Lead Opinion
Factual and Procedural Background
On 31 October 2005, Defendant Henry Eugene Brown (“Brown”) was indicted on one count of indecent liberties with a child and one count of first-degree sex offense with a
Amanda Parker (“Parker”), a friend of Brown’s wife whom the Browns used as a caretaker, testified that sometime in early fall 2005, Brown’s wife showed Parker “Family Letters,” an erotic publication containing anonymous “letters” purporting to describe the correspondents’ sexual experiences with other family members. Graphic illustrations accompanied the “letters.” Although the publication upset Parker, she continued to take care of the children.
During the weekend of 25 September 2005, Parker and her sister took the Browns’ children to Asheville for a weekend outing to the fair and mall. Because their outing finished late in the evening, they spent the night at a motel room. While watching a movie in their motel room, Sally told Parker that her father sexually abused her. A discussion between Parker, her sister, and all three children followed. Upon their return to Jackson County on 27 September 2005, Parker reported the abuse allegations to Kim Davis (“Davis”), a foster care social work supervisor at the Jackson County Department of Social Services (“DSS”). The report triggered an immediate DSS investigation.
Davis and Detective Celeste Holloman (“Detective Holloman”) went to the children’s school to interview them. Initially, the statements they received from Sally were consistent with the reported conversations the children had with Parker. After interviewing the children at school, Davis and Detective Holloman went to the Browns’ home to inform the Browns of the allegations and explain the available custody options. Detective Holloman and Davis were allowed into the Browns’ home and Detective Holloman received permission from the Browns to search the premises. Brown’s collection of adult erotic literature, including Family Letters, was seized during the search. Detective Holloman testified that Brown told her that Family Letters belonged to the Browns.
Brown moved the court to exclude Family Letters from evidence, but the trial court denied Brown’s motion and admitted Family Letters as evidence of Brown’s “intent or motive with respect to the alleged crimes.” The trial court contemporaneously instructed the jury that they could consider the publication only if the jury found the publication relevant to Brown’s motive or intent to commit the charged crimes.
At the close of the State’s evidence, the trial court dismissed the first-degree sex offense
At the close of all evidence, Brown was convicted of indecent liberties with a child and first-degree rape. Brown was sentenced to 240 to 297 months on the first-degree rape charge and 13 to 16 months on the indecent liberties charge, which sentences were to run consecutively. Brown was also ordered to register as a lifetime sex offender and to enroll in satellite-based monitoring (“SBM”) upon his release from prison. Brown gave timely oral notice of appeal.
Discussion
I. Trial
On appeal, Brown first argues that the trial court erroneously “allowed into evidence the ‘Family Letters’ book because it was irrelevant, inadmissible character evidence and substantially more prejudicial than probative.” Brown contends that because “there was no evidence that [he] ever showed the ‘Family Letters’ book, or any type of pornographic material, to [Sally,]” “[t]he ‘Family Letters’ book was not[] relevant to any issue other than [Brown’s] character, and should have been excluded” under North Carolina Rule of Evidence 404(b).
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) (2009). In this case, the trial court denied Brown’s motion in limine to exclude Family Letters because the court found the evidence to be “circumstantial evidence” “bear[ing] upon [Brown’s] intent and motive [] with respect to the alleged crimes.” On appeal, however, Brown argues that denial of his motion was error because evidence that a defendant “simply possessed pornographic materials” is inadmissible under Rule 404(b) absent “evidence that the defendant used the materials during the perpetration of the alleged offense or showed the materials to the victim at or near the time of the' crimes.” We disagree. That such evidence is inadmissible under Rule 404(b) absent the existence of such limited circumstances is a misapplication of the rule.
