State v. Moore , 103 N.C. App. 87 ( 1991 )

404 S.E.2d 695 (1991) 103 N.C. App. 87

STATE of North Carolina
v.
James MOORE, Jr.

No. 9028SC431.

Court of Appeals of North Carolina.

June 4, 1991.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Mary Jill Ledford, Raleigh, for the State.

Whalen, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A. by David G. Belser, Ashville, for defendant-appellant.

EAGLES, Judge.

I.

Defendant first assigns as error the trial court's admission into evidence of a statement possessed by the State containing defendant's admission that he had sexually abused another child, when the State had not revealed the statement in response to a discovery request by defendant. Defendant argues that "the introduction into evidence of damaging statements made by defendant to Department of Social Services (D.S.S.) personnel was improper in light of the fact that such statements were not made available to defendant prior to trial as required by law." Defendant contends that he was "incapable of mounting an appropriate defense as required by due process of law." Defendant also contends that the trial court's refusal to grant his motion for discovery sanctions was also improper because G.S. 15A-903(d) requires disclosure of the documents and the trial court's legal analysis on this issue was improper. Defendant argues that the trial court's "failure to impose any discovery sanction amounted to an abuse of discretion." Defendant argues that the trial court's refusal to grant his discovery sanctions request amounted to reversible error. We disagree.

Upon motion of a defendant, a trial court must order the prosecutor to permit a defendant to inspect and copy any relevant written or recorded statements in the State's control that were made by a defendant. N.C.G.S. § 15A-903(a)(1) (1983). Further, N.C.G.S. § 15A-903(a)(2) provides that upon motion, the trial court must order the prosecutor to divulge any oral statements made by the defendant that are relevant to the case. When a party fails to comply with the order, the trial court may grant a continuance or a recess, prohibit the violating party from introducing the non-disclosed evidence, or enter any other appropriate order. N.C.G.S. § 15A-910 (1983). Because the trial court is not required to impose any sanctions for abuse of discovery orders, what sanctions to impose, if any, is within the trial court's discretion, State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983), including whether to admit or exclude evidence not disclosed in accordance with a discovery order. State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978).

State v. Weeks, 322 N.C. 152, 171, 367 S.E.2d 895, 906 (1988). We note that here defendant did not seek imposition of sanctions generally but limited his request to exclusion of the evidence and mistrial. The trial court refused to impose either of those sanctions and no others were requested. "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986).

We note that G.S. 15A-903(a)(2) requires the disclosure of "any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody, or control of the State[.]" Without addressing whether G.S. 15A-903(a)(2)'s requirement for disclosure would operate to permit the court to exclude the evidence, we hold that the trial court did not abuse its discretion in admitting the statement after cross-examination. Here, during a bench conference the prosecutor admitted that she was aware of the statement but believed that she could not successfully offer the statement into evidence in her case in chief since she had not provided the statement pursuant to defendant's request. In its ruling, the trial court stated that the statement was not directly relevant to the instant case since it involved another child and the mother of the child. The trial court noted that the State had not initially attempted to introduce the statement. However, the court pointed out that defendant had "opened the door" to the matter and relying on the business record exception to the hearsay rule, had questioned the witness about DSS files on the Moore family which contained defendant's statement that he had abused another child. Because defendant had "opened the door," the trial court then allowed the State on redirect examination to ask further questions about the prior allegation of abuse with another victim. On this record, we hold that the trial court did not abuse its discretion in admitting the evidence since defendant had in fact "opened the door."

II.

Defendant next assigns as error the trial court's refusal to dismiss based on the insufficiency of the evidence. Defendant argues that "the evidence presented by the State failed to prove the essential element of penetration of the victim's vagina by the defendant, and was therefore insufficient to prove the offense of First Degree Rape as defined [in] N.C.G.S. § 14-27.2." Defendant contends that "the evidence was simply too uncertain and insufficient for a jury to find the element of penetration beyond a reasonable doubt." We disagree.

For a charge of first degree rape to withstand a motion to dismiss for insufficient evidence, there must be evidence among other things, that defendant engaged in vaginal intercourse with the victim. G.S. 14-27.2. In ruling on a motion to dismiss for insufficient evidence the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence. State v. Bell, 311 N.C. 131, 138, 316 S.E.2d 611, 615 (1984). There must be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense. State v. Gardner, 311 N.C. 489, 510-11, 319 S.E.2d 591, 605 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369 (1985).

