State v. Rayfield

NO. COA13-531
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Gaston County
Nos. 10 CRS 56852, 11 CRS
13597–99, 13601–04.
DOUGLAS DALTON RAYFIELD, II
Appeal by Defendant from order entered 8 September 2011 by
Judge Jesse B. Caldwell, III and judgments entered 17 January 2012
by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard
in the Court of Appeals 9 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Mark Montgomery for Defendant.
STEPHENS, Judge.
Evidence and Procedural History
Douglas Dalton Rayfield, II (“Defendant”) was indicted for
multiple counts of sexual acts with K.C.,1 a minor. Defendant was
tried before a jury beginning 9 January 2012 in Gaston County
Superior Court. The evidence presented at trial tended to show the
following:
1 Initials are used to protect the juvenile’s identity.
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K.C. was fourteen years old at the time of trial. Her
stepfather had known Defendant since childhood, and they were so
close that he treated Defendant like a brother. K.C. and Defendant
were regularly left unsupervised in her stepfather’s house, and
Defendant was allowed to transport her to and from various
locations without third-party supervision. One day, when K.C. was
eight years old, Defendant drove her to his house after working on
a car at her stepfather’s house. When they arrived at Defendant’s
residence, he told K.C. to get into a “limo” that was parked in
his front yard so they could play a game. Once inside, Defendant
told K.C. to pull down her pants. When she did, he touched his
penis to her “vagina area.” Defendant ejaculated on the seat and
told K.C. it was “lotion.”
On another occasion, K.C. was playing video games in her room
when Defendant walked in and asked her to “help him make lotion.”
When she refused, Defendant said he would stop “bugging” her if
she would help him. He told her to pull down her pants, put his
mouth “in my vagina area,” and was “licking all over.” K.C. left
the room to wipe off. When she returned, Defendant had his penis
out. She again refused to help him make “lotion.” As K.C.’s father
pulled into the driveway, Defendant zipped up his pants and left.
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On a separate occasion, Defendant drove K.C. from her house
to his house to look for a motorcycle part. Defendant brought K.C.
to his room and showed her a video of a man having sexual
intercourse with a young girl. Defendant told K.C. that he was the
man. Defendant then showed K.C. images of a young girl posing
“[l]ike a girl really shouldn’t be posing” and suggested that K.C.
make similar pictures. As the encounter continued, Defendant took
off his pants and began “playing with himself.” He eventually
ejaculated and told K.C. that the ejaculate was not lotion, but
actually was “what gets a girl pregnant.”
Another time, Defendant groped K.C.’s breast area while they
were in the car together. After doing so, he noted that she was
“getting bigger.”
Defendant twice transported K.C. to a motel. On one occasion,
Defendant brought a magazine with pictures of naked men and women
for them to view. They looked at the pictures together until K.C.’s
mother called Defendant. Defendant told her that they were at
Walmart.2 Another time, Defendant offered to take K.C. to a Girl
Scout meeting. Instead of taking her directly to the meeting,
2 As the State notes in its brief, Defendant erroneously stated on
appeal that this incident ended when K.C. told her mother that she
was at Walmart with Defendant. That is incorrect. The trial
transcript indicates that the encounter ended when K.C.’s mother
called Defendant, and he told her that they were at Walmart.
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Defendant took her to a motel and asked her to “help him” fill a
small black vial with ejaculate. He told her that, if she did not
help him fill the vial, someone would cut his fingers off.
Defendant asked multiple times, and K.C. refused each time.
Defendant eventually yielded and drove K.C. to the meeting without
proceeding further.
The last encounter between K.C. and Defendant occurred when
K.C. was twelve years old. Defendant drove her to his house, and
they parked outside. In the car, he showed her a vial and again
informed her that he needed her help to fill the vial and keep his
fingers from being cut off. This time K.C. said she would help him
save his fingers. Defendant took her pants off and performed
missionary-style intercourse on her while they were in the car. He
ejaculated outside of her vagina and partially filled the vial.
When he was finished, he drove K.C. home.
On 18 May 2010, K.C. told the interim counselor at her middle
school that Defendant had shown her a video of a young girl
performing sexual acts and had touched her inappropriately. K.C.
elaborated, and the school authorities contacted K.C.’s mother and
the local police. The next day, Detective R.E. Bloom appeared
before the magistrate and submitted a sworn affidavit and
application for a search warrant.
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Therein, Detective Bloom asserted that he had responded to a
call for service to investigate an allegation of sexual assault.
He stated that K.C. had informed another officer of incidents
occurring from the time she was eight years old until she was
eleven. Detective Bloom also alleged that sexual assaults took
place in K.C.’s home, in Defendant’s home, and in a Gastonia-based
motel. Regarding those places, the affidavit listed either the
address or provided a description of the approximate location. The
affidavit also stated that Detective Bloom had confirmed K.C.’s
statement by collecting evidence that Defendant was at America’s
Best Motel on 8 May 2010. The affidavit asserted that Defendant
had shown K.C. pornographic videos and images in his home. The
images were of Defendant having sexual intercourse with an unknown
female, who K.C. believed was under ten years old. The affidavit
noted that Defendant is a registered sex offender and requested a
search warrant for Defendant’s home and the magazines, videos,
computers, cell phones, and thumb drives located therein. The
magistrate issued a search warrant, and police searched
Defendant’s home and the contraband recovered therefrom between 19
May 2010 and 24 May 2010.
Defendant was charged with four counts of indecent liberties
with a child, one count of disseminating obscene material, one
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count of crime against nature, one count of first-degree statutory
sex offense, and one count of first-degree statutory rape. On 6
May 2011, Defendant’s counsel filed a motion to suppress the
evidence seized during the execution of the search warrant. That
motion was denied on 8 September 2011. Defendant’s motion to
exclude evidence of other crimes, wrongs, or acts was also denied.
Items of child pornography and adult pornography were admitted at
trial along with the testimony of another person, A.L.,3 who
willingly had sexual intercourse with Defendant when she was
fourteen. Defendant was convicted of all the charges and sentenced
to imprisonment for no less than 640 months and no more than 788
months.
Discussion
Defendant argues on appeal that the trial court erred in (1)
denying his motion to suppress the evidence seized from his house
and (2) admitting into evidence certain pornography found in
Defendant’s home and the testimony of A.L. We find no error.
I. Defendant’s Motion to Suppress
3 Initials are used to protect the juvenile’s identity.
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In support of his first argument, Defendant claims that (1)
the information in the search warrant affidavit was “stale” because
as many as three and a half years had passed since Defendant
allegedly showed pornography to K.C., (2) the search warrant was
based on misleading information, and (3) the search warrant was
issued in substantial violation of N.C. Gen. Stat. § 15A-245
(2011). Accordingly, Defendant contends that the evidence found
during the search of his home should have been suppressed as “fruit
of the poisonous tree.” We disagree.
