State v. Godbey ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-877
Filed: 15 November 2016
Rowan County, No. 12 CRS 50480
STATE OF NORTH CAROLINA
v.
RONNIE PAUL GODBEY
Appeal by defendant from judgment entered 8 December 2014 by Judge
Christopher W. Bragg in Rowan County Superior Court. Heard in the Court of
Appeals 9 February 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Anita
LeVeaux, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender James R.
Grant, for the defendant-appellant.
BRYANT, Judge.
Where N.C. Gen. Stat. § 8-57.1 is applicable in any judicial proceeding in which
the abuse of a child is in issue, the trial court did not err in applying section 8-57.1 to
defendant’s criminal prosecution for child sexual abuse. Further, because the
privileged material was evidence of defendant’s pattern or modus operandi and was
not outweighed by its prejudicial effect, it was not erroneously admitted under Rules
401, 403, or 404(b), and we find no error in the judgment of the trial court.
STATE V. GODBEY
Opinion of the Court
Ronnie Paul Godbey, defendant, and Karen Godbey (“Karen”), were married in
1996. At the time, Karen had two children: a three-year-old son and a daughter,
Stephanie.1 Karen and defendant later had two children together in 2002 and 2008.
All four children lived with the couple.
One day in May 2010, when Stephanie was nineteen years old, Karen asked
Stephanie to help care for her siblings. Stephanie, who was on the phone with her
boyfriend, said she already had plans. Karen asked Stephanie to get off the phone
and when Stephanie refused, Karen pulled the phone away and slapped her. When
Karen told Stephanie she had to stay home and babysit, Stephanie walked out, at
which point Karen said, “[I]f you leave, don’t come back.”
After this argument, Stephanie stayed with a friend, Millie, for a few weeks.
At some point, Stephanie and Millie went to the home of Stephanie’s maternal
grandfather, Larry Gobble, where Millie told Gobble that her house was too small for
Stephanie to continue staying with her. Stephanie told Gobble that she could not go
back home and, Gobble, who testified for the State, said,
well, here’s the deal, unless you got some specific reason,
like, you’ve been physically abused or you’re in harms [sic]
way of something being -- in some kind of danger, you’re
not going to come to my house and live. You’re going to go
home and work the problems out with your mother.
1 Because the victim was a minor during the time the crimes were committed, a pseudonym is
used to protect her identity.
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Opinion of the Court
At this point, Stephanie told Gobble that defendant had “abused” her at night while
Karen was sleeping, but did not go into further detail. Gobble asked Stephanie if she
had told Karen, and Stephanie said she had not because she thought Karen would
not believe her. Stephanie stayed with Millie for another week or so. Then, after
discussing the situation with his pastor, Gobble allowed Stephanie to move into his
home.
At some point during the next day or two after Stephanie first told her
grandfather about the alleged abuse, Gobble arranged for Stephanie to speak with
Karen over the phone. Stephanie told Karen that defendant had been coming into her
room and “messing with” her and “bothering” her, which Stephanie later testified at
trial had been going on since she was about ten years old and continued until her
eighteenth birthday. Stephanie and Karen agreed to meet to talk further and
Stephanie told Karen that defendant “would do things to her” and “molest[ed]” her.
Karen was upset and in tears and suggested talking to a pastor. Stephanie agreed,
and the two met with a pastor that day.
When Stephanie left the meeting with Karen and the pastor, Karen called
defendant and asked him to meet her at the pastor’s office. When he arrived, Karen
confronted him with Stephanie’s allegations. Defendant denied “messing with”
Stephanie and appeared very upset. Karen and defendant then went home. Karen
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later testified that she decided to stay with defendant because she did not believe
Stephanie’s accusations.
In December 2011, Detective Sarah Benfield with the Rowan County Sheriff’s
Department spoke with Gobble’s pastor after the pastor reported a “past sex abuse.”
After speaking with the pastor, Detective Benfield interviewed Stephanie. Stephanie
alleged that defendant frequently came into her room over the years and (1) rubbed
her back, breasts, and vagina; (2) performed cunnilingus on her; (3) inserted his
fingers into her vagina; and (4) forced her to perform fellatio. She also claimed that
defendant would turn her over and “hump” her back until he ejaculated.
Detective Benfield then talked with Karen and explained all of Stephanie’s
allegations, including the allegation that defendant would hump Stephanie’s back
until he ejaculated. About a week after Detective Benfield’s meeting with Karen,
Karen contacted the detective and said that when defendant engaged her in sexual
activity, he would do the same “back humping” that Stephanie alleged defendant
would do to her. Detective Benfield had Karen come in and read and sign a statement
to that effect, dated 12 January 2012. About a month after she signed the 12 January
2012 statement, Karen contacted Detective Benfield again and told her she wanted
to change her earlier statement. On 1 February 2012, Karen met with Detective
Benfield and initialed and signed an amended statement, through which she
explained that defendant’s
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Opinion of the Court
doing something on my back was my idea. We only did it a
few times. He would hump me on my back until he
ejaculated on my back. It was when I wasn’t able to have
intercourse. It was consensual, and something we did
together intimately, not against my will.
When Detective Benfield spoke with defendant, he denied having any sexual contact
with Stephanie, said that Stephanie was lying, and told her that “this all started
when she got kicked out of the house.”
