{ "id": 11915066, "name": "STATE OF NORTH CAROLINA v. JOHN BILLY FRAZIER", "name_abbreviation": "State v. Frazier", "decision_date": "1995-12-05", "docket_number": "No. COA94-1140", "first_page": "1", "last_page": "23", "citations": [ { "type": "official", "cite": "121 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "85 L. Ed. 2d 878", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "40 L. Ed. 2d 886", "category": "reporters:federal", "reporter": "L. 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App. 87", "category": "reporters:state", "reporter": "N.C. 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App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520290 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/104/0097-01" ] }, { "cite": "285 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "820" } ], "opinion_index": 1 }, { "cite": "304 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570316 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/304/0643-01" ] }, { "cite": "346 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8716319 ], "year": 1986, "pin_cites": [ { "page": "635" } ], "opinion_index": 1, "case_paths": [ "/sc/289/0393-01" ] }, { "cite": "317 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774166 ], "year": 1986, "pin_cites": [ { "page": "412" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0396-01" ] }, { "cite": "419 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "564", "parenthetical": "cumulative effect of erroneously admitted evidence \"deprived defendant of his fundamental right to a fair trial\"" } ], "opinion_index": 1 }, { "cite": "331 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497445 ], "year": 1992, "pin_cites": [ { "page": "616", "parenthetical": "cumulative effect of erroneously admitted evidence \"deprived defendant of his fundamental right to a fair trial\"" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0604-01" ] }, { "cite": "398 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "101 N.C. App. 12", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527206 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc-app/101/0012-01" ] }, { "cite": "379 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "847" }, { "parenthetical": "emphasis added" }, { "page": "848" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "324 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482061 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/324/0437-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "824" }, { "page": "824" }, { "page": "824", "parenthetical": "citation omitted" }, { "page": "825" } ], "opinion_index": 1 }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "590" }, { "page": "590" }, { "page": "590" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "439 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "113 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523857 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc-app/113/0605-01" ] } ], "analysis": { "cardinality": 1553, "char_count": 51863, "ocr_confidence": 0.747, "pagerank": { "raw": 1.1857826202750782e-07, "percentile": 0.5901566075860021 }, "sha256": "8ffb0e57e26a082927bab9952c8cd04847f68e34e24da6ce70a84100ba77b797", "simhash": "1:0339557a273f8cdc", "word_count": 8447 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge JOHN dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN BILLY FRAZIER" ], "opinions": [ { "text": "EAGLES, Judge.\nI. Defendant first argues that the trial court violated Rule 404(b) by admitting the testimony of the State\u2019s witnesses Kathy (Susie) Barnes, Vickie Brewer Wright, and Patricia A. Bryant. G.S. 8C-1, Rule 404(b) provides in part:\nEvidence 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.\nRule 404(b) is a rule of inclusion of relevant evidence of prior bad acts unless the only reason the evidence is offered is to show the defendant\u2019s propensity to commit a crime like the act charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990); State v. Matheson, 110 N.C. App. 577, 581, 430 S.E.2d 429, 431 (1993); State v. Faircloth, 99 N.C. App. 685, 689, 394 S.E.2d 198, 201 (1990). Here, the State argues that the three witnesses\u2019 testimony was admissible to demonstrate a common plan or scheme by defendant to sexually abuse adolescent female family members.\nOne of the three witnesses whose testimony was offered to show a common plan was Kathy (Susie) Barnes (hereinafter Susie), one of Polly\u2019s daughters and the stepmother of L. and S. The State\u2019s evidence tended to show that Susie first remembered seeing defendant when she was approximately four years old (approximately 1964) after defendant married her mother. When Susie was sixteen, defendant remarked that he could not wait until she fully developed. After she began \u201cfilling out,\u201d defendant started \u201cfeeling\u201d Susie around her waist, breasts, buttocks, and vagina. Though Susie was still in the fifth grade when she turned sixteen, she quit school. Thereafter, she was often alone with defendant while her mother, Polly, worked. On occasion after Susie quit school, defendant kissed Susie \u201c[i]n the mouth [and] on the face.\u201d Susie lived with an aunt for a year while defendant and Polly traveled with defendant\u2019s company. Defendant and Polly returned when Susie was seventeen and defendant resumed touching her inappropriately. He told her that \u201c [h] e just wanted to be [her] boyfriend if [she] wanted him to.\u201d\nSusie married her first husband when she was twenty and lived with him until she was twenty-one. Their son was bom shortly after she separated from her husband. Susie had no money so she lived with defendant and Polly in Florida until 1983. During this time, defendant told Susie \u201c[h]e would like to f\u2014 [her].\u201d In 1983 or 1984 after Susie married her second husband, the father of L. and S., defendant paid a substantial portion of their expenses. In return for his financial contributions, defendant said Susie needed to show him \u201csome affection\u201d or he would take her son away from her. Susie, her husband, and L. and S. lived in a trailer near defendant and Polly\u2019s trailer. Eventually, defendant had sexual intercourse with Susie in the back bedroom of his trailer while her husband was at work, her children were at school, and her mother was gone. Defendant threatened to have Susie\u2019s stepdaughters sent away and raise her son himself if she told anyone.