A. Preservation of Appellate Review
As a preliminary matter, we address the State’s contention
that Defendant did not adequately preserve appellate review of the
denial of his motion to suppress because he failed to object at
trial. A pretrial motion to suppress is a type of motion in limine.
State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Such a
“motion . . . [is] not sufficient to preserve for appeal the
question of admissibility of evidence if the defendant does not
object to that evidence at the time it is offered at trial.” Id.In order to preserve an issue for appellate review by objection at
trial, the appealing party must present “a timely request,
objection, or motion, stating the specific grounds for the ruling
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the party desired the court to make if the specific grounds were
not apparent from the context.” N.C.R. App. P. 10(a)(1) (emphasis
added).
In the present case, Defendant made a pretrial motion to
suppress the evidence seized from his home. That motion was denied.
Defendant renewed the motion at trial, and the motion was again
denied. Although Defendant’s counsel did not state his grounds for
the objection when the evidence was offered at trial, it is clear
from the context that he was renewing his earlier objections to
the evidence for the reasons stated in his motion to suppress:
[THE STATE]: Would you open State’s Exhibit A?
(The [officer-]witness complied)
. . .
[THE STATE]: What’s contained in that box?
[THE OFFICER]: There are numerous periodicals
of a sexual nature, magazines. There are
several, looks like nine DVDs. There are some
printed, looks like images printed off of the
Internet of a pornographic sexual nature.
[THE STATE]: Now, you said those are the same
items that you saw in the box there in
[Defendant’s] residence when the box was
seized?
[THE OFFICER]: That’s correct.
[THE STATE]: Are there any other photographs
or items in that box?
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[THE OFFICER]: There are some Polaroids,
Polaroid photographs, yes. And like I said,
the printed — there are some, looks like
computer printed images from off of websites
of young females.
. . .
[THE STATE]: Your Honor, we would be moving
into evidence the contents of that box. . . .
[COUNSEL FOR DEFENDANT]: Of course, you know[]
the nature of my objection, Your Honor. . . .
. . .
THE COURT: Do you wish to be heard about any
of that, [counsel for Defendant]? I know that
you object to all of it, but.
[COUNSEL FOR DEFENDANT]: I do, and I don’t
wish to be heard about those exhibits being
selected or being published.
Based on this exchange it is clear from the context that trial
counsel and the trial judge understood that Defendant wished to
preserve his earlier objections on the grounds stated therein.
Therefore, we hold that this issue was properly preserved for
appellate review.4
B. Standard of Review and Legal Background
Our review of the denial of a motion to suppress is “limited
4 Defendant argues in the alternative that, if this issue was not
properly preserved for appellate review, his trial counsel was
ineffective. Because we hold that Defendant’s trial counsel
properly preserved this issue for appeal, we need not address his
argument as to ineffective assistance of counsel.
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to determining whether the trial judge’s underlying findings of
fact are supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual findings
in turn support the judge’s ultimate conclusions of law.” State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
A valid search warrant application must
contain allegations of fact supporting the
statement. The statements must be supported by
one or more affidavits particularly setting
forth the facts and circumstances establishing
probable cause to believe that the items are
in the places or in the possession of the
individuals to be searched. Although the
affidavit is not required to contain all
evidentiary details, it should contain those
facts material and essential to the case to
support the finding of probable cause. This
Court has held that affidavits containing only
conclusory statements of the affiant’s belief
that probable cause exists are insufficient to
establish probable cause for a search
warrant. The clear purpose of these
requirements for affidavits . . . is to allow
a magistrate or other judicial official to
make an independent determination as to
whether probable cause exists for the issuance
of the warrant under N.C. Gen. Stat. [§] 15A-
245(b). [That section] requires that a
judicial official may consider only
information contained in the affidavit, unless
such information appears in the record or upon
the face of the warrant.
State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003)
(citation and internal quotation marks omitted).
In preparing an affidavit for this purpose, “[t]he officer
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making the affidavit may do so in reliance upon information
reported to him by other officers in the performance of their
duties.” State v. Horner, 310 N.C. 274, 280, 311 S.E.2d 281, 286
(1984). “Whether an applicant has submitted sufficient evidence to
establish probable cause to issue a search warrant is a
non[-]technical, common-sense judgment of laymen applying a
standard less demanding than those used in more formal legal
proceedings.” State v. Ledbetter, 120 N.C. App. 117, 121, 461
S.E.2d 341, 344 (1995) (citation and internal quotation marks
omitted). “The trial court’s conclusions of law . . . are fully
reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539
S.E.2d 625, 631 (2000).
C. Staleness
Appealing the denial of his motion to suppress, Defendant
first argues that certain allegations in Detective Bloom’s
affidavit were stale and did not support a finding of probable
cause. Specifically, Defendant points out that there is a three-
and-one-half-year gap between the alleged viewing of the
pornography in Defendant’s house and the time the affidavit was
issued. In addition, Defendant contends that other descriptions of
sexual conduct with minors described in the affidavit did not have
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specific time references and, therefore, failed to support a
finding of probable cause. We disagree.
“When evidence of previous criminal activity is advanced to
support a finding of probable cause, a further examination must be
made to determine if the evidence of the prior activity is stale.”
State v. McCoy, 100 N.C. App. 574, 577, 397 S.E.2d 355, 358 (1990).
Before a search warrant may be issued, proof
of probable cause must be established by facts
so closely related to the time of issuance of
the warrant so as to justify a finding of
probable cause at that time. The general rule
is that no more than a “reasonable” time may
have elapsed. The test for “staleness” of
information on which a search warrant is based
is whether the facts indicate that probable
cause exists at the time the warrant is
issued. Common sense must be used in
determining the degree of evaporation of
probable cause. The likelihood that the
evidence sought is still in place is a
function not simply of watch and calendar[,]
but of variables that do not punch a clock.
State v. Lindsey, 58 N.C. App. 564, 565–66, 293 S.E.2d 833, 834
(1982) (citations and internal quotation marks omitted; emphasis
added). “[W]here the affidavit properly recites facts indicating
activity of a protracted and continuous nature, a course of
conduct, the passage of time becomes less significant. The
continuity of the offense may be the most important factor in
determining whether the probable cause is valid or stale.” McCoy,
100 N.C. App. at 577, 397 S.E.2d at 358 (citation omitted). In
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addition, our courts have repeatedly held that “young children
cannot be expected to be exact regarding times and dates[.]” State
v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984).
