*1 OF COURT STATE v. SNEEDEN Aрp. 506 Also, a case Court decided Supreme we note that effect. showing imposing requirement without on this issue Thus, has not been Speight 1941. from 1921 to continuous use the motion for grant court’s consistently. The trial adhered hereby reversed. and is improper JNOV con- judgment to enter remanded to trial court Reversed and verdict. jury’s sistent with the concur. and COZORT JOHNSON
Judges TERRY SNEEDEN v. VESTER NORTH CAROLINA STATE OF No. 9111SC820 1993) (Filed January (NCI4th)— rape twenty-three § Witnesses 1. Evidence and lack of consent —admissibility to show intent and years earlier by defendant was rape a 1967 committed Evidence of on rape questions trial for a in defendant’s admissible his automobile when the victim entered intent of defendant’s were similar where both crimes the victim’s lack of consent victims, lured them trust оf both gained that defendant automobile, them to a different location and then took into an rape The 1967 was not sexually assaulted. where were the questions value on as to have lost its so remote of intent and consent. 2d, § 71. Rape
Am Jur raped of evidence that accused Admissibility, 2 ALR4th prosecutrix. than rape person other attempted — (NCI4th)— prior § Witnesses 2. Evidence and —admission intent and lack of consent admissibility to show request limiting instruction purposes other —failure for pur- of a was admissible prior rape Where evidence intent and the victim’s lack poses instruction, limiting not request but defendant did consent that evidence of trial court’s instruction any error IN THE COURT OF APPEALS *2 App. (1993)]
[108 scheme, was prior raрe plan, system admitted to show “a the crime design involving charged” was not so fundamental as to have a on the probable impact verdict. 2d, 549, 798, 810, 815; §§
Am Jur Appeal and Error Trial §§ 430-434. (NCI4th)— §
3. Criminal prior rape juror Law 520 who worked — with defendant —failure to declare mistrial The trial court did not its abuse discretion failing a juror declare mistrial a case when a advised the court that he realized he had with worked defendant at the time defendant committed rape twenty-three years earlier juror affirmatively by where the when asked court replied whether he pass upon could or innocence guilt “without what went on ... ago.” 2d, 679; 321; § § Am Jur Jury Criminal Law Trial §§ 1706-1712. (NCI4th)— §
4. Constitutional Law three consecutive life sentences —no cruel and punishment unusual
The imposition on defendant of three consecutive life nine-year sentences and one sentence for two counts of first degree rape, degree one count of first sexual offense and one count of second did not constitute cruel degree kidnapping punishment. unusual 2d, §§
Am Jur Criminal Law
Judge dissenting. GREENE by February Appeal defendant from entered judgment by Wiley County F. Judge Superior Bowen Harnett Court. Heard in the Court of 16 October 1992. Appeals rape,
Defendant was indicted on two counts of first degree one count of first sexual offense and one count of first degree These arose from an incident degree kidnapping. charges alleged trial, Hatfield. At the State’s evidence tended involving Angela July way on 17 Hatfield on her Angela show that Security to the when she was Employment approached Office defendant. Hatfield testified that defendant told her he was looking secretary “job for a and that she should follow him to one of the sites” where she would be When arrived one working. COURT OF APPEALS sites, leave suggested of these defendant Hatfield her car Hatfield, ride with him. when she out of According got car, her, car, her defendant handcuffed forced her into his threat- with a then her. then pistol ened her blindfolded Hatfield was to have vaginal taken to a house and forced oral and sex with defendant. Hatfield further testified that at some dressed, then her get vaginal allowed her to but forced to have sex again. testimony Mary
The trial court also allowed the Jo Welch Wood, objections. Thaxton and Carla over defendant’s *3 in Raleigh Thaxton testified that she met defendant in 1967 while for a bus in order to to waiting go Greenville. Defendant told Thaxton he college working was a student who was for a rental car and if she would follow him in one car while company client, he delivered another to a he would her a ride to give Green- ville. upon arriving Thaxton further testified that at the alleged house, client’s she was knocked out and the of raped. On basis this incident defendant life imprisonment was sentenced to and paroled parole was 1977 and from in 1983. discharged Carla Wood testified that she met defendant in Octоber At dying some defendant told Wood that he was and gave go $300 her so that she could to the beach and have fun. Wood later, July testified that on 14 defendant invited her to his Wood, home in order to services. perform cleaning According money defendant then offered her for sex and attacked her with pistol Eventually, when she refused. Wood was ablе to break free and escape.