\nPatricia A. Bryant (hereinafter Patricia), Susie\u2019s sister and Polly\u2019s other daughter, also testified for the State. She stated that defendant often intervened on her behalf when her mother would start to whip or beat her. As she got older, defendant began kissing her on the mouth instead of on the cheek. Patricia testified that on one evening when she was twelve or had just turned thirteen (approximately 1966), defendant got into the shower as she was taking her shower and began caressing her. He then placed her arms on the wall, lifted her leg, and had sex with her in the shower. Patricia had previously been sexually abused by her grandfather who had always told her to be submissive, so she was completely submissive with defendant. Defendant made it clear to Patricia that if she told anyone, he would not protect her from her mother anymore. Patricia eventually attempted to commit suicide. When Patricia awoke in the hospital, her mother, Polly, told her that if she revealed the abuse to anyone, she would send her away to an insane asylum. Thereafter, Patricia stayed away from defendant and spent a lot of nights with her brother Larry and his wife, Vickie Brewer Wright (hereinafter Vickie).\nVickie was the third witness whose testimony was offered to show a common plan by defendant to sexually abuse adolescent female family members. She was twelve when she first met the defendant. In 1964 when she was fourteen, she married defendant\u2019s sixteen-year-old son, Larry Frazier. While the couple were newlyweds, they lived with defendant and Polly. Vickie testified that she looked up to defendant because he took care of her and Larry financially. She also stated that defendant had a \u201chold over [her]\u201d because he showed her the attention that her husband and father never did. Approximately one week before her first child was bom, she and Larry moved in with defendant\u2019s sister for a short time. Vickie and Larry then moved into their own home. Defendant began stopping by every evening to see how the baby was. Vickie testified that one day when she was fifteen and her husband was at work, defendant led her into the bedroom and had sexual intercourse with her. After Larry began working third shift, defendant dropped by Vickie\u2019s house \u201ca lot of mornings\u201d between five and six and he would have sexual intercourse with her. Vickie testified that she did not want for it to happen, but that she \u201cwas too young and afraid to say anything about it.\u201d This conduct continued for approximately two years until Vickie finally confided in Patricia.\n\u201cNorth Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges.\u201d State v. Jacob, 113 N.C. App. 605, 608, 439 S.E.2d 812, 813 (1994), citing State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990). To be admissible as showing a common plan, the evidence of prior conduct must be similar and not too remote in time. State v. Jones, 322 N.C. 585, 589, 369 S.E.2d 822, 824 (1988), appeal dismissed and disc. review denied, 328 N.C. 95, 402 S.E.2d 423 (1991).\nDefendant first argues that the testimony by Susie and Vickie should not have been admitted because it was not sufficiently similar to the conduct for which defendant stood trial. A prior act or crime is \u201csimilar\u201d if it \u201c \u2018tend[s] to support a reasonable inference that the same person committed both the earlier and later acts.\u2019 \u201d State v. Sneeden, 108 N.C. App. 506, 510, 424 S.E.2d 449, 451 (1993) (quoting State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994). In Sneeden, 108 N.C. App. at 510, 424 S.E.2d at 451, this Court found that a 1967 prior act by defendant was sufficiently similar to the 1990 charged act where in both instances, \u201cdefendant gained the trust of his victims, lured them into an automobile and then took them to a different location where they were sexually assaulted.\u201d Here, all five females testified that defendant looked after them when they were young and began his misconduct by touching them and fondling them. Defendant began to touch them more invasively as they grew older. Defendant had sexual intercourse with all but one of them. Defendant convinced each of them to remain quiet about the abuse by threatening to send them away or by threatening to stop taking care of their financial needs. Based on Sneeden, we conclude the evidence of prior acts of sexual abuse by defendant was sufficiently similar to the acts described by L. and S. to be admissible at trial. All of the witnesses testified to similar forms of abuse which demonstrated a distinct pattern over a protracted period. While Susie\u2019s testimony that defendant forced her to have sex with him when she was twenty-four did not precisely parallel the testimony of the other witnesses, we hold that the conduct was not so dissimilar as to render it not part of defendant\u2019s pattern of sexual conduct with youthful female family members.\nDefendant also argues that the testimony of Susie, Vickie, and Patricia was too remote in time to be admissible. In making this argument, defendant relies on State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988), a case involving alleged sexual abuse by a man against his stepdaughter. In Jones, the court held that the testimony of a female who stated she had previously been subjected to similar sexual abuse by the defendant was inadmissible because the prior sexual abuse had occurred seven years earlier and was too remote in time. Jones, 322 N.C. at 591, 369 S.E.2d at 825. Jones does not control here.\nSince Jones, our courts have permitted testimony of prior acts of sexual misconduct which occurred greater than seven years earlier. In State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989), our Supreme Court held it was not error for the trial court to admit the testimony of sisters of the victim where the sisters testified that their father had also sexually abused them. There, the defendants\u2019 prior sexual misconduct with the sisters occurred during a twenty year period. Shamsid-Deen, 324 N.C. at 447, 379 S.E.2d at 848.\nHere, the testimony offered by Susie, Patricia, and Vickie showed that defendant\u2019s prior acts of sexual abuse occurred over a period of approximately twenty six years.\nWhile a lapse of time between instances of sexual misconduct slowly erodes the commonality between acts and makes the probability of an ongoing plan more tenuous, the continuous execution of similar acts throughout a period of time has the opposite effect. When similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan.\nState v. McKinney, 110 N.C. App. 365, 372, 430 S.E.2d 300, 304 (quoting State v. Shamsid-Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847 (1989)), appeal dismissed, cert. denied and disc. review denied, 334 N.C. 437, 433 S.E.2d 182 (1993) (citation omitted). When there is a period of time during which there is no evidence of sexual abuse, the lapse does not require exclusion of the evidence if the defendant did not have access to the victims during the lapse. State v. Jacob, 113 N.C. App. 605, 611, 439 S.E.2d 812, 815 (1994); State v. Davis, 101 N.C. App. 12, 20, 398 S.E.2d 645, 650 (1990).