State v. WaddellÂ

NO. COA14-528
NORTH CAROLINA COURT OF APPEALS
Filed: 3 February 2015
STATE OF NORTH CAROLINA
v. Cumberland County
No. 12 CRS 59816
MARCUS WADDELL
Appeal by Defendant from judgment entered 18 September 2013
by Judge James F. Ammons, Jr. in Superior Court, Cumberland
County. Heard in the Court of Appeals 20 October 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Caroline Farmer, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jillian C. Katz, for Defendant.
McGEE, Chief Judge.
Marcus Waddell (“Defendant”) appeals his conviction of
felony indecent exposure, which involved Defendant publically
exposing himself in the presence of a fourteen-month-old male
child. Defendant contends that the trial court impermissibly
allowed testimony of two adult women at trial who described
previous instances where Defendant allegedly exposed himself in
public. We disagree.
I. Background
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At the time the following events occurred, Victoria Hardin
(“Ms. Hardin”), an adult woman, worked at a law firm on Dick
Street in downtown Fayetteville, located several blocks from the
Cumberland County courthouse (“the courthouse”). Ms. Hardin
left work on 25 July 2012 at approximately 4:30 in the
afternoon, accompanied by her mother and fourteen-month-old son.
While they made their way to Ms. Hardin’s car, a man, identified
at trial as Defendant, approached Ms. Hardin with his pants
down, called out to get her attention, and began shaking his
penis at her and moving his hand “up and down.” Ms. Hardin and
her mother quickly entered Ms. Hardin’s car, along with Ms.
Hardin’s son. As Ms. Hardin attempted to put her car in
reverse, Defendant moved behind the car and began doing jumping
jacks. Defendant then walked down Dick Street and was
apprehended by the police shortly thereafter.
At trial, the State presented testimony from two adult
women who reported other instances of Defendant exposing himself
in public. The trial court allowed this testimony under N.C.
Gen. Stat. § 8C-1, Rule 404(b) to show intent, plan, or absence
of mistake by Defendant (“the 404(b) testimony”). The jury
found Defendant guilty of felony indecent exposure. Defendant
appeals.
II. Analysis
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The elements of felony indecent exposure are that an adult
willfully expose the adult’s “private parts” (1) in a public
place, (2) “in the presence of” a person less than sixteen years
old, and (3) “for the purpose of arousing or gratifying sexual
desire.” N.C. Gen. Stat. § 14-190.9(a1) (2013). On appeal,
Defendant requests a new trial on the grounds that the trial
court erred by admitting the 404(b) testimony.
“We review de novo the legal conclusion that the evidence
is, or is not, within the coverage of Rule 404(b) of the North
Carolina Rules of Evidence.” State v. Beckelheimer, 366 N.C.
127, 130, 726 S.E.2d 156, 158–59 (2012). Under Rule 404(b),
evidence of other crimes, wrongs, or acts may be admissible to
prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment[,] or
accident” by a defendant, although such evidence “is not
admissible to prove the character of [the defendant] in order to
show that he acted in conformity therewith.” N.C. Gen. Stat. §
8C-1, Rule 404(b) (2013). The rule also is “constrained by the
requirements of similarity and temporal proximity” between the
earlier acts and the offense with which the defendant is
charged.1 State v. Al-Bayyinah, 356 N.C. 150, 154–55, 567 S.E.2d
1Defendant’s arguments on appeal apply only to the
similarity prong of 404(b), and we will limit our analysis
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120, 123 (2002) (citation omitted). In order to satisfy the
similarity prong of Rule 404(b), “the similarities need not be
unique and bizarre.” State v. Stevenson, 169 N.C. App. 797,
800, 611 S.E.2d 206, 209 (2005) (citation and quotation marks
omitted). A prior incident is sufficiently similar if there are
“some unusual facts present in both crimes[.]” State v.
Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007)
(citation and quotation marks omitted). Testimony offered
pursuant to Rule 404(b) may be inadmissible if the details it
will reveal are entirely “generic to the act” it describes. See
Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123.