State v. Green, 95 N.C.App. 558, 562, 383 S.E.2d 419, 421 (1989). "Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Further, `[t]he trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying a defendant's motion to dismiss.'" State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510, 516 (1985).

In Green, supra, the seven year old victim, answered affirmatively when asked if defendant, who was her biological father, had "`put his private parts in [her] private parts.'" 95 N.C.App. at 559, 383 S.E.2d at 420. The victim also answered affirmatively when asked if defendant had "`put his private parts in [her] mouth,'" id., and if defendant had "`lick[ed her] private parts.'" Id. at 560, 383 S.E.2d at 420. In Green, the State presented corroborative evidence from the victim's mother, a police detective and the doctor who examined the victim and testified that the findings from the physical examination of the child were "`compatible with penile penetration.'" Id. at 563, 383 S.E.2d at 422. The Green court held this evidence sufficient to withstand defendant's motion to dismiss.

In State v. Estes, 99 N.C.App. 312, 393 S.E.2d 158 (1990), defendant there argued that the victim's testimony that defendant "`stuck his thing' in the `back and front' of the child," id. at 315, 393 S.E.2d at 160, notwithstanding any physical evidence or demonstration by the victim on anatomically correct dolls of the alleged misconduct was insufficient evidence of penetration for first degree sexual offense. The Estes court noted that our Supreme Court in State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987) found the victim's testimony that defendant "`put his penis in the back of me,'" id., 99 N.C.App. at 316, 393 S.E.2d at 160, insufficient to withstand a motion to dismiss. The Estes court, however, distinguished its case from Hicks because in Estes the victim further identified the "back of her" as "`where I go number two.'" Id.

Here the victim testified that defendant "hurt [her] in the private parts." She then demonstrated how defendant hurt her using anatomically correct dolls. The victim identified the female doll as herself and the male doll as her father. The victim then placed the penis, which she identified as "peanut" against the vaginal area of the female doll, which she indicated was her "private parts." The victim also identified defendant's home as the location where defendant "put his private parts in [her] private parts." The victim also replied "no" when asked if "anybody else ever touched you in your private parts." Further, Detective Loeffler testified that the child demonstrated what defendant did to her with anatomically correct dolls by "[sticking] the penis of the male doll around the vaginal area of the female doll." Rosemary Provencher also testified that the victim "took the penis of the male doll and put it around the area, the vaginal area of the female doll" when demonstrating what defendant did to her. Finally, Dr. Gravatt testified that the victim's vaginal opening was significantly larger than that of a child four to five years of age, that there was no hymenal tissue, that there was "ragged scar tissue" in the process of healing and that the victim had a urinary tract infection which is typically seen in sexually abused children. Dr. Gravatt further testified that the victim's injuries were consistent with sexual abuse and that "there [was] no way that normal childhood play or accidents could [have] cause[d] the type of findings on this physical exam." We find the cases cited by defendant distinguishable and defendant's arguments unpersuasive. Accordingly, this assignment of error is overruled.

III.

Defendant contends that the trial court erred in admitting into evidence alleged prior misconduct of defendant. Defendant contends that the trial court erred in failing to exclude testimony regarding prior alleged sexual misconduct involving two other victims, "neither of whom were victims in the case in which defendant was tried." Defendant argues that the evidence presented by the State was contrary to the rules of evidence "and unduly inflamed and prejudiced the jury against the defendant." We disagree.

First, with respect to the trial court's admission of testimony from the State's witness Rosemary Provencher involving defendant's admission that he abused another victim approximately seven years prior to the current charges of sexual abuse, we agree with the State's contention that Rule 404 of the Rules of Evidence is not dispositive on the admissibility of Ms. Provencher's testimony.

