{
  "id": 9250759,
  "name": "STATE OF NORTH CAROLINA v. FRANKIE RAY SMITH",
  "name_abbreviation": "State v. Smith",
  "decision_date": "2002-09-03",
  "docket_number": "No. COA01-1154",
  "first_page": "514",
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    "judges": [
      "Judges MARTIN and TIMMONS-GOODSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FRANKIE RAY SMITH ."
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nDefendant was indicted on two counts of taking indecent liberties with a child and one count of first degree sex offense with a female child under the age of thirteen. Following a jury trial, defendant was convicted on all three counts. Defendant was sentenced to three concurrent terms of imprisonment. Defendant appeals.\nThe State\u2019s evidence tended to show that the alleged victim, \u201cA.R.,\u201d was twelve years old at the time of the alleged sexual offenses and fourteen years old at the time of the trial. A.R. testified that defendant, her stepfather, often made comments about the way she dressed (\u201c[Y]ou should wear pants that are tighter because they look better on your butt.\u201d), about her breasts, and about her \u201cbutt.\u201d These comments made A.R. feel uncomfortable. On 22 February 1999, A.R.\u2019s mother spent the night away from home, while A.R. stayed at home with defendant and defendant\u2019s daughter, Julie. Sometime around midnight, A.R. was lying in bed when she heard defendant come down the hallway and into her bedroom. Defendant allegedly pulled down the covers, ran his hand up A.R.\u2019s shirt, and rubbed her left breast for approximately ten minutes. A.R. did not move and did not let defendant know that she was awake because she was afraid that he would hurt her. A.R. did not initially tell anyone about this first alleged incident of sexual abuse.\nThe second alleged incident of sexual abuse occurred on 1 April 1999. A.R. testified that her mother had not returned home from work and that she and Julie were packing for a trip to Virginia. A.R. went into defendant\u2019s bedroom to tell him that Julie\u2019s bed had broken. A.R. sat down on the hope chest while defendant was lying in bed watching television. A.R. testified that she got a cramp in her calf and started rubbing it. Defendant then picked her up from the hope chest and laid her on the bed on her stomach. Defendant began rubbing her calf and then \u201cworked his way up and into [her] shorts and into [her] underwear.\u201d Defendant then stuck his finger in A.R.\u2019s vagina and kept it there for \u201cmaybe five minutes.\u201d After he removed his finger from A.R.\u2019s vagina, defendant asked her, \u201cAre you mad at me? Did I hurt you? Are you mad at me, [A.R.]?\u201d A.R. pretended to be asleep because she was afraid of what defendant might do to her. Defendant went into the bathroom and A.R. remained on the bed pretending to be asleep. When defendant came out of the bathroom, he again asked, \u201c[A.R.], are you mad at me? [A.R.], did I hurt you?\u201d A.R. continued to act as if she were asleep. Defendant then picked her up, carried her into her own bedroom, and laid her on the bed.\nJacqueline Joiner (\u201cJacqueline\u201d), A.R.\u2019s aunt, testified that A.R. told her about the April 1 incident approximately three days after it occurred. According to Jacqueline\u2019s testimony, A.R.\u2019s exact words to her were, \u201c[Defendant] stuck his finger in me.\u201d Jacqueline told A.R.\u2019s mother, Denise Joiner, about the alleged April 1 incident the following day.\nDenise Joiner (\u201cDenise\u201d) testified that she remembered coming home on the night of 1 April 1999 and noticing that A.R. had been crying. Denise asked what was wrong, to which A.R. responded, \u201cI just don\u2019t feel well, mom ... I just \u2014 I don\u2019t know, I just don\u2019t feel good.\u201d Denise further testified that, when she questioned A.R. about the alleged April 1 incident, A.R. described the incident consistently with her testimony at trial. Denise reported the alleged sexual abuse to the Dare County Sheriff\u2019s Office and took A.R. to see a therapist. During the investigation, A.R. reported the alleged* February incident in which defendant had rubbed her left breast.\nTwo of defendant\u2019s co-workers, Jeff Moss (\u201cMoss\u201d) and Donald Rouse (\u201cRouse\u201d), also testified for the State. Both Moss and Rouse testified that defendant had made sexual comments about A.R. while at work. Moss testified that defendant had made comments about A.R.\u2019s breasts and \u201chow well she looked for her age,\u201d and that defendant told him that he had once become aroused due to the T-shirt and underwear that A.R. wore around the house. Further, Moss testified that defendant had made the comment \u201cthat there was no blood in the child to him, that it could lead to something.\u201d\nRouse also testified that defendant made comments about A.R.\u2019s breasts. In addition, Rouse testified that defendant told him of an occasion on which A.R. got out of the shower and was walking through the living room with an oversized T-shirt on and that defendant made the comment \u201cthat if she didn\u2019t stop dressing like that that something was going to happen.\u201d Rouse further testified that defendant once made the comment, \u201cOld enough to bleed, old enough for me.\u201d As a result of defendant\u2019s sexual comments, Rouse filed a complaint against defendant with social services.