Opinion
No. 07-557.
Filed April 15, 2008.
Buncombe County, Nos. 05CRS59557, 05CRS59561, 05CRS11038-39.
Appeal by defendant from judgment entered 31 August 2006 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 27 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. Glenn Gerding, for defendant.
In the summer of 2004, Dwight Edwin Waters (defendant) began molesting his girlfriend's daughter, W.P. W.P. was eleven years old at the time; defendant was the father of her two half siblings. The abuse continued until December of 2004, at which time defendant was banned from the apartment complex.
On 31 August 2006, a jury found defendant guilty of two counts of first degree statutory sexual offense and two counts of taking indecent liberties with a child. The jury also found as an aggravating factor that defendant took advantage of a position of trust or confidence. The trial court consolidated the statutory sexual offense convictions and sentenced defendant to a minimum term of 360 months and a maximum term of 441 months in prison. The trial court also consolidated the indecent liberties offenses, sentencing defendant to a minimum term of 26 months and a maximum term of 32 months in prison for those offenses. Defendant's sentences were in the aggravated range and were to run concurrently. Defendant now appeals both his convictions and his sentences.
Defendant's first argument on appeal is that the trial court erred in its admission of testimony regarding defendant's prior relationship with Martha Swinea. Swinea testified that she engaged in sexual activity with defendant multiple times over a two year period when she was twelve years old. Defendant now claims that the trial court should have excluded Swinea's testimony under Rules 402, 403, and 404(b) of our Rules of Evidence. We disagree.
Our standard of review is well established:
Where evidence of prior conduct is relevant to an issue other than the defendant's propensity to commit the charged offense, 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. The determination of similarity and remoteness is made on a case-by-case basis, and the required degree of similarity is that which results in the jury's reasonable inference that the defendant committed both the prior and present acts. The similarities need not be unique and bizarre. Finally, once a trial court has determined the evidence is admissible under Rule 404(b), the court must still decide whether there exists a danger that unfair prejudice substantially outweighs the probative value of the evidence. That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision.
State v. Stevenson, 169 N.C. App. 797, 800, 611 S.E.2d 206, 209 (2005) (quotations and citations omitted).
Defendant argues that the facts of his prior bad acts were not sufficiently similar and were too remote in time to be probative in this case. We disagree. The trial court conducted a voir dire examination of Swinea and determined that portions of her testimony were admissible "[t]o show the scheme, lack of mistake or accident." The trial court specifically found that the prior acts were "not too remote in time and probative value outweighs any prejudicial effect." The trial court did not err.
Defendant acknowledges that "[b]oth Ms. Swinea and W.P. alleged that Defendant put his finger in their vaginas, performed oral sex on them, and engaged in sexual intercourse with them." However, he claims that the similarities stop there. This contention ignores the crucial fact that both victims were preteen girls, as well as the fact that defendant engaged in his criminal behavior, at least in part, at his mother's house. These facts certainly go to show lack of mistake or accident; defendant clearly sought to prey on young girls. Moreover, the common situs of the crimes, defendant's mother's house, is probative to show a common scheme. The incidents were sufficiently similar.
Defendant also claims that defendant's previous misdeeds were too remote in time to be admissible. Our case law on the issue of remoteness is varied. See, e.g., State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (holding that a period of twenty-six years was not too long); State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988) (holding that a passage of seven years was too long to allow testimony). We note, however, that our Supreme Court "has been liberal in allowing evidence of similar offenses in trials on sexual crime charges." Frazier, 344 N.C. at 615, 476 S.E.2d at 300.
Moreover, remoteness is a less significant factor in determining Rule 404(b) admissibility when the prior acts go to prove something other than a common plan or scheme, such as knowledge or intent. Remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.
Stevenson, 169 N.C. App. at 801, 611 S.E.2d at 210 (quotations, citations, and alterations omitted). Given that the testimony in this case was admitted, in part, to show lack of mistake or accident, the trial court did not err.
Defendant also contends that the trial court erred in allowing Swinea to testify that defendant allowed other men to rape her. During the trial court's voir dire examination of Swinea, the trial court excluded testimony offered to show that at the end of defendant's relationship with Swinea, he left her in a motel room and sent in several friends who then forced Swinea to engage in sexual activity with them. The trial court stated,
I'm not going to allow any testimony about the use of drugs or engaging in intercourse with these other folks at the Interstate Motel. That's not an act of [defendant's]. For all I know, it could have been an attack. Cross-examination may open up some of those doors if you insist on ripping them down, but if you open it on cross, it may be fair game on redirect.
This portion of Swinea's testimony was therefore expressly excluded.
However, on cross examination, defense counsel asked a series of questions about Swinea's failure to go to the police, failure to prosecute defendant, and misidentification of defendant. On redirect, the trial court allowed the State to question the witness about the incident in the motel. The trial court held, and the State now argues, that defendant opened the door to the questions on cross examination. Defendant strenuously argues that he did not. However, it is unnecessary for this Court to reach a determination on the issue; even assuming arguendo that the trial court was in error, "[d]efendant has the burden of showing error and that there was a reasonable possibility that a different result would have been reached at trial if such error had not occurred." State v. Peterson, 179 N.C. App. 437, 465-66, 634 S.E.2d 594, 615 (2006) (quotations and citation omitted), aff'd, 361 N.C. 587, 652 S.E.2d 216 (2007). Given the overwhelming evidence against defendant, including both the testimony of the victim herself and defendant's own admissions, there was no "reasonable possibility that a different result would have been reached at trial" without the admission of the contested testimony. Defendant's arguments are therefore without merit. Finally, defendant asserts that the trial court failed to exercise its discretion in sentencing him to a sentence in the aggravated range. We disagree.
Defendant's argument hinges on his assertion that the trial court's failure to exercise its discretion was based on the erroneous belief that it did not have discretion in the matter. Defendant relies on State v. McAvoy for the proposition that "[w]hen a trial court fails to exercise its discretion in the erroneous belief that it has no discretion as to the question presented, there is error." 331 N.C. 583, 591, 417 S.E.2d 489, 494 (1992). This holding is an accurate statement of the law in this state. However, there is insufficient evidence before this Court to lead us to the conclusion that the trial court erroneously believed that it lacked discretion in sentencing.
Defendant directs the attention of the Court to two statements made by the trial court, both essentially stating that because the jury found that "defendant took advantage of a position of trust or confidence, the sentence will be entered from the aggravated range." Initially, we note that these statements, standing alone, do not give rise to the assumption that the trial court believed it lacked discretion in the matter. Unlike in McAvoy, in which "the trial court stated that it lacked the authority to give the jury written instructions," id., nowhere in the transcript or records is there any indication that the trial court in this case suggested it lacked authority. Moreover, the trial court specifically stated in its sentencing worksheet that "the factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified." Defendant's contention therefore lacks merit.
Having conducted a thorough review of the briefs and the record on appeal, we find no prejudicial error.
No prejudicial error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).