[I]t is a general rule of evidence that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. Various exceptions to this general rule of inadmissibility, as well recognized as the rule itself, are discussed in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The admissibility of the evidence challenged by this assignment of error, however, is not governed by the rule of evidence discussed in State v. McClain, supra. Here, evidence was elicited from [the witness] on cross-examination calculated and intended to show bias and to discredit her testimony. This calls for application of the rule that where evidence of bias is elicited on cross-examination the witness is entitled to explain, if he can, on redirect examination, the circumstances giving rise to bias so that the witness may stand in a fair and just light before the jury. "A party cannot be allowed to impeach a witness on the cross-examination by calling out evidence culpatory of himself and there stop, leaving the opposing party without opportunity to have the witness explain his conduct, and thus place it in an unobjectionable light if he can. In such case the opposing party has the right to such explanation, even though it may affect adversely the party who cross-examined. Upon the examination in chief, the evidence may not be competent, but the cross-examination may make it so." State v. Glenn, 95 N.C. 677 (1886). Stansbury states the rule in these words: "If circumstances evidencing bias are elicited on cross-examination, the witness is entitled to explain them away, if he can, on redirect examination, after which the cross-examining party may produce evidence nullifying the effect of the explanation." [Citations omitted.]

State v. Patterson, 284 N.C. 190, 195-96, 200 S.E.2d 16, 20 (1973).

"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. Leroux, 326 N.C. 368, 383, 390 S.E.2d 314, 324, cert. denied, ___ U.S. ___, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990), quoting, State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). "[W]here defense counsel on cross-examination of a witness brings out evidence tending to show that someone else was suspected of committing the crime charged, the State is entitled to introduce evidence in explanation or rebuttal thereof, even though such evidence would have been irrelevant had it been offered initially by the State. In such a case, the defendant has `opened the door' to this testimony and will not be heard to complain. `Upon the examination in chief, the evidence may not be competent, but the cross-examination may make it so.'" State v. Stanfield, 292 N.C. 357, 364, 233 S.E.2d 574, 579 (1977).

Here, during cross-examination of Ms. Provencher, defendant elicited testimony which would imply that defendant's ex-wife and not defendant could have been responsible for abusing the victim. Defense counsel questioned Ms. Provencher about how she concluded that defendant abused the victim in view of the information in the file concerning the victim's mother's admission to abusing one of her other children. Ms. Provencher stated that she "would have to expand on [her] answer on that, with the other information that I know about that." At that particular time defense counsel concluded cross-examination. The State asked her the objected to question for the purpose of explaining her testimony on cross-examination. The State was entitled to have its witness explain her answer during re-direct examination. Accordingly, this assignment of error is without merit.

IV.

Defendant also argues that the trial court erred in allowing the State to cross-examine defendant about specific acts of sexual abuse of two other victims.

[I]t has been accepted as an established principle in North Carolina that "the State may not offer proof of another crime independent of and distinct from the crime for which defendant is being prosecuted even though the separate offense is of the same nature as the charged crime." ...

Rule 404(b) of the North Carolina Rules of Evidence provides as follows:

(b) Other crimes, wrongs, or acts.— 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.

State v. DeLeonardo, 315 N.C. 762, 769, 340 S.E.2d 350, 355 (1986). "`Our Court has been very liberal in admitting evidence of similar sex crimes in construing the exceptions to the general rule.'" Id. at 770, 340 S.E.2d at 356, quoting, State v. Williams, 303 N.C. 507, 513, 279 S.E.2d 592, 596 (1981).

Our Supreme Court has held "that evidence of prior sex acts may have some relevance to the question of defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity." However, "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 ... Rule 403." The period of time between the prior sexual acts and the acts charged is an important part of the balancing process. "[T]he passage of time between the commission of the ... acts slowly erodes the commonality between them."

State v. Roberson, 93 N.C.App. 83, 85, 376 S.E.2d 486, 487 disc. rev. denied, 324 N.C. 435, 379 S.E.2d 247 (1989). "While a lapse of time between instances of sexual misconduct slowly erodes the commonality between acts and makes the probability of an ongoing plan more tenuous, the continuous execution of similar acts throughout a period of time has the opposite effect. When similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan." State v. Shamsid-Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847 (1989).

"`[T]he facts of each case ultimately decide whether a defendant's previous commission of a sexual misdeed is peculiarly pertinent in his prosecution for another independent sexual crime.'" Id. at 446-47, 379 S.E.2d at 848. "[E]vidence of defendant's prior misconduct with other family members properly was admitted to show that `defendant systematically engaged in nonconsensual sexual relations with his [daughters] as they matured physically, a pattern of conduct embracing the offense charged.'" Id. at 447, 379 S.E.2d at 848.