“Rule 404(b) is ‘a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion 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.’ ” State v. Locklear,
In arguing that Family Letters was inadmissible because it was not shown to Sally or was not “used in the commission of the offense,” Brown relies on previous decisions by this Court holding that evidence of possession of pornography, or evidence of deviant sexual conduct, was inadmissible because the evidence in each case did not serve
The circumstances of this case, however, are easily distinguishable from the above-cited cases: the possession 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 object of the sexual desire implied by the possession. Accordingly, the relevance of the evidence of Brown’s possession of Family Letters is not governed
Regarding the first Rule 404(b) purpose, the trial court admitted the Family Letters evidence as “circumstantial evidence” bearing upon Brown’s “motive with respect to the alleged crimes.” “Motive” is defined as “something within a person (as need, idea, organic state, or emotion) that incites him to action,” Websters Third New International Dictionary, (Unabridged 2002), and North Carolina Courts have long held that the State may offer evidence of a defendant’s motive “as circumstantial evidence to prove its case where the commission of the act is in dispute when ‘[t]he existence of a motive is [] a circumstance tending to make it more probable that the person in question did the act.’ ” State v. Hightower,
The crux of the analysis in all of these cases is whether the evidence is, in fact, relevant to the alleged motivating factor, i.e., whether the desire for money can be inferred from a lack of money or the opportunity to gain money and whether the desire to engage in an incestuous relationship can be inferred from the possession of incestuous pornography. See N.C. Gen. Stat. § 8C-1, Rule 402 (2009) (“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules.”); N.C. Gen. Stat. § 8C-1, Rule 401 (2009) (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable
It certainly seems reasonable to infer incestuous desire from one’s possession of incestuous pornography. Without purporting to speak authoritatively on literary merit in the pornographic context, we find it logical to conclude that one’s purpose in reading Family Letters, which can only euphemistically be characterized as “erotica,” is not to enjoy the stylistic flourishes or intricate plot twists. Instead, it can be more reasonably inferred that the reader intends to gratify a sexual desire by reading the stories. Indeed, pornography, by at least one of its definitions, is “a portrayal of erotic behavior designed to cause sexual excitement.” Miller v. California,
Anticipating response to this line of reasoning, it may be argued that admitting evidence of possession of incestuous pornography in a case involving incest could open the door for admission of possession of more innocuous-seeming literature in cases where that literature would appear to be relevant. As one panel of the Ninth Circuit Court of Appeals put it: “Woe, particularly, to the son accused of patricide or incest who has a copy of Oedipus Rex at his bedside.” Guam v. Shymanovitz,
A comparison between possession of Family Letters and possession of Oedipus Rex, or any other literature with socio-deviant undertones, is akin to a comparison between possession of a sawed-off shotgun and possession of a Revolutionary War-era pistol. While possession of Family Letters or a sawed-off shotgun strongly supports one obvious inference — that the possessor is desirous of incestuous relationships or that the possessor is “up to no good,” respectively, cf. United States v. Hood,
We further disagree with Brown’s contention that the evidence of Family Letters
Finally, we conclude that the evidence of Brown’s possession of Family Letters was also admissible as relevant evidence tending to establish the purpose of Brown’s alleged actions with respect to the charged offense of indecent liberties with a minor. As stated by our Supreme Court, the list of permissible purposes for admission of other acts evidence under Rule 404(b) is not exclusive, and “such evidence is admissible as long as it is relevant to any fact or issue other than the defendant’s propensity to commit the crime.” State v. Hipps,
In this case, Brown was charged with taking indecent liberties with a minor child in violation of N.C. Gen. Stat. § 14-202.1, which provides as follows:
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he [] [wjillfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire.
N.C. Gen. Stat. § 14-202.1 (2007) (emphasis added). “The gravamen of the offense of taking indecent liberties under [section] 14-202.1(a)(l) is the defendant’s purpose in undertaking the prohibited act.” State v. Beckham,
As discussed supra, Brown’s possession of Family Letters strongly supports the inference that Brown’s “sexual desire” included incestuous relationships, and that Brown’s desire was “gratified” or “aroused” by engaging in the conduct constituting the offense charged. Accordingly, Brown’s possession of Family Letters provides clearly relevant evidence to satisfy the statutory requirement that Brown’s conduct with the victim be for the purpose of arousing his sexual desire.
Regarding the danger of unfair prejudice arising from admission of Family Letters, Brown notes that “[e] very one at trial seemed to agree that the ‘Family Letters’ book was quite distasteful and even shocking” and that “[n]ot only did it include very specific stories of incestuous activities, but it also contained explicit pictures of such acts being performed.” Brown contends that because the graphic and “shocking” book was “passed around the jury box for each juror to view,” “[i]t is very likely that the book led the jury to convict Mr. Brown based on its disgust with his possession of such materials and on his character, not simply based on the evidence against him.”