Defendant first challenges the 404(b) testimony on the
grounds that this testimony provided only “generic features of
the charge of indecent exposure.” In support of this
contention, Defendant relies on Al-Bayyinah. In Al-Bayyinah,
the defendant was charged with attempted robbery of a particular
grocery store. Id. at 151–52, 567 S.E.2d at 121. The trial
court allowed 404(b) testimony of previous robberies of the same
store, but that testimony revealed only that the culprit in the
previous robberies “wore dark, nondescript clothing that
obscured his face; carried a weapon; demanded money; and fled
accordingly. N.C. R. App. P. Rule 28(a) (“Issues not presented
and discussed in a party’s brief are deemed abandoned.”).
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upon receiving it.” Id. at 155, 567 S.E.2d at 123. On appeal
from the defendant’s conviction for the robbery, our Supreme
Court found that this 404(b) testimony merely described facts
“generic to the act of robbery,” noted that the earlier
robberies were factually dissimilar from the one being tried,
and held that this 404(b) testimony was therefore admitted in
error. Id. at 155–57, 567 S.E.2d at 123–24.
However, our Court has allowed 404(b) testimony that
describes “common locations, victims, [and] type of crime,”
between previous and present instances of unlawful conduct.
State v. Gordon, __ N.C. App. __, __, 745 S.E.2d 361, 364, disc.
review denied, __ N.C. __, 749 S.E.2d 859 (2013). For instance,
in Gordon, which involved a robbery in a Wal-Mart parking lot,
previous instances of the Gordon defendant committing similar
robberies was held admissible under Rule 404(b) where
[e]ach of these incidents occurred in or in
the vicinity of a Wal–Mart parking lot; that
each of the victims in this matter were
female and alone; that each of the incidents
involved a common law robbery, the purse
snatching, a grab and dash type of crime;
that these incidents occurred within six
weeks of one another, one in Statesville,
one in Mooresville, which are approximately
[twenty] miles apart; and in each incident,
the alleged perpetrator of the crime . . .
was a black male.
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Id. Similarly, in the present case, the 404(b) testimony
indicated that (1) Defendant exposed himself to adult women, who
were either alone or in pairs, (2) he did so in or in the
vicinity of businesses near the courthouse in downtown
Fayetteville, and (3) each instance involved Defendant exposing
his genitals with his hand on or under his penis. Just as in
Gordon, this 404(b) testimony revealed numerous unique details
of “common locations, victims, [and] type of crime” that rose
above facts “generic to the act” of public exposure.
Defendant’s argument is without merit.
Defendant also contends that the incidents described in the
404(b) testimony are fundamentally dissimilar to Defendant’s
public exposure on 25 July 2012 because the 404(b) testimony
came from adult women, whereas the purported “victim” in the
present case is a fourteen-month-old male child. In support of
this position, Defendant relies on State v. Dunston, 161 N.C.
App. 468, 588 S.E.2d 540 (2003). In Dunston, the defendant was
accused of having anal sex with a twelve-year-old child. Id. at
469, 588 S.E.2d at 542. However, the trial court erred by
allowing 404(b) testimony from the defendant’s wife that the
couple regularly had anal sex. Id. at 473–74, 588 S.E.2d at544–45. This Court held that “the fact defendant engaged in and
liked consensual anal sex with an adult, whom he married, is not
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by itself sufficiently similar to engaging in anal sex with an
underage victim . . . to be admissible under Rule 404(b).” Id.In the present case, Defendant maintains that, because the
404(b) testimony came from adult women, “[n]othing about [the
404(b) testimony] would shed light on why [Defendant] would
expose himself to a [male] child.” (emphasis added).
We disagree not only with Defendant’s conclusion, but we
also disagree with his assumption that whether Defendant exposed
himself “to” a child is relevant to our analysis. N.C.G.S.
§ 14-190.9(a1) requires only that Defendant expose himself “in
the presence of” someone under sixteen. North Carolina’s
appellate Courts consistently have interpreted the phrase “in
the presence of” in N.C.G.S. § 14-190.9 by its plain meaning.
In order to convict a defendant of indecent exposure in public,
the exposure need only be in the presence of another person; it
need not be seen by, let alone directed at, another person. See
State v. Fly, 348 N.C. 556, 561, 501 S.E.2d 656, 659 (1998)
(“[The statute] does not require that private parts be exposed
to [a person] before the crime is committed, but rather that
they be exposed ‘in the presence of’ [another person].”); State
v. Fusco, 136 N.C. App. 268, 270, 523 S.E.2d 741, 742 (1999)
(“Indecent exposure involves exposing one's self ‘in the
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presence of’ [another] person . . . . The victim need not
actually see what is being exposed.” (citation omitted)).2
In the present case, Defendant acknowledges in his own
brief that he exposed himself to Ms. Hardin outside of a
business near the courthouse in downtown Fayetteville, that he
had his hand on his penis when he did so, and that he “shook”
his penis at her. That this particular public exposure also
happened to take place in the presence of a child is not
dispositive of the other similarities between this event and
those described in the 404(b) testimony. Therefore, Dunston is
distinguishable from the present case, and we are unpersuaded by
Defendant’s argument.