Remoteness in time is more significant when evidence of another crime is admitted to show that it and the crime being tried both arose out of a common scheme or plan. It would be unlikely, though not inconceivable, that crimes committed several years apart were planned at the same time. Remoteness in time is less important when the other crime is admitted because its modus operandi is so strikingly similar to the modus operandi of the crime being tried as to permit a reasonable inference that the same person committed both crimes. It is reasonable to think that a criminal who has adopted a particular modus operandi will continue to use it notwithstanding a long lapse of time between crimes.

State v. Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427 (1986).

Here the trial court admitted evidence that defendant sexually abused two other victims. First, the trial court admitted evidence that defendant sexually abused his seven-month stepson allegedly on 17 July 1981. This information was properly admitted through the testimony of Ms. Provencher on re-direct examination to explain why she thought defendant also committed the sexual abuse of the victim in the current case. The seven-month old victim suffered from "double subdural hematomas, multiple facial and body bruises, and his penis was blackened." As a result, any testimony concerning this victim elicited from defendant was merely cumulative of testimony by Ms. Provencher.

Second, the trial court admitted testimony that defendant sexually abused his fifteen year old sister-in-law on 7 July 1985. The cross-examination concerning defendant's misconduct towards this victim was properly admitted in view of defendant's response to cross-examination about his prior convictions. Defendant was asked to state his prior convictions and he responded that he had been "charged ... with trying to have sexual advance with her, but it's not true. I did not. Her stepdad sent her up to cause me trouble." While the fifteen year old victim was sleeping on the couch in defendant's residence, defendant allegedly inserted his finger in her vagina. Here defendant opened the door to this evidence and the State was entitled to "explore, explain or rebut that evidence." State v. Brown, 310 N.C. 563, 571, 313 S.E.2d 585, 590 (1984).

Defendant also argues that allowing cross-examination of him regarding the sexual abuse of the two victims violated Rule 608 of the North Carolina Rules of Evidence.

Rule 608 allows inquiry on cross-examination into specific instances of conduct if probative of truthfulness or untruthfulness. However, in State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986), our Supreme Court stated that "extrinsic evidence of sexual misconduct is not in any way probative of a witness' character for truthfulness or untruthfulness." Id. at 506, 342 S.E.2d at 514. Even so, any error in admitting evidence in violation of Rule 608 does not require a new trial unless there is a "`reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial.'" Id. In this case defendant has failed to show that he has been prejudiced by the admission of the testimony. First, the testimony concerning defendant's abuse of his seven-month step-son was previously admitted through the State's re-direct examination of Rosemary Provencher. Accordingly any cross-examination of defendant concerning this charge was merely cumulative. Secondly, defendant opened the door to the accusation of sexual misconduct towards his fifteen year old sister-in-law when responding to the State's question concerning his prior convictions. Defendant stated that the charge was not true and that he was being set up. In any event, upon receiving a negative answer, the State did not make further inquiry into the prior instances of misconduct. Accordingly this assignment of error is overruled.

V.

Defendant next contends that the trial court erred in denying the defense counsel's motion to withdraw as counsel in order to serve as a witness for defendant. Defendant argues that the testimony of his attorney concerned jurisdiction which was "a matter essential to the adjudication of the case." Defendant contends that the "trial court's denial of defense counsel's motion to withdraw constituted prejudicial error which merits reversal by this court." We disagree.

Whether an attorney can withdraw as counsel is a matter in the sound discretion of the trial judge. State v. Elam, 56 N.C.App. 590, 593-94, 289 S.E.2d 857, 860, disc. rev. denied, 305 N.C. 761, 292 S.E.2d 577 (1982). On this record we hold that the trial court did not abuse its discretion in denying defense counsel's motion to withdraw. In his argument to the trial court, defense counsel mentioned the inconsistency in the victim's testimony and that he should be allowed to testify that the victim told him that the incidents did not occur in her father's trailer in Woodfin. Here the jury heard evidence relative to the child victim's inconsistent testimony as to the place where the alleged sexual misconduct occurred. The jury then returned a special verdict finding that North Carolina had jurisdiction over this matter. Accordingly, on this record we find no abuse of discretion and this assignment of error is overruled.

Accordingly, we find no error.

No error.

PHILLIPS and WYNN, JJ., concur.