State v. Fultz

373 S.E.2d 445 (1988) 92 N.C. App. 80

STATE of North Carolina
v.
David FULTZ.

No. 8818SC123.

Court of Appeals of North Carolina.

November 15, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Philip A. Telfer, Raleigh, for the State.

Tharrington, Smith & Hargrove by Roger W. Smith, Wade M. Smith and Melissa H. Hill, Raleigh, for defendant-appellant.

EAGLES, Judge.

Defendant brings forward five issues on appeal. He argues that these convictions should be reversed because the indictments were insufficient to inform him of the nature of the charges against him. Alternatively, he contends that this court should grant him a new trial because the trial court erred in joining all of the offenses for trial, admitted certain incompetent evidence, and excluded competent evidence offered by the defense. After a careful review of the record, we hold that defendant received a fair trial free from prejudicial error.

Defendant contends that the trial court erred in refusing to dismiss the case because the indictments were insufficient to notify him of the acts constituting the charged offenses so that he could properly prepare his defense. In making his argument, defendant concedes that this court in State v. Singleton, 85 N.C.App. 123, 354 S.E.2d 259, disc. rev. denied and appeal dismissed, 320 N.C. 516, 358 S.E.2d 530 (1987), approved "language nearly identical" to these indictments. Our holding in Singleton controls here. If defendant needed additional or more specific information to adequately prepare or conduct his defense, he could have moved for a bill of particulars pursuant to G.S. 15A-925. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983). We overrule this assignment of error.

Defendant further argues that the trial court erred in joining the five offenses charged for a single trial. Joinder decisions are in the sound discretion of the trial court. We find no abuse of discretion here.

G.S. 15A-926 allows joinder of two or more offenses when they "are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." G.S. 15A-926(a). Our courts have interpreted this statute as not allowing joinder of offenses solely because the offenses charged were the same type of acts unless there is also a "transactional connection." State v. Greene, 294 N.C. 418, 421, 241 S.E.2d 662, 664 (1978). While a motion for joinder of offenses is addressed to the trial court's discretion, State v. Williams, 74 N.C.App. 695, 329 S.E.2d 705 (1985), the test we apply on review is "whether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant." State v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983).

Here each of the offenses charged occurred in a Boy Scout environment. Defendant was each victim's scout master during the entire period. Three of the offenses occurred at a single campsite and the remaining offenses occurred at the troop's meeting place. We find that these circumstances are not so distinct as to render consolidation unjust. Furthermore, the evidence demonstrates a scheme or plan in which the defendant used his position as troop leader to commit these acts. We overrule this assignment of error.

Defendant assigns as error the State's introduction of evidence showing that defendant had a bad temper and used profanity. We agree that evidence of profanity and temper are irrelevant to the charges tried, but defendant has failed to demonstrate how he was prejudiced by their introduction. G.S. 15A-1443(a); State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983). Defendant argues that this evidence prejudiced him in the jury's assessment of his credibility. In light of the more than eighteen character witnesses defendant called on his behalf who each testified as to defendant's excellent reputation for truthfulness and moral character, we find the error here to be harmless.

Defendant argues that the trial court erred in not allowing evidence of defendant's general character and reputation. The trial court limited the character evidence introduced by defendant to evidence directed to pertinent character traits. The State argues that Rule 404(a) of the North Carolina Rules of Evidence requires that character evidence is admissible only when it addresses pertinent character traits. Our Supreme Court in State v. Squire, 321 N.C. 541, 546, 364 S.E.2d 354, 357 (1988), held that "an accused may no longer offer evidence of undifferentiated ``good character' ...; he must tailor the evidence to a particular trait that is relevant to an issue in the case." The trial court's ruling was proper and the assignment of error is overruled.

Finally, defendant contends that the trial court erred in allowing the State, during rebuttal, to introduce into evidence acts of unprosecuted misconduct by defendant which occurred more than ten years earlier. The State argues that the evidence was proper rebuttal testimony and was admissible pursuant to Rule 404(b) of the North Carolina Rules of Evidence. We hold that because defendant opened the door, the State's rebuttal evidence was properly admitted here.

The State elicited the complained of testimony from Joseph Johnson, a rebuttal witness. He told of three specific sexually related incidents which occurred between defendant and him in 1976 while he was a member of the same scout troop. During this time defendant was the assistant troop leader. Johnson testified that on two occasions when he was alone with the defendant, defendant told him to masturbate as his initiation into the troop. The first incident occurred while the troop was on a camping trip. The second incident occurred in Chapel Hill where defendant took Johnson to a football game. After the game defendant and Johnson went up into the bell tower and defendant told him to masturbate again. During this second incident, defendant also tickled Johnson's genitals. Johnson testified that the third incident was when defendant bought him a Playboy magazine. Johnson was in the troop from 1975 until 1977.

Rule 404(b) provides that while evidence of other wrongs or acts committed by defendant is not admissible to prove defendant's character, this evidence is admissible to prove motive, opportunity, or plan. G.S. 8C-1, Rule 404(b); State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988). To be admitted the evidence must not be too remote in time from the incidents for which the defendant is being tried. State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986). In sex offense cases our courts have liberally allowed evidence of similar sex offenses committed by the defendant, State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986), including evidence of sexual assaults by the defendant against persons other than the victims. Id.

Once the trial court establishes that it will admit the evidence pursuant to Rule 404(b), the court must then determine whether the evidence is more probative than prejudicial under Rule 403. State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986). This record does not reveal that the trial court made any Rule 403 determination. The State argues that, in any event, the evidence was admissible here because the defendant opened the door. We agree.

Our courts will allow the State to introduce evidence, even when it is not otherwise admissible, if it is "offered to explain or rebut evidence elicited by the defendant himself." State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981); see also State v. Teeter, 85 N.C.App. 624, 355 S.E.2d 804, disc. rev. denied and appeal dismissed, 320 N.C. 175, 358 S.E.2d 67 (1987). On direct examination the defendant testified to the following:

Q. Have you ever fondled a boy's private parts or touched him in any improper way?

A. No, sir, I have not.

* * * * * *

Q. Did you ever touch [the victims] in any improper way or fondle them?

A. I never touched any boy in my troop in an improper way.

Defendant explicitly testified that he had never touched or fondled a member of his scout troop. Johnson's testimony, then, was proper rebuttal testimony. Furthermore, defendant had previously called Jeffrey Edward Berthold as a witness and questioned him concerning events while Berthold was a member of the troop from 1977 until 1981. Accordingly, we hold that defendant opened the door to testimony about this remote time period. Defendant having opened the door, we find no prejudicial error in admitting the complained of evidence.

Our review of the record convinces us that defendant has received a fair trial free from prejudicial error.

NO ERROR.

PHILLIPS and PARKER, JJ., concur.