\nMichelle Zimmerman (\u201cZimmerman\u201d), a psychiatrist certified as a specialist in child psychiatric nursing and tendered and accepted as an expert in child sexual abuse, testified that she examined A.R. over the course of several months beginning in August 1999. Zimmerman stated that A.R. told her that defendant had come into her room in February and put his hands up her sweatshirt, and that on 1 April 1999 she had been digitally penetrated by defendant. Zimmerman diagnosed A.R. as suffering from post-traumatic stress disorder, and testified that sexual assault was a common cause of post-traumatic stress disorder. Zimmerman further testified that it was not unusual for a child sexual abuse victim not to immediately disclose the abuse due to fear of getting in trouble or retaliation.\nJennifer Marquis (\u201cMarquis\u201d) also testified for the State. Marquis stated that she knew defendant when she was a teenager and would occasionally babysit for him. On one occasion when Marquis was fifteen years old, she went over to defendant\u2019s house to babysit. Defendant left for a short time and then returned to fix supper. Marquis and defendant ate supper and defendant made them mixed drinks. After drinking a mixed drink, Marquis went out on the patio with defendant and smoked some marijuana. The two then came back inside and defendant started trying to fool around with Marquis but Marquis was not interested. Defendant pulled Marquis\u2019 pants off and performed oral sex on her. Marquis testified that she did not want defendant to do so but that she did not fight him off. The next day Marquis was lying on defendant\u2019s bed while he took a shower. When he got out of the shower, defendant lay down beside Marquis and began trying to talk her into \u201cdoing stuff.\u201d Marquis again told defendant that she did not want to mess around with him. Nonetheless, defendant pulled Marquis\u2019 pants down and had sexual intercourse with her. Marquis testified that she told defendant she did not wish to have sex with him, but that she did not \u201chit him or anything like that\u201d in an attempt to fight him off. Marquis did not report her two sexual encounters with defendant until the investigation of defendant\u2019s alleged sexual abuse of A.R. She testified that she did not feel like she had been raped and that she felt she had put herself in position to allow defendant\u2019s actions to occur. She further testified that she continued to see defendant from time to time following the two sexual encounters but that she never had another sexual encounter with him. Marquis\u2019 testimony was admitted under Rule 404(b) of the North Carolina Rules of Evidence for the purpose of showing an absence of mistake on the part of defendant, defendant\u2019s unnatural attraction to young girls, and a common plan or scheme to take advantage of young girls in situations where he had parental or adult responsibility over them.\nOver defendant\u2019s numerous objections, the State also admitted testimony concerning defendant\u2019s possession of pornographic magazines and videos at home and at work.\nDefendant denied all allegations of sexual misconduct and presented witnesses who testified about his reputation. Defendant also presented testimony attacking the credibility of several of the State\u2019s witnesses, including the victim, Donald Rouse and Jennifer Marquis. Defendant contended that A.R. had fabricated the allegations against him and that A.R. had previously made false accusations of a somewhat similar nature against another man.\nDefendant raised twenty-six assignments of error in the record on appeal, several of which defendant has failed to support with argument in his brief. Those assignments of error are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) and we only address those assignments of error brought forward in defendant\u2019s brief.\nDefendant first contends that the trial court erred in admitting evidence of his possession of pornographic magazines and videos. Defendant contends that such evidence was not relevant to the question of whether defendant committed the alleged sexual offenses, and in the alternative, even if the evidence were relevant, its probative value was substantially outweighed by the danger of unfair prejudice under Rule 403 of the North Carolina Rules of Evidence. Defendant additionally alleges that \u201c[t]he only purpose of such inquiries was to besmirch the Defendant\u2019s character.\u201d\nThe State argues that defendant waived his right to object to the admission of the evidence concerning his possession of pornographic magazines and videos, and in the alternative, the evidence was relevant and admissible under Rule 404(b) to show \u201cdefendant\u2019s intent to engage in a sexual relationship with [A.R.].\u201d The State additionally contends that the evidence was admissible to corroborate the voir dire testimony of Jennifer Marquis.\nOn direct examination, the State asked A.R. if defendant had ever asked her to look at a pornographic videotape. A.R. testified that defendant once handed her a video and said, \u201cWatch this.\u201d A.R. asked defendant what the video was and defendant responded, \u201cJust watch it.\u201d A.R. testified that she refused to watch the video because she thought it was a pornographic movie. Defendant\u2019s timely objection to this testimony was overruled by the trial court. A.R. was then asked, again over defendant\u2019s timely objections, if she knew whether defendant kept pornographic videos and magazines in the house. A.R. responded, \u201cI think so, I\u2019m almost positive.\u201d The trial court then allowed defendant\u2019s motion to strike to A.R.