\nHere, the evidence showed that defendant sexually abused Patricia in 1966 and Vickie from 1966 to 1968. From 1968 until 1976, there was no evidence of sexual abuse by defendant, but the evidence showed that defendant did not have access to Patricia and Vickie during that time. In 1976 when Susie was sixteen, defendant began sexually abusing her; the evidence showed that defendant\u2019s sexual abuse of Susie continued until 1985 except when defendant did not have access to her. Four years later, defendant began sexually abusing L., one of the two minor victims in this case. Based on Jacob, we conclude the eight year lapse did not render the witnesses\u2019 testimony too remote to be admissible. Accordingly, this assignment of error fails.\nII.\nDefendant also argues that the trial court erred by allowing the State to cross-examine defendant because the questions were prejudicial. Specifically, defendant argues he was prejudiced by the prior bad acts testimony because he was required to defend against those allegations in addition to the pending charges. In making this argument, defendant relies on State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, disc. review allowed, 317 N.C. 336, 346 S.E.2d 503, disc. review dismissed as improvidently granted, 318 N.C. 652, 350 S.E.2d 94 (1986), a case where the defendant was accused of sexually abusing and attempting to rape a woman. On cross-examination, the prosecution asked the defendant if he had not previously attempted to rape another woman. Bailey, 80 N.C. App. at 680, 343 S.E.2d at 436. The cross-examination questions were designed to rebut the defendant\u2019s defense of consent. We held that this cross-examination was improper under Rule 404(b) because evidence of other non-consensual sexual activity was not relevant to the issue of the victim\u2019s consent. Defendant\u2019s reliance on Bailey is misplaced because here defendant\u2019s prior misconduct was not admitted on the issue of consent.\nHowever, the trial court erred in allowing the State to cross-examine defendant about alleged prior acts of sexual misconduct. Rule 608(b) of the North Carolina Rules of Evidence provides that a witness may not be cross-examined about specific instances of misconduct unless the instances are probative of the witness\u2019s character for truthfulness or untruthfulness. G.S. 8C-1, Rule 608(b). Instances of sexual misconduct are not probative of a witness\u2019s character for truthfulness or untruthfulness. State v. Gordon, 316 N.C. 497, 506, 342 S.E.2d 509, 514 (1986); State v. Morgan, 315 N.C. 626, 635, 340 S.E.2d 84, 90 (1986); State v. Moore, 103 N.C. App. 87, 99, 404 S.E.2d 695, 702, disc. review denied, 330 N.C. 122, 409 S.E.2d 607 (1991). Here, defendant testified and denied he had ever sexually abused any of the witnesses. The State then cross-examined defendant about his prior acts of sexual misconduct. While it was error for the trial court to allow this cross-examination, the error does not require us to grant defendant a new trial because \u201cthere is no \u2018reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u2019 \u201d Gordon, 316 N.C. at 506, 342 S.E.2d at 514, quoting G.S. 15A-1443(a). As in Moore, 103 N.C. App. at 99, 404 S.E.2d at 702, where we held the error did not require a new trial, here evidence of defendant\u2019s alleged prior acts of sexual misconduct had already been admitted through the testimony of Susie, Vickie, and Patricia. Accordingly, \u201cany cross-examination of defendant concerning [these prior acts] was merely cumulative.\u201d Id.\nDefendant also argues that he was prejudiced by the State\u2019s cross-examination questions concerning his wife, Polly. Specifically, defendant argues he was prejudiced when the State asked about (1) Polly threatening to hurt Vickie if defendant had sexual intercourse with Vickie again; (2) Polly trying to show defendant the breasts of a pregnant woman; and (3) Polly fondling a child\u2019s penis. This cross-examination was irrelevant and should have been excluded. Defendant argues he is entitled to a new trial based on our Supreme Court\u2019s decision in State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987). In Kimbrell, 320 N.C. at 769, 360 S.E.2d at 694-95, our Supreme Court found cross-examination by the State about defendant\u2019s \u201cdevil worshipping\u201d had little or no probative value in the case, was error, and required defendant to receive a new trial. Defendant\u2019s reliance on Kimbrell is misplaced. Here, the improper questions related to Polly\u2019s actions rather than defendant\u2019s actions. Defendant has failed to show that absent this error, the outcome of his trial would have been different. Accordingly, we conclude defendant is not entitled to a new trial based on the trial court\u2019s error.\nIII.\nDefendant next argues that the trial court erred by allowing improper and prejudicial cross-examination of two defense witnesses. Defendant first objects to the State\u2019s questioning Polly about fondling her grandson\u2019s penis and attempting to show defendant a pregnant woman\u2019s breast. Defendant also argues that the trial court erred in allowing the State to question Polly about a photograph defendant took of Polly and defendant having sexual intercourse which Polly allegedly showed to S. Defendant further argues that the trial court should not have allowed the State to ask Polly whether she had previously had sexual relations with her son-in-law and whether she called Patricia a whore when she was a child. While it was error pursuant to Rule 608(b) for the trial court to allow the State to cross-examine Polly about specific instances of sexual misconduct because they were not probative of Polly\u2019s veracity, the error does not require a new trial. The testimony did not prejudice defendant\u2019s case because, as we indicated above, the questions related to Polly\u2019s conduct rather than defendant\u2019s actions. After reviewing the record, we conclude there is not a reasonable possibility that, absent the error, the outcome of the trial would have been different.\nDefendant also argues the trial court erred in allowing the State to cross-examine Polly about whether she had attempted to get L. and S. to change their stories. Rule 608(b) allows a witness to be cross-examined about specific instances of conduct if they are probative of the witness\u2019s veracity. Our Supreme Court has previously stated that conduct which is probative of veracity includes \u201cattempting to corrupt or cheat others . .. and attempting to deceive or defraud others.\u201d State v. Morgan, 315 N.C. at 635, 340 S.E.2d at 90. Based on the guidance supplied by Morgan, we conclude the cross-examination by the State about L. and S. fits within the type of questioning allowed by the Rules of Evidence; the trial court did not err in allowing it.\nDefendant also argues it was improper to allow the State to ask defense witness Barbara Jean Frazier (hereinafter Barbara Jean), over objection, if she, defendant, and defendant\u2019s wife would \u201cdo anything in this case to get a verdict of not guilty.