Defendant testified he had known Hatfield for some time before the and that she to have sex with him in alleged agreed money. exchange acknowledged for Defendant that Carla Wood house, had visited him at his but denied ever to have attempting sex with her. jury
The found defendant and he was sentenced for guilty two сounts of first count first sexual degree rape, degree one of degree kidnapping. offense and one count of second Attorney Thornburg, by Attorney General Ii. Assistant Lacy Grayson Kelley, General the G. State. Jr., Hunter, Ray by Malcolm Assistant
Appellate Defender D. Appellate Montgomery, Mark for defendant Defender appellant. THE IN COURT OF
WALKER, Judge. [1] court erred when In his first assignment it admitted evidence of error, defendant contends the the trial Mary defendant, this evidence should Welch Thaxton. According Jo twenty-three it occurred some not have been admitted because (23) Hatfield. Because alleged upon the assault Angela before time, so the act is remote argues lapse any рrobative outweighed prejudicial in time that value effect. testimony to the of both objection
In
overruling
Wood,
detailed findings
the trial court made
Thaxton
Carla
findings
was the construction
for the record. Included
these
victims
matrix
similarities between the
listing
of a
three
The trial court
methodology of defendant in the
assaults.
(21)
substantially
twenty-one
which were
similar
found
factors
had
The trial court also
value.
probative
concluded the
of this evidence
though prejudicial,
noted that even
admission
nor
jury
so
shocking
was not
as mislead
grossly
value. We
unfairly
outweigh
as to
prejudicial
so
err
this evidence.
admitting
find that
the trial court did not
404(b),
other
is admissible
Under Rule
evidence of
offenses
issue
than the chаracter
if it is relevant
to some fact or
other
*4
12,
Davis,
v.
parts. second, remote in time. are too whether incidents not 822, (1988); Jones, 585, 589, 824 State v. 322 N.C. 369 S.E.2d (1992). 603, Wilson, 342, 348, 607 416 As 106 S.E.2d N.C.App. test, admissibility act or crime prior the first of the a part indicating facts present is “similar” if there are some unusual the present earlier person the same committed both the offense However, incidents need not two one. the similarities between Stager, 329 N.C. “unique and bizarre.” be IN THE COURT OF APPEALS (1991). 876, “Rather, the similarities simply must tend a support reasonable inference that the same person committed
both the earlier and later acts.” Id. (emphasis in original). Upon
review, this Court finds the 1967 incident sufficiently similar to
the incident giving rise to the present charges. The State’s evidence
1990,
shows that among the similarities both in 1967
defend
victims,
ant gained the trust of his
lured them into an automobile
and then took them to a different
location where
sexually
were
assaulted. This Court has previously found that similarities of this
justify
nature
admitting the evidence
prior
crimes to prove modus
Pruitt,
o-perandi
383,
261,
and intent. State v.
94 N.C.App.
380 S.E.2d
(1989).
435,
disc. review
325 N.C.
Defendant contends that irrespective
similarity, any
relating to the 1967 rape should not have been admitted since
it was too remote in time. On this point, we find State v. Stager,
278,
(1991)
S.E.2d 876
instructive. In that
our
Supreme Court found evidence of the 1978shooting death of defend-
ant’s first husband admissible in the prosecution arising from the
1988shooting death of defendant’s second husband. The Court noted
that “remoteness in
...
time
is more significant when the evidence
of the
crime is
introduced to show that both crimes arose
307,
out of a common scheme
plan.”
or
Id. at
Hatfield, he contends she consented. Accordingly, due to its close *5 similarity, the 1967 rape probative is upon the question of de- fendant’s intent when Hatfield entered his car and upon the ques- tion of Hatfield’s consent. Since the 1967 rape was for admissible these purposes, was not so rеmote as to have lost its value.
