State v. Frazier , 344 N.C. 611 ( 1996 )

Justice Webb

dissenting.

I dissent. The majority says, “This Court has been liberal in allowing evidence of similar offenses in trials on sexual crime charges.” I would say that is an understatement and today we have outdone ourselves.

The majority says “the prior acts were not too remote to be considered as evidence of defendant’s common plan or scheme to sexually abuse female family members, including the victims here.” It is hard to understand how the earlier sex offenses showed he had apian to molest L.B. and S.B. who were not alive when the incidents occurred.

What the evidence of previous offenses does show is that the defendant is the type person who sexually molests young girls in his family. This is evidence excluded by N.C.G.S. § 8C-1, Rule 404(b). To hold that evidence of bad acts proves the defendant had a plan to commit those acts and the act for which the defendant is being tried eviscerates the rule. If proof of a bad act is admissible because it proves a plan to commit another bad act it is hard to imagine what evidence of bad acts are excludable. Nevertheless, that is what we hold today. I do not believe we should sanitize evidence which is not otherwise admissible by adding an inference to it, as we have done in this case, which makes it admissible in form but not in substance.

I agree with Judge John’s dissent in the Court of Appeals.

I vote for a new trial.

Justice Orr joins in this dissenting opinion.