Although K.C was generally unable to provide dates to the
attesting officers in this case, we hold that her allegations of
inappropriate sexual touching by Defendant over a sustained period
of time allowed the magistrate to reasonably conclude that probable
cause was present to justify the search of Defendant’s residence.
See McCoy, 100 N.C. App. at 577, 397 S.E.2d at 358. “Common sense
is the ultimate criterion in determining the degree of evaporation
of probable cause.” State v. Jones, 299 N.C. 298, 305, 261 S.E.2d
860, 865 (1980) (citation omitted). “The significance of the length
of time between the point probable cause arose and when the warrant
issued depends largely upon the [nature of the property to be
seized] and should be contemplated in view of the practical
consideration[s] of everyday life.” Id. (citation omitted).
Another variable to consider when determining staleness is the
character of the crime. State v. Witherspoon, 110 N.C. App. 413,
419, 429 S.E.2d 783, 786 (1993).
In this case, the affidavit set forth that Defendant showed
K.C. pornographic videos and images in his home. The images showed
Defendant having sexual intercourse with an unknown female, who
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K.C. believed was under ten years old. The affidavit went on to
state that Defendant was a registered sex offender. It then
requested a search warrant for Defendant’s home and included
magazines, videos, computers, cell phones, and thumb drives in the
objects to be searched.
Our Supreme Court has determined that, when items to be
searched are not inherently incriminating and have enduring
utility for the person to be searched, a reasonably prudent
magistrate could conclude that the items can be found in the area
to be searched. Jones, 299 N.C. at 305, 261 S.E.2d at 865. Here,
the items sought by the search warrant — magazines, videos,
computers, cell phones, hard drives, gaming systems, MP3 players,
a camera, a video recorder, thumb drives, and other pictures or
documents — were not incriminating in and of themselves and were
of enduring utility to Defendant. See, e.g., id. (upholding a
search warrant when five months had elapsed between the time the
witness saw the defendant’s hatchet and gloves and the witness
spoke to police because, inter alia, the items were not
incriminating in and of themselves and had utility to the
defendant).
There was no reason for the magistrate in this case to
conclude that Defendant would have felt the need to dispose of the
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evidence sought even though acts associated with that evidence
were committed years earlier. Indeed, a practical assessment of
the information contained in the warrant would lead a reasonably
prudent magistrate to conclude that the computers, cameras,
accessories, and photographs were likely located in Defendant’s
home even though certain allegations made in the affidavit referred
to acts committed years before. See State v. Pickard, 178 N.C.
App. 330, 336, 631 S.E.2d 203, 208 (2006) (holding that the
affidavit provided the magistrate with a substantial basis for
concluding that probable cause existed to issue a search warrant
when the items sought — computers, computer equipment and
accessories, cassette videos or DVDs, video cameras, digital
cameras, film cameras, and accessories — were not particularly
incriminating and were of enduring utility to the defendant).
Accordingly, the information contained in the search warrant was
not stale and the magistrate had sufficient evidence to support a
determination of probable cause. Defendant’s first argument is
overruled.
D. False and Misleading Information
Second, Defendant contends that the search warrant was
invalid because Detective Bloom’s affidavit was based on false and
misleading information. We disagree.
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The Fourth Amendment’s requirement of a factual showing
sufficient to constitute “probable cause” anticipates a truthful
presentation of facts. Franks v. Delaware, 438 U.S. 154, 164–65,
57 L. Ed. 2d 667, 678 (1978).
N.C. Gen. Stat. § 15A-978 provides that a
defendant can challenge the “validity of a
search warrant and the admissibility of
evidence obtained thereunder by contesting the
truthfulness of the testimony” which showed
probable cause for the issuance of the
warrant. N.C. [Gen. Stat.] § 15A-978(a)[]. The
section defines truthful testimony as
testimony which reports in good faith the
circumstances relied on to establish probable
cause.
A factual showing sufficient to support
probable cause requires a truthful showing of
facts. Truthful, however, does not mean . . .
that every fact recited in the warrant
affidavit is necessarily correct, for probable
cause may be founded upon hearsay and upon
information received from informants, as well
as upon information within the affiant’s own
knowledge. . . . Instead, “truthful” means
that the information put forth is believed or
appropriately accepted by the affiant as true.
[Because there is a presumption of validity
with respect to the affidavit supporting the
search warrant, a] defendant must make a
preliminary showing that the affiant
knowingly, or with reckless disregard for the
truth, made a false statement in the
affidavit. Only the affiant’s veracity is at
issue in the evidentiary hearing. Furthermore,
a claim . . . is not established by presenting
evidence which merely contradicts assertions
contained in the affidavit or shows the
affidavit[] contains false statements . . . .
Rather, the evidence presented must establish
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facts from which the finder of fact might
conclude that the affiant alleged the facts in
bad faith.
State v. Severn, 130 N.C. App. 319, 322, 502 S.E.2d 882, 884 (1998)
(citations, certain internal quotation marks, and ellipses
omitted). Further, an inadvertent error by an officer making an
affidavit, when he or she did not know it was an error, may be
immaterial where the affidavit is still sufficient on its face to
support a finding of probable cause. See State v. Steele, 18 N.C.
App. 126, 196 S.E.2d 379 (1973).
In support of his argument that Detective Bloom’s affidavit
was based on false and misleading information sufficient to
invalidate the search warrant, Defendant first notes that the
affidavit does not provide the name or address of the motel where
K.C. was taken. However, as our Supreme Court stated in Wood,
children are not expected to remember exact dates and times. 311
N.C. at 742, 319 S.E.2d at 249. Likewise, the fact that K.C.
relayed this information to Detective Bloom without specific
details regarding the name of the motel or its address is not
fatal.
Second, Defendant points out that Detective Bloom did not
speak directly to K.C. when determining the information to be used
in the affidavit, relying instead on a report from Officer Jeff
Bryant and a video interview of K.C. This point is misplaced.
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Probable cause for an affidavit may be based on information
relayed from one officer to another if that information was
reported while the officer performed his or her duties. Horner,
310 N.C. at 280, 311 S.E.2d at 286. The affidavit in this case
states that, during a call for service, the school resource officer
at K.C.’s middle school advised Officer Bryant of K.C.’s
allegations. As “[o]bservations of fellow officers engaged in the
same investigation are plainly a reliable basis for a warrant
applied for by one of their number[,]” it was proper for Detective
Bloom to rely on information from Officer Bryant for a probable
cause determination. See id.Third, Defendant asserts that Detective Bloom’s affidavit
contained nothing about a discrepancy between when K.C. claimed to
have been taken to the motel and the date that someone named
“Douglas Rayfield” registered at America’s Best Value Motel. To
the extent that there was such a discrepancy, it was not sufficient
to invalidate the search warrant.