IN THE COURT OF
trial court instructed
[2]
Although
not
specifically
the
jury
that the evidence
raised
defendant,
of the 1967
we
note
rape
the
scheme, system or design
in
to show “a plan,
was admitted
order
v. Stager
While under
and
charged.”
the crime
State
involving
(1988)
remoteness
v.
State
when
is admitted
significant
more
this evidence
in time becomes
“scheme,”
only
рrevious
as our
discus
“plan”
show
an
or
ongoing
indicates,
was
the 1967
admissible
regarding
sion
evidence
the
lack of
both
intent and
victim’s
consent.
to show
of
time
the trial
ruled that evidence
the
At no
after
court
evidence be limited
request
did defendant
this
admissible
not request
of
Since defendant did
intent or lack
consent.
proving
this
was admissible
a
instruction and sinсe
evidence
limiting
such
any
jury
the
was not
instructing
for a
error
proper purpose,
impact
have
on the verdict. See
probable
so fundamental as to
a
655, 660-661,
(1983);
Odom,
378-379
309-310,
also,
purpose fendant, scheme, in- system Terry design Sneeden a plan, case for no other reason. charged the crime this volving instruc- jury repeated final to the the trial court In its mandate instructed: tion and further it, testimony, you may consider but you
If believe their purpose. for that limited (1) the was erroneous because this instruction argues
Defendant presumption that existed conclusive was led to believe there jury of a scheme similar bad acts that evidence of (2) the trial be- court improperly suggested the instruction has merit find this no a scheme existed. We contention lieved North accurately existing states Carolina given the instruction since N.C.P.I., See Crim. 104.15. law.
to declare [3] Defendant further contends a mistrial when it came the trial court to the trial court’s erred in attention failing had been a co-worker jurors that one *6 512 IN THE COURT OF APPEALS
STATE v. SNEEDEN . App. (1993)] 506 [108 evidence, the time of the 1967 After rape. hearing juror one came forward and advised the trial court that he realized he had with worked defendant in 1967. According juror, he and defendant never any had association since worked different shifts, but he recalled defendant was either dismissed or resigned Mary connection with the 1967 rape of Jo Welch Thaxton. Once advised, the trial court juror asked the whether pass he could upon guilt or innocence “without what went on . . . 24 or 23 ago,” juror “yes, to which the replied sir.” deny The decision to a motion for a will only mistrial be over turned where there is a showing of an abuse of discretion on the Mills, 47, part of the trial court. N.C.App. (1979). (1978), denied, 588, disc. review 296 N.C. Furthermore, not all knowledge part juror on the of a demands disqualification either or a mistrial. In State v. 50 N.C.App. 263, 273 S.E.2d disc. review 279 S.E.2d three jurors through leаrned the newspaper of defend case, ant’s conviction. Similar to the present the trial court in Jones had admitted the evidence of this prior conviction purpose identity the limited of proving and common scheme trial, plan. At the three jurors questioned were as to the effect their knowledge would have their upon continuing impаrtiality. This Court held that the trial court did not abuse its discretion when it denied defendant’s motion for a mistrial. upon Based Jones present the circumstances in the say we cannot the trial court abused its in denying discretion defendant’s motion. imposed constituted a cruel and [4] In his final assignment error, unusual defendant contends the sentence punishment. Defendant rеceived three consecutive life year sentences and one nine sentence as a result of his convictions. We find no merit in defendant’s contention since our Supreme previously Court has determined that the imposition consecutive life sentences for first degree degree and first sexual offense does not violate a defendant’s constitutional rights. Ysaguire, 309 N.C. 309 S.E.2d (1983).