However, aside from Brown’s own unsupported contention, there is nothing to show that the jury convicted Brown solely out of “disgust” for the content of Brown’s pornography. As such, we must conclude that the jury’s potential disapproval of Brown’s possession of the pornography did not substantially outweigh the strong probative value of the evidence in showing Brown’s motive, intent, and purpose with respect to the alleged conduct. Furthermore, when the trial court admitted Family Letters into evidence, the court issued a limiting instruction to the jury, stating that “[i]f you find the testimony about [Family Letters] to [be] credible, you may consider that only if you find that it bears upon [Brown’s] motive or intent to commit the charged offenses and for no other purpose than that.” As previously stated by this Court, “[t]he law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence.” State v. Riley, — N.C. App. —,-,
Furthermore, we are unpersuaded by Brown’s argument that admission of “testimony about alleged sexual acts committed by [Brown] against [Sally’s] sister [Jessica]” constituted plain error by the trial court and warranted reversal of the jury’s convictions.
At trial, Alisea Pierce (“Pierce”), a community support case manager with Appalachian Community Services, and Mary Holliday (“Holliday”), a contract attorney with DSS, recounted conversations each had with Sally, in which Sally reported that Brown had sex
On appeal, Brown contends that admission of this testimony was error because the testimony did not corroborate Sally’s testimony and was, thus, inadmissible hearsay. Brown argues that any testimony as to what Brown may have done to Jessica contradicted Sally’s testimony because Sally “merely testified that her sister was present when the incident with [Brown] occurred” and “never stated that [Brown] went anywhere near, touched, or did anything to [Jessica].” As Brown failed to object to the admission of the testimony by Pierce and Holliday, this Court may only review the alleged error for plain error. N.C. R. App. P. 10(a)(4).
As an initial matter, we note that, although the prior statements by Sally presented by Holliday and Pierce do not exactly mirror Sally’s in-court testimony, “[i]n order to be admissible as corroborative evidence, the pre-trial statement of a witness need not merely relate facts brought out in the witness’s testimony at trial.” State v. Kim,
In our view, although Sally testified only that her sister was present when Brown allegedly raped Sally, the evidence of Sally’s prior statements regarding sexual acts committed against Sally’s sister clearly does not contradict Sally’s testimony. Instead, the additional information serves to “strengthen and add credibility to” Sally’s version of the events by explaining and expanding upon Jessica’s presence during the incident.
Nevertheless, to the extent the admission of the evidence regarding Brown’s alleged sexual encounter with Sally’s sister exceeded the scope of permissible corroboration, we conclude that the admission of such evidence did not amount to plain error warranting reversal of Brown’s convictions.
As previously stated by our Supreme Court,
[t]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ ” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings . . . .”
State v. Odom,
In support of his argument that the erroneous admission of Pierce’s and Holliday’s testimony amounted to plain error, Brown presents the old plain error saw that “this case basically came down to a swearing contest” between Brown and Sally and asserts
First, it seems that if the jury believed Pierce’s and Holliday’s testimony (which we must assume it did, else the error could not have had any impact), the testimony’s negative impact on “the jury’s view” of Brown could only have been slight, if not nonexistent, considering that, absent admission of that portion of the testimony, the jury would have viewed Brown as someone who had sex with only one daughter, but in the presence of the other daughter, instead of viewing Brown as someone who had sex with both of his daughters successively in the same room. Second, although Brown is correct that there was no scientific or physical evidence proving Brown committed the alleged acts, we cannot conclude, in the face of the remainder of Sally’s amply-corroborated testimony and the evidence of Brown’s motive and intent to commit the alleged acts, that the admission of two statements regarding reports by Sally that Brown also had sex with Sally’s sister caused, or even probably caused, the jury to return the verdict that it did. Accordingly, we are not convinced that the admission of the portions of Pierce’s and Holliday’s testimony referring to Sally’s report that Brown raped his other daughter was “fundamental error” that was “so prejudicial, so lacking in its elements that justice cannot have been done.” We conclude that the admission of the complained-of testimony was not plain error and that Brown received a fair trial, free of prejudicial error.