Defendant attempts to further distinguish the 404(b)
testimony from his exposure to Ms. Hardin by noting that Ms.
2
Although the present case involves Defendant’s conviction
of felony indecent exposure under N.C.G.S. § 14-190.9(a1), Fly
and Fusco interpreted an older version of North Carolina’s
misdemeanor indecent exposure statute, N.C.G.S. § 14-190.9(a).
Before 2005, in order to convict for misdemeanor indecent
exposure under N.C.G.S. § 14-190.9(a), the State had to prove
not only that a defendant’s exposure occurred in public and in
the presence of another person, but it also had to prove that
this exposure occurred in the presence of a member “of the
opposite sex.” See 2005 N.C. Sess. Laws ch. 226, § 1. As such,
the analyses in Fly and Fusco are still applicable in the
present case, at least to the extent they inform this Court how
to interpret the phrase “in the presence of” as it applies to
Defendant exposing himself “in the presence of” a member of a
particular class of people, presently a child under the age of
sixteen.
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Hardin expressly described Defendant’s conduct as
“masturbating,” while the 404(b) witnesses did not. However,
nothing in our caselaw indicates that the previous acts
described in 404(b) testimony must be completely identical to
the acts charged in order to be admissible; there need only be
“some unusual facts present in both” the past and present
instances of conduct to make them sufficiently similar. See
Carpenter, 361 N.C. at 388, 646 S.E.2d at 110. As already
discussed, there are numerous unique similarities between
Defendant’s conduct described in the 404(b) testimony and in Ms.
Hardin’s account, which we find satisfies the similarity prong
of Rule 404(b). Defendant’s distinction, to the extent that
there is one, is not dispositive of these similarities.
Therefore, Defendant’s argument is without merit.
Defendant further contends that the 404(b) testimony
nonetheless was unduly prejudicial and should have been excluded
under Rule 403 of the North Carolina Rules of Evidence. Under
Rule 403, evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice” to a
defendant. N.C. Gen. Stat. § 8C-1, Rule 403 (2013). Whether to
exclude evidence under Rule 403 is a matter of discretion of the
trial court and that decision will be reversed “only upon a
showing that [the trial court’s] ruling was manifestly
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unsupported by reason and could not have been the result of a
reasoned decision.” State v. Lakey, 183 N.C. App. 652, 654, 645
S.E.2d 159, 160–61 (2007) (citation and quotation marks
omitted). Moreover, we generally will not overturn a trial
court’s decision to admit evidence under Rule 403 where “a
review of the record reveals that the trial court was aware of
the potential danger of unfair prejudice to [the] defendant and
was careful to give a proper limiting instruction to the jury.”
See Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160 (citation
and quotation marks omitted).
In the present case, the trial court held voir dire
examinations of the State’s 404(b) witnesses, and it even
excluded a possible third 404(b) witness because she could not
state in open court that Defendant was the same man who had
exposed himself to her in the past. The trial court found that
the 404(b) testimony was admissible to show “some evidence of
intent, plan, or absence of mistake in this case” because
Defendant “has shown a pattern of exposing himself to [adult]
females in the courthouse area” in downtown Fayetteville.
Moreover, the trial court expressly instructed the jury that it
could only consider the 404(b) evidence for these limited
purposes. As such, our review of the record reveals that the
trial court was aware of the potential danger of unfair
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prejudice to Defendant by allowing the 404(b) testimony and that
it gave a proper limiting instruction to the jury in response.
At the very least, in light of our above analysis, and in spite
of Defendant’s contention that the introduction of the 404(b)
testimony “allowed the State to change the focus of the case
from the credibility of Ms. Hardin’s account of the incident to
the character of [Defendant],” we find that the trial court’s
decision to not exclude the 404(b) testimony under Rule 403 was
not manifestly unsupported by reason.
No error.
Judges STEPHENS and DIETZ concur.