\u201d Barbara Jean is the wife of Polly\u2019s son, John Billy Frazier, Jr. Rule 611(b) of the North Carolina Rules of Evidence provides that the scope of cross-examination is extremely broad: \u201cA witness may be cross-examined on any matter relevant to any issue in the case, including credibility.\u201d G.S. 8C-1, Rule 611(b). We conclude the State\u2019s questioning here was probative on the issue of Barbara Jean\u2019s credibility as a witness. Accordingly, the trial court did not err in allowing this cross-examination.\nDefendant also argues that the State impeached Polly\u2019s testimony that she never attempted to show Marsha Frazier\u2019s (hereinafter Marsha) breasts to defendant by questioning Marsha about this event. Marsha had previously been married to John Billy Frazier, Jr. Pursuant to Rule 608(b) of the North Carolina Rules of Evidence, it was improper for the State to use extrinsic evidence (Marsha\u2019s testimony) to attack Polly\u2019s denial that she never attempted to show Marsha\u2019s breasts to defendant.\nDefendant argues that the trial court\u2019s error requires a new trial, as our Supreme Court required in State v. Williams, 322 N.C. 452, 368 S.E.2d 624 (1988). There, the victim accused the defendant of raping her, but the defendant insisted that he was innocent. Williams, 322 N.C. at 453, 368 S.E.2d at 625. The defendant\u2019s brother-in-law testified on defendant\u2019s behalf. On cross-examination, the brother-in-law denied that the defendant had ever told him that he had sex with the victim on the night of the alleged rape. Id. The State then called two rebuttal witnesses who testified that the brother-in-law had told them that the defendant admitted raping the victim. Id. at 454, 368 S.E.2d at 625-26. Our Supreme Court stated that the \u201cquestion of defendant\u2019s guilt hing[ed] solely upon whether the jury believed his testimony or the prosecutrix\u2019s testimony.\u201d Id. at 457, 368 S.E.2d at 627. The court concluded in Williams that if the testimony had not been erroneously admitted, there was a reasonable possibility that the outcome of the trial might have been different and awarded the defendant a new trial. Id.\nHere, Marsha was a rebuttal witness to challenge the truthfulness of Polly\u2019s testimony \u2014 not defendant\u2019s testimony. The erroneously admitted evidence pertained to a collateral matter. Therefore, we conclude that the admission of this testimony did not prejudice defendant because there is no reasonable possibility that its exclusion would have changed the outcome of this case.\nDefendant further argues that the trial court improperly allowed the State on rebuttal to impeach the testimony of Barbara Jean by asking Marsha whether Barbara Jean had ever called Social Services to report anyone in the family for sexual abuse or neglect. After reviewing the record, we conclude there was no error. Even if admission of this testimony was error, defendant has not shown how it prejudiced him. See G.S. 15A-1443(a) (stating that \u201c[t]he burden of showing . . . prejudice [requiring a new trial] ... is upon the defendant\u201d).\nIV.\nDefendant next argues that the trial court erred by allowing improper comments, conduct, and arguments by the prosecutor. Generally, \u201carguments of counsel are within the domain of the trial [court\u2019s] discretion.\u201d State v. Brooks, 113 N.C. App. 451, 458, 439 S.E.2d 234, 238 (1994). Although the State is obligated to assure that a defendant is given a fair trial, \u201ccounsel is given wide latitude in the argument of hotly contested trials.\u201d State v. Barfield, 298 N.C. 306, 331, 259 S.E.2d 510, 531 (1979), cert. denied, 448 U.S. 907, 65 L.Ed.2d 1137 (1980).\nThis was a hotly contested sexual abuse case. It is clear that the prosecutor became argumentative at times by, inter alia, accusing witnesses of not being truthful on the witness stand, questioning Polly\u2019s morals, and calling defendant a \u201cmonster.\u201d However, at trial, no objection was made to several of the prosecutor\u2019s comments of which defendant now complains. When no objection is made regarding inappropriate argument by the prosecutor during trial, a new trial is not merited unless the argument \u201c \u2018so infected the trial with unfairness as to make the resulting conviction a denial of due process.\u2019 \u201d State v. McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993), cert. denied, - U.S. -, 129 L.Ed.2d 895 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 91 L.Ed.2d 144, 157 (1986)). After reviewing the prosecutor\u2019s comments here to which defendant made no objection, we conclude the prosecutor\u2019s arguments were not so prejudicial as to meet the McCollum standard.\nAs for the prosecutor\u2019s other inappropriate comments, defendant relies on State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994), to argue for a new trial. In Brooks, the defendant was on trial for murdering his stepdaughter\u2019s boyfriend. Brooks, 113 N.C. App. at 452-53, 439 S.E.2d at 235-36. During argument to the jury, the prosecutor characterized the defendant as a \u201c \u2018liquor-drinking, dope-smoking, defendant.\u2019 \u201d Brooks, 113 N.C. App. at 458, 439 S.E.2d at 238. The prosecutor also commented on defendant\u2019s past abusive behavior toward his wife. Id. Because the prosecutor\u2019s comments were unrelated to the defendant\u2019s murder charge, we concluded that the comments were \u201ccalculated to prejudice and to inflame the jury.\u201d Id. at 458, 439 S.E.2d at 238. Accordingly, we held that defendant Brooks was entitled to a new trial. Id. at 459, 439 S.E.2d at 239.\nBrooks is distinguishable from this case because in Brooks, the trial court failed to sustain an objection to the inappropriate comments of the prosecutor. Id. at 459, 439 S.E.2d at 238-39. Here, the trial court sustained defendant\u2019s objections to the majority of the prosecutor\u2019s other inappropriate statements. In particular, after the prosecutor referred to defendant and Polly as \u201cLj]ust as evil and just as sorry and just as mean as two despicable people could ever be on this earth,\u201d it appears that the trial court sustained defendant\u2019s objection. While defendant did not move to strike the prosecutor\u2019s statement, it is clear that by sustaining defendant\u2019s objection, the trial court indicated its disapproval of the prosecutor\u2019s comment. We conclude the prosecutor\u2019s comment regarding defendant and Polly does not merit a new trial for defendant. Furthermore, after carefully reviewing the pertinent portions of the trial transcript, we conclude that none of the prosecutor\u2019s inappropriate comments were so prejudicial as to merit a new trial for defendant. This assignment of error fails.\nV.\nDefendant also argues that the trial court erred by denying his motions for a mistrial. The trial court has wide discretion in controlling the conduct of counsel during trial. State v. Davis, 80 N.C. App. 143, 147, 341 S.E.2d 101, 103 (1986). G.S. 15A-1061 provides that the trial court may declare a mistrial when conduct occurs which results in \u201csubstantial and irreparable prejudice to the defendant\u2019s case.