As we have already noted,
in the interests of justice and recognizing
that young children cannot be expected to be
exact regarding times and dates, a child’s
uncertainty as to time or date upon which the
offense charged was committed goes to the
weight rather than the admissibility of the
evidence.
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Wood, 311 N.C. at 742, 319 S.E.2d at 249. In denying Defendant’s
motion to suppress, the trial court found that Detective Bloom
made “honest mistakes and inadvertence” which did not
unconstitutionally taint the search warrant. In addition, much of
the confusion in the affidavit stemmed from information about the
motel name and certain dates. Analyzing the affidavit as a whole,
however, Detective Bloom made clear that K.C. was assaulted by
Defendant on multiple occasions for three years. It states that
(1) Defendant was a good friend of K.C.’s stepfather and (2) that
sexual assaults took place in K.C.’s home, Defendant’s home, and
a nearby motel. Further, the affidavit asserts that K.C. viewed
pornographic videos of Defendant and another girl with Defendant
in his home. These findings support the trial court’s conclusion
that probable cause was present to justify a search of Defendant’s
residence for magazines, videos, computers, hard drives, cameras,
and other pictures.
Therefore, to the extent Detective Bloom made mistakes in the
affidavit, we conclude that those mistakes did not result from
false and misleading information and that the affidavit’s
remaining content was sufficient to establish probable cause.
Accordingly, Defendant’s second argument is overruled.
E. The Validity of the Search Warrant Under 15A-245(a)
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Section 15A-245(a) provides in pertinent part that:
[An] issuing official may examine on oath the
applicant . . . , but information other than
that contained in the affidavit may not be
considered by the issuing official in
determining whether probable cause exists for
the issuance of the warrant unless the
information is either recorded or
contemporaneously summarized in the record or
on the face of the warrant by the issuing
official.
N.C. Gen. Stat. § 15A-245(a) (2011).
The magistrate in this case indicated on the search warrant
that, in addition to the affidavit, the application was supported
by Detective Bloom’s sworn testimony. The magistrate did not
indicate, however, that the testimony was reduced to writing or
recorded. In its order on the motion to suppress, the trial court
found that Detective Bloom’s oral testimony was not reduced to
writing. Thus, the magistrate violated section 15A-245 by neither
recording nor contemporaneously summarizing the oral testimony
offered by Detective Bloom.
On appeal, Defendant argues that the trial court erred in
denying his motion to suppress because the magistrate
substantially violated section 15A-245, requiring that the
evidence obtained from his home be suppressed. Alternatively, he
contends that this case should be remanded for further findings of
fact and conclusions of law due to the trial court’s failure to
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properly address the nature of the magistrate’s violation. Because
our analysis of Defendant’s argument depends on whether the trial
court properly addressed the validity of the search warrant, we
address that question first.
i. The Trial Court’s Order
In his alternative argument, Defendant contends that we
should remand this case for a new hearing followed by complete and
proper findings of fact and conclusions of law on grounds the trial
court (1) made “incomplete” findings and (2) failed to make any
findings or conclusions as to whether the magistrate substantially
violated section 15A-245. We are unpersuaded.
a. Findings of Fact
As discussed above, this Court is limited to determining
whether a trial court’s findings of fact “are supported by
competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support the
judge’s ultimate conclusions of law.” State v. Williams, 362 N.C.
628, 632, 669 S.E.2d 290, 294 (2008) (citation and internal
quotation marks omitted). In this case, the trial court made the
following pertinent findings of fact in its order denying
Defendant’s motion to suppress:
3. That on the onset date, May 19th, 2010,
Detective Bloom appeared before the magistrate
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and submitted a sworn application and
affidavit[ ]in which, among other things, he
asserted his history and training in law
enforcement. That he had responded to a call
for service at [K.C.’s middle school] by a
resource officer. That a 12[-]year-old white
female, [K.C.], was allegedly sexually
assaulted by one Douglas Dalton Rayfield, on
multiple occasions. That Detective Bloom spoke
with [K.C.], and that the affidavit submitted
to the magistrate contains the statement that
she advised that the incidents occurred from
the time she was 8[ ]years old until she was
11[ ]years old. That she further explained
that [Defendant] was[ ]a good friend of her
father. That the affidavit submitted with the
application[ ]for the search warrant further
advised that sexual assaults took place in her
home at [the listed address], and at the home
of [D]efendant, [at the listed address5]. That
the affidavit also submitted that [K.C.] said
that a recent sexual assault took place at a
motel in the City of Gastonia, behind an old
steakhouse at the intersection of[ ]Highway
321 and Interstate 85.
4. That said affidavit[ ]in support of the
search warrant further alleged that on May
19th, 2010, during a child advocacy hearing
interview, [K.C.] provided details about the
assaults. That the affidavit[ ]in support of
the search warrant stated that Detective Bloom
had confirmed [K.C.’s] statement by collecting
information that confirmed that [Defendant]
was at America’s Best Motel on May 8th, 2010.
That the affidavit further sets forth that at
[Defendant’s] home [Defendant] showed [K.C.]
pornographic videos and images of [Defendant]
having intercourse with an unknown female,
[who K.C.] believed was around 10[ ]years of
age. That the affidavit further set forth that
[Defendant] was a registered sex offender.
5 Street addresses have been redacted to protect K.C.’s identity.
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That the affidavit further requested the
search warrant for [Defendant’s] home at [the
listed address],[ ]and that [the warrant]
would include magazines, videos, computers,
cell phones, hard drives, gaming systems,
thumb drives, and the like.
5. That Detective Bloom went to the [m]otel on
Highway 321, which was America’s Best Value.
That the name of this [m]otel had been
recently changed. That at some time before
that it was a Motel 6, by name.
. . .
7. That there are several hotels . . . off of
Interstate 85 and Highway 321. That there was
a receipt which Detective Bloom obtained from
America’s Best Value Inn, which reflected that
on May the 8th of 2010, that
[Defendant ]rented a room, asserting that
there would be two people in his party, and
that he was leaving at 11:00 a.m. on May the
9th, 2010.
. . .
9. That [K.C.] stated that [Defendant’s]
[m]otel room was messy with clothes all
around. That while there she saw a video of
the man that she identified as [Defendant]
with a girl [who] she contended was about
10[ ]years of age.
. . .
13. That [K.C.] made a statement that there
had been oral sex with [Defendant] some two
weeks after her 9th birthday. That she further
testified that there was a sexual encounter in
a car wash, and that she was afraid of cameras
catching them. That at one point [Defendant]
offered her $100 to continue with sex acts.
