State v. Barnett

734 S.E.2d 130

STATE of North Carolina

v.William Ronnie BARNETT.

No. COA12–381.

Court of Appeals of North Carolina.

Nov. 20, 2012.

Appeal by Defendant from judgment entered 29 July 2011 by Judge Anna Mills Wagoner in Iredell County Superior Court. Heard in the Court of Appeals 11 September 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.

BEASLEY, Judge.

Defendant appeals from his conviction of second-degree rape in violation of N.C. Gen.Stat. § 14–27.3(a). For the reasons stated below, we find no error in part and remand for correction of a clerical error in part.

The events giving rise to the charged offense in this case occurred twenty-seven years ago in 1985. The prosecuting witness, T.L.,¹ was born on 17 July 1969. Defendant, born in 1959, is her uncle.

Defendant filed a motion in limine to exclude testimony by T.L. and T.I., Defendant's daughter, under Rules 404 and 403 of the North Carolina Rules of Evidence. During a voir dire hearing on 25 July 2011, T.L., T.I., and C.M., a niece of Defendant and cousin of T.L. and T.I., testified to Defendant's prior sexual acts with them. The trial court found a “strikingly similar pattern” of sexual abuse and admitted the evidence to show motive, common plan, or opportunity. The trial court further found that the evidence was more probative than prejudicial and admitted the evidence subject to a limiting instruction. Defendant renewed his objection prior to each witness's testimony and each objection was overruled. The trial court gave limiting instructions as to the purposes for which the testimonies were offered at the conclusion of each witness's testimony.

At trial, T.L. testified that in late July or early August of 1985 she and her parents traveled from their home in West Virginia to visit her grandparents in Mooresville, North Carolina. At that time, Defendant lived with his wife, Nancy, in a trailer close to his parents' (T.L.'s grandparents') house. T.L., then sixteen years old, and her cousin Gary visited Defendant and Nancy at the trailer. On the way to the trailer, Defendant, Nancy, Gary, and T.L. went to the store and purchased fortified wine and some beer. Defendant, Nancy, Gary, and T.L. played cards, drank alcohol, and smoked marijuana at the trailer. T.L. drank an entire bottle of wine over the course of a couple of hours. T.L. was warm, so Defendant told Nancy to give T.L. a pair of her shorts to wear. After putting on the shorts, T.L. mentioned she had a headache. Nancy gave her a yellow pill to help her headache. T.L. swallowed the pill in the kitchen. After taking the pill, T.L. felt “dizzy,” “woozy,” and “sleepy.” The last thing T.L. remembered was taking another shot of wine. When T.L. awoke, she was in Defendant's bed. T.L. was no longer wearing Nancy's shorts. Defendant was on top of her, vaginally penetrating T.L. with his penis. Nancy was also in the room. T.L. told Defendant to stop, tried to push Defendant off, and begged Nancy to help her. T.L. remembered nothing between taking the shot in the kitchen and waking up in the bedroom.

T.L. recounted Defendant's prior sexual contact with her. In 1977, Defendant touched T.L.'s breasts on several occasions at her grandparents' swimming hole. She testified that these encounters always occurred at her grandparents' house. Defendant would send the others away so that he and T.L. were alone when he touched her. On more than one occasion in 1978, Defendant touched her breasts, put her hand on his penis, and made her rub his penis up and down. These incidents ended when T.L. was about ten years old and her grandparents and Defendant moved to North Carolina.

In 1980, Defendant also masturbated in front of T.L. on two occasions. T.L. and her parents were unable to visit her grandparents for about three years due to financial troubles. T.L. visited her grandparents' house again when she was fifteen years old, but no incidents occurred during that visit.

T.I. was born on 21 March 1979. T.I.'s mother, Julie Barnett (Julie), was married to Defendant. After her parents separated, T.I. lived primarily with her mother but visited Defendant at her grandparents' house where Defendant lived. When she was three years old, Defendant digitally penetrated her genitals while bathing her. When she was four years old, Defendant masturbated in front of her in his bedroom. Defendant asked T.I. several times to touch him.