No error. WYNN concurs.
Judge
Judge GREENE dissents. COURT OF
Judge dissenting. Greene
I cannot the majority’s reconcile conclusion that the trial court properly twenty-three-year-old admitted evidence of a as being “probative question of the of defendant’s intent” when the record clearly “solely shows that the trial court admitted the evidence for the in purpose showing that there existed the mind of the scheme, system, ... or the plan, design involving case,” crime in charged jury this and admonished the to consider only it for this limited purpose.
Although undisputed is that evidence of sexual offenses prior Carolina, liberally is admitted in North when the trial court ex- pressly admissibility limits the of such evidence to a particular purpose, jury instructs the court aсcordingly, reviewing is liberty analyze not at whether the evidence admissible Haskins, any for State v. purpose. 104 N.C. App. Cf. 376, 287, 411 S.E.2d 382-83 disc. rev. 417 N.C. (1992)(no S.E.2d error when trial court admits prejudicial prior act evidence for two purposes reviewing court determines that only evidence was admitted under one of properly purposes). these words, In other if the record makes clear that the was in- jury prior structed to consider the crime evidence for one purpose for no other as in purpose, the instant the trial court’s admis- sion of the evidence can if upheld supports be the record Thus, view, my admission of the evidence for that in purpose. question presented sole with to the evidence of the regard is whether this evidence for the purpose is admissible by for which it trial was offered the State and admitted is, scheme, court —that plan, defendant’s mind a (often scheme”) system, or design plan referred to as “common the crime with which he is involving charged. notes, majority correctly
As the the remoteness of a prior crime is more whеn evidence of the crime is in significant troduced to show that both it and the crime with which the defend charged ant is arose out of a common scheme or plan. (1991). 278,307, 876, Stager, 329 406 S.E.2d This is so because passage of time between the commission of the two acts [t]he slowly commonality erodes the them. The probability between ongoing of an or schеme then becomes tenuous. Admission plan jury of other crimes at that allows the to convict defend- is, ant because he than because person kind of rather OF COURT U.S.A. PHILIP MORRIS IN RE APPEAL OF App. 514 doubt, discloses, that he beyond a reasonable the evidence charged. the offense committed (1988).Thus, the two crimes similarities exist between the fact that some despitе issue, vir- the acts of time between twenty-three-year lapse could be at- value which otherwise tually any negates trial court Accordingly, the rape.1 evidence of the 1967 tributed to objection, over defendant’s present, the State to allowing erred and, defendant to my the error entitles opinion, 15A-1443(a)(1988). a new trial. See N.C.G.S. § *8 PHILIP U.S.A. FROM THE APPEAL OF MORRIS IN THE MATTER OF: EQUALIZA- THE COUNTY BOARD OF THE DECISION OF CABARRUS YEARS TAXES AND REVIEW FOR PERSONAL PROPERTY TION 1984-1989 No. 9110PTC762 1993) (Filed January (NCI3d)— audit —property ad valorem taxes § Taxation 25.3 sample —public audit fee —choice of agreement —contingent violation policy property agreement
A audit county’s personal business sam- to choose the audit which the auditor discretion gave thirty-five the rate of the auditor at compensated ple discoveries violated public policy of taxes discovered percent the contract were void. resulting from 704, 720, 2d, 725. §§ State and Local Taxation Am Jur Final Decision of the County from a by Cabarrus Appeal cross- May Appeal entered Property Tax Commission rape, was incarcerated of the 1967 1. I am aware that as a result However, discounting рarole. even he on at which time was released until Davis, time, prison see State v. (1991), approximately disc. rev. years elapsed was released until the commission from the time defendant thirteen discussed, previously charged. reasons with which he is For the of the crime where lapse probative value of the has eroded the time value, prejudice any, substantially outweighed danger of unfair if such the defendant.