STATE v. HARDEN (2019)

By order entered 20 June 2018, this Court issued a writ of certiorari to review the trial court's judgment upon defendant's conviction for sexual battery. Because the trial court did not abuse its discretion under N.C. Gen. Stat. § 8C-1, Rule 403 in admitting evidence of defendant's prior sexual misconduct toward his neighbor, we hold defendant received a fair trial free from prejudicial error.

I. Background

The State's evidence tended to show that soon after midnight on 24 September 2016, defendant's neighbor, “Angela,”¹ was standing on the patio in her backyard waiting for her dog to relieve itself when the dog “started barking really bad.” The night was dark and foggy, and Angela did not see anyone but heard defendant's voice call her name. Defendant then walked from Angela's backyard onto the patio and approached her, holding a can of beer. Defendant told Angela “that he had always found [her] attractive and ․ kept saying, ‘God damn I want to touch you. It's taking all I can do to not grab and hold you and kiss you.’ ” Angela rebuffed defendant, saying, “Kenny, you've been drinking[,]” and “you need to go home.” He responded by throwing his beer can into the trash receptacle on Angela's patio.

Defendant continued his overtures, offering to buy Angela dinner and a pair of shoes in exchange for sex and asking her “to please come down to his detached garage so [they] could be alone.” When she refused, defendant pulled Angela toward him by the wrist, grabbed her by the arms, and fondled her breasts. Angela told defendant, “No,” and tried to push his hand away from her body. Defendant then placed his hand onto her vaginal area through her clothing. He also forced Angela to feel his penis, which was “aroused.”

When defendant released her wrist, Angela removed her phone from her pocket and asked him for his phone number. While pretending to program the number into her phone, Angela sent a text message to her boyfriend, Alan, asking for help. Alan arrived at Angela's residence within “a few minutes,” and defendant released Angela and walked away from her property in the opposite direction. Alan called the police.

Over the defense's objection, the trial court admitted evidence of a prior act of sexual misconduct by defendant toward Angela occurring approximately one year before the 24 September 2016 incident. On voir dire, Angela testified defendant came into her backyard while she was mowing her grass after work one evening in the summer of 2015. Defendant approached her while she was seated on her lawnmower and said, “Your yard's looking good.” Defendant then walked into the storage shed on her patio where she kept her lawnmower. When she finished mowing, Angela prepared to return the lawnmower to the storage shed but saw defendant standing inside with his pants down and his penis exposed. Defendant said, “[L]ook what you did to me,” and he asked Angela to “touch it.”

Based on “the smell and the slur of some words and [his] red bloodshot eyes[,]” Angela believed defendant was intoxicated and told him, “Kenny, you're drunk, you need to go home.” Defendant complied with her request. Approximately one month later, he again approached Angela in her yard and apologized.

The trial court ruled the 2015 incident admissible for a proper purpose under N.C. Gen. Stat. § 8C-1, Rule 404(b) and further concluded under N.C. Gen. Stat. § 8C-1, Rule 403 “the probative value [of the evidence] outweighs the danger of unfair prejudice” to defendant. Defendant renewed his objection at trial when the State elicited testimony from Angela about the episode. Angela testified in a manner generally consistent with her account on voir dire but added the detail that defendant “was stroking his penis” with his hand while standing in the shed. The trial court gave the following limiting instruction to the jury:

Evidence has been received tending to show that prior to the alleged offense for which he's being tried the Defendant pulled down his pants and exposed his penis to [the victim] inside a storage shed on her property and stroked his penis with his hand saying look what you did to me and that he later apologized for the alleged incident. This evidence was received solely for the purpose of showing that the Defendant had a motive for the purpose of committing the crime charged in this case or that there existed in the mind of the Defendant a plan, scheme, system or design involving the crime charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received. You may not consider it for any other purpose.

The jury found defendant guilty of sexual battery for his actions on 24 September 2016. The trial court imposed a suspended sentence of 75 days in the custody of the Union County Sheriff and placed defendant on supervised probation for 24 months. The court ordered defendant to have no contact with Angela or her daughter and to register as a sex offender for a period of 30 years. Defendant timely gave notice of appeal, but his hired counsel did not timely appeal. This Court issued a writ of certiorari in order to review defendant's appeal.

II. Rule 403

On appeal, defendant claims the trial court abused its discretion under N.C. Gen. Stat. § 8C-1, Rule 403 by admitting evidence of his 2015 conduct. While he does not contest the relevance of his “prior bad act” under N.C. Gen. Stat. § 8C-1, Rule 404(b), defendant argues that “[t]he probative value of this alleged prior act was low. On the other hand, the danger that this testimony would unfairly prejudice the jury against [him] was high.” See N.C. Gen. Stat. § 8C-1, Rule 403.

