State v. Gross , 104 N.C. App. 97 ( 1991 )

408 S.E.2d 531 (1991) 104 N.C. App. 97

STATE of North Carolina
v.
Andrew Wayne GROSS.

No. 9025SC1137.

Court of Appeals of North Carolina.

September 17, 1991.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Charles M. Hensey, for State.

Christian, Houck, Sigmon & Green by Daniel R. Green, Hickory, for defendant-appellant.

EAGLES, Judge.

I

Defendant first contends that the trial court committed prejudicial error by admitting Michael's testimony that he had been sexually assaulted by the defendant approximately seven years before the crimes alleged here. We disagree that the error was prejudicial.

[E]vidence of prior sex acts may have some relevance to the question of a defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. See State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988); State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986); State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986). Such evidence is not offensive to the general prohibition against character evidence because it is admitted not to prove defendant acted in conformity with conduct on another occasion but rather as circumstantial proof of defendant's state of mind. State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986). Indeed,... we have stated that ``evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.' [Citation omitted.]

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Nonetheless, the admissibility of evidence of a prior crime must be closely scrutinized since this type of evidence may put before the jury crimes or bad acts allegedly committed by the defendant for which he has neither been indicted nor convicted.

State v. Jones, 322 N.C. 585, 588, 369 S.E.2d 822, 823-824 (1988).

The defendant relies upon State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988). In Jones, the defendant was convicted of two counts of first degree rape and three counts of taking indecent liberties with a child. The acts allegedly occurred over the course of almost three years, and were committed against the defendant's twelve year old stepdaughter. Id. at 586, 369 S.E.2d at 822. During the State's presentation of evidence, a witness testified that she had also been sexually assaulted by the defendant on numerous occasions. Id. The alleged assaults occurred some seven years before and were carried out in much the same manner. Id. The court ordered a new trial stating:

Evidence of other crimes must be connected by point of time and circumstance. Through this commonality, proof of one act may reasonably prove a second. However, the passage of time between the commission of the two acts slowly erodes the commonality between them. The probability of an ongoing plan or scheme then becomes tenuous. Admission of other crimes at that point allows the jury to convict defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.

Id. at 590, 369 S.E.2d at 824.

Here, we hold that it was error to admit Michael Reep's testimony. The passage of time between the alleged assaults upon Mr. Reep and those against the victims here is so great as to make the existence of any plan or scheme tenuous at best. The issue before us now is whether the admission of this testimony was prejudicial error. After careful review of the record before us, we conclude it was not prejudicial error.

"An error is not prejudicial unless a different result would have been reached at the trial if the error in question had not been committed. N.C.Gen.Stat. § 15A-1443." State v. Smith, 87 N.C.App. 217, 222, 360 S.E.2d 495, 498 (1987), disc. review denied, 321 N.C. 478, 364 S.E.2d 667 (1988). Here, the State had already introduced testimony from Lewis, Keith, and Phillip that each had been sexually assaulted by the defendant. Each boy's story was corroborated by their parents or friends. While Michael Reep's testimony was inadmissible, "the defendant here has not persuaded us that there exists any reasonable possibility that the outcome of the trial would have been any different had the testimony not been allowed." Id. at 222, 360 S.E.2d at 498. Defendant's first assignment of error is overruled.

II

Defendant next argues the trial court erred in refusing to allow him to testify about his criminal record. However, the record does not indicate what the witness would have answered had he been permitted to do so. The defendant has failed to properly preserve this issue for appeal. State v. Kirby, 276 N.C. 123, 132-133, 171 S.E.2d 416, 423 (1970).

III

By his next assignment of error defendant argues the trial court erred by denying defendant's motions to dismiss all charges other than the first degree kidnapping of Keith. We disagree. The defendant admits in his brief that the State introduced "evidence of each element of each offense." Indeed, the record is replete with evidence sufficient to support each conviction.

IV

Defendant also argues the trial court erred by failing to dismiss the charge of first degree kidnapping involving Keith, the 15 year old alleged victim. G.S. 14-39 defines kidnapping as follows:

(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

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(2) facilitating the commission of any felony or facilitating flight of any person following the commission of a felony....

Defendant contends the conviction should be set aside because Keith's mother, who "was present in the court and testified for the State, [] was never asked whether or not she consented to the defendant's alleged confinement, restraint or removal o[f] her son." This argument is wholly without merit. Keith's mother testified that she returned home to find a note from her son saying that he was going out with a friend and would be back around 11:30 p.m. When Keith came home the next morning his mother "started fussing at him for not calling or not coming home...." Further, Keith's mother testified on crossexamination that she did not even know the defendant at the time. This evidence is sufficient for the jury properly to infer a lack of parental consent. This assignment is overruled.

V

Finally, defendant contends the trial court in the first degree sexual offense case involving Lewis erred in refusing to instruct the jury on the lesser included offense of second degree sexual offense. "``The trial court is required to submit lesser included degrees of the crime charged in the indictment when and only when there is evidence of guilt of the lesser degrees.' [Citations omitted.]" State v. Watkins, 89 N.C.App. 599, 604, 366 S.E.2d 876, 879, disc. review denied, 323 N.C. 179, 373 S.E.2d 123 (1988) (quoting State v. Jones, 304 N.C. 323, 330-331, 283 S.E.2d 483, 487-488 (1981)).

"The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense [ ], and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial court should properly exclude from jury consideration the possibility of a conviction of [a lesser offense]. [State v.] Strickland, 307 N.C. [274] at 293, 298 S.E.2d [645] at 658 [1983].

Where a defendant denies having committed a complete offense, [ ], but there is evidence as to every element which negates that denial, application of Strickland would indeed be proper. In that situation, the jury would be correctly charged to find the defendant guilty of [the offense] or not guilty. However, [ ], where the only evidence of the defendant's innocence as to a particular element may rest solely on the defendant's denial, then reliance on Strickland would be misplaced.'

State v. Williams, 314 N.C. 337, 352-353, 333 S.E.2d 708, 718-19 (1985).

In the instant case the defendant did not deny an element of first degree sexual offense. Rather, he denied the complete offense for each of the indictments, and the State presented evidence to negate each denial. Defendant testified:

Q: Did you ever assault any of these three boys sir?

A: No sir.

Q: Or this Mickeal [sic] Joe Reep[?]

A: No sir.

Q: Did you ever make any sexual advances or assaults on any of these people.

A: No sir.

The issue before us now is whether the defendant presented any exculpatory evidence other than his general denials. Here, the defendant admitted that he once owned a .380 caliber pistol, but testified that he had sold the weapon before the alleged assaults on Lewis. Keith Collins testified that the defendant had sold that pistol, and Ronald Gray testified that he saw the defendant sell the pistol to his brother. Nathan Dellinger also testified that while he had seen the .380 pistol in March of 1989 he did not see the gun in June or July despite visiting the defendant on the weekends. Finally, Detective Crouse testified that he was unable to locate the pistol during his search of defendant's trailer.

This evidence warrants an instruction on second degree sexual offense in the alleged assault on Lewis which allegedly involved a.380 caliber pistol. Accordingly, we reverse the first degree sexual offense conviction involving Lewis and remand for a new trial. Because the defendant did not present any other exculpatory evidence other than his own general denials, we find no error in the remaining first degree sex offense convictions.

As to No. 90 CrS 1007-1011, 1013, no error.

As to No. 90 CrS 1006, reversed and remanded for new trial.

JOHNSON and PARKER, JJ., concur.