II. SBM Hearing
Brown next argues that the trial court erroneously ordered him to enroll in lifetime SBM. We disagree.
At the close of Brown’s sentencing, the trial court stated that “this [conviction] is a reportable offense and that it is an aggravated offense and, therefore, [Brown] is subject to lifetime sex monitoring under the current statute when he gets out.”
On appeal, Brown argues that the trial court erred by finding that “the offense of conviction is an aggravated offense.”
“[I]n order for a trial court to conclude that a conviction offense is an ‘aggravated offense’ . . . this Court has determined that the elements of the conviction offense must ‘fit within’ the statutory definition of ‘aggravated offense.’ ” State v. Phillips, — N.C. App. —, —,
any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.
N.C. Gen. Stat. § 14-208.6(la) (2009). In determining whether the conviction offense “fits within” the definition of “aggravated offense,” this Court has held that the “trial court is only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction.” Phillips,-N.C. App. at —,
In this case, the elements of the charged offenses — indecent liberties with a minor and first degree rape — do not “fit within” the second statutory definition of “aggravated offense” because obviously neither a child under the age of 16 years, nor a child under the age of 13 years, is necessarily also a child less than 12 years old “without looking at the underlying facts[.]” Phillips,-N.C. App. at —,
However, according to this Court’s opinion in State v. Clark,N.C. App. —,-S.E.2d-(2011), because rape of a child under the age of 13 “necessarily involves ‘the use of force or threat of serious violence,’ ” “the essential elements of first degree rape [of a child] ‘fit within’ the [first] statutory definition of an “aggravated offense.” Id.-at-, S.E.2d at-. Accordingly, we conclude that the trial court properly found that Brown was convicted of an aggravated offense such that enrollment in lifetime SBM was not error. Brown’s argument is overruled.
Based on the foregoing, we conclude that Brown received a fair trial, free of prejudicial error, and that the trial court did not err in ordering Brown to enroll in lifetime SBM.
Notes
. On 14 July 2009, just prior to commencement of his trial, Brown was also indicted on one count of statutory rape.
. Pseudonyms are used to protect the privacy of the juveniles.
. But see State v. Owens, No. COA08-1279,
. To the extent Smith has been interpreted to create a bright-line rule that evidence of the mere possession of pornography is inadmissible to show intent, preparation, plan, knowledge or absence of mistake (the only purposes discussed in Smith), see State v. Delsanto,
. Although Brown was only indicted on the charges of first-degree rape and taking indecent liberties with a child, based on the evidence presented at trial, the trial court submitted to the jury the lesser-included offense of attempted first-degree rape.
. Although we conclude that the evidence was properly admitted to show intent and motive, were the evidence only admissible to show purpose under section 14-202.1 (and assuming purpose under section 14-202.1 and motive under Rule 404(b) are not the same), the court’s admission of the evidence for an improper purpose such as motive or intent would be non-prejudicial error based on its admissibility to show purpose. See State v. Harris,
. Brown’s oral notice of appeal in open court was insufficient to confer jurisdiction on this Court with respect to Brown’s appeal of the SBM order. See State v. Brooks, — N.C. App. —,-,
. The trial court did not specify which offense was the aggravated offense, despite the fact that both offenses of conviction were reportable offenses. See N.C. Gen. Stat. § 14-208.6(4) (2009). However, the trial court found that Brown was convicted of “rape of a child, [section] 14-27.2A,” which leads to the conclusion that the trial court was referring to Brown’s first-degree rape conviction under section 14-27.2(a)(l).
. To the extent Brown’s argument is not properly preserved for appeal based on Brown’s admitted failure to contest any of the findings by the trial court during the SBM proceeding, we suspend the North Carolina Rules of Appellate Procedure to address this issue and “prevent manifest injustice” to Brown. N.C. R. App. P. 2.