On 2 April 2012, defendant was indicted on two counts of first degree sex
offense with a child, one count of statutory sex offense with a 13-, 14-, or 15-year-old,
and three counts of indecent liberties with a child. All six indictments alleged an
offense date range of 30 March 2001 through 29 March 2007 (the day before
Stephanie’s sixteenth birthday). Two years later, superseding indictments issued for
the two charges of sex offense with a child. The case came on for trial at the 2
December 2014 Criminal Session of Rowan County Superior Court, the Honorable
Christopher W. Bragg, Judge presiding.
Prior to trial, defendant moved to exclude any mention of sex acts between
Karen and defendant, including references to Karen’s statements to Detective
Benfield. Defendant argued that private sex acts between a husband and wife were
privileged marital communications under N.C. Gen. Stat. § 8-57(c). The trial court
reserved judgment on the matter until Karen testified.
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Opinion of the Court
At trial, Stephanie testified about the abuse, including the “back humping.”
During its case-in-chief, the State did not call Karen as a witness or elicit any
testimony from Detective Benfield, or any other witness, about defendant and Karen’s
sex life. At the close of the State’s evidence, defendant asked the trial court to revisit
the privilege issue before presentation of defense evidence. While the trial court
agreed that sex acts between Karen and defendant were privileged marital
communications, it held N.C. Gen. Stat. § 8-57.1 abrogated the privilege in this case.
Prior to the relevant portions of Karen’s testimony, defendant renewed his
objection to the State’s cross-examination about her sex acts with defendant and also
objected to such questioning on relevance and Rule 404(b) grounds. The trial court
reiterated its prior ruling and overruled defendant’s additional objections, holding
that evidence of sex acts between Karen and defendant was admissible under Rule
404(b) “almost as a modus operandi . . . [to] show a pattern [of] conduct by
[defendant].” On direct, Karen, called as a defense witness, mentioned that she gave
statements on two occasions at the sheriff’s department regarding Stephanie’s
allegations and that she signed a statement every time. She did not refer to, and
defense counsel did not elicit, testimony regarding the substance of those statements.
The State then cross-examined Karen, over contemporaneous objection, about
her statements to Detective Benfield. Karen testified that the sexual activity in
question did not begin until after the birth of her and defendant’s second child in 2008
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Opinion of the Court
(thus, beginning after the date ranges alleged in the indictments). She explained that
it did not entail defendant “humping” her back, but rather involved defendant
rubbing his penis “between her butt.” On redirect, Karen further explained the sex
act she had described to Detective Benfield, stating that it involved defendant
rubbing his penis between her oiled butt cheeks until he ejaculated, but that he never
“humped” her back. Karen also explained that this was not something she enjoyed,
but that it was her idea as sexual intercourse had become painful for her as a result
of fibroids after her son’s birth in 2008.
Defendant testified and denied abusing or inappropriately touching Stephanie.
He also testified on cross-examination as follows:
Q. Did you ever hear about an allegation and you humping
Stephanie’s back until you ejaculated?
A. Did -- did I hear about it?
Q. Yes.
A. Yes, I heard about it. It’s in the papers.
Q. All right. That’s something similar to what you and your
wife do, correct?
A. A little bit, but not -- not really.
Q. Your wife’s testimony was that didn’t begin until 2008,
after [your son] was born?
A. That’s when she had her problems, yes.
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Opinion of the Court
Defendant’s ex-wife, son, and sister also testified as character witnesses. After the
defense rested, the State re-called Detective Benfield, who testified about Karen’s
statements, noting that Karen never informed her that the activity she described
with defendant only began in 2008. Defendant objected to this line of questioning for
“reasons stated previously . . . including privilege.”
In charging the jury, the trial court instructed, over defendant’s objection that
[e]vidence has been received tending to show that the
defendant and [Karen] engaged in a sexual act where the
defendant would rub his penis between her butt cheeks
until the defendant ejaculated. This evidence was received
solely for the purpose of showing that the defendant had
the intent, which is a necessary element of the crime
charged in this case, and that there existed in the mind of
the defendant a common plan or scheme involving the
crime charged in this case.
If you believe this evidence, you may consider it, but only
for the limited purpose for which it was received. You may
not consider it for any other purpose.
After about two-and-a-half hours of deliberation, the jury asked the trial court
whether it had to find defendant guilty of the sex offense charges in order to convict
him of the indecent liberties offenses. The jury also asked “how [to] determine which
act applies” to each indecent liberties charge, noting that all three indictments were
worded the same. The trial court responded by instructing the jury that each charged
offense was “separate and distinct” and by reiterating the pattern instruction on
indecent liberties.
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Opinion of the Court
After another two-and-a-half hours of deliberation, the jury submitted a note
to the trial court indicating it had reached a verdict in the sex offense cases, but was
“unable to agree on an [sic] unanimous decision” in the indecent liberties cases. In
response, the trial court dismissed the jury for the weekend and instructed it to
return on Monday for further deliberations.
When the jury returned Monday morning, it asked to review defense exhibits
1–14, which included an illustrative diagram of the Godbey family home and pictures
of the family. At 2:42 p.m., the jury indicated it had reached a unanimous verdict in
one of the indecent liberties cases, but, with regard to the remaining charges, the jury
foreman told the court that he “believe[d] that [the jury] could spend days discussing
[the] two remaining charges without reaching an [sic] unanimous decision.”