\u201d Here, the prosecutor remarked that a man and woman were making noises as witnesses testified. The trial court then excused the jury and out of the jury\u2019s presence warned everyone in the courtroom to refrain from making noises. Defendant\u2019s counsel made a motion for mistrial, arguing that the prosecutor\u2019s actions prejudiced the defendant. The trial court admonished the prosecutor, denied the motion for mistrial, and the jury returned. On this record, we conclude defendant sustained no \u201csubstantial and irreparable prejudice\u201d as a result of the prosecutor\u2019s comment.\nDefendant\u2019s counsel also moved for a mistrial after the prosecutor asked Polly about a meeting with defendant\u2019s counsel. In Barfield, 298 N.C. at 333-34, 259 S.E.2d at 532, the defendant argued she was prejudiced after the prosecutor asked an improper question of a witness. Our Supreme Court concluded that the defendant was not prejudiced because the defendant\u2019s counsel made a timely objection and the witness did not respond to the question. Barfield, 298 N.C. at 334, 259 S.E.2d at 532. Here, defendant\u2019s counsel objected immediately after the prosecutor asked his question, Polly did not respond to the question, and the trial court sustained the objection. Accordingly, this assignment of error fails.\nVI.\nFinally, defendant argues the trial court erred by denying defendant\u2019s motion to dismiss because there was a fatal variance between the dates of abuse alleged in the indictments and the evidence presented at trial. Defendant\u2019s argument fails. In child sexual abuse cases, specificity regarding dates diminishes. State v. Burton, 114 N.C. App. 610, 613, 442 S.E.2d 384, 386 (1994). In State v. Everett, 328 N.C. 72, 399 S.E.2d 305 (1991), our Supreme Court stated:\nWe have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child\u2019s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.\nEverett, 328 N.C. at 75, 399 S.E.2d at 306, quoting State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984). Here, defendant argues that his reliance on an alibi defense made the dates crucial. However, the record shows that defendant did not rely solely on an alibi defense. Defendant also denied that he had ever sexually abused the victims; defendant and several of his witnesses testified that the victims fabricated the stories of abuse. Furthermore, our Supreme Court has stated that a defendant is not prejudiced when the State has \u201cplaced [the] defendant on notice that the victim [is] a child and therefore the information provided [relating to dates and times] should not be relied upon for any degree of certainty.\u201d State v. Effler, 309 N.C. 742, 750, 309 S.E.2d 203, 207-08 (1983). Here, the indictments alleged that defendant\u2019s sexual misconduct occurred \u201con or about\u201d certain dates. In addition, the State argued that the dates alleged in the indictments were not precise because the victims could not be expected to remember precisely every date on which the multiple instances of sexual abuse occurred. We conclude the State took adequate measures to put defendant on notice that the dates alleged should not be relied upon for any degree of certainty.\nAfter careful review of the entire record, we conclude that defendant .received a fair trial free of prejudicial error.\nNo prejudicial error.\nJudge LEWIS concurs.\nJudge JOHN dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge John\ndissenting.\nI respectfully dissent and vote to award defendant a new trial based upon the reasons which follow.\nFirst, the majority holds the trial court erred \u201cin allowing the State to cross-examine defendant about alleged prior acts of sexual misconduct\u201d and concerning alleged misconduct of his wife, in allowing \u201cthe State to cross-examine [defendant\u2019s wife] about specific instances of [her] sexual misconduct,\u201d and in permitting \u201cthe State to use extrinsic evidence\u201d to attack the denial by defendant\u2019s wife of sexual misconduct. It also characterizes certain statements of the prosecutor to the jury as \u201cinappropriate\u201d and \u201cargumentative.\u201d However, the majority excuses as not requiring a new trial each of the foregoing prosecutorial transgressions tolerated by the trial court. I disagree and would hold that, even assuming arguendo defendant has not shown that the prejudicial effect of any one particular error is such as to merit a new trial, see N.C. Gen. Stat. \u00a7 15A-1443(a) (1988), the prejudicial impact of these errors considered in combination or in to to is such that defendant must receive a new trial. See State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992) (cumulative effect of erroneously admitted evidence \u201cdeprived defendant of his fundamental right to a fair trial\u201d).\nSecond, I believe the evidence of defendant\u2019s alleged prior sexual misconduct should have been excluded and that its admission, especially in light of the errors found by the majority, constituted prejudicial error requiring a new trial. Under N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1992), evidence of prior offenses by a defendant is \u201cinadmissible on the issue of guilt if its. only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged . . . .\u201d State v. Young, 317 N.C. 396, 412, 346 S.E.2d 626, 635 (1986).\nThe majority relies primarily on State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842 (1989), in approving the testimony of Susie Barnes, Patricia Bryant, and Vickie Wright as indicative of a common scheme or plan of defendant. In Shamsid-Deen, the defendant was charged with the August 1983 rape of his approximately twenty year-old daughter. He objected to testimony that he began having intercourse with her about once a week when she was nine and almost daily as she grew older. The Court observed these acts\nformed a distinct pattern of forced sexual intercourse over an eleven-year period, saving only the hiatus from April 1983 to August 1983.\nId. at 445, 379 S.E.2d at 847. As the majority points out, the Court emphasized that \u201ca lapse of time between instances of sexual misconduct\u201d makes the \u201cprobability of an ongoing plan more tenuous,\u201d while similar acts \u201cperformed continuously over a period of years\u201d serve to demonstrate \u201cthe existence of a plan.\u201d Id. (emphasis added).\nRegarding testimony by two other daughters of the defendant, the Shamsid-Deen court noted these women had also been molested by their father as they reached puberty and continuously into their adult lives, Id. at 447, 379 S.E.2d at 848, logically a period spanning about ten years. Since the defendant\u2019s daughters were relatively close in age \u2014 twenty, twenty-seven, and twenty-nine at trial \u2014 the abuse of each must therefore have occurred in close temporal proximity to that of the others, thus reinforcing the Court\u2019s emphasis on the constant nature of \u201cdefendant\u2019s pattern of forcing his daughters to submit to intercourse as they reached puberty and continuing to assault them . . . into their adulthood . . . .