State v. Barnett

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NO. COA12-381 NORTH CAROLINA COURT OF APPEALS Filed: 20 November 2012 STATE OF NORTH CAROLINA v. Iredell County No. 09CRS56022 WILLIAM RONNIE BARNETT Appeal by Defendant from judgment entered 29 July 2011 by Judge Anna Mills Wagoner in Iredell County Superior Court. Heard in the Court of Appeals 11 September 2012. Attorney General Roy Cooper, by Special Deputy General Kay Linn Miller Hobart, for the State. Attorney Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant. BEASLEY, Judge. Defendant appeals from his conviction of second-degree rape in violation of N.C. Gen. Stat. § 14-27.3(a). For the reasons stated below, we find no error in part and remand for correction of a clerical error in part. The events giving rise to the charged offense in this case occurred twenty-seven years ago in 1985. The prosecuting -2witness, T.L.,1 was born on 17 July 1969. Defendant, born in 1959, is her uncle. Defendant filed a motion in limine to exclude testimony by T.L. and T.I., Defendant s daughter, under Rules 404 and 403 of the North hearing Carolina on 25 July Rules of Evidence. 2011, T.L., T.I., During and a C.M., voir a dire niece of Defendant and cousin of T.L. and T.I., testified to Defendant s prior sexual acts with them. The trial court found a strikingly similar pattern of sexual abuse and admitted the evidence to show motive, common plan, or opportunity. The trial court further found that the evidence was more probative than prejudicial and instruction. admitted Defendant the evidence renewed his subject objection to a prior witness s testimony and each objection was overruled. limiting to each The trial court gave limiting instructions as to the purposes for which the testimonies were offered at the conclusion of each witness s testimony. At trial, T.L. testified that in late July or early August of 1985 she and her parents traveled from their home in West Virginia Carolina. 1 to visit her grandparents in Mooresville, North At that time, Defendant lived with his wife, Nancy, We will use initials to protect the identities of the witnesses in this case. -3in a trailer close to his parents (T.L. s grandparents ) house. T.L., then sixteen years old, and Defendant and Nancy at the trailer. her cousin Gary visited On the way to the trailer, Defendant, Nancy, Gary, and T.L. went to the store and purchased fortified wine and some beer. played trailer. cards, drank alcohol, Defendant, Nancy, Gary, and T.L. and smoked marijuana at the T.L. drank an entire bottle of wine over the course of a couple of hours. T.L. was warm, so Defendant told Nancy to give T.L. a pair of her shorts to wear. After putting on the shorts, T.L. mentioned she had a headache. yellow pill to help her headache. Nancy gave her a T.L. swallowed the pill in the kitchen. After taking the pill, T.L. felt dizzy, woozy, and sleepy. The last thing T.L. remembered was taking another shot of wine. When T.L. awoke, she was in Defendant s bed. T.L. was no longer wearing Nancy s shorts. Defendant was on top of her, vaginally penetrating T.L. with his penis. also in the room. Nancy was T.L. told Defendant to stop, tried to push Defendant off, and begged Nancy to help her. T.L. remembered nothing between taking the shot in the kitchen and waking up in the bedroom. T.L. recounted Defendant s prior sexual contact with her. In 1977, Defendant touched T.L. s breasts on several occasions -4at her grandparents swimming hole. encounters always occurred at She testified that these her grandparents house. Defendant would send the others away so that he and T.L. were alone when he touched her. On more than one occasion in 1978, Defendant touched her breasts, put her hand on his penis, and made her rub his penis up and down. These incidents ended when T.L. was about ten years old and her grandparents and Defendant moved to North Carolina. In 1980, Defendant also masturbated in front of T.L. on two occasions. T.L. and her parents were unable to visit her grandparents for about three years due to financial troubles. T.L. visited her grandparents house again when she was fifteen years old, but no incidents occurred during that visit. T.I. was born on 21 March 1979. T.I. s Barnett (Julie), was married to Defendant. separated, Defendant T.I. at lived her primarily grandparents with house her mother, Julie After her parents mother where but Defendant visited lived. When she was three years old, Defendant digitally penetrated her genitals while bathing her. When she was four Defendant masturbated in front of her in his bedroom. asked T.I. several times to touch him. years old, Defendant -5T.I. s mother, Julie, also testified. Upon learning that Defendant had molested T.I., Julie called the police and the hospital. Julie Julie received no help from the police or hospital. then purchased examination, Julie a shotgun and without objection stated shells. On she that direct called Defendant s father and told him to tell Defendant to