. Under the test created by this Court for application of section 14-208.6, there are no offenses that “fit within” the second definition of “aggravated offense,” i.e., an offense that includes “engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.” Every sex offense in the General Statutes either (1) does not mention the victim’s age, see N.C. Gen. Stat. §§ 14-27.3 (second-degree rape), 14-27.5 (second-degree sexual offense), 14-27.5A (sexual battery) (2009) or (2) states the relevant age of the victim as something other than “less than 12 years old.” See N.C. Gen. Stat. §§ 14-27.2(a)(1) (first-degree rape; “child under the age of 13 years”), 14-27.2A (rape of a child; adult offender; “child under the age of 13 years”), 14-27.4 (first-degree sexual offense; “child under the age of 13 years”), 14-27.4A (sexual offense with a child; adult offender; “child under the age of 13 years”), 14-27.7 (intercourse and sexual offenses with certain victims; “victim who is a minor” or “victim who is a student”), 14-27.7A (statutory rape or sexual offense of person who is 13,14, or 15 years old) (2009). Accordingly, that portion of the statute delineating the second definition of “aggravated offense” has been rendered obsolete. Compare Jolly v. Wright,
. As for Brown’s remaining argument that enrollment in SBM violates his protections from ex post facto laws, such an argument is unavailing in light of our Supreme Court’s decision in State v. Bowditch,
Dissenting Opinion
dissenting.
The majority opinion conflicts with this Court’s decisions in State v. Smith,
In Smith, we held that “evidence of [the] defendant’s possession of pornographic materials, without any evidence that [the] defendant had viewed the pornographic materials with the victim, or any evidence that [the] defendant had asked the victim to look at pornographic materials other than the victim’s mere speculation” was irrelevant to establishing whether the defendant was guilty of first-degree sexual offense and taking indecent liberties with a minor.
The rule articulated in Bush makes no exception for pornography that is thematically similar to the crime charged. Therefore, I would hold the trial court erred in admitting evidence of the Family Letters publication. I would also hold that the error was sufficiently prejudicial to merit a new trial.
More importantly, assuming arguendo Bush and Smith did not create a bright line rule regarding the possession of all pornographic materials, the majority opinion would weaken a critical aspect of the character evidence rule, stripping our case law of a logical stopping point at which the rule comes into effect. North Carolina Rule of Evidence 404 contains the traditional character evidence rule: “Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion . . . .” N.C. R. Evid. 404(a). Subsection (b) provides a nonexclusive list of purposes for which uncharged conduct evidence may be offered without violating the character evidence rule. N.C. R. Evid. 404(b); State v. Everhardt,
The majority approach disregards a critical principle underlying the character evidence rule: uncharged conduct evidence may not be admitted unless “there is a rational chain of inferences that does not require an evaluation of character.” David P. Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events § 8.3, at 495 (2009); accord 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at 746-47 (3d ed. 2007). In other words, the proponent must establish the evidence is logically relevant without relying on a character inference. Whilé Rule 404(b) contains a nonexclusive list of permissible purposes for which evidence may be offered, that evidence must be excluded if its logical link to one of those purposes requires a character inference. See e.g., Mueller & Kirkpatrick, supra, § 4:28, at 746-47 (“[P]roof offered [of other bad acts] is not saved from the principle of exclusion by the mere fact that it supports a specific inference to a point like intent if the necessary logical steps include an inference of general character or propensity ....”); United States v. Himelwright,
This part of the rule is critical. If a character inference can be used to connect evidence to a non-character purpose, the character evidence rule is effectively a dead letter because any number of character inferences about the defendant could be strung together to reach a “non-character purpose.” A prosecutor cannot establish a proper purpose by merely mouthing the magic words “motive, opportunity, intent, preparation, plan, knowledge, identity” and so forth. He or she must articulate how the evidence is logically relevant to such a purpose without requiring a character inference.
Here, an impermissible character inference is necessary to establish the Family Letters publication’s logical relevancy to Brown’s motive or intent to commit the crimes charged. The following logical reasoning is required to establish motive: (1) Brown was in possession of a publication describing incestuous encounters in graphic detail; (2) Brown is the type of person who desires to engage in incest because he reads graphic literature about incest; (3) Brown had a motive to engage in sex with his children: satisfying his incestuous desires; (4) Brown has a propensity to engage in sexual intercourse with relatives; and therefore, (5) the admission of the Family Letters publication tends to suggest Brown molested Sally.