\u201d Id. (emphasis added).\nIn the case sub judice, the earliest conduct \u201cupon which this appeal is based,\u201d State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824 (1988), was alleged to have occurred on 12 March 1990 (in case 92 CRS 2831 charging the first degree rape of L.). Susie Barnes testified about occasional sexual touching and comments by defendant in the period when she was sixteen into her early twenties, as well as about intercourse with defendant at age twenty-four in 1983. Thus, defendant\u2019s last abusive contact with Barnes occurred approximately seven years before the first alleged offense sub judice.\nPatricia Bryant testified that after \u201cseveral months\u201d of touching her inappropriately, defendant raped her when she \u201chad either already [become] thirteen or was just between twelve and thirteen.\u201d Born in 1953, Bryant would have been thirteen in 1966. The rape therefore occurred twenty-four years prior to the earliest alleged current offense.\nVickie Wright testified she had sexual intercourse with defendant \u201cmaybe once a month, every two months\u201d for approximately two years, from 1966 to 1968, when she was fifteen to seventeen years-old. Thus, the incidents involving Wright and defendant concluded twenty-two years prior to the earliest conduct upon which defendant was brought to trial.\nIn Jones, 322 N.C. 585, 369 S.E.2d 822, our Supreme Court held that prior acts of sexual abuse which occurred seven years before the incidents involved in the case before the Court were too remote to be allowed into evidence as part of a common plan or scheme. The Court reasoned:\nthe passage of time between the commission of the two acts slowly erodes the commonality between them. The probability of an ongoing plan or scheme then becomes tenuous. Admission of other crimes at that point allows the jury to convict defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.\nId. at 590, 369 S.E.2d at 824.\nThe Jones court cited the earlier decision of State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982), which found erroneous admission of evidence concerning acts committed but seven months prior to the crimes before the Court. The Shane court stated:\nit is evident that the period of time elapsing between the separate sexual events plays an important part in [the] balancing process, especially when the State offers the evidence of like misconduct to show the existence of a common plan or design for defendant\u2019s perpetration of this sort of crime.\nId. at 655, 285 S.E.2d at 820.\nAlso instructive is State v. Gross, 104 N.C. App. 97, 408 S.E.2d 531, disc. review denied, 330 N.C. 444, 412 S.E.2d 78 (1991), in which this Court found error in the admission of evidence the defendant had sexually assaulted an individual, Michael Reep, approximately seven years before the crimes alleged in the case before the Court. We held that:\n[t]he passage of time between the alleged assaults upon Mr. Reep and those against the victims here is so great as to make the existence of any plan or scheme tenuous at best.\nId. at 103, 408 S.E.2d at 534.\nThe majority accurately points to our Supreme Court\u2019s characterization of itself as \u201cmarkedly liberal\u201d in admitting evidence of \u201cprior, similar sex offenses by a defendant.\u201d See State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). However, that same Court has proclaimed:\nThe period of seven years \u201csubstantially negate[s] the plausibility of the existence of an ongoing and continuous plan to engage persistently in such deviant activities.\u201d As such, the reasoning that gave birth to Rule 404(b) exceptions is lost.\nJones, 322 N.C. at 590, 369 S.E.2d at 824 (citation omitted).\nThe Jones court\u2019s pronouncement is precisely on point with regards to the testimony of Barnes, involving an identical interval of seven years between incidents. I respectfully submit the Court\u2019s decree also most assuredly precludes admission of evidence, as part of a common scheme or plan, of incidents separated from the instant charges by periods of twenty-two and twenty-four years.\nIn justifying such incidents as not being excessively remote, the majority also relies on cases in which this Court has found the length of an interval between incidents less significant when defendant had no access to the victims because, for example, defendant was incarcerated. See State v. Jacob, 113 N.C. App. 605, 439 S.E.2d 812 (1994); State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990), appeal dismissed, 328 N.C. 574, 403 S.E.2d 516 (1991). I suggest that access to potential victims and the absence of evidence of abuse would, by means of converse analogy, weigh against the element of commonality. Unlike the majority, I believe the record demonstrates significant periods of time during which defendant had \u201caccess\u201d to Barnes, Bryant, and Wright and during which there was no evidence of abuse.\nFor example, the majority concedes the record contains no evidence of sexual abuse by defendant between 1968 and 1976, but asserts \u201cthe evidence showed that defendant did not have access to Patricia [Bryant] and Vickie [Wright] during that time.\u201d To the contrary, the record reveals that after defendant ceased having intercourse with Wright in 1968, she continued to live near him until 1972 when she separated from his son. Further, although the record suggests Bryant attempted to avoid defendant after he abused her in 1966, she did continue to spend time in his home. Finally, the record reflects that Barnes lived near defendant in a trailer owned by him from approximately 1983 until 1993. Nonetheless, the rape of Barnes was described as occurring in 1983 and no other evidence of similar conduct towards Barnes by defendant was introduced. The necessary element of commonality regarding Barnes\u2019 testimony is thus further negated. See Jacobs, 113 N.C. App. at 611, 439 S.E.2d at 815 (Where defendant had \u201calmost no access\u201d to victims of earlier conduct following divorce, the Court noted, \u201c[t]he remoteness factor must be examined carefully to determine whether the plan or scheme of molestation was interrupted or ceased due to underlying circumstances, and then resumed in a continual fashion.\u201d).\nIn sum, I believe the evidence of incidents allegedly involving defendant and Barnes, Bryant and Wright was too remote and that \u201cits probative impact [was] so attenuated by time that it [became] little more than character evidence illustrating the predisposition of the accused.