Under Rule 404(b),

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b). It is well-settled that “Rule 404(b) is a clear general rule of inclusion.” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (emphasis and quotation marks omitted). It presents a non-exclusive list of the “numerous purposes for which evidence of prior acts may be admitted,” subject only to the restriction that the evidence must be “relevant to any fact or issue other than the defendant's propensity to commit the crime.” Id. “Moreover, in cases involving prior sex offenses ․, our courts have been markedly liberal in the admission of 404(b) evidence.” State v. Harris, 140 N.C. App. 208, 211, 535 S.E.2d 614, 617 (2000).

Under Rule 403, however, otherwise relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” to a party. N.C. Gen. Stat. § 8C-1, Rule 403. “The exclusion of evidence under Rule 403 is a matter generally left to the sound discretion of the trial court, which is left undisturbed unless the trial court's ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.” State v. Badgett, 361 N.C. 234, 244-45, 644 S.E.2d 206, 212-13 (2007) (citation and quotation marks omitted).

We find no abuse of discretion here. “The elements of sexual battery are: (1) engaging in sexual contact with another person, (2) by force and against the will of the other person, and (3) for the purpose of sexual arousal, sexual gratification, or sexual abuse.” State v. Corbett, 196 N.C. App. 508, 511, 675 S.E.2d 150, 152 (2009). Without question, defendant's 2015 act of exposing himself to Angela in her storage shed and saying, “[L]ook what you did to me,” tended to show his purpose—or “motive” in the trial court's phrasing—in assaulting Angela on her patio the following summer.² See State v. Bowman, 188 N.C. App. 635, 640, 656 S.E.2d 638, 643 (2008). Because the State was obliged to prove defendant's guilt of each essential element of sexual battery beyond a reasonable doubt, we cannot agree with his assertion that his 2015 conduct “had little probative value.”

Nor did the evidence of defendant's prior bad act create a substantial risk of unfairly prejudicing him in the eyes of the jury, as contemplated by Rule 403. See id. at 641, 656 S.E.2d at 644 (upholding admission of defendant's prior sexual misconduct under Rule 403 based on “the similarity and temporal proximity between the present and former incidents”). However unsavory defendant's 2015 behavior as described, it did not involve his actual touching of Angela in a sexual manner against her will. The evidence of his “prior bad act” thus seems unlikely to have inflamed the passions of the jury, given the nature of the acts for which he was on trial. Accordingly, we find defendant's argument without merit.

To the extent defendant separately challenges as unfairly prejudicial the evidence admitted to corroborate Angela's testimony about the 2015 incident, we conclude his argument is not properly before this Court. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling 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). “Parties therefore must assert a timely objection to preserve error for appellate review. If parties do not timely object, they waive the right to raise the alleged error on appeal.” State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012) (citation and footnote omitted).

During Angela's direct examination, the State introduced a video recording of her statement to police on 24 September 2016. The trial court instructed the jury that the recording was admitted “only ․ to corroborate anything that you have heard from the witness.” See, e.g., State v. Pierce, 28 N.C. App. 191, 193, 220 S.E.2d 639, 640 (1975) (stating that a witness’ “prior consistent statements are admissible for corroborative purposes even though the witness has not been impeached”). Although defendant unsuccessfully moved in limine to exclude the video and objected to its introduction at trial, he limited his objection to “any hearsay that may be being introduced rather than anything being used to corroborate particularly since the only witness that has testified at this point is [Angela].” Accordingly, defendant failed to preserve his objection to the video's use as corroborative evidence.³ See State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007).

Three prosecution witnesses, Alan, Monroe Police Officer Timothy Sykes, and Angela's neighbor, Isaac, further corroborated Angela's testimony by attesting to her prior statements about the 2015 incident. See Pierce, 28 N.C. App. at 193, 220 S.E.2d at 640. Defendant did not object to their testimonies—on Rule 403 grounds or otherwise—and likewise failed to preserve this issue for our review.

III. Conclusion

Defendant received a fair trial free from prejudicial error.

NO ERROR.

Report per Rule 30(e).

FOOTNOTES

1.   We use a pseudonym to protect the victim's identity.

2.   While we note defendant's 2015 and 2016 acts involved the same victim, same location, and defendant's use of alcohol, we need not consider whether the evidence was also probative of his “plan, scheme, system or design” in committing the charged offense. See generally Harris, 140 N.C. App. at 212, 535 S.E.2d at 617 (“[B]ecause the evidence was admissible for a proper purpose ․ the trial court's error in admitting that same evidence for an improper purpose ․ is rendered non-prejudicial.”).

3.   Defendant also failed to include the video exhibit in the record on appeal in accordance with N.C. R. App. P. 9(d)(2).

STROUD, Judge.

Judges ZACHARY and BERGER concur.