The trial court then gave the jury an Allen charge, typically given to encourage
a deadlocked jury to try and reach a verdict, and allowed another hour and a half of
deliberations. After the hour and a half of deliberations, the trial court declared a
mistrial on the two remaining indecent liberties charges. In the other cases, the jury
acquitted defendant of the three sex offense charges, but convicted him of one count
of indecent liberties. Defendant was sentenced to sixteen to twenty months’
imprisonment for the indecent liberties conviction and ordered to register as a sex
offender for thirty years. Defendant entered oral notice of appeal.
________________________________________________________
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STATE V. GODBEY
Opinion of the Court
On appeal, defendant argues that the trial court erred (I) by admitting
privileged evidence over objection about consensual sexual activity between
defendant and his wife pursuant to N.C. Gen. Stat. § 8-57.1; and (II) abused its
discretion by overruling defendant’s Rule 401 and 404(b) objections to evidence about
consensual sexual activity between defendant and his wife.
I
Defendant first argues that the trial court erred by admitting, over objection,
privileged evidence about consensual sexual activity between defendant and his wife
and that this error entitles him to a new trial. Specifically, defendant contends the
trial court erroneously concluded that the marital communications privilege did not
apply to the evidence about spousal sexual activity as N.C. Gen. Stat. § 8-57.1 waives
that privilege. Defendant argues that N.C.G.S. § 8-57.1 does not completely abrogate
the privilege, but rather is limited to “judicial proceeding[s] related to a report
pursuant to the Child Abuse Reporting Law,” and therefore the trial court
erroneously concluded that N.C.G.S. § 8-57.1 creates a broad exception to the marital
communications privilege in all cases. We disagree.
Whether a communication is privileged is a question of law reviewed de novo
by this Court. See Nicholson v. Thom, 236 N.C. App. 308, 318, 763 S.E.2d 772, 779
(2014). “ ‘Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362
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N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of the Greens of
Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“[T]he marital communications privilege is premised upon the belief that the
marital union is sacred and that its intimacy and confidences deserve[] legal
protection.” State v. Rollins, 363 N.C. 232, 236, 675 S.E.2d 334, 337 (2009) (citing
Hicks v. Hicks, 271 N.C. 204, 205, 155 S.E.2d 799, 800 (1967)). “[W]hatever is known
by reason of that intimacy should be regarded as knowledge confidentially acquired,
and . . . neither [spouse] should be allowed to divulge it to the danger or disgrace of
the other.” Hicks, 271 at 205, 155 S.E.2d at 800 (citation omitted). In addition to
protecting verbal expression, the marital communications privilege also protects
actions which are “intended to be . . . communication[s] and [are] the type of act[s]
induced by the marital relationship.” State v. Hammonds, 141 N.C. App. 152, 171,
541 S.E.2d 166, 180 (2000) (citations omitted).
In assessing whether an act or expression is confidential such that it is afforded
the protection of the marital privilege, a court must ask whether it was “prompted by
the affection, confidence, and loyalty engendered by” the marriage. Rollins, 363 N.C.
at 237, 675 S.E.2d at 337 (citations omitted); see also State v. Freeman, 302 N.C. 591,
596, 276 S.E.2d 450, 453 (1981) (modifying the common law rule to hold that “spouses
shall be incompetent to testify against one another in a criminal proceeding only if
the substance of the testimony concerns a ‘confidential communication’ between the
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Opinion of the Court
marriage partners made during the duration of their marriage”). A court must also
consider “[t]he circumstances in which the communication takes place, including the
physical location and presence of other individuals . . . .” Rollins, 363 N.C. at 237, 675
S.E.2d at 337. There “must be a reasonable expectation of privacy on the part of the
holder and the intent that the communication be kept secret.” Id. at 238, 675 S.E.2d
at 338.
The North Carolina Supreme Court has specifically held that sex between
spouses is subject to the marital communications privilege. Wright v. Wright, 281
N.C. 159, 166–67, 188 S.E.2d 317, 322 (1972); see Biggs v. Biggs, 253 N.C. 10, 16, 116
S.E.2d 178, 183 (1960) (“[A]n act of intercourse between husband and wife is a
confidential communication.”), overruled in part by Hicks, 271 N.C. at 207, 155 S.E.2d
at 802 (declining to follow Biggs “where there [was] a completely different factual
situation”).
While North Caroline General Statutes section 8-57 provides “[n]o husband or
wife shall be compellable in any event to disclose any confidential communication
made by one to the other during their marriage[,]” N.C. Gen. Stat. § 8-57(c) (2015)
(emphasis added), there are exceptions:
(b) The spouse of the defendant shall be competent but not
compellable to testify for the State against the defendant
in any criminal action or grand jury proceedings, except
that the spouse of the defendant shall be both competent
and compellable to so testify:
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Opinion of the Court
...
(5) In a prosecution of one spouse for any other
criminal offense against the minor child of either
spouse, including any child of either spouse who is
born out of wedlock or adopted or a foster child.
Id. § 8-57(b)(5); see also Biggs, 253 N.C. at 16–17, 116 S.E.2d at 183 (“It is true that
an act of intercourse between husband and wife is a confidential communication. But
the statute merely provides that ‘no husband or wife shall be compellable to disclose
any confidential communication.’ [The husband’s] testimony (and that of his wife)
was voluntarily given; there was no effort to compel such testimony.” (emphasis
added)). In other words, sections 8-57(b)(5) and (c) together provide that a witness-
spouse may voluntarily testify about the abuse of a child, even over the objection of
the defendant-spouse, but may not be compelled to do so. N.C.G.S. § 8-57(b)(5), (c).
