were taken which showed the injuries inflicted to her face, neck, and chest.
Once again, the trial court found that the assaults on Ana and Mooney were sufficiently similar "to support a reasonable inference that the same person committed both acts." As with the other four testimonies, we find no error in the admissibility of Ana's testimony. The similarities that exist between the crimes perpetrated against Ana and Mooney are: (1) the victim was not a stranger to defendant; (2) defendant attacked and choked the victim during their marriage, and specifically on 10 November 2003; and (3) defendant used force to sexually assault the victim during their marriage.
C. Lorraine Frew
Frew testified that in August 1994 she met defendant through her boyfriend who had previously been incarcerated with defendant. Two days later, defendant stopped by Frew's house unannounced and asked if he could use her telephone, but Frew told him that she did not have one. On 13 August 1994, at approximately 2:00 a.m., defendant knocked on Frew's door, and when she began to open the door, defendant pushed it open and entered the apartment. Defendant then pushed Frew into the living room and on a love seat where he straddled her. Defendant grabbed Frew at the top of her head and under her neck and twisted her head to the point that a cracking noise was omitted. He then choked her until she became weak and her arms fell to her side. He began to drag her toward the bedroom, but she was able to escape when he went to turn on a light. Frew ran to the door and opened it, but defendant grabbed her, threw her on the floor, and ripped her bottom clothing off. He attempted to forcibly separate her legs and then digitally penetrated her. After Frew begged defendant to stop due to fear for her unborn baby, defendant lost his erection and ceased the assault. Defendant appeared remorseful and Frew asked if they could go outside and get some air. When they encountered one of Frew's neighbors, defendant left the scene and Frew called the police. Defendant was charged with aggravated sexual battery, but the charges were later dismissed.
We hold that the trial court did not abuse it's discretion when it admitted Frew's testimony for the purposes stated in its order. The trial court found that the assaults on Frew and Mooney were sufficiently similar "to support a reasonable inference by the jurors that the same person committed both acts." The following similarities exist between Frew's testimony concerning defendant's attack upon her and the evidence concerning the attack on Mooney: (1) defendant forcibly entered the home; (2) the attack took place late at night; (2) the victim was not a stranger to defendant; (3) defendant attacked and choked the victim; and (4) defendant used force to sexually assault the victim.
The State argues in its brief that regardless of whether the testimony was admissible for the purposes stated by the trial court in its order, defendant opened the door to Frew's testimony at trial by questioning Ana on cross-examination regarding Frew's allegations. We agree.
"[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially."
State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991) (quoting State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981)). "It is well-established that the benefit of any objection to the introduction of evidence is lost where the evidence is previously admitted without objection, and particularly, where defendant is responsible for first introducing the evidence." State v. Rhue, 150 N.C. App. 280, 286, 563 S.E.2d 72, 76 (2002). "A defendant's cross-examination of a State's witness can open the door for the State to introduce evidence in rebuttal." State v. McKinnon, 328 N.C. 668, 673, 403 S.E.2d 474, 477 (1991).
Here, Ana was the first of the five women to testify regarding assaults perpetrated by defendant. Defense counsel asked Ana on cross-examination: "[A]t some point in time, in 1994, you became aware that there was an accusation against [defendant] by a person by the name of Lorraine Frew, correct?" Defense counsel then attempted to call Ana's credibility into question by asking: "Well, you have made statements that you knew that the allegation with Lorraine Frew was false because he was with you all night long. You've made that statement before, haven't you?" Defense counsel also asked Ana: "And you told the officers that you were not aware of any other persons that had accused [defendant] of any sexual assault other than Lorraine Frew, who lived in Leeseville, correct?" Additionally, defense counsel elicited testimony from Ana that defendant was not convicted of any crime in connection with the assault on Frew and did not "serve any time regarding those charges."