-24-
. . .
23. That questions about the name of the
[m]otel where the victim indicated she was
with [Defendant] and confusion regarding
whether the name of the [m]otel was Knights
Inn or America’s Best are explained by the
fact that the [m]otel’s name had recently
changed shortly before Detective Bloom visited
the[ m]otel, and the fact that [K.C.], who
reported being at the hotel, is a minor, whose
memory for specifics, such as the name of a
hotel, cannot be expected to be on par with an
adult.
Given those findings, the court denied Defendant’s motion to
suppress and concluded as a matter of law “[t]hat the totality of
the circumstances surrounding the issuance of the said search
warrant supports the magistrate’s finding of[ ]probable cause upon
the aforesaid affidavit of Detective Bloom.”
In his brief, Defendant disputes certain elements of findings
of fact 7, 9, 13, and 23. Regarding finding 7, Defendant points
out that Detective Bloom’s testimony contradicts the Court’s
finding that two people were listed on the receipt from the motel.
At the suppression hearing, Detective Bloom testified that the
receipt did not indicate how many people were in Defendant’s party.
Defendant also notes that finding of fact 9 contradicts Detective
Bloom’s affidavit regarding where K.C. saw the video of Defendant
having sex with a minor. The finding states that it occurred in
the motel room while the affidavit asserts that it occurred in
-25-
Defendant’s home. Defendant also argues that portions of finding
of fact 13 — which describes certain sexual acts committed by
Defendant — are not relevant to the trial court’s determination of
probable cause because they occurred too long ago.6 Lastly,
Defendant quibbles with the trial court’s finding that the
confusion regarding the name of the motel was resolved because the
motel’s name had recently changed from “Knights Inn” to “America’s
Best Inn,” asserting that the motel had in fact changed its name
from “Motel 6,” as stated in the trial court’s fifth finding of
fact. These arguments are insufficient to overturn the trial
court’s conclusion regarding probable cause.
“Probable cause need not be shown by proof beyond a
reasonable doubt, but rather [it is shown by] whether it is more
probable than not that . . . contraband will be found at a
specifically described location.” State v. Edwards, 185 N.C. App.
701, 704, 649 S.E.2d 646, 649 (2007). While Defendant has correctly
identified errors in the trial court’s findings of fact, he fails
to address the Court’s myriad other findings as they relate to its
conclusion that probable cause to search Defendant’s home was
present. As discussed above, Detective Bloom’s affidavit —
6 We resolved this issue in our discussion regarding staleness,
supra, and do not address it further.
-26-
summarized by the trial court in findings of fact 3 and 4 — was
sufficient on its own to establish probable cause. Therefore, to
the extent the trial court’s other findings contain errors, they
are not so severe as to undercut the court’s conclusion of law
that probable cause was present to justify the search. In light of
the other evidence cited by the trial court in support of its
conclusion that probable cause was present to justify the search
of Defendant’s home, this argument is overruled.
b. Findings and Conclusions Regarding the
Substantiality of the Statutory Violation
Section 15A-974(b) provides that
[t]he court, in making a determination whether
or not evidence shall be suppressed under this
section, shall make findings of fact and
conclusions of law which shall be included in
the record, pursuant to [section] 15A–977(f).
N.C. Gen. Stat. § 15A–974 (2011). Pursuant to that section,
Defendant contends that the trial court erred by failing to make
findings and conclusions regarding “the substantiality of the
statutory violation.” We disagree.
On the nature of the magistrate’s statutory violation, the
trial court made the following pertinent findings of fact:
15. That in presenting his application in
writing to the magistrate, Detective Bloom
also gave some oral testimony which was not
reduced to writing by either Detective Bloom
or the magistrate.
-27-
. . .
36. That the Court finds that the mistakes and
factual discrepancies set forth in [the]
affidavit were the result of honest mistakes
and inadvertence[] and did not take away from
the validity of the consideration of the
totality of the circumstances relative to the
issuance of [the] warrant.
The trial court also concluded as a matter of law:
2. That any violation of law regarding the
oral testimony of Detective Bloom not being
recorded would constitute a statutory
violation and not a constitutional violation
of [Defendant’s] rights under the Fourth and
Fourteenth Amendments to the United States
Constitution and the North Carolina
Constitution.
. . .
4. That the totality of the circumstances
surrounding the issuance of the . . . search
warrant supports the magistrate’s finding of
probable cause upon the aforesaid affidavit of
Detective Bloom.
Contrary to Defendant’s argument on appeal, the cited
authority — section 15A-974(b) — does not require the trial court
to make findings of fact and conclusions of law regarding whether
a statutory violation was substantial and, therefore, whether the
violation would require suppression of the evidence. Instead, the
statute simply states that the trial court must make findings of
-28-
fact and conclusions of law in support of its order on a motion to
suppress.
In this case, the court made findings of fact based on
Detective Bloom’s affidavit. Those findings are discussed above,
and we have already determined that they supported its
determination that probable cause was present and were therefore
sufficient to justify the court’s denial of Defendant’s motion to
suppress. Accordingly, Defendant’s alternative argument is
overruled.
ii. The Magistrate’s Statutory Violation
Defendant also contends that the magistrate’s error in
failing to record Detective Bloom’s testimony was a substantial
violation of section 15A-245(a), requiring suppression of the
evidence under section 15A-974(b), because (1) the error affected
Defendant’s constitutional right to have a “neutral and detached
magistrate determine probable cause,”7 (2) Detective Bloom’s
unrecorded testimony was used by the trial court for certain of
its findings of fact in support of its decision to deny Defendant’s
7 On this point, Defendant asserts that “[b]y waiving the
requirement of a contemporaneous recording of the detective’s
statement, the magistrate opened the way for the detective to
provide after the fact, self-serving testimony at the suppression
hearing to correct and fill in discrepancies in and omissions from
his affidavit.”
-29-
motion to suppress, (3) Detective Bloom and the magistrate
intentionally “chose to ignore [section 15A-245]” because the
statute had been in effect for five years and Detective Bloom was
a “seasoned” officer, and (4) “failure to enforce the statute
[would] doubtless result in future improper searches” as there
would be “nothing to prevent an officer’s providing self-serving
testimony to create a post hoc justification for the search if it
proves fruitful.” For support, Defendant cites to McHone, where we
held that a search warrant application maintained “only” by a
conclusory affidavit constituted a substantial violation of
sections 15A-244 and 15A-974. 158 N.C. App. at 122, 580 S.E.2d at
84. We are unpersuaded.
In pertinent part, the text of Detective Bloom’s affidavit
reads as follows:
. . .
