State v. Moore

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-620
NORTH CAROLINA COURT OF APPEALS
Filed: 20 January 2015
STATE OF NORTH CAROLINA
Guilford County
v. Nos. 11 CRS 82467-69,
82722-28, 86304, 86306,
88574
DOUGLAS RAYMOND MOORE
Appeal by defendant from judgments entered 11 October 2013
by Judge R. Stuart Albright in Guilford County Superior Court.
Heard in the Court of Appeals 15 December 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Belinda A. Smith, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
STEELMAN, Judge.
The trial court did not err in admitting evidence pursuant
to Rule 404(b) of the North Carolina Rules of Evidence. The
trial court did not abuse its discretion in applying rule 403.
I. Factual and Procedural Background
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The State presented evidence tending to show that Douglas
Raymond Moore (defendant) sexually assaulted C.P., X.P., and
B.A., who were his step-grandchildren. C.P. was born in May
2002, X.P. was born in October 2003, and B.A. was born in
February 2003. The three children were frequent visitors at the
residence defendant shared with their grandmother.
X.P., who was ten years old at the time of trial, testified
that from the time she was three or four years old until the age
of eight, on multiple occasions defendant made her touch his
bare penis while they were in her grandmother’s bedroom, the
living room or nursery of the home. At times defendant would
touch her front and back privates. The incidents stopped after
X.P. told her father.
C.P., who was eleven years old at the time of trial,
testified that from the time she was four or five years old
until after her eighth birthday, defendant touched her with his
hands in her back private area, both over and under her clothes,
and her upper and lower front private areas over her clothes.
The touching occurred in the living room and X.P. was usually
not present when it occurred. Once, when she was four or five
years old, defendant unzipped his pants, removed his penis,
placed it on her lips, and tried to put it in her mouth. He also
showed her “dirty pics of men sticking their lower fronts in
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women’s mouth[s] and stuff like that.” The touching continued
through her eighth birthday and stopped after her father called
the police.
B.A., who was ten years old at the time of trial, testified
that defendant would touch her front and back privates under her
clothes and underwear. She was five years old when defendant
first started touching her, and was eight or nine years old when
the touching stopped. Defendant touched her front private with
his tongue more than five times, touched his penis to her mouth,
put his penis partially in her lower front private, and touched
his tongue to her lower back private.
In July 2011 X.P. confided to C.P. that defendant had been
touching her and informed her that she was going to tell their
parents. X.P. told her father that night. C.P. also told her
father that defendant had been touching her. The girls’ father
contacted the police.
Defendant turned himself in to police on 18 July 2011. He
told the police that the girls pulled down his pants and played
with his penis and that he did not stop them.
Defendant was indicted for three counts of first degree sex
offense with a child under 13 years of age, one count of
attempted first degree rape, and two counts of indecent
liberties with a child as to B.A. As to C.P., defendant was
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indicted for one count of first degree sex offense with a child
under 13 years of age, and three counts of indecent liberties
with a child. As to X.P., defendant was indicted for three
counts of indecent liberties with a child. The jury found
defendant guilty on all counts. The trial court imposed
consecutive sentences of imprisonment totaling 1,239 to 1,546
months imprisonment.
Defendant appeals.
II. Admission of Evidence under Rule 404(b)
In his only argument, defendant contends that the court
erred in admitting the testimony of defendant’s daughter
concerning incidents of defendant’s conduct upon her during the
summers of 1999 and 2000. Defendant asserts that the evidence
had no probative value to prove any material fact other than
defendant’s bad character. We disagree.
A. Standard of Review
Rule 404(b) of our Rules of Evidence provides that
“[e]vidence 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
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404(b) (2013). The purposes for which evidence may be admissible
are not limited to those listed in the rule. State v.
DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). Rule
404(b) is a general rule of inclusion of evidence of other
crimes, wrongs or acts, and such evidence will not be excluded
unless 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. Jeter, 326 N.C. 457, 459-
460, 389 S.E.2d 805, 807 (1990).
Even if evidence is admissible for one of the stated
purposes, the trial court retains the discretion to exclude the
evidence if the court determines the probative value of the
evidence is outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury. N.C. Gen. Stat.