Similar reasoning is required with respect to intent: (1) Brown was in possession of a publication describing incestuous sexual encounters in graphic detail; (2) Brown is the type of person who desires to engage in incestuous sex because he reads graphic literature about incest; (3) Brown intended to engage in sex with his children to satisfy his
In an attempt to justify this line of reasoning, the majority draws an analogy to several cases involving monetary gain as a motive. The majority contends that, if evidence of a desire for monetary gain is admissible to establish a defendant committed a crime to satisfy his monetary desire, then evidence of Brown’s desire to engage in incest is admissible to prove Brown committed a crime to satisfy his sexual desire. Under this reasoning, no uncharged conduct reflecting on motive would be excluded by the character evidence rule. Evidence of a prior conviction for murder would be admissible in a murder trial because the prior conviction suggests the defendant is the type of person who desires to kill people — by killing the victim, the defendant was seeking to satisfy that desire. The same would be true for rape convictions in rape cases and larceny convictions in larceny cases.
But what distinguishes the forbidden use of motive evidence from the proper use of motive evidence? A moral judgment about the defendant. As the late Professor David Leonard explained,
motive reasoning requires two steps. In the context of uncharged misconduct evidence, the first step is from the evidence to the existence of a motive, and the second is from the motive to action in conformity therewith. This looks very similar to character reasoning. How, then, does it differ? . . . The character rule is based on the deeply entrenched view that trials are conducted to determine what happened in the situation at issue and not to judge the morality of the parties. Because a person’s “character” is driven by her morality, the law restricts evidence offered to prove character.
... [T]he law assumes that motive is more specific than character, and its existence in a given situation does not depend on the person’s morality. Under the right set of circumstances, even non-violent people can possess a motive to act violently, and honest people can have a motive to lie. ... We assume that a motive might exist because any person might possess one under those specific circumstances. The tendency to have such a motive is simply human; it does not derive from a trait of character specific to the person involved in the trial.
Leonard, supra, § 8.3, at 494-96 (footnotes omitted). Thus, “[a]ll character evidence offered to show action in conformity with character is propensity evidence, but not all propensity evidence is character evidence.” Richard B. Kuhns, The Propensity to Misunderstand the Character of Specific Acts Evidence, 66 Iowa L. Rev. 777, 794 (1981). And a propensity inference is also a character inference if it involves a moral judgment about the defendant.
Monetary gain as motive to commit a violent crime does not require a moral judgment about the defendant. Rather, it can rely on the assumption that human beings are more likely than not to engage in conduct that will improve their financial circumstances. The defendant therefore has a motive to commit the crime, and no character inference is required to reach this conclusion. The existence of the motive makes it more likely than not that the defendant committed the crime.
The majority’s analogy to monetary-gain-motive cases fails because the reasoning in those cases does not apply to a propensity to engage in depraved sexual misconduct. The Family Letters publication cannot be relevant to Brown’s propensity to commit a sex offense without inferring he has a depraved sexual interest in incest. This is a moral judgment specific to Brown in contrast to the general, non-moral inference in monetary gain cases. As the majority explains, “[w]here the pornography possessed consists
The majority also maintains that, even if the Family Letters publication was inadmissible to establish Brown’s motive and intent to commit first-degree sexual offense, it was admissible to establish the “purpose” element of the indecent liberties offense. To be guilty of the crime of taking indecent liberties, the defendant must engage in the prohibited conduct “for the purpose of arousing or gratifying sexual desire.” N.C. Gen. Stat. § 14-202.1(a)(l) (2009). Establishing this purpose element is a “proper purpose” for offering evidence under Rule 404(b). State v. Beckham,
However, the trial court instructed the jurors to consider the Family Letters publication only if it bore on Brown’s “motive or intent to commit the crime charged.” There is no mention of considering the publication for the purpose of determining whether Brown possessed the requisite mental state for the purpose of indecent liberties. Based on this instruction, it is unlikely the jury would have used the publication to determine Brown’s “purpose” within the meaning of the statute.