[T]he Gaston County Police Department
responded to a call for service to [K.C.’s
middle school].
[The school resource officer] advised Officer
. . . Bryant, of the Gaston County Police
Department, that 12[-]year[-]old white
female, [K.C.], was allegedly [s]exually
[a]ssaulted by [Defendant] on multiple
occasions. [K.C.] advised that the incidents
occurred from the time she was 8 years old
until she was 11 years old. She explained that
[Defendant] was a good friend of her father.
She advised that the sexual assaults took
-30-
place in her home, [at the listed address] and
at the home of Defendant, [at the listed
address]. She also advised that a recent
sexual assault took place at a motel in the
City of Gastonia behind an old steak house at
the intersection of Highway 321 and Interstate
85.
On 05/19/2010, during a [c]hild [a]dvocacy
[c]enter interview, [K.C.] provided details
about the assaults. Affiant confirmed [K.C.’s]
statement by collecting information that
confirmed [Defendant] was at the America’s
Best Motel on May 8, 2010. [K.C.] also
explained that at [Defendant’s] home in his
bedroom[, he] showed her pornographic
videos/images of [himself] having sexual
intercourse with an unknown female[, who K.C.]
believed was around the age of 10 years old.
It has been also confirmed that [Defendant] is
a registered [sex o]ffender.
Based on the information in this affidavit,
Affiant respectfully requests that a search
warrant be issued for the home, vehicles,
common areas, and outbuilding for [Defendant]
at [the listed address] so that a complete
investigation may be conducted and physical
evidence may be collected to assist in the
investigation of [s]ex [o]ffense.
Generally, an affidavit in an application for a search warrant
is deemed sufficient
if it supplies reasonable cause to believe
that the proposed search for evidence of the
commission of the designated criminal offense
will reveal the presence upon the described
premises of the objects sought and that they
will aid in the apprehension or conviction of
the offender.
State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971),
-31-
cert. denied sub nom., Vestal v. North Carolina, 414 U.S. 874, 38
L. Ed. 2d 114 (1973). “Probable cause cannot be shown[, however,]
by affidavits which are purely conclusory, stating only the
affiant’s or an informer’s belief that probable cause exists
without detailing any of the underlying circumstances upon which
that belief is based[.]” State v. Campbell, 282 N.C. 125, 130–31,
191 S.E.2d 752, 756 (1972) (citation and internal quotation marks
omitted).
The affidavit in this case is not merely conclusory. It
includes (1) background of the circumstances of Detective Bloom’s
involvement in the case, (2) details of where the sexual assaults
took place, (3) details of child pornography that was in
Defendant’s possession and that had been used during the sexual
assaults, (4) the assertion that Defendant is a registered sex
offender, and (5) the fact that Defendant resided at the house
that was the subject of the search warrant. Further, as we have
already pointed out, the information provided by Detective Bloom
in his affidavit was sufficient — on its own — for the magistrate
to properly make a determination that probable cause was present
in this case. Accordingly, the magistrate did not substantially
violate section 15A-245(a) in failing to include a record of
Detective Bloom’s oral testimony, and, therefore, the trial court
-32-
did not err in denying Defendant’s motion to suppress.8
II. Adult Pornography and A.L.’s Testimony
In addition to the arguments addressed above, Defendant
contends that the trial court erred in admitting into evidence (1)
certain portions of the pornography seized from his home and (2)
the testimony of A.L. Defendant asserts that both constitute
irrelevant, inadmissible character evidence under Rule 404(b) and
are substantially more prejudicial than probative under Rule 403.
Defendant also asserts that the evidence admitted under 404(b)
merely shows his “propensity” or “disposition” to commit sex crimes
and, therefore, is inadmissible. We disagree.
“Rule 404(a) is a general rule of exclusion, prohibiting the
introduction of character evidence to prove that a person acted in
conformity with that evidence of character.” State v. Bogle, 324
N.C. 190, 201, 376 S.E.2d 745, 751 (1989). Rule 404(b) is a
general rule of inclusion of relevant evidence
of other crimes, wrongs or acts by a
defendant, subject to but one exception[,]
requiring [the exclusion of evidence] if 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.
8 Defendant also contends that “[i]t cannot be gainsaid that
[Defendant] was prejudiced by the denial of his motion to
suppress.” Because we have concluded that the trial court did not
err in denying Defendant’s motion to suppress, this argument is
overruled.
-33-
State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990)
(emphasis in original). Rule 404(b) provides that while evidence
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,” such evidence is 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 404(b) (2011).
Though this Court has not used the term
de novo to describe its own review of 404(b)
evidence, we have consistently engaged in a
fact-based inquiry under Rule 404(b) while
applying an abuse of discretion standard to
the subsequent balancing of probative value
and unfair prejudice under Rule 403. [W]hen
analyzing rulings applying Rules 404(b) and
403, we conduct distinct inquiries with
different standards of review. When the trial
court has made findings of fact and
conclusions of law to support its 404(b)
ruling . . . we look to whether the evidence
supports the findings and whether the findings
support the conclusions. We review de novo the
legal conclusion that the evidence is, or is
not, within the coverage of Rule 404(b). We
then review the trial court’s Rule 403
determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 158-59
(2012) (italics added).
A. Adult Pornography
-34-
The trial court denied Defendant’s motion to exclude the adult
pornography found in his home because the pornography constituted
“relevant” evidence bearing upon Defendant’s motive, intent, and
common plan or scheme with respect to the alleged crimes. On
appeal, Defendant argues that the trial court erred in admitting
the adult pornography on those grounds. Defendant contends that
there was no evidence that he ever showed K.C. all of the images
seen by the jury, the adult pornography was not relevant to any
issue other than Defendant’s “propensity” or “disposition” to
commit sex crimes against girls, and, therefore, the adult
pornography should have been excluded under Rule 404(b).
In State v. Brown, __ N.C. App. __, __, 710 S.E.2d 265, 269–
70 (2011), affirmed per curiam, __ N.C. __, 722 S.E.2d 508 (2012),
this Court considered the admissibility of pornography showing
incestuous sexual acts, referred to as “Family Letters,” in a
prosecution for sexual offenses committed by a father against his
daughters. Noting that a defendant’s possession of general
pornography was usually considered inadmissible, we pointed out
that the Family Letters material “was of an uncommon and specific
type of pornography; the objects of sexual desire aroused by the
pornography in evidence were few; and the victim was the clear
-35-
object of the sexual desire implied by the possession [of that
material].” Id. at __, 710 S.E.2d at 269.