§ 8C-1, Rule 403 (2013). We review the court’s ruling as to the
admissibility of the evidence pursuant to Rule 404(b) to
determine whether the evidence supports the court’s findings of
fact and whether the court’s findings support its conclusions.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012). We review the court’s decision pursuant to Rule 403 for
abuse of discretion. Id.B. Analysis
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After conducting a voir dire hearing, the court permitted
defendant’s daughter, C.M.P., to testify that when she was nine
or ten years old and living in Florida, she visited defendant at
his residence in North Carolina for six weeks during the summer
of 1999. Two or three times that summer, defendant unzipped his
pants, placed her hand on his penis, and had her masturbate him.
When she visited defendant the next summer, defendant repeated
this conduct on two or three occasions. Each time that this
occurred, defendant’s wife was at work. In the summer of 2001,
she returned to defendant’s home but nothing happened as she
went with defendant’s wife to work each day and defendant’s wife
was at home during the evenings. She did not return to North
Carolina after the summer of 2001. Two years prior to the trial,
she received a telephone call from her step-sister (the mother
of X.P. and C.P.), who asked why she stopped coming to North
Carolina. Her step-sister gave her the telephone number for the
district attorney. C.M.P. called the district attorney and told
a detective what had happened to her.
In ruling that C.M.P.’s testimony about the instances in
which defendant engaged her in masturbation was admissible, the
court found the following facts: (1) defendant was related to
all four – C.M.P., C.P., X.P. and B.A. – by blood or marriage,
either as father or step-grandfather; (2) defendant sexually
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assaulted all four girls while they were in his custody and
care; (3) defendant used his penis to sexually assault all four
girls, who were all very young, pre-teenage girls; (4) defendant
committed substantially similar sexual acts against all four
girls; (5) defendant sexually assaulted each girl multiple times
over a course of a number of years; (6) defendant stopped
sexually assaulting C.M.P. because he lost access to her; (7)
defendant stopped sexually assaulting the other three girls
after law enforcement was notified and he no longer had access
to them; and (8) defendant took advantage of the availability
and susceptibility of the girls when they were left in his
custody and care. The court further found that the assaults upon
C.M.P. were not so remote in time to render the evidence
inadmissible. The court concluded that the evidence was
admissible under Rule 404(b) to show a plan or scheme, absence
of mistake, absence of accident, or modus operandi. The court
also concluded that the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, undue delay, waste of
time or presentation of cumulative evidence.
Our appellate courts have been “markedly liberal in
admitting evidence of similar sex offenses for the purposes now
enumerated in Rule 404(b)[.]” State v. Cotton, 318 N.C. 663,
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666, 351 S.E.2d 277, 279 (1987). “Such evidence is relevant and
admissible under Rule 404(b) if the incidents are sufficiently
similar and not too remote.” State v. Bagley, 321 N.C. 201, 207,
362 S.E.2d 244, 247-48 (1987).
The facts found by the trial court, for which we find
evidentiary support, are similar to those in the case of State
v. Register, 206 N.C. App. 629, 641, 698 S.E.2d 464, 472-73
(2010), in which the defendant (1) sexually abused children
related to him by blood or marriage; (2) the abuse occurred when
the children were prepubescent; (3) the abuse occurred while the
defendant’s spouse was away at work and defendant was taking
care of the children; and (4) the abuse involved fondling,
fellatio or cunnilingus, most often taking place in the same
bed. We characterized these facts as presenting “a traditional
example of a common plan.” Id. at 641, 698 S.E.2d at 473. While
there were some significant gaps in time between episodes of
abuse, we noted these gaps were due to the defendant’s not
having access to children. We held that the evidence was
admissible under Rule 404(b) and that no abuse of discretion was
committed by the court in admitting the evidence given the
persistence of the conduct over a period of time.
We conclude Register is controlling precedent. We hold that
the trial court’s findings of fact were supported by the
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evidence and in turn supported its conclusions of law; that the
trial court did not err in admitting C.M.P.’s testimony; and
that there was no abuse of discretion by the trial court in its
application of the Rule 403 balancing test.
NO ERROR.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).