N.C. General Statutes, section 8-57.1, however, abrogates the marital
communications privilege even further with regard to cases of child abuse:
Notwithstanding the provisions of G.S. 8-56 and G.S. 8-57,
the husband-wife privilege shall not be ground for
excluding evidence regarding the abuse or neglect of a child
under the age of 16 years or regarding an illness of or
injuries to such child or the cause thereof in any judicial
proceeding related to a report pursuant to the Child Abuse
Reporting Law, Article 3 of Chapter 7B of the General
Statutes of North Carolina.
N.C.G.S. § 8-57.1 (2015).
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Opinion of the Court
“Questions of statutory interpretation are questions of law[.] . . .” First Bank v.
S & R Grandview, L.L.C., 232 N.C. App. 544, 546, 755 S.E.2d 393, 394 (2014). “The
primary objective of statutory interpretation is to give effect to the intent of the
legislature.” Id. (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284,
290 (1998)). “The plain language of a statute is the primary indicator of legislative
intent.” Id. (citation omitted). “If the statutory language is clear and unambiguous,
the court eschews statutory construction in favor of giving the words their plain and
definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)
(citation omitted). However, “statutory provisions must be read in context: ‘Statutes
dealing with the same subject matter must be construed in pari materia, as together
constituting one law, and harmonized to give effect to each.’ ” First Bank, 232 N.C.
App. at 546, 755 S.E.2d at 395 (quoting Williams v. Williams, 299 N.C. 174, 180–81,
261 S.E.2d 849, 854 (1980)); see Abernethy v. Bd. of Commr’s of Pitt Cnty., 169 N.C.
631, 636, 86 S.E. 577, 580 (1915) (noting that in construing statutes, the court “may
call to [its] aid . . . other laws or statutes related to the particular subject or to the
one under construction, so that [it] may know what the mischief was which the
Legislature intended to remove or remedy”).
General Statutes, section 8-57 is titled “Husband and wife as witnesses in
criminal actions,” and subsection (c) states as follows: “No husband or wife shall be
compellable in any event to disclose any confidential communication made by one to
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the other during their marriage.” N.C.G.S. § 8-57(c) (emphasis added). Section 8-57(c)
provides that confidential communications between a husband and wife shall not be
admitted into evidence at the objection of either the husband or the wife. State v.
Holmes, 330 N.C. 826, 827, 829, 412 S.E.2d 660, 661, 662 (1992); cf. Biggs, 253 N.C.
at 16–17, 116 S.E.2d at 183. Section 8-57.1, titled “Husband-wife privilege waived in
child abuse,” states in pertinent part as follows: “Notwithstanding the provisions of
G.S. 8-56 and G.S. 8-57, the husband-wife privilege shall not be ground for excluding
evidence regarding the abuse or neglect of a child under the age of 16 years . . . .”
N.C.G.S. § 8-57.1 (emphasis added).
The only North Carolina case which cites to this statutory provision quotes the
statute as follows: “Section 8-57.1 provides that notwithstanding the provisions of
sections 8-56 and 8-57, ‘the husband-wife privilege shall not be ground for excluding
evidence [under certain circumstances relating to the abuse or neglect of a child under
the age of sixteen years].’ ” Holmes, 330 N.C. at 834, 412 S.E.2d at 664–65 (alteration
in original) (quoting N.C.G.S. § 8-57.1).
In Holmes, two codefendants were found guilty of second-degree murder, and
at issue on appeal was “whether a witness spouse may testify at trial as to
confidential communications made to her by defendant spouse over defendant
spouse’s objection and assertion of privilege.” Id. at 827, 412 S.E.2d at 661. In holding
that “she may not,” the N.C. Supreme Court cited to N.C.G.S. § 8-57.1 for the purpose
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Opinion of the Court
of negating the State’s argument that N.C.G.S. § 8-57 “abolishe[d] the common law
rule against the disclosure of confidential marital communications, leaving only a
rule against being compelled to disclose a confidential marital communication . . .
argu[ing] that section 8-57(b) makes the spouse competent to testify, and section 8-
57(c) gives the privilege of not being compelled to the witness spouse . . . .” Id. at 827,
829, 412 S.E.2d 661, 662 (emphasis added).
In negating the State’s argument outlined above, the N.C. Supreme Court
reasoned that, “[i]f, as the State suggests, section 8-57 abolished the husband-wife
privilege against disclosure of confidential communications made by one to the other
during their marriage, section 8-57.1 would seem to be unnecessary.” Id. at 834, 412
S.E.2d at 665; see also Note, Douglas P. Arthurs, Spousal Testimony in Criminal
Proceedings—State v. Freeman, 17 Wake Forest L. Rev. 990, 995 (1981) (noting that
“G.S. 8-57 was adopted to eliminate the incongruous result that a defendant could
testify in his own behalf, but his spouse could not testify for or against him”). In other
words, because N.C.G.S. § 8-57.1 abrogates the marital communications privilege
“under certain circumstances” (not those present in Holmes), N.C.G.S. § 8-57.1 would
be redundant if section 8-57 functioned to abolish the privilege in its entirety. See
Holmes, 330 N.C. at 833–34, 412 S.E.2d at 664–65; see also State v. Williams, 286
N.C. 422, 431, 212 S.E.2d 113, 119 (1975) (“[A] statute must be construed, if possible,
so as to give effect to every part of it, it being presumed that the Legislature did not
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intend any of its provisions to be surplusage.” (citation omitted)); In re Hickerson, 235
N.C. 716, 721, 71 S.E.2d 129, 132 (1952) (“[P]arts of the same statute, and dealing
with the same subject, are to be considered and interpreted as a whole, and in such
case it is the accepted principle of statutory construction that every part of the law
shall be given effect if this can be done by any fair and reasonable intendment . . . .”
