State v. Sneeden , 108 N.C. App. 506 ( 1993 )

WALKER, Judge.

In his first assignment of error, defendant contends the trial court erred when it admitted evidence of the 1967 rape of Mary Jo Welch Thaxton. According to defendant, this evidence should not have been admitted because it occurred some twenty-three (23) years before the alleged assault upon Angela Hatfield. Because of this lapse of time, defendant argues the prior act is so remote in time that any probative value is outweighed by the prejudicial effect.

In overruling defendant’s objection to the testimony of both Thaxton and Carla Wood, the trial court made detailed findings for the record. Included in these findings was the construction of a matrix listing similarities between the victims and the methodology of defendant in the three assaults. The trial court found twenty-one (21) factors which were substantially similar and concluded the evidence had probative value. The trial court also noted that even though prejudicial, the admission of this evidence was not so grossly shocking as to mislead the jury nor was it so unfairly prejudicial as to outweigh the probative value. We find that the trial court did not err in admitting this evidence.

Under Rule 404(b), evidence of other offenses is admissible if it is relevant to some fact or issue other than the character of the accused. State v. Davis, 101 N.C.App. 12, 398 S.E.2d 645 (1990), disc. review denied, 328 N.C. 574, 403 S.E.2d 516 (1991). As regards prior similar sex offenses, North Carolina liberally admits such evidence. State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992). “This is particularly true where the fact sought to be proved is the defendant’s intent to commit a similar sexual offense for which the defendant has been charged.” Id. at 612, 419 S.E.2d at 561-562.

The test for admissibility of prior sexual offenses has two parts. First, whether the prior incidents are sufficiently similar; and second, whether the incidents are not too remote in time. State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988); State v. Wilson, 106 N.C.App. 342, 348, 416 S.E.2d 603, 607 (1992). As to the first part of the admissibility test, a prior act or crime is “similar” if there are some unusual facts present indicating that the same person committed both the earlier offense and the present one. However, the similarities between the two incidents need not be “unique and bizarre.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). “Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.” Id. (emphasis in original). Upon review, this Court finds the 1967 incident sufficiently similar to the incident giving rise to the present charges. The State’s evidence shows that among the similarities both in 1967 and in 1990, defendant gained the trust of his victims, lured them into an automobile and then took them to a different location where they were sexually assaulted. This Court has previously found that similarities of this nature justify admitting the evidence of prior crimes to prove modus o-perandi and intent. State v. Pruitt, 94 N.C.App. 261, 380 S.E.2d 383, disc. review denied, 325 N.C. 435, 384 S.E.2d 545 (1989).

Defendant contends that irrespective of similarity, any evidence relating to the 1967 rape should not have been admitted since it was too remote in time. On this point, we find State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) instructive. In that case, our Supreme Court found evidence of the 1978 shooting death of defendant’s first husband admissible in the prosecution arising from the 1988 shooting death of defendant’s second husband. The Court noted that “remoteness in time ... is more significant when the evidence of the prior crime is introduced to show that both crimes arose out of a common scheme or plan.” Id. at 307, 406 S.E.2d at 893. This recognizes that with the passage of time, “[t]he probability of an ongoing plan or scheme . . . becomes tenuous.” State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824 (1988). In Stager the evidence was not admitted for the purpose of showing a common “plan or scheme,” but rather was admitted for the purpose of proving “intent” and “motive.” State v. Stager at 307, 406 S.E.2d at 892-893. “[R]emoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.” Id. at 307, 406 S.E.2d at 893.

Here, even though defendant admits having sex with Angela Hatfield, he contends she consented. Accordingly, due to its close similarity, the 1967 rape is probative upon the question of defendant’s intent when Hatfield entered his car and upon the question of Hatfield’s consent. Since the 1967 rape was admissible for these purposes, it was not so remote as to have lost its probative value.

Although not specifically raised by defendant, we note the trial court instructed the jury that the evidence of the 1967 rape was admitted in order to show “a plan, scheme, system or design involving the crime charged.” While under State v. Stager and State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988) remoteness in time becomes more significant when this evidence is admitted to show only an ongoing “plan” or “scheme,” as our previous discussion indicates, evidence regarding the 1967 rape was admissible to show both defendant’s intent and the victim’s lack of consent. At no time after the trial court ruled that evidence of the 1967 rape was admissible did defendant request this evidence be limited to proving intent or lack of consent. Since defendant did not request such a limiting instruction and since this evidence was admissible for a proper purpose, any error in instructing the jury was not so fundamental as to have a probable impact on the verdict. See State v. Odom, 307 N.C. 655, 660-661, 300 S.E.2d 375, 378-379 (1983); see also, State v. Stager, 329 N.C. at 309-310, 406 S.E.2d at 894.

Defendant next contends the trial court committed plain error in instructing the jury on the testimony of both Mary Jo Welch Thaxton and Carla Wood. After each witness testified, the trial court instructed:

[this] testimony ... is received into evidence solely for the purpose of showing that there existed in the mind of the Defendant, Terry Sneeden a plan, scheme, system or design involving the crime charged in this case and for no other reason.

In its final mandate to the jury the trial court repeated this instruction and further instructed:

If you believe their testimony, you may consider it, but only for that limited purpose.

Defendant argues this instruction was erroneous because (1) the jury was led to believe that there existed a conclusive presumption that evidence of similar bad acts is evidence of a scheme and (2) the instruction improperly suggested that the trial court believed a scheme existed. We find this contention has no merit since the instruction given accurately states existing North Carolina law. See N.C.P.I., Crim. 104.15.

Defendant further contends the trial court erred in failing to declare a mistrial when it came to the trial court’s attention that one of the jurors had been a co-worker of the defendant at the time of the 1967 rape. After hearing the evidence, one juror came forward and advised the trial court that he realized he had worked with defendant in 1967. According to the juror, he and defendant never had any association since they worked different shifts, but he recalled defendant was either dismissed or resigned in connection with the 1967 rape of Mary Jo Welch Thaxton. Once advised, the trial court asked the juror whether he could pass upon defendant’s guilt or innocence “without what went on . . . 24 or 23 years ago,” to which the juror replied “yes, sir.”

The decision to deny a motion for a mistrial will only be overturned where there is a showing of an abuse of discretion on the part of the trial court. State v. Mills, 39 N.C.App. 47, 249 S.E.2d 446 (1978), disc. review denied, 296 N.C. 588, 254 S.E.2d 33 (1979). Furthermore, not all knowledge on the part of a juror demands either disqualification or a mistrial. In State v. Jones, 50 N.C.App. 263, 273 S.E.2d 327, disc. review denied, 302 N.C. 400, 279 S.E.2d 354 (1981), three jurors learned through the newspaper of defendant’s prior conviction. Similar to the present case, the trial court in Jones had admitted the evidence of this prior conviction only for the limited purpose of proving identity and common scheme or plan. At trial, the three jurors were questioned as to the effect their knowledge would have upon their continuing impartiality. This Court held that the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial. Based upon Jones and the circumstances in the present case, we cannot say the trial court abused its discretion in denying defendant’s motion.

In his final assignment of error, defendant contends the sentence imposed constituted a cruel and unusual punishment. Defendant received three consecutive life sentences and one nine year sentence as a result of his convictions. We find no merit in defendant’s contention since our Supreme Court has previously determined that the imposition of consecutive life sentences for first degree rape and first degree sexual offense does not violate a defendant’s constitutional rights. State v. Ysaguire, 309 N.C. 780, 309 S.E.2d 436 (1983).

No error.

Judge WYNN concurs. Judge GREENE dissents.