\u201d Jones, 322 N.C. at 590, 369 S.E.2d at 825. It therefore was not admissible under Rule 404(b) to demonstrate a common scheme or plan of defendant. Moreover, the extensive lapse of time between each incident and those for which defendant was on trial created the substantial likelihood \u201cof unfair prejudice, confusion of the issues, or misleading the jury,\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992), so as at a minimum to necessitate exclusion of the evidence under Rule 403.\nFinally, the prejudicial effect of Bryant\u2019s testimony regarding defendant was amplified by her also being allowed to relate over his objection that, before ever meeting defendant, she had been sexually molested by her grandmother\u2019s common-law husband and by her mother\u2019s live-in boyfriend. Bryant testified graphically about this abuse, including recounting an instance of being sodomized while pinned in a stand used to milk goats. These incidents, while indisputably reprehensible and traumatic to Bryant, were irrelevant to the charges against defendant and should have been excluded. See State v. Coen, 78 N.C.App. 778, 780-781, 338 S.E.2d 784, 786, appeal dismissed, 317 N.C. 709, 347 S.E.2d 444 (1986) (\u201cIf the proffered evidence has no tendency to prove a fact in issue in the case, the evidence is irrelevant and must be excluded.\u201d). Even assuming arguendo this testimony met the test of relevance, it should have been excluded under N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992) in view of the great potential for prejudice. See State v. Hamilton, 77 N.C.App. 506, 335 S.E.2d 506 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986) (relevant evidence may be excluded if probative value substantially outweighed by inflammatory effect).", "type": "dissent", "author": "Judge John" } ], "attorneys": [ "Attorney General Michael F. Easley, by Investigative Law Clerk/Attorney Sondra C. P\u00e1nico, for the State.", "Steven F. Bryant for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN BILLY FRAZIER\nNo. COA94-1140\n(Filed 5 December 1995)\n1. Evidence and Witnesses \u00a7 373 (NCI4th)\u2014 common plan or scheme to abuse adolescent female family members\u2014 admissibility of evidence\nIn a prosecution of defendant for taking indecent liberties with a child and rape, the trial court did not err in admitting testimony which tended to demonstrate a common plan or scheme by defendant to sexually abuse adolescent female family members, and there was no merit to defendant\u2019s contentions that the testimony was not sufficiently similar to the conduct for which he stood trial and that the testimony was too remote in time to be admissible, since all the females in this case testified that defendant looked after them when they were young and began his misconduct by touching them and fondling them; defendant began to touch more invasively as they grew older; defendant had sexual intercourse with all but one of them; defendant convinced each of them to remain quiet about the abuse by threatening to send them away or by threatening to stop taking care of their financial needs; all of the witnesses thus testified to similar forms of abuse which demonstrated a distinct pattern over a protracted period; defendant\u2019s prior acts of sexual abuse occurred over a period of approximately twenty-six years; and an eight-year lapse in defendant\u2019s abusive conduct did not render the witnesses\u2019 testimony too remote to be admissible. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Rape \u00a7\u00a7 71, 73.\nAdmissibility, in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.\nRemoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offenses. 88 ALR3d 8.\nAdmissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix. 2 ALR4th 330.\n2. Evidence and Witnesses \u00a7 3058 (NCI4th)\u2014 defendant\u2019s prior sexual misconduct \u2014 cross-examination improperly allowed \u2014 defendant not prejudiced\nIn a prosecution of defendant for taking indecent liberties with a child and rape, the trial court erred in allowing the State to cross-examine defendant about prior acts of sexual misconduct involving other female family members after defendant denied he had abused those family members, since a witness may be cross-examined about specific instances of misconduct only if the instances are probative of the witness\u2019s character for truthfulness or untruthfulness, and instances of sexual misconduct are not probative of a witness\u2019s character for truthfulness or untruthfulness; however, defendant was not prejudiced by such error where evidence of defendant\u2019s alleged prior acts of sexual misconduct had already been admitted through the testimony of other witnesses. N.C.G.S. \u00a7 8C-1, Rule 608(b)\nAm Jur 2d, Evidence \u00a7\u00a7 409, 418, 430; Witnesses \u00a7\u00a7 965, 966, 968, 969.\nAdmissibility, in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.\nAdmissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix. 2 ALR4th 330.\n3. Evidence and Witnesses \u00a7 2891 (NCI4th)\u2014 sexual misconduct by wife \u2014 cross-examination of defendant \u2014 absence of prejudice\nA defendant charged with taking indecent liberties and rape failed to show that he was prejudiced by the State\u2019s cross-examination of him concerning acts of sexual misconduct by his wife.\nAm Jur 2d, Evidence \u00a7\u00a7 404-412; Witnesses \u00a7\u00a7 811, 812.\nAdmissibility of evidence of commission of similar crime by one other than accused. 22 ALR5th 1.\n4. Evidence and Witnesses \u00a7 3058 (NCI4th)\u2014 cross-examination of defendant\u2019s wife \u2014 sexual misconduct\u2014 absence of prejudice\nWhile it was error for the trial court to allow the State to cross-examine defendant\u2019s wife about specific instances of sexual misconduct committed by her because they were not probative of her veracity, ^defendant was not prejudiced by this error since the questions related to the wife\u2019s conduct rather than defendant\u2019s actions. N.C.G.S. \u00a7 8C-1, Rule 608(b).\nAm Jur 2d, Evidence \u00a7\u00a7 404-412; Witnesses \u00a7 904.\nAdmissibility of evidence of commission of similar crime by one other than accused. 22 ALR5th 1.\n5. Evidence and Witnesses \u00a7 3033 (NCI4th)\u2014 defendant\u2019s wife \u2014 attempt to get victims to change stories \u2014 probative of veracity\nThe State could properly cross-examine the wife of a defendant on trial for taking indecent liberties with children and rape about whether she had attempted to get the victims to change their stories since such specific instances of conduct are probative of the wife\u2019s veracity. N.C.G.S. \u00a7 8C-1, Rule 608(b).\nAm Jur 2d, Evidence \u00a7 404; Witnesses \u00a7\u00a7 902, 903.\n6. Evidence and Witnesses \u00a7 2873 (NCI4th)\u2014 cross-examination of defense witness \u2014 actions to get not guilty verdict\u2014 probative of credibility\nThe State\u2019s cross-examination of a defense witness in a prosecution for rape and taking indecent liberties with children as to whether she, defendant, and defendant\u2019s wife would \u201cdo anything in this case to get a verdict of not guilty\u201d was probative of the credibility of the witness and was permissible under N.C.G.S. \u00a7 8C-1, Rule 611(b).