Here the trial court admitted the pornography over
Defendant’s motion to exclude and contemporaneously instructed the
jury that it could consider the pornography only if it determined
that the material was relevant to Defendant’s motive or intent to
commit the alleged criminal conduct. The pornography was found at
Defendant’s house after a valid warrant was obtained to search the
premises, as discussed above, and there was testimony at trial
that Defendant showed K.C. both child pornography and adult
pornography. For these reasons, the evidence was admissible under
Rule 404(b) as relevant to Defendant’s motive or intent.
Nonetheless, the pornography may still be deemed inadmissible
under the Rule 403 balancing test, i.e., whether the probative
value of the evidence is substantially outweighed by the danger of
unfair prejudice. State v. Summers, 177 N.C. App. 691, 697, 629
S.E.2d 902, 907 (“Once the trial court determines evidence is
properly admissible under Rule 404(b), it must still determine if
the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice under Rule 403.”) (citation and
internal quotation marks omitted), disc. review denied and appeal
dismissed, 360 N.C. 653, 637 S.E.2d 192 (2006); see also N.C. Gen.
-36-
Stat. § 8C–1, Rule 403 (2011). This determination “is within the
sound discretion of the trial court, whose ruling will be reversed
on appeal only when it is shown that the ruling was so arbitrary
that it could not have resulted from a reasoned decision.” State
v. Bidgood, 144 N.C. App. 267, 272, 550 S.E.2d 198, 202, cert.
denied, 354 N.C. 222, 554 S.E.2d 647 (2001).
Here, “a review of the record reveals that the trial court
was aware of the potential danger of unfair prejudice to
[D]efendant and was careful to give a proper limiting instruction
to the jury.” State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d 625,
642 (1998). The trial judge viewed the evidence himself, heard
arguments from the attorneys, and ruled on its admissibility as
follows:
Weighing the prejudicial effect of [the
pornography], although it is prejudicial to
[D]efendant’s case, it is not so prejudicial
such that the danger of unfair prejudice
outweighs the probative value. In conducting
the Rule 403 analysis I’ll find that this
evidence withstands any 403 challenge in that
the danger of unfair prejudice does not
substantially outweigh the probative value. In
exercise of the Court’s discretion, however,
I am going to limit the number of exhibits
that are published to the jury.
At trial, the court limited the number of pornographic magazines
that could be viewed by the jury. Moreover, the court gave the
appropriate limiting instruction. Indeed, the pornographic
-37-
evidence admitted in this case corroborated K.C.’s statement that
Defendant showed her a video of an adult man having sex with a
young girl, as well as pornographic images of both girls and women,
and that Defendant suggested K.C. have photos of herself taken.
Given the trial judge’s careful handling of the process, we
conclude that it was not an abuse of discretion for the trial court
to determine that the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence and,
accordingly, to admit into evidence the pornography found in
Defendant’s home. Defendant’s argument as to this evidence is
overruled.
B. A.L.’s Testimony
In addition, Defendant contends that the trial court erred in
admitting evidence of past acts of sexual misconduct by Defendant
against A.L. Defendant asserts that the evidence was inadmissible
under N.C. Gen. Stat. § 8C-1, Rule 404(b) and that the probative
value, if any, was substantially outweighed by the danger of unfair
prejudice under Rule 403. The crux of Defendant’s argument is that
the acts of sexual misconduct committed against A.L. have nothing
to do with K.C.
Defendant filed a motion in limine to exclude evidence of
past acts of sexual misconduct against A.L. As noted above, a
-38-
motion in limine is not sufficient to preserve for appeal the
question of admissibility of evidence if the defendant does not
object to that evidence at the time it is offered at trial. See
State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999). Here,
the trial court concluded that the evidence of prior acts was
admissible under Rule 404(b) as sufficiently similar and not too
remote in time. The State then elicited testimony on direct
examination from A.L. about sexual misconduct committed by
Defendant. Defendant never objected to the admissibility of A.L.’s
testimony.
Indeed, in the context of arguing the admissibility of the
pornographic magazines, Defense counsel conceded that A.L.’s
testimony was proper 404(b) evidence:
[COUNSEL FOR DEFENDANT]: . . . . Is there any
possibility[ ]based on the evidence in this
case that any juror could reasonably believe
that if my client did the physical acts that
[K.C.] has testified to, that he had some
intent other than to arouse his own sexual —
satisfy his own sexual gratification, or if he
touched her, looking at the indecent
liberties, that it was for the purpose of
sexual gratification. . . . If the jurors
believe that he did [the] acts there’s really
no possibility that they’re going to say,
well, he did it but we don’t know why he did
it, he was maybe conducting research or doing
— I mean, there’s just not a possibility[]
because it goes right with the evidence that
has been presented by [K.C.] If she [is to be]
believed then the only possible intent was to
-39-
gratify [Defendant’s] sexual desires and his
purpose as well.
THE COURT: Are you stipulating to that fact?
[COUNSEL FOR DEFENDANT]: Well, I’m not
stipulating to it, Your Honor, I’m just saying
that what other possible conclusion could
there be. And the State is already going to
get in the testimony of [A.L.] under 404(b) as
to the prior conduct. I mean, it just seems
like this is unnecessary, it’s cumulative, and
it’s a very weak issue that this is necessary
evidence to admit.
In addition, the following exchange occurred immediately prior to
A.L.’s testimony:
[COUNSEL FOR DEFENDANT]: For the record, I
would object to the recall of Sergeant Dover.
But I also have an issue to address with
[A.L.].
THE COURT: Okay. What’s that issue?
[COUNSEL FOR DEFENDANT]: That issue, Your
Honor, is this. When the Court denied my
motion to exclude her 404(b) testimony in that
same proceeding the Court granted the motion
to keep out the conviction that stemmed from
that conduct unless my client testified or
unless we opened the door during cross[-
]examination. And what I intend to do when she
testifies is not challenge in any way her
allegation that there was a sexual act, sexual
intercourse, that occurred on August 25th,
2001. That was the basis for the conviction,
I’m not contesting that at all. However, in
the materials that were handed over from the
State when they interviewed her she’s made a
new claim[ ]that was never made back during
that time frame. And I’ve read all of the
discovery. Now she is saying that in addition
-40-
to that there was an act where they had sexual
intercourse in my client’s car. So I do want
to challenge that because everything I can see
that was not the basis of the conviction. I’m
not contesting in any way shape or form that
that act happened, however, I do want to
challenge that allegation because I don’t
think that was part of that case. And I believe
by doing so I’m not opening the door to the
conviction.
(Emphasis added).