We hold that this line of questioning by defense counsel opened the door to Frew's testimony concerning the assault. Defense counsel specifically raised the subject of Frew's allegations while cross-examining Ana, and, most importantly, defense counsel called into question the validity of those claims by seeking to establish before the jury that defendant was never convicted of any charges in connection with Frew's allegations. Assuming, arguendo, that Frew's testimony was otherwise inadmissible, the State was entitled to call Frew as a witness to explain and rebut the testimony elicited by defense counsel. State v. Brown, 310 N.C. 563, 571, 313 S.E.2d 585, 590 (1984) ("[W]hen a defendant in a criminal case offers evidence which raises an inference favorable to his case, the State has the right to explore, explain or rebut that evidence."); see also McKinnon, 328 N.C. at 674, 403 S.E.2d at 477 (holding that defendant opened the door to testimony by his girlfriend that defendant assaulted her the morning he allegedly killed another woman); State v. Parmaei, 180 N.C. App. 179, 187-88, 636 S.E.2d 322, 327 (2006) (holding that victim's daughter could testify about an assault she witnessed against her mother in 1997 where defense counsel asked victim's other daughter on cross-examination whether she had seen an assault perpetrated by defendant against her mother since 1997), disc. review denied, 361 N.C. 366, 646 S.E.2d 537 (2007).
D. Patricia Salituri
Salituri testified at trial that on 7 February 2002, defendant entered "The Pantry" convenience store where Salituri was on duty as a clerk. She recognized defendant as being a frequent customer at the store. Defendant walked to a cooler and selected a beer. When he brought the beer to the cash register, Salituri informed him that he could not buy beer at that time of day. Defendant then returned the beer to the cooler and wiped down the handle of the cooler door with his shirt sleeve, which Salituri found suspicious. On his way back to the front of the store, defendant knocked over a display case containing automotive supplies. When Salituri began cleaning up the area, defendant grabbed her by her wrist and arm and pushed her up against the cooler. Defendant attempted to drag Salituri into the cooler area, but was unable to do so and still maintain control over her. Defendant then bent Salituri over a dolly of soft drinks and pulled her pants down. At that point, the front door chimed indicating that another customer had entered the store. Salituri broke away from defendant and went to the front of the store. Defendant then went to the counter with a can of sardines, and as he was paying for them, Salituri pressed the panic button under the counter. Defendant left the store before law enforcement arrived.
We hold that the trial court did not err in admitting Salituri's testimony for the purposes stated in its order. The trial court found that the assaults on Salituri and Mooney were sufficiently similar "to support a reasonable inference by the jurors that the same person committed both acts." We agree. Here, as in the case with the attack against Mooney, (1) the attack took place late at night; (2) the victim was not a stranger to defendant; (3) defendant attacked the victim and held her by the wrists to restrain her; and (4) defendant used force to sexually assault the victim.
The State argues that defendant also opened the door to Salituri's testimony by questioning Ana on cross-examination concerning the assault on Salituri. In her cross-examination, defense counsel specifically referenced the incident at The Pantry and the surveillance videotape that was retrieved from The Pantry. Defense counsel asked Ana about allegations that she and defendant went to The Pantry after the assault and threatened Salituri. Ana admitted that she previously told police that defendant was with her that evening and that they did not go to The Pantry. Defense counsel also asked Ana to read the transcript of a statement she had made to police in which she stated that she was aware of an incident in a gas station where a woman had accused defendant of threatening to rape her and that defendant had "served time . . . maybe 120 days . . . for that." Upon request by defense counsel, Ana also read a letter she had written to a detective in which she denied going to The Pantry with defendant, but that she "`believe[d] the assault.'"
Assuming, arguendo, that Salituri's testimony was otherwise inadmissible, we hold that defense counsel's line of questioning opened the door to Salituri's testimony concerning the assault against her at The Pantry. As with Frew, defense counsel used Ana's inconsistent statements concerning the attacks on other women to impeach Ana's credibility. Although defendant objected to Salituri's testimony, defense counsel sought to discuss the assault against Salituri in her cross-examination of Ana for the benefit of defendant, thereby opening the door for the State to explain and rebut the evidence. As stated supra, "when a defendant in a criminal case offers evidence which raises an inference favorable to his case, the State has the right to explore, explain or rebut that evidence." Brown, 310 N.C. at 571, 313 S.E.2d at 590. Furthermore, defense counsel sought to reveal only portions of the incident at The Pantry, thereby depriving the jury of the "complete picture." See State v. Scott, 343 N.C. 313, 338, 471 S.E.2d 605, 620 (1996) (questioning of defense witness regarding the fact that he was in prison when he had a conversation with the victim was "admissible [on cross-examination by prosecution] to provide a complete picture for the jury").