come over to her house. Julie told Defendant s father that she was going to kill him because he messed with [her] baby. Julie repeated this testimony on cross-examination. C.M. s testimony demonstrated a lengthy history of sexual abuse by Defendant. West Virginia. grandparents, C.M. was born 21 August 1966 and grew up in Defendant ten miles lived away. with C.M. his parents, often grandparents house with her sister and brothers. C.M. s visited her When C.M. was four or five years old, Defendant had sexual intercourse with her twice on a bookcase in his bedroom and in the swimming hole. When C.M. was six or seven years old, Defendant had sexual intercourse with her in an old schoolhouse on her grandparents property. Defendant showed C.M. sex positions from pornographic magazines and instructed her to imitate the pictures. When C.M. was eight or nine years old, Defendant had sexual intercourse with her at her parents house. During several of these -6occasions, Defendant had sexual intercourse with C.M. and Defendant would send her brothers out of the room to perform these sexual acts. Defendant had sexual intercourse with C.M. many times after that and did not stop until C.M. was eleven years old and began having her menstrual period. The jury convicted Defendant of second-degree rape on 29 July 2011. in 2003. factor. Defendant stipulated to his prior conviction for DWI The State offered the conviction as an aggravating Defendant presented no evidence of mitigating factors. T.L., T.I., and C.M. gave victim impact testimony. Prior to T.I. and C.M. speaking before the court, the prosecutor stated, I m sure that the other ladies may want to be heard; but for purposes of sentencing on the second degree rape, your Honor, that s my offer, [T.L.]. prosecutor later asked I ll leave it up to your Honor. the trial court to take The into consideration what [Defendant] has done to the lives of these women, and the lives of the women that you haven t heard from. Stating that it only considered the prior conviction, the trial court sentenced Defendant to thirty years in prison under the Fair Sentencing Act. of fact. that no The trial court made no written findings On the judgment, the clerk marked box (a) indicating written findings were made because the prison term -7imposed did not require such findings. Defendant now appeals his conviction and sentence. Defendant argues that the trial court erred in admitting testimony regarding 404(b) and 403. of prior bad Defendant s prior bad acts under Rules We find no error with regard to the admission acts with T.L. as part of a common scheme. Assuming arguendo that it was error to admit the testimony of T.I. and C.M., any error was harmless in light of T.L. s properly admitted testimony. The Supreme Court North Carolina recently clarified the standard of review for admission of evidence under Rules 404(b) and 403. 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, __ N.C. __, __, 726 S.E.2d 156, 159 (2012). In general, evidence of prior bad acts may not be used to show a defendant s propensity to commit the charged offense. See N.C. Gen. Stat. § 8C-1, Rule 404(b) (2011). North Carolina -8courts have generally been very liberal in admitting evidence of similar sex offenses under Rule 404(b), see State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990), especially under the common plan or scheme exception, see State v. Gordon, 316 N.C. 497, 504, 342 S.E.2d 509, 513 (1986). are also quite liberal in admitting This state s courts similar, prior sex offenses when both the prior offenses and the charged offense involve the same victim. State v. Thompson, 139 N.C. App. 299, 303, 533 S.E.2d 834, 838 (2000). Though it is a rule of inclusion, Rule 404(b) is still constrained proximity. by the requirements of similarity and temporal Beckelheimer, __ N.C. at __, 726 S.E.2d at 159 (quoting State v. Al Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002)). A prior act or crime is considered similar under Rule 404(b) if there are some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both. State v. Stager, 329 N.C. 278, 890-91 (1991)(citations omitted)(internal quotation marks omitted). [R]emoteness in 304, 406 S.E.2d 876, time tends to diminish the probative value of the evidence and enhance its tendency to prejudice. State v. Artis, 325 N.C. 278, 300, 384 S.E.2d 470, 482 (1989), vacated and remanded on -9other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Temporal proximity is not eroded when the remoteness in time can be reasonably explained. 