(citations omitted)). This line of reasoning provides guidance to this Court in deciding
the ultimate breadth of this statute’s reach and whether or not N.C.G.S. § 8-57.1 is
applicable in this case.
Although not binding on this Court, a Kentucky Supreme Court opinion has
addressed this precise issue: whether a child abuse reporting statute which abrogates
the marital privilege in child abuse cases may be applied to a criminal prosecution of
a defendant for the sexual abuse of a child. Mullins v. Commonwealth, 956 S.W.2d
210, 210–11 (Ky. 1997). In Mullins, the defendant’s wife “found him engaged in acts
of sodomy with a 14-year-old babysitter.” Id. at 211. The wife called the police and
later testified against her husband to the grand jury. Id. However, by the time of trial,
both the defendant and his wife claimed the marital privilege. Id. The Kentucky
Court of Appeals affirmed the defendant’s conviction for third-degree sodomy, stating
that the trial court did not err in applying KRS 620.050(2) (Kentucky’s statute
abrogating both the professional-client/patient privilege and the marital privilege in
cases of dependent, neglected, or abused children) in a criminal prosecution, stating
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the statute “declares that the husband and wife privilege is inapplicable in a criminal
proceeding regarding a dependent, neglected or abused child.” Id. (emphasis added).
In affirming the Court of Appeals’ and the judgment of the trial court, the
Kentucky Supreme Court reasoned as follows:
The General Assembly may legislate in order to protect
children, and it may determine that children’s rights are
paramount when there is a conflict with the privilege of an
adult to exclude evidence regarding the abuse, dependency
or neglect of a child. KRS Chapter 620 meets the legislative
purpose of safeguarding the interests of children. The
statute does not interfere with any judicial function, but
rather it enhances it by refusing to allow a shield to a child
abuser in the form of the husband-wife privilege and
thereby improves the truth-finding function of the judicial
process.
The exceptions provided in KRE 504(c)(2) reflect the
fact that the marital privilege is considered by many to be
in disfavor as a result of abuses which prevent ascertaining
the truth. The privilege exists only to protect marital
harmony. . . .
The courts have approached the privilege by
narrowly and strictly construing it because it has the
potential for shielding the truth from the court system.
Many courts have determined that when the reason
supporting the privilege, marital harmony, no longer
exists, then the privilege should not apply to hide the truth
from the trier of fact.
....
Marital harmony can hardly be a valid legal
principle when the wife in question calls the police to report
the alleged sexual misdeeds of her husband with a child.
The marital privilege is subordinate or inferior to the right
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Opinion of the Court
of a child to be free from sexual abuses.
Id. at 212 (internal citations omitted); see Kays v. Commonwealth, ___ S.W.3d ___,
___, NO. 2014-CA-001924-MR, 2016 WL 5956995, at *8 (Ky. Oct. 14, 2016) (citing
Mullins, 956 S.W.2d at 211) (involving third-degree rape and sodomy of a fifteen-
year-old-girl where the defendant confided in his then-wife “[w]hen details of how he
preyed upon his former student began unraveling” and the defendant sought to
invoke spousal privilege) (“Mullins remains the law in Kentucky.”).
Furthermore, the North Carolina Juvenile Code: Practice and Procedure’s
interpretation of North Carolina’s statute abrogating the marital privilege in cases of
child abuse, N.C.G.S. § 8-57.1, seems to support a similar policy to the one enunciated
in Mullins, namely that “[t]he marital privilege is subordinate or inferior to the right
of a child to be free from sexual abuses.” 956 S.W.2d at 212. Practice and Procedure
states that “with respect to certain privileges, the privilege does not extend to
circumstances where the information requires a mandatory report of child neglect or
abuse or where the information otherwise pertains to and is being sought in a
proceeding concerning the abuse and neglect of a child.” Thomas R. Young, N.C.
Juvenile Code: Prac. & Proc. § 5:2 (May 2016) (emphasis added).
Even if N.C.G.S. § 8-57.1 is not a model of clarity, N.C. Gen. Stat. § 7B-310
contains similar language, and reading N.C.G.S. § 8-57.1 as applicable to “any judicial
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proceeding” is supported by the express limitations placed upon all privileges as
enunciated in N.C.G.S. § 7B-310:
No privilege, except the attorney-client privilege, shall be
grounds for excluding evidence of abuse, neglect, or
dependency in any judicial proceeding (civil, criminal, or
juvenile) in which a juvenile’s abuse, neglect, or
dependency is in issue nor in any judicial proceeding
resulting from a report submitted under this Article, both
as this privilege relates to the competency of the witness
and to the exclusion of confidential communications.