Moreover, this theory of logical relevancy still requires acharacter inference: (1) Brown was in possession of a publication containing descriptions of incestuous encounters in graphic detail; (2) Brown is the type of person who desires to engage in incest because he fantasizes about incest; and therefore, (3) his purpose in engaging in sexual activity with a family member was to gratify this sexual desire.
Brown’s theory of the case was not that he engaged in sexual conduct with his daughters without the purpose of arousing or gratifying sexual desire. Rather, it was his contention at trial that the alleged conduct did not occur. Thus, the publication was not offered to explain why potentially innocent conduct was actually committed with the requisite mental state. Furthermore, under the majority’s approach, the State would be able to evade the character evidence rule for general intent crimes, including most sexual offenses, by tacking on a specific intent offense, such as indecent liberties.
Even assuming there is some relevancy that does not require a character inference, the legitimate probative value of the publication would be so minor that, when compared with the greater danger of unfair prejudice, admitting the evidence clearly fails the Rule 403 balancing test. When conducting this test, we consider two things to evaluate probative value: (1) the degree of similarity between the extrinsic conduct and the charged conduct and (2) the time elapsed between the incidents. See State v. Frazier,
On the other hand, in admitting the evidence, there was a great danger of unfair prejudice. The publication contains numerous graphic descriptions of incestuous sexual activity between closely related family members. It describes encounters between parents and their children, between siblings, between grandparents and grandchildren, and so on. The stories are accompanied by graphic cartoon illustrations of the conduct described in the stories. The publication also contains advertisements for various sexual products, including a variety of “sex-toys” and numerous videos that purport to cater to what might be described by many as “bizarre” or “non-mainstream” sexual fetishes. Particularly in sex crime cases involving incest, this type of evidence is highly likely to inflame the passions of the jury and cause jurors to assume the defendant committed the crime because he is a sexual deviant.
The majority’s indecent-liberties-purpose theory not only suffers from low probative value, but using the publication to establish Brown’s purpose is superfluous in light of the unfair prejudice. There was direct testimony from Sally that Brown forced her to perform oral sex. Evidence of the act itself is sufficient to establish Brown sought to gratify a sexual desire.
The trial court’s limiting instruction was insufficient to mitigate the extreme danger of unfair prejudice. While there is a presumption “that the jury heeds limiting instructions that the trial judge gives regarding the evidence,” State v. Riley, — N.C. App. —, —,
Once prior bad acts of the accused are introduced in evidence and handed over to the jury for review, the realistic prosecutor, defense counsel, and trial judge know that the jury will use that bad character evidence to reason that the accused is a person of bad character or predisposition, and ought to be convicted of the present offense because of his prior history. The usual limiting instruction certainly makes the cold-type record look better to a reviewing court, but the efficacy of such an instruction has been questioned by professors and judges for decades. It is another example of repeating the same act and expecting different results.
Thomas J. Reed, Admitting the Accused’s Criminal History: The Trouble With Rule 404(b), 78 Temp. L. Rev. 201, 250 (2005) (footnote omitted).
In sum, the majority opinion contradicts our decisions in Smith and Bush and also fails to appreciate that uncharged conduct evidence cannot rely on a character inference to establish its logical relevancy. The trial court improperly admitted the Family Letters publication in violation of Rule 404. Furthermore, the danger of unfair prejudice posed by that evidence substantially outweighed its probative value inviolation of Rule 403. These errors constitute an abuse of discretion.
Several decisions note that our courts have been “markedly liberal” in admitting uncharged conduct in sex crime cases. E.g., State v. Scott,
I dissent.
. Accord, e.g., United States v. Rubio-Estrada,
. Whether this connection is probative enough in comparison to the suggestion that the defendant was motivated by greed because he is an evil person must be evaluated under the Rule 403 balancing test.
. See also Sarah Tanford & Michele Cox, The Effects of Impeachment Evidence and Limiting Instructions on Individual and Group Decision Making, 12 Law & Hum. Behav. 477, 494 (1988) (“[T]he legal assumption that instructions reduce juror bias is false in many instances.”); Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt, 9 Law & Hum. Behav. 37, 47 (1985) (concluding that “the presentation of the defendant’s criminal record does not affect the defendant’s credibility, but does increase the likelihood of conviction, and that a judge’s limiting instructions do not appear to correct that error”).