E. Gabrielle Billman
Gabrielle Billman testified that she met defendant at an Alcoholics' Anonymous meeting in July 2004 in Leesville, Louisiana. On 18 July 2004, defendant arrived at her house with another man named Brandon. Billman rode around the community with defendant and Brandon, but after a while she got out of the car and walked to Brandon's house where she was picked up by a man named Ryan who drove her home. Billman lived with her father who was asleep when she arrived home. Later that night, Billman awoke with defendant on top of her with his hand pressed over her mouth so she could not breathe. After pulling down one leg of Billman's pants, defendant was able to penetrate Billman with his penis. Billman struggled, bit defendant's hand, and attempted to yell for help. Billman's father ran into the room and turned on the light. Defendant then left the Billman residence before the police were called to the scene. Billman gave a recorded statement to the police on 20 July 2004.
The trial court found that the assaults on Billman and Mooney were sufficiently similar "to support a reasonable inference by the jurors that the same person committed both acts." We agree.
Similar to the attack against Mooney, (1) defendant forcibly entered the home; (2) the attack took place late at night; (3) the victim was not a stranger to defendant; and (4) defendant used force to sexually assault the victim.
In sum, we hold that the various testimonies served to establish the identity of the perpetrator, a common scheme or plan, intent, as well as a motive for the attacks — sexual gratification brought upon by physical restraint, and, at times strangulation, of female victims against their will. A common thread found in all the testimonies is that these women were not complete strangers to defendant; defendant had at least some level of contact with each victim prior to the assault. In the case of Parker and Ana, defendant maintained a long-term relationship during which he perpetrated his assaults. In the case of Frew, Salituri, Billman, and Mooney, the evidence indicates that defendant spent a short amount of time either observing or speaking with each of them prior to the assaults.
Another factor which establishes evidence of a common scheme or plan, motive, intent, and identity of the perpetrator is defendant's use of asphyxiation to subdue his victims. In most cases, Salituri being the only exception, defendant cut off the victim's air supply during the attack. According to McMillan, defendant admitted that he took pleasure in choking women. State v. Williams, 355 N.C. 501, 563, 565 S.E.2d 609, 645 (2002) (testimony of victim that defendant choked her was admissible under Rule 404(b) "in order to show motive, plan, common scheme, and intent . . . since defendant had shown a pattern of choking his victims"), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003); State v. Sexton, 336 N.C. 321, 444 S.E.2d 879 (evidence that defendant had choked another woman was admissible under Rule 404(b) to show defendant's intent to murder the victim), cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994); Artis, 325 N.C. at 300, 384 S.E.2d at 482 (testimony that defendant choked prior victim was admissible under Rule 404(b) to establish that defendant was the perpetrator of the murder of subsequent victim).
Other common factors in the women's testimonies included, forcible entry into the victim's home, disabling of a telephone, and restraint by grabbing or binding the victim's wrists. All five women testified that defendant attempted or succeeded in sexually assaulting them through use of force. With the exception of Ana's testimony that defendant threatened her with a sword on one occasion, the testimonies consistently revealed that defendant did not use a weapon during the assaults; rather, he relied on the use of bodily force. Additionally, with the exception of Parker and Ana, defendant attacked the women late at night while they were perceived to be alone. Given the significant similarities in the attacks, we hold that the testimonies were properly admitted pursuant to Rule 404(b).
Defendant makes no argument concerning temporal proximity of the prior bad acts.
We further hold that the probative value of the evidence in this case was not outweighed by unfair prejudice since it did not have an undue tendency to suggest a decision on an improper basis. Furthermore, the trial court gave a limiting instruction, which served to guard against unfair prejudice. State v. Stevenson, 169 N.C. App. 797, 802, 611 S.E.2d 206, 210 (2005) (holding "the trial court guarded against the possibility of prejudice by instructing the jury to consider [the 404(b)] testimony only for the limited purposes of knowledge, intent, and common plan").
Conclusion
We hold that the testimonies of Parker, Frew, Salituri, Billman, and Ana were properly admitted to identify the person who committed the crimes against Mooney, that the defendant had a motive for the commission of the crimes charged, that defendant had the intent to commit the crimes charged, and that there existed in the mind of defendant a plan, scheme, system or design involving the crimes charged. We further hold that the probative value of the testimonies was not outweighed by unfair prejudice.
No Error.
Judges CALABRIA and HUNTER, ROBERT N., JR. concur.
Report per Rule 30(e).