N.C.G.S. § 7B-310 (2015) (emphasis added).
In State v. Byler, this Court examined and compared the language of N.C. Gen.
Stat. § 8-53.1 (regarding the physician-patient privilege) and N.C.G.S. § 7B-310,
ultimately concluding that “these two sections are to be read together[,]” as “the
doctor-patient privilege cannot serve to shield information from the jury when a
defendant is on trial for child abuse.” No. COA03-453, 2004 WL 2584962, at *3 (N.C.
Ct. App. Nov. 16, 2004) (unpublished) (citation omitted) (affirming the trial court’s
admission of statements made by a psychologist who was hired by defense counsel to
evaluate the defendant in the defendant’s prosecution for the statutory rape of his
own daughter). Because the language in N.C.G.S. § 8-53.1 almost exactly mirrors the
language of N.C.G.S. § 8-57.1,2 with the exception that section 8-53.1 deals with
2 N.C.G.S. § 8-53.1 reads as follows:
(a) Notwithstanding the provisions of G.S. 8-53 and G.S. 8-53.13, the
physician-patient or nurse privilege shall not be a ground for excluding
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Opinion of the Court
physician-patient privilege and section 8-57.1 with the marital privilege, this Court’s
analysis in Byler is highly instructive:
[T]he plain language of section 7B-310 seems to create dual
applicability by using the word “nor” and admonishing the
use of the privilege in a “judicial proceeding” where abuse
is at issue, independent of whether the proceeding resulted
from a report. This interpretation is bolstered by the fact
that section 8-53.1 uses “related to” instead of “resulting
from,” as in 7B-310 and these two sections are to be read
together. See State v. Etheridge, 319 N.C. 34, 39–41, 352
S.E.2d 673, 677–78 (1987) (supporting this interpretation
and applying these statutes to a criminal trial based on
rape and other sexual offenses).
Id.; see N.C.G.S. § 8-57.1 (“[T]he husband-wife privilege shall not be ground for
excluding evidence regarding the abuse . . . of a child . . . in any judicial proceeding
related to a report pursuant to the Child Abuse Reporting Law . . . .”); see also Young,
N.C. Juvenile Code: Prac. & Proc. § 5:2 n.14 (“N.C. Gen. Stat. § 8-53.1 (physician and
nurse privilege not ground for excluding evidence regarding abuse or neglect of a child
under the age of 16 years in Chapter 7B proceeding); N.C. Gen. Stat. § 8-57.1
(husband and wife privilege same as physician and nurse)[.]” (emphasis added)).
evidence regarding the abuse or neglect of a child under the age of 16
years or regarding an illness of or injuries to such child or the cause
thereof in any judicial proceeding related to a report pursuant to the
North Carolina Juvenile Code, Chapter 7B of the General Statutes of
North Carolina.
N.C.G.S. § 8-53.1(a) (2015).
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Opinion of the Court
Thus, in the instant case, independent of whether defendant’s prosecution for,
inter alia, taking indecent liberties with a child resulted from a report made pursuant
to the Child Abuse Reporting Law, it is sufficient that defendant’s criminal
prosecution for child sexual abuse was a “judicial proceeding related to a report
pursuant to” the same. See N.C.G.S. § 8-57.1; Byler, 2004 WL 2584962, at *3. As such,
sections 8-57.1 and 7B-310 “are to be read together[,]” Byler, 2004 WL 2584962, at
*3, and, in a criminal proceeding regarding allegations of the sexual abuse of a
juvenile, like the instant case, with the exception of the attorney-client privilege, “[n]o
privilege,” including the marital communications privilege, can be exercised to
exclude evidence of such abuse. See N.C.G.S. § 7B-310; see also N.C.G.S. § 8-57.1.
“We believe the legislature, in balancing the [long-standing policy “to protect
the intimacy of the marital union[,]” Rollins, 363 N.C. at 235, 675 S.E.2d at 336,]
against the need to protect child victims, opted to provide the broadest possible
exceptions to the [marital communications] privilege.” See State v. Etheridge, 319
N.C. 34, 41, 352 S.E.2d 673, 677 (1987) (“We believe the legislature, in balancing the
need for confidential medical treatment against the need to protect child victims,
opted to provide the broadest possible exceptions to the physician-patient privilege.”).
Accordingly, the trial court did not err in applying N.C.G.S. § 8-57.1 to defendant’s
prosecution for child sexual abuse offenses, and defendant’s argument is overruled.
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Opinion of the Court
II
Defendant next argues the trial court abused its discretion by overruling
defendant’s Rule 401 and 404(b) objections to the admission of the same evidence
described above—the consensual sexual activity between defendant and his wife.
Specifically, defendant argues Karen’s testimony regarding the sexual act was
irrelevant as it was neither temporally proximate nor similar enough to Stephanie’s
allegations to warrant admission under Rule 404(b) and, further, that even if Karen’s
testimony had some minimal probative value, that value was substantially
outweighed by the danger of unfair prejudice. Defendant contends that because there
is a reasonable possibility that the trial court’s errors contributed to defendant’s
conviction, he should be granted a new trial. We disagree.
“Evidentiary errors are harmless unless a defendant proves that absent the
error a different result would have been reached at trial.” State v. Ferguson, 145 N.C.
App. 302, 307, 549 S.E.2d 889, 893 (2001) (citation omitted).