611-12, 439 S.E.2d See State v. Jacob, 113 N.C. App. 605, 812, 815-16 (1994)(lack of access to preferred victim); State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990)(incarceration). When the prior bad acts occur in the same place as the charged offense, our courts have found the prior acts to be similar to the charged offense. See State v. Boyd, 321 N.C. 574, 577-78, 364 S.E.2d at 120 (1988); State v. Thaggard, 168 N.C. App. 263, 271, 608 S.E.2d 774 (2005). When there are still other similarities, prior incidents and the charged offense are not dissimilar even though the charged offense occurred private and the prior incidents occurred in plain view. in State v. Khouri, __ N.C. App. __, __, 716 S.E.2d 1, 8 (2011). In this case, we hold that the prior acts with T.L. are sufficiently similar to the charged offense. shows sexual a progression intercourse from in inappropriate 1985. These T.L. s testimony touching assaults in 1977 occurred to where Defendant was living at the time, either his parents house in North Carolina or the trailer he shared with his then-wife. Though the prior incident in the bedroom window occurred in -10plain view while S.M. was present, it is not too dissimilar from the charged offense that is alleged to have occurred in the relative privacy of the bedroom in Nancy s presence. The prior offenses and the charged offense are also not too remote. Though it appears that there is a five-year gap between the instances when T.L. was eleven years old and the charged incident when provides a T.L. was reasonable sixteen years explanation gap financial difficulties. old, for T.L. s three testimony years of the Given this reasonable explanation, the lapse is therefore only two years. See Jacob, 113 N.C. App. at 611-12, 439 S.E.2d at 815-16 (ignoring the years in which defendant did not have access to preferred type of victim in analyzing temporal proximity). There is also a lapse of two years between when T.L. was nine years old and when T.L. was eleven years old. to warrant We do not find two lapses of two years each exclusion of incidents with Defendant. T.L. s testimony regarding prior See State v. Moore, 173 N.C. App. 494, 502, 620 S.E.2d 1, 7 (2005)(holding that seventeen-month lapse was not significant); see also State v. Frazier, 344 N.C. 611, 615-16, lapses of 476 seven S.E.2d years, at ten 300 (1996)(citing years, and twenty cases years holding to be -11permissible). We hold that the trial court properly admitted T.L. s testimony to show a common plan. Evidence, though relevant, may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.] N.C. Gen. Stat. § 8C-1, Rule 403 (2011). When limiting instructions are given, this Court presumes that the jury follows such instructions. State v. Brown, ___ N.C. App. ___, ___, 710 S.E.2d 265, 273 (2011), aff d, ___ N.C. ___, ___, 722 S.E.2d 508 (2012). Limiting instructions mitigate the danger of unfair prejudice to the defendant. See Beckelheimer, ___ N.C. at ___, 726 S.E.2d at 160. Here, the probative value of the prior incidents with T.L. outweighs any unfair prejudice to Defendant. The trial court gave the jury a limiting instruction following T.L. s testimony, and we assume that the jurors followed the instruction. The trial court did not abuse its discretion under Rule 403. Turning to the testimonies of T.I. and C.M., their testimonies also show some similarities with the 1985 incident and a progression of sexual abuse. members of prepubescent Defendant. girls when T.L., All three women are family T.I., Defendant and began C.M. were touching all them. Defendant molested them at his home, except for the incident at -12C.M. s parents house. Though we acknowledge there are some differences between the charged offense and the prior bad acts with T.I. and C.M., prior bad acts with T.I. and C.M. were similar for the purposes of Rule 404(b) and, if not, then any error due to their testimonies was harmless error. The test for prejudicial error is whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. Goodwin, 186 N.C. App. 638, 644, 652 S.E.2d 36, (internal quotation marks and citations omitted). State v. 40 (2007) A new trial will only be ordered if the defendant shows prejudicial error. State v. Macon, 346 N.C. 109, 117, 484 S.E.2d 538, 543 (1997). Though Nancy s testimony generally denied T.L. s version of events years and ago there to was no corroborate physical evidence T.L. s testimony, showed a common scheme to molest her. regarded Nancy s testimony as from twenty-seven T.L. s testimony The jury could have self-serving testimony painted Nancy in an unflattering light. since T.L. s We cannot say that but for the admission of T.I. s and C.M. s testimonies that the jury would not have convicted Defendant; therefore, we find any error in admitting their testimonies harmless. -13Next, Defendant argues that it was plain error to allow Julie to testify that she bought a shotgun and was going to shoot Defendant. We find no error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury s finding that the defendant was guilty. State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 334 (2012)(internal quotation marks and citations omitted). There is examination no prejudice elicits evidence challenged. to testimony the defendant substantially when similar crossto the State v. Eubanks, 151 N.C. App. 499, 502, 565 S.E.2d 738, 741 (2002). We assumed without deciding that the witnesses testimonies were inadmissible