Unlike the objection to the motion to suppress discussed
supra, it is not clear from this colloquy that counsel for
Defendant was objecting to the admission of A.L.’s testimony under
Rule 404(b). Defense counsel clearly objects to the recall of
Sergeant Dover, but does not make a similar objection to A.L.’s
testimony. Although counsel for Defendant mentioned Rule 404(b) in
his objection, it is clear from the context of this exchange that
his objection was to obtain a preliminary ruling that his cross-
examination of A.L. would not open the door to evidence of
Defendant’s conviction by challenging the veracity of the car
incident with A.L. As Defendant did not object pursuant to Rule
404(b), such objection is not preserved on appeal. See State v.
Lawrence, 365 N.C. 506, 517–19, 723 S.E.2d 326, 334 (2012); see
also Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803
(2003) (citation and internal quotation marks omitted) (holding
that a defendant cannot “swap horses between courts in order to
-41-
get a better mount” on appeal). Because Defendant did not argue
plain error in the alternative, he may not seek appellate review
of this issue.
Assuming arguendo that Defendant properly preserved this
issue for review, his argument would fail nonetheless. The test
for determining the admissibility of evidence of prior conduct is
“whether the incidents are sufficiently similar and not so remote
in time as to be more probative than prejudicial under the
balancing test of N.C. Gen. Stat. § 8C-1, Rule 403.” State v.
Carpenter, 179 N.C. App. 79, 84, 632 S.E.2d 538, 541 (citation
omitted), rev’d on other grounds, 361 N.C. 382, 646 S.E.2d 105(2007). “The determination of similarity and remoteness is made on
a case-by-case basis,” with the degree of similarity required being
that which would lead the jury to the “reasonable inference that
the defendant committed both the prior and present acts.” Id.(citation and internal quotation marks omitted). Additionally,
this Court stated that we have been “markedly liberal in admitting
evidence of similar sex offenses to show one of the purposes
enumerated in Rule 404(b).” State v. Carpenter, 147 N.C. App. 386,
392, 556 S.E.2d 316, 320 (2001) (citation and internal quotation
marks omitted).
The Supreme Court in Beckelheimer upheld a trial court’s
-42-
admission of evidence under Rule 404(b) based on “key similarities”
between the sex offense for which the defendant was being tried
and a prior sex offense.9 366 N.C. at 131, 726 S.E.2d at 159. In
9 In Beckelheimer,
[t]he trial court found that “the age range of
[the 404(b) witness] was close to the age
range of the alleged victim,” a finding
supported by the evidence: the victim was an
eleven-year-old male cousin of [the]
defendant, and the witness was also [the]
defendant’s young male cousin who was around
twelve years old at the time of the alleged
prior acts. The trial court found similarities
in “the location of the occurrence,” a finding
also supported by the evidence: [the]
defendant and the victim spent time playing
video games in [the] defendant’s bedroom where
the alleged abuse occurred, and [the]
defendant and the witness also spent time
playing video games together and in [the]
defendant’s bedroom where the alleged abuse
occurred. Finally, the trial court found
similarities in “how the occurrences were
brought about,” a finding supported by the
evidence: the victim described two incidents
during which the defendant placed his hands on
the victim’s genital area outside of his
clothes while pretending to be asleep; he also
described an incident during which [the]
defendant lay on him pretending to be asleep,
then reached inside the victim’s pants to
touch his genitals, then performed oral sex on
the victim. The witness testified to a similar
progression of sexual acts, beginning with
fondling outside the clothing and proceeding
to fondling inside the pants and then to oral
sex; he also described how [the] defendant
would pretend to be asleep while touching
him.
-43-
so holding, the Court noted the trial court’s finding that the
victim in the charged crime was an eleven–year–old cousin of the
defendant, while the 404(b) witness was also a cousin who had been
around twelve years old at the time of the prior acts. Id. at 131,
726 S.E.2d at 159. Accordingly, the Court “conclude[d] . . . that
the similar ages of the victims is more pertinent in [the] case
than the age difference between victim and perpetrator.” Id. at
132, 726 S.E.2d at 160. In addition, the Court upheld the trial
court’s finding that the location of the occurrence of the acts
was similar in that the crime and the 404(b) offense both occurred
after the defendant played video games with his victims in his
bedroom. Id. at 131, 726 S.E.2d at 160. Lastly, the Court
emphasized that the crime and the 404(b) offenses had both been
“brought about” in the same manner with a similar progression of
sexual acts. Id. at 131, 726 S.E.2d at 160. Therefore, the Court
concluded that the similarities of the victims (i.e., their ages
and relationship to the defendant), the similarities of the
locations, and the similarities in how the sexual offenses came to
occur were sufficient to render the evidence admissible under Rule
366 N.C. at 131, 726 S.E.2d at 159. The North Carolina Supreme
Court concluded that these similarities were sufficient to support
the State’s theory of modus operandi. Id.-44-
404(b). Id. at 133, 726 S.E.2d at 160.
Defendant argues that his sexual relationship with A.L. was
too remote in time and dissimilar in nature to be admissible under
Rule 404. However, A.L was assaulted in the same car as K.C. While
A.L. testified that the sex was consensual, A.L was a fourteen-
year-old girl at the time of the assault and could not legally
consent to sexual intercourse with Defendant. See N.C. Gen. Stat.
§ 14-27.7A (2011). Indeed, contrary to the language in Defendant’s
brief, this encounter was not a “teenage romance.”10
Defendant also argues that the roughly seven-year time period
between the two assaults makes the assault of A.L. irrelevant to
the assault of K.C. under Rule 404. However, this Court in State
v. Williamson pointed out that “a ten-year gap between instances
of similar sexual misbehavior [does] not render them so remote in
time as to negate the existence of a common plan or scheme.” 146
N.C. App. 325, 333, 553 S.E.2d 54, 60 (2001), disc. review denied,
355 N.C. 222, 560 S.E.2d 366 (2002). Therefore, the seven-year
time gap would not negate the existence of a common plan or scheme
in this case.
10Defendant repeatedly misstated the age difference between A.L.
and Defendant in his brief. When A.L. was fourteen, Defendant was
actually a twenty-seven-year-old man despite the fact that he told
her he was nineteen.
-45-
Lastly, we note that Defendant’s interactions with A.L. are
sufficiently similar to his interactions with K.C. such that A.L.’s
testimony is relevant and admissible under Rule 404(b). Both
children were young, white, and female. Defendant sexually
assaulted each of them in the same car, a silver Hyundai Tiburon.
He also took both children to a motel, where they engaged in sexual
activity. While there were no pornographic materials or vials used
when Defendant sexually assaulted A.L., he did ask both victims to
have their own photos or videos made.
For the reasons stated above, Defendant’s arguments are
overruled, and we find
NO ERROR.
Judges CALABRIA and ELMORE concur.