Because the trial court is better situated to evaluate
whether a particular piece of evidence tends to make the
existence of a fact of consequence more or less probable, the
appropriate standard of review for a trial court’s ruling on
relevancy pursuant to Rule 401 is not as deferential as the
‘abuse of discretion’ standard which applies to rulings
made pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citation omitted).
Pursuant to Rule 401, evidence is relevant if it has any tendency to make the
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Opinion of the Court
existence of a fact of consequence more or less probable. N.C. Gen. Stat. § 8C-1, Rule
401 (2015). “We review de novo the legal conclusion that the evidence is, or is not,
within the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, 130, 726
S.E.2d 156, 159 (2012). Rule 404(b) is a
general rule of inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject to but one
exception requiring its exclusion if its only probative value
is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged.
State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). “[A]ll evidence
favorable to the [State] will be, by definition, prejudicial to defendants. The test . . .
is whether that prejudice to defendants is unfair.” Matthews v. James, 88 N.C. App.
32, 39, 362 S.E.2d 594, 599 (1987). “The term ‘unfair prejudice’ means ‘an undue
tendency to suggest decision on an improper basis[.]’ ” State v. Summers, 177 N.C.
App. 691, 697, 629 S.E.2d 902, 907 (2006) (alteration in original) (quoting State v.
DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)).
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.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2015). “[P]rior acts are sufficiently similar if there
are some unusual facts present in both [act]s that would indicate that the same
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STATE V. GODBEY
Opinion of the Court
person committed them.” State v. Davis, 222 N.C. App. 562, 567, 731 S.E.2d 236, 240
(2012) (citation omitted). “Two constraints govern admission of evidence under Rule
404(b): similarity and temporal proximity.” Summers, 177 N.C. App. at 696, 629
S.E.2d at 906 (citation omitted).
Here, Stephanie described to Karen the sexual act performed by defendant,
which description initially prompted Karen to sign a statement indicating she and
defendant engaged in the same act. Stephanie testified the sexual act was a follows:
“[Defendant] would turn [her] over on [her] stomach and he would hump [her] back
until he ejaculated all over [her] back.” Over defendant’s objections before and during
the following testimony, Karen testified on cross-examination as follows:
Q. Was one of [Stephanie’s] allegations Detective Benfield
told you about, where [defendant] would go into
[Stephanie’s] room and hump her back until he ejaculated?
A. Yes.
Q. All right. Did that allegation surprise you?
A. Every allegation surprised me.
Q. Okay. Is that something that [defendant] and you did
intimately together?
...
A. It was. And when you -- when she said it, I - - I thought
about it, and I called her, and I discussed it with her. And
then later on, it -- it was an issue after I had [my son in
2008]. I had problems, so it was -- it was something that I
came up with because we couldn’t do anything, but it
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STATE V. GODBEY
Opinion of the Court
wasn’t the exact act either.
Q. All right. Well tell me about the act then, ma’am.
...
A. I had -- after I had [my son] I had fibroids, so -- which is
a female -- well, it was in your -- in your -- on your female
organs. So it would be painful to have intercourse. So I
suggested that defendant -- it -- it was -- see, when you --
when you hear front and back on your -- you know, the -- I
mean, this is your front and this is your back, so I
automatically thought about my -- you know, it’s your
backside. But it was in an area -- it was not on my back, it
was between my butt and it was -- that he would -- we
would just -- he would move around there until -- in the
butt area.
Q. Until he ejaculated?
A. Yes.
Here, Karen’s testimony was relevant to Stephanie’s allegations—the sexual
act Karen described was admissible as it showed a common scheme or plan, pattern,
and/or common modus operandi and sufficient similarity to Stephanie’s allegations
of sexual abuse. See N.C.G.S. § 8C-1, Rule 404(b). Both Stephanie and Karen testified
that defendant would engage in a sexual act whereby defendant would ejaculate on
them, respectively, from behind. Even if Karen later amended her statement to
differentiate the sexual act she and defendant engaged in from the sexual act
Stephanie alleged defendant perpetrated on her, Detective Benfield testified that in
her initial conversation with Karen, Karen “stated . . . that [defendant] did the same
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STATE V. GODBEY
Opinion of the Court
thing to her[,]” and Karen herself testified that the sexual act alleged by Stephanie
whereby defendant would “hump her back,” was one that she and defendant also
engaged in. Indeed, where Karen’s credibility as a witness is called into question,
particularly with regard to the differing statements she made to Detective Benfield,
credibility goes to the weight of the evidence, not its admissibility. See State v. Stager,
329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991) (“The conflict in the evidence goes to
the weight and credibility of the evidence not its admissibility.”).
Defendant argues that the instant case is similar to State v. Dunston, in which
the charges arose out of allegations that the defendant vaginally and anally raped his
foster daughter. 161 N.C. App. 468, 469, 588 S.E.2d 540, 542 (2003). In Dunston, the
State elicited testimony from the defendant’s wife that the defendant engaged in and
liked consensual anal sex. Id. at 469, 472–73, 588 S.E.2d at 542, 544–45. This Court
concluded that this fact, “[wa]s not by itself sufficiently similar to engaging in anal
sex with an underage victim beyond the characteristics inherent to both, i.e., they both
involve anal sex, [in order] to be admissible under Rule 404(b).” Id. at 473, 588 S.E.2d
at 544–45 (emphasis added). This Court held “this evidence was not relevant for any
purpose other than to prove [the] defendant’s propensity to engage in anal sex, and
thus, the trial court erred in admitting this evidence.” Id. at 473, 588 S.E.2d at 545.