T.I.'s mother, Julie, also testified. Upon learning that Defendant had molested T.I., Julie called the police and the hospital. Julie received no help from the police or hospital. Julie then purchased a shotgun and shells. On direct examination, Julie stated without objection that she called Defendant's father and told him to tell Defendant to come over to her house. Julie told Defendant's father that she was going to kill him “because he messed with [her] baby.” Julie repeated this testimony on cross-examination.

C.M.'s testimony demonstrated a lengthy history of sexual abuse by Defendant. C.M. was born 21 August 1966 and grew up in West Virginia. Defendant lived with his parents, C.M.'s grandparents, ten miles away. C.M. often visited her grandparents' house with her sister and brothers. When C.M. was four or five years old, Defendant had sexual intercourse with her twice on a bookcase in his bedroom and in the swimming hole. When C.M. was six or seven years old, Defendant had sexual intercourse with her in an old schoolhouse on her grandparents' property. Defendant showed C.M. sex positions from pornographic magazines and instructed her to imitate the pictures. When C.M. was eight or nine years old, Defendant had sexual intercourse with her at her parents' house. During several of these occasions, Defendant had sexual intercourse with C.M. and Defendant would send her brothers out of the room to perform these sexual acts. Defendant had sexual intercourse with C.M. many times after that and did not stop until C.M. was eleven years old and began having her menstrual period.

The jury convicted Defendant of second-degree rape on 29 July 2011. Defendant stipulated to his prior conviction for DWI in 2003. The State offered the conviction as an aggravating factor. Defendant presented no evidence of mitigating factors. T.L., T.I., and C.M. gave victim impact testimony. Prior to T.I. and C.M. speaking before the court, the prosecutor stated, “I'm sure that the other ladies may want to be heard; but for purposes of sentencing on the second degree rape, your Honor, that's my offer, [T.L.]. I'll leave it up to your Honor.” The prosecutor later asked the trial court to “take into consideration what [Defendant] has done to the lives of these women, and the lives of the women that you haven't heard from.” Stating that it only considered the prior conviction, the trial court sentenced Defendant to thirty years in prison under the Fair Sentencing Act. The trial court made no written findings of fact. On the judgment, the clerk marked box “(a)” indicating that no written findings were made because the prison term imposed did not require such findings. Defendant now appeals his conviction and sentence.

Defendant argues that the trial court erred in admitting testimony regarding Defendant's prior bad acts under Rules 404(b) and 403. We find no error with regard to the admission of prior bad acts with T.L. as part of a common scheme. Assuming arguendo that it was error to admit the testimony of T.I. and C.M., any error was harmless in light of T.L.'s properly admitted testimony.

The Supreme Court North Carolina recently clarified the standard of review for admission of evidence under Rules 404(b) and 403.

When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, ... we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012).

In general, evidence of prior bad acts may not be used to show a defendant's propensity to commit the charged offense. SeeN.C. Gen.Stat. § 8C–1, Rule 404(b) (2011). North Carolina courts have generally been very liberal in admitting evidence of similar sex offenses under Rule 404(b), see State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990), especially under the common plan or scheme exception, see State v. Gordon, 316 N.C. 497, 504, 342 S.E.2d 509, 513 (1986). This state's courts are also “quite liberal” in admitting similar, prior sex offenses when both the prior offenses and the charged offense involve the same victim. State v. Thompson, 139 N.C.App. 299, 303, 533 S.E.2d 834, 838 (2000).

“Though it is a rule of inclusion, Rule 404(b) is still ‘constrained by the requirements of similarity and temporal proximity.’ ” Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 159 (quoting State v. Al–Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002)). A prior act or crime is considered “similar” under Rule 404(b) “if there are some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890–91 (1991) (citations omitted) (internal quotation marks omitted). “[R]emoteness in time tends to diminish the probative value of the evidence and enhance its tendency to prejudice.” State v. Artis, 325 N.C. 278, 300, 384 S.E.2d 470, 482 (1989), vacated and remanded on other grounds,494 U.S. 1023, 110 S.Ct. 1466, 108 L.Ed.2d 604 (1990). Temporal proximity is not eroded when the remoteness in time can be reasonably explained. See State v. Jacob, 113 N.C.App. 605, 611–12, 439...