under Rule 404(b) but still since the similar testimony on cross-examination. Id. In found this no case, prejudice the particular defendant statements elicited Defendant has selected from Julie s testimony that he argues were improper were elicited on direct examination without objection as well as on cross-examination. We hold that Defendant was not prejudiced by this evidence, nor was it plain error. -14Defendant argues that the trial court erred by not making written findings in imposing a prison term greater than the presumptive sentence. Defendant also argues that the trial court improperly considered victim impact testimony from T.I. and C.M. who were not prosecuting witnesses and that he was denied due process. written findings for We find no legal error as to the lack of his sentence correction of a clerical error. and remand the case for We find no error in allowing T.I. and C.M. to give victim impact testimony. As Defendant only cursorily argues that he was denied due process and cites no authority in support of his argument, we decline to address that portion of his argument. N.C. R. App. P. 28(b)(6). The State contends that Defendant failed to preserve the sentencing issue for appeal. No objection is necessary to preserve an issue for appellate review when the challenge is that [t]he sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law. Stat. § 15A-1446(d)(18) (2011). this statute N.C. Gen. The Supreme Court has held that does not conflict with a specific provision of Appellate Rule 10 and operates as a rule or law that deems a sentencing issue preserved for appellate review. State v. -15Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917 (2010). We have jurisdiction to hear Defendant s sentencing argument. Sentencing in this case is controlled Sentencing Act since the rape occurred in 1985. by the Fair See State v. Lawrence, 193 N.C. App. 220, 222, 667 S.E.2d 262, 263 (2008). Under the Fair Sentencing Act, [a] judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. State v. Vaughters, ___ N.C. App. ___, ___, 725 S.E.2d 17, 20 (2012)(quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)). If the judge imposes a prison term for a felony that differs from the presumptive term . . ., the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposes a prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation . . . . N.C. Gen. Stat. § 15A-1340.4(b) (1991)(repealed 1993). Failure to make written findings regarding the aggravating factors is reversible error, State v. Ledford, 315 N.C. 599, 625, 340 S.E.2d 309, 325 (1986), unless the trial transcript makes it -16clear that the error was merely clerical, see State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000). No specific findings that the aggravating factors outweigh the mitigating factors are necessary when there is a single aggravating factor. Summerlin, 98 N.C. App. 167, 177, 390 S.E.2d State v. 358, 363 (1990)(citing State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985)). Twelve years was the presumptive sentence for second- degree rape, a Class D felony, under Fair Sentencing. Stat. §§ 14-27.3(b) (1991)(amended 1993), N.C. Gen. 15A-1340.4(f)(2) (1991)(repealed 1993). The trial court in the instant case imposed a sentence of thirty years, well in excess of the presumptive term. Thus, written findings were required; however, we find no error based on the case law stated above. The prosecutor conviction, factor. the to which moved the Defendant trial court stipulated, to as consider an the aggravating The trial court stated that it could properly consider conviction under the Fair Sentencing Act. Given this context, it is evident that the trial court found an aggravating factor but the incorrect box was marked on the judgment. we remand the case to correct the clerical error. Thus, -17We find no error in allowing T.I. and C.M. to give victim impact testimony because, even if it was error to allow victims other than the prosecuting witness to give victim impact testimony, Defendant has failed to show that the trial court in fact considered their testimonies in sentencing him. We presume that the trial court disregarded incompetent evidence unless there is affirmative evidence to the contrary. State v. Flowers, 100 N.C. App. 58, 61, 394 S.E.2d 296, 298 (1990). Defendant has not established affirmative evidence that the trial court considered their testimonies in deciding his sentence. sentence women s Although the prosecutor Defendant lives, based urged the trial court to on the effect he had contradicting her prior offer on of all only three T.L. s testimony, the trial court made no mention of considering the other victims testimonies in pronouncing the sentence. We find no error. For the reasons stated above, we find no error in part and remand for correction of clerical error in part. No error in part; Remanded in clerical error. Judges MCGEE and THIGPEN concur. part for correction of

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