Here, the evidence was not offered to prove defendant’s propensity to engage
in a categorically defined sexual act, but rather was offered to show the similarity
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STATE V. GODBEY
Opinion of the Court
between the unique sexual act alleged by Stephanie and that described by Karen.
Indeed, the sexual act alleged by Stephanie was so unique that Karen called Detective
Benfield back after they spoke the first time as soon as she realized that she and
defendant engaged in a sexual activity similar to the one Stephanie described:
Q. . . . And when Detective Benfield told you [about
Stephanie’s allegation that defendant would go into her
room and hump her back until he ejaculated], what did you
say to her?
A. I didn’t say anything at the time until I went home and
thought about everything.
Q. All right. And then you called her back and told her that
you had thought about that specific act, correct?
A. Uh-huh, (affirmative.) Yes.
Karen described this particular sexual activity to Detective Benfield on two separate
occasions and signed a statement to that effect which she read and understood before
she signed it. Karen’s statement read as follows:
[Defendant] doing something on my back was my idea. We
only did this a few times. He would hump me on my back
until he ejaculated on my back. It was when I wasn’t able
to have intercourse. It was consensual, and something we
did together intimately, not against my will.
The instant case is distinguishable from Dunston in that it does not involve a
categorical or easily-defined sexual act, i.e., anal sex. Rather, the instant case
involves a more unique sexual act which both Stephanie and Karen described, at
some point, as defendant “hump[ing] on [the] back until he ejaculated on [the back].”
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STATE V. GODBEY
Opinion of the Court
Accordingly, the State was able to show sufficient similarity between the acts “beyond
those characteristics inherent to [the act].” See State v. Al-Bayyinah, 356 N.C. 150,
155, 567 S.E.2d 120, 123 (2002) (citation omitted).
With regard to the “temporal proximity” prong of the Rule 404(b) analysis,
“remoteness in time generally affects only the weight to be given [404(b)] evidence,
not its admissibility.” State v. Maready, 362 N.C. 614, 624, 660 S.E.2d 564, 570 (2008)
(alteration in original) (quoting State v. Parker, 354 N.C. 268, 287, 553 S.E.2d 885,
899 (2001)). “Remoteness for purposes of 404(b) must be considered in light of the
specific facts of each case and the purposes for which the evidence is being offered.”
State v. Mobley, 200 N.C. App. 570, 577, 684 S.E.2d 508, 512 (2009) (quoting State v.
Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998)).
Here, Stephanie told Detective Benfield that the sexual abuse began in 2002,
when she was about ten or eleven years old, and persisted until approximately 2010,
when she was about eighteen years old. According to Karen, after the birth of her son
in 2008, she developed fibroids. As it was painful for Karen to have intercourse, she
suggested defendant have sex with her from the “backside,” “in the butt area,” until
defendant ejaculated. Karen also testified that at no time prior to 2008 did she and
defendant either “have sex by [defendant] inserting his penis between [her] butt
cheeks” or “have any sex . . . from the back end[.]” Furthermore, Karen did not, at any
point, indicate to Detective Benfield in her many statements that the sexual activity
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STATE V. GODBEY
Opinion of the Court
at issue occurred in any particular timeframe, nor did she tell Detective Benfield that
this activity only happened after her son was born.
Defendant argues that as both defendant and Karen testified that they did not
engage in the sexual activity described above until after their son was born in 2008,
at which time Stephanie was seventeen years old, and none of the indictments alleged
that defendant abused Stephanie after she turned sixteen, the consensual sexual
activity at issue between defendant and Karen was too remote in time because it did
not begin until at least a year after the last alleged incident of abuse. However, where,
as here, that timeline is dependent on Karen and defendant’s testimony to that effect,
and as remoteness in time generally affects only the weight to be given Rule 404(b)
evidence and not its admissibility, the sexual act described by Karen is not too remote
in time from the acts Stephanie alleged for purposes of Rule 404(b).
Finally, the probative value of this evidence was not outweighed by the danger
of undue prejudice. Whether the trial court should have excluded such evidence under
Rule 403 is reviewed by this Court for abuse of discretion. State v. Whaley, 362 N.C.
156, 160, 655 S.E.2d 388, 390 (2008) (citations omitted); State v. Boyd, 321 N.C. 574,
578, 364 S.E.2d 118, 120 (1988) (finding “no abuse of discretion by the trial court in
failing to exclude . . . testimony under the balancing test of Rule 403 since the alleged
incident was sufficiently similar to the act charged and not too remote in time”). Not
only was the evidence of great probative value, but it was also not so sensitive to be
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STATE V. GODBEY
Opinion of the Court
potentially inflammatory to the jury (the jury acquitted defendant of five of the six
charges). Thus, we conclude the probative value of this evidence as proof of
defendant’s pattern or modus operandi is not outweighed by its prejudicial effect.
Accordingly, we find no abuse of discretion by the trial court in admitting this
testimony under Rule 403, nor did the trial court err in its rulings pursuant to Rules
401 and 404(b).
NO ERROR.
Judges DILLON and ZACHARY concur.
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