State v. Rodriguez

867 S.E.2d 229

STATE of North Carolina

v.Jimmy Brown RODRIGUEZ, II

No. COA20-850

Court of Appeals of North Carolina.

Filed November 2, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Karen A. Blum, for the State.

Drew Nelson, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Jimmy Brown Rodriguez, Jr. (Defendant) appeals from a Judgment and Commitment entered upon a jury verdict finding him guilty of Second-Degree Rape. The Record tends to reflect the following:

¶ 2 On 3 April 2018, a Wake County Grand Jury indicted Defendant on one count of Second-Degree Forcible Rape against a victim "who was at the time physically helpless" in violation of N.C. Gen. Stat. § 14-27.22 and one count of Incest in violation of N.C. Gen. Stat. § 14-178. On 22 October 2019, prior to trial, Defendant filed a Motion in Limine seeking to exclude expected testimony—under Rule of Evidence 404(b) —from a State's witness alleging Defendant had previously forcibly raped the witness. Defendant's case came on for trial on 28 October 2019 in Wake County Superior Court.

¶ 3 At the outset, the trial court heard arguments regarding Defendant's various Motions to exclude certain evidence including the testimony of Brittany Mack (Mack). Defendant's counsel explained that Mack would likely testify Mack and Defendant had been in a three-year relationship and that Defendant had "forced sex" on Mack numerous times including five days prior to the acts giving rise to Defendant's charges in this case. The trial court heard Mack's testimony on voir dire that on numerous occasions, while Mack brought her and Defendant's son to visit Defendant, Defendant would direct Mack to his bedroom, lock the door, and force Mack to have intercourse with him. The trial court reserved its ruling on the admissibility of this testimony for later in the proceedings.

¶ 4 Prior to opening arguments and the jury being impaneled, Defendant pled guilty to the charge of Incest. The State gave its opening remarks in which the State explained the evidence would show on 5 March 2018, Defendant engaged in intercourse with his niece, K.F.,¹ after inviting her to his residence and drinking alcohol, and the intercourse was "by force and against [K.F.’s] will because she was unable to consent." The State also explained to the jury that Defendant had already pled guilty to a charge of Incest for the acts in question in this case.

¶ 5 The State called K.F. as its first witness. K.F. testified that in January of 2018, she came to North Carolina from Texas to visit family. On the date in question, Defendant asked K.F. to come over to his apartment so that K.F. could "drive him around," and Defendant would "pay [K.F.] to drive him around." Defendant wanted K.F. to drive him around because he had been drinking. K.F. drove Defendant to a liquor store where Defendant bought "a fifth of Jack" and numerous "airplane bottles" of other liquors. Defendant and K.F. went back to Defendant's apartment, and Defendant asked K.F. if she "wanted to drink." K.F. replied that she did. Defendant then made K.F. a drink in a "red solo cup" that contained "a lot of Jack. More than [K.F.] was used to."

¶ 6 Defendant and K.F. then engaged in arm wrestling, and K.F. asked Defendant if he could show K.F. "moves like fighting wise[.]" After about ten minutes, Defendant and K.F. drank more alcohol, and K.F. "started feeling a little bit uncomfortable." According to K.F., Defendant "grazed [her] butt" twice. Then K.F. drank two "shots" of liquor from the airplane bottles Defendant had purchased before Defendant gave K.F. another cup of alcohol. Defendant started to complain about back pain and asked K.F. to "rub IcyHot" on his back. K.F. agreed to do so because she had done that for her boyfriend when he had hurt his back. K.F. applied IcyHot to Defendant's back, then chest, while Defendant was shirtless on the living room floor. Defendant asked K.F. to "straddle" him while she applied IcyHot to his chest, but K.F. did not because she felt it was "inappropriate." K.F. was "pretty buzzed" as she applied IcyHot to Defendant's back and chest. Defendant then leaned in to try and kiss K.F. K.F. tried to "scoot" away from Defendant and ended up on her back while trying to avoid Defendant's continued advances. K.F. told Defendant "no," but Defendant kept trying to kiss her. At some point, K.F. "froze" and could no longer move. K.F. blacked out momentarily and remembered walking into the bedroom where she blacked out again. When K.F. regained consciousness, Defendant was having intercourse with her.