\nAm Jur 2d, Evidence \u00a7 434; Witnesses \u00a7\u00a7 811, 878-880, 885, 886.\n7. Evidence and Witnesses \u00a7 3064 (NCI4th)\u2014 impeachment\u2014 extrinsic evidence to rebut denial \u2014 collateral matter\u2014 absence of prejudice\nIn a prosecution of defendant for rape and taking indecent liberties with children, it was improper for the State to use extrinsic evidence to rebut the denial by defendant\u2019s wife that she had attempted to show the breasts of another woman to defendant by questioning the other woman about this event, but this rebuttal testimony did not prejudice defendant because it pertained to a collateral matter. N.C.G.S. \u00a7 8C-1, Rule 608(b).\nAm Jur 2d, Witnesses \u00a7\u00a7 992-994, 998.\n8. Criminal Law \u00a7 433 (NCI4th)\u2014 prosecutor\u2019s closing argument \u2014 remarks about defendant and his wife \u2014 new trial not required\nThe prosecutor\u2019s closing arguments in a trial for rape and taking indecent liberties accusing witnesses of not being truthful on the witness stand, questioning the morals of defendant\u2019s wife, and calling defendant a \u201cmonster,\u201d to which defendant made no objection, were not so prejudicial as to require a new trial. Nor is defendant entitled to a new trial based upon the prosecutor\u2019s reference to defendant and his wife as \u201cjust as evil and just as sorry and just as mean as two despicable people could ever be on this earth\u201d where the trial court indicated its disapproval of this comment by sustaining defendant\u2019s objection thereto.\nAm Jur 2d, Trial \u00a7\u00a7 681, 682, 692, 693.\nNegative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial \u2014 modern cases. 88 ALR4th 8.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n9. Criminal Law \u00a7 545 (NCI4th)\u2014 prosecutor\u2019s remarks about spectators \u2014 mistrial denied\nDefendant was not entitled to a mistrial where the prosecutor remarked that a man and woman were making noises as witnesses testified; the trial court then excused the jury and out of the jury\u2019s presence warned everyone in the courtroom to refrain from making noises; defendant\u2019s counsel made a motion for mistrial, arguing that the prosecutor\u2019s actions prejudiced defendant; and the trial court admonished the prosecutor, denied the motion for mistrial, and the jury returned.\nAm Jur 2d, Trial \u00a7\u00a7 254, 255, 566.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n10. Indictment, Information, and Criminal Pleadings \u00a7 53 (NCI4th)\u2014 alleged variance between indictment and proof \u2014 no error\nIn a prosecution of defendant for taking indecent liberties with a minor and rape, there was no merit to defendant\u2019s contention that there was a fatal variance between the indictments and the evidence presented at trial, since specificity regarding dates diminishes in child abuse cases, the indictments alleged that defendant\u2019s sexual misconduct occurred \u201con or about\u201d certain dates, and the State took adequate measures to put defendant on notice that the dates alleged should not be relied upon for any degree of certainty.\nAm Jur 2d, Indictments and Informations \u00a7 267.\nPropriety and effect of amendment of indictment, or of variance between indictment and proof \u2014 Supreme Court cases. 85 L. Ed. 2d 878.\nJudge John dissenting.\nAppeal by defendant from judgments and commitments entered 4 March 1994 by Judge James C. Davis in Northampton County Superior Court. Heard in the Court of Appeals 29 August 1995.\nIn January and March of 1993, defendant was indicted for ten counts of taking indecent liberties with a child and for two counts of first degree rape. The named victims of defendant\u2019s alleged crimes were his two stepgranddaughters (referred to as L. and S.).\nAt trial, fourteen-year-old L. testified that defendant began touching her inappropriately on her \u201cbutt [and] boobies\u201d when she was nine or ten. She testified that one day when she was ten and was in defendant\u2019s trailer, defendant\u2019s wife, Polly Frazier (hereinafter Polly) told her to go in their bedroom to get a cake as a reward for helping Polly clean the trailer. Polly left for town and when L. went into the bedroom to get her reward, defendant grabbed her and pushed her on the bed. Defendant took off L.\u2019s clothes and had intercourse with her. L. said that she started crying and told defendant to stop because he was hurting her, but defendant told her to shut up. After he was finished, defendant told her to put her clothes back on and not to tell anyone or he would \u201csend [her] away.\u201d L. stated that she did not tell anyone because defendant had threatened to send her away and she did not think anyone would believe her. L. testified that defendant raped her a second time when she was eleven or twelve when she and defendant were alone in defendant and Polly\u2019s trailer. After defendant was finished, he once again told L. that if she told anyone, he would send her away.\nL. eventually told her cousin, Tammy, that defendant \u201chad messed with\u201d her. This disclosure occurred after Polly took L. to a doctor who told them that L. needed to be on birth control pills. L. then told her sister, S., who told L. that defendant had also \u201cmessed with her,\u201d but that defendant had not had sexual intercourse with her. L. then disclosed the sexual abuse to the school psychiatrist and a . police detective.\nSixteen-year-old S. also testified. She stated that defendant began touching her inappropriately when she was thirteen and that the conduct occurred two to three times per week until she was fifteen. Defendant would fondle her breasts and stick his hand down her pants. Defendant told S. not to tell anyone. S. did not tell anyone until after L. revealed that defendant had sexually abused her.\nOver defendant\u2019s objection, the trial court admitted the testimony of three female members of defendant\u2019s family who told how defendant sexually abused them when they were young girls.\nDefendant took the stand and denied ever sexually abusing L. or S. Several witnesses, including Polly, offered testimony to establish alibis for dates listed in the indictments when defendant had allegedly abused L. and S. Several people also testified to defendant\u2019s good character in the community.\nAt the close of the evidence, the jury found defendant guilty of all charges. The trial court sentenced defendant to two consecutive life sentences. Defendant appeals.\nAttorney General Michael F. Easley, by Investigative Law Clerk/Attorney Sondra C. P\u00e1nico, for the State.\nSteven F. Bryant for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 35, "last_page_order": 57 }