¶ 7 After hearing K.F.’s testimony, the trial court ruled "that the 404(b) evidence as it relates to alleged sexual assault by the defendant on Brittany Mack will be admissible for the limited purposes of showing absence of mistake, lack of consent and intent." The trial court found "that proximity is not at issue as this is alleged acts that most recently occurred five days prior to the alleged sexual assault" in this case, and that there were similarities between Defendant's alleged rapes of Mack and the circumstances in this case. As such, the trial court reasoned:

So recognizing that rule 404(b) is a rule of inclusion, I do find that this proffered testimony should be admitted under 404(b). I have conducted the balancing test required by Rule 403 and do find that the evidence is sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test and that the probative value is not outweighed by the prejudicial effect.

¶ 8 The State called Mack as its second witness. Mack testified she started dating Defendant in 2016, and the couple had a child together. Mack later ended her relationship with Defendant, but Mack and Defendant reached an agreement for Defendant to visit Mack and Defendant's son. Mack testified that on numerous occasions, when Mack brought her children to Defendant's apartment so Defendant could visit his son, Defendant "would tell [Mack's] children that he needed to talk to their mother," and Mack would follow Defendant into his bedroom while the children remained in the living room. According to Mack, Defendant "would tell [Mack] to take [her] clothes off or sometimes he would just start taking them off for [Mack]." Then Defendant would, "pick [Mack] up and throw ... or toss [Mack] on his bed."

¶ 9 Defense counsel objected to Mack's testimony Defendant threw her on his bed. After a bench conference, the trial court instructed the jury:

Ladies and gentlemen of the jury, evidence is being elicited tending to show that at an earlier time the defendant sexually assaulted Brittany Mack. This evidence is being received solely for the purpose of showing absence of mistake, that the defendant had the intent to -- I am sorry -- that the defendant had the intent to commit the crime charged in this case, and the lack of consent. If you believe this evidence, you may consider it but only for the limited purpose or purposes for which it was received.

Mack continued: "[Defendant] would either make me give him oral sex or he would continue to insert his penis inside of me." Mack did not consent to these encounters, but she did not scream because her "kids were in the room just ten feet away." Mack explained she had been unable to resist Defendant's sexual advances during their past relationship.

¶ 10 Defendant did not present any evidence at trial. Before the trial court sent the jury to deliberate, the trial court instructed the jury:

Evidence was [presented] tending to show that at an earlier time the defendant sexually assaulted Brittany Mack. This evidence was received solely for the purpose of showing absence of mistake and/or that the defendant had the intent to commit the crime charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose or purposes for which it was received.

During deliberation, the jury asked the trial court: "In the third element, can you please explain in detail should have reasonably known?" The trial court instructed the jury that it was "to consider what a reasonable person similarly situated would have known or should have known." After the jury informed the trial court that it could not reach a unanimous verdict, the trial court issued the jury an Allen charge instructing the jury to continue to deliberate. The jury eventually found Defendant "guilty of second degree rape." The trial court sentenced Defendant to an active term of 96 to 176 months—including the charge of Incest to which Defendant pled guilty. Defendant gave oral Notice of Appeal in open court.

Issues

¶ 11 The issues on appeal are whether the trial court: (I) erred in allowing testimony regarding Defendant's alleged prior rapes because the alleged prior rapes were not relevant to any material element of the charge of Second-Degree Forcible Rape in this case; and (II) abused its discretion in weighing the testimony's prejudicial effect against its probative value.

Analysis

¶ 12 Defendant argues the trial court erred in admitting Mack's testimony regarding Defendant's alleged forcible rapes against her will because these alleged prior rapes were not relevant under Rule of Evidence 401 as they were not probative of any fact required to find Defendant committed Second-Degree Forcible Rape in this case. Alternatively, Defendant argues the trial court abused its discretion in weighing the probative value of Mack's testimony against its prejudicial effect pursuant to Rule of Evidence 403.

I. Relevant Evidence

¶ 13 As a threshold matter, the State contends Defendant has not preserved this specific theory for appeal because Defendant only objected to this testimony at trial under Rule of Evidence 404(b) as impermissible character evidence showing Defendant's propensity to commit rape. As such, according to the State, Defendant has not preserved the issue on the specific grounds the testimony was relevant...