\u2019s speculation that she thought defendant kept pornographic videos and magazines in the house.\nThe State also questioned A.R.\u2019s mother, Denise Joiner, about whether defendant kept pornographic videos and magazines in the house and whether he watched the videos. Over defendant\u2019s timely objections, Denise answered in the affirmative to both questions. Denise described the pornographic magazines as \u201cPlayboy, Hustler-type magazines.\u201d\nThe State also questioned two of defendant\u2019s co-workers, Jeff Moss and Donald Rouse, about whether defendant kept pornographic magazines at his workplace. Defendant again objected and the coworkers testified that defendant kept pornographic magazines in his toolbox. Defendant\u2019s sister, Serena Sellers, was also questioned by the State whether defendant kept pornographic materials in the townhouse in which the two of them lived. As with the other instances, defendant made a timely objection.\nDuring the State\u2019s cross-examination of defendant, he was asked whether he kept pornographic magazines and videotapes in the house he shared with A.R. Defense counsel again objected and was overruled. Defendant then answered the State\u2019s questions in the affirmative but asked if he could explain his answer, which the trial court allowed. Defendant then testified:\nI have two \u2014 I had three years of Playboy magazines still in the plastic, okay, for purposes of collector items or what not. I had these magazines since the first three months I lived with Denise and [A.R.]. I had these things packed in a box about yea big (demonstrating) wrapped in duct tape. They stayed in the shed out back away from the house in Chesapeake and downstairs where you drive your car up underneath the beach box-type house we lived in there was four storage doors. That is where that box with the two movies and the pornographic magazines were packed up.\nDefendant went on to testify that he had one pornographic magazine in the house, but no pornographic videos, and that he had never asked A.R. to watch at a pornographic video. Defendant also testified that he had one Penthouse magazine in his toolbox at work.\nUnder Rule 401 of the North Carolina Rules of Evidence, \u201c \u2018[Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.!\u2019 N.C. R. Evid. 401 (2001). As a general rule, evidence of a defendant\u2019s prior conduct, such as the possession of pornographic videos and magazines, is not admissible to prove the character of the defendant in order to show that the defendant acted in conformity therewith on a particular occasion. N.C. R. Evid. 404(b) (2001). However, such evidence of prior conduct is admissible so long as it is relevant to some purpose other than to show the character of the defendant and the defendant\u2019s propensity for the type of conduct for which he is being tried. See State v. Rael, 321 N.C. 528, 534, 364 S.E.2d 125, 129 (1988); State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986); State v. Doisey, 138 N.C. App. 620, 626, 532 S.E.2d 240, 244, disc. review denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 1177, 148 L. Ed. 2d 1015 (2001). Examples of such proper purposes include \u201cproof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.\u201d N.C. R. Evid. 404(b).\nAfter careful review of the record, we are unable to agree with the State\u2019s contention that the evidence of def\u00e9ndant\u2019s possession of pornographic magazines and videos was properly admitted as evidence of \u201cdefendant\u2019s intent to engage in a sexual relationship with [A.R.],\u201d or as evidence of defendant\u2019s preparation, plan, knowledge or absence of mistake. See Doisey, 138 N.C. App. at 626, 532 S.E.2d at 244 (evidence that the defendant placed a camcorder in a bathroom used by children and taped the activities in the bathroom was not properly admitted to show \u201cdesign or scheme to take sexual advantage of children\u201d); State v. Hinson, 102 N.C. App. 29, 36, 401 S.E.2d 371, 375 (1991) (evidence that the defendant possessed photographs depicting himself in women\u2019s clothing, dildos, lubricants, vibrators and two pornographic books, was not properly admitted to show \u201cproof of intent, preparation, plan, knowledge and absence of mistake,\u201d in sexual offense case involving seven-year-old victim); State v. Maxwell, 96 N.C. App. 19, 24, 384 S.E.2d 553, 556 (1989) (evidence that the defendant frequently appeared nude in front of his children and had fondled himself in presence of daughter was not properly admitted to show \u201cdefendant\u2019s plan or scheme to take advantage of his daughter\u201d). Evidence of defendant\u2019s mere possession of pornographic materials does not tend \u201cto make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.\u201d N.C. R. Evid. 401. The only evidence that defendant attempted to expose A.R. to pornographic materials was A.R.\u2019s testimony that defendant once asked her to watch a video but would not tell her what the video was about. A.R. then speculated that she thought the video was a pornographic movie. However, the trial court allowed defendant\u2019s motion to strike A.R.\u2019s speculation. There was no evidence presented that defendant showed A.R. pornographic materials at the time of the alleged crimes or that the two of them had ever viewed pornographic materials together. Without more, A.R.\u2019s mere speculation that defendant had attempted to get her to watch what she thought was a pornographic movie, is not enough to make the evidence of defendant\u2019s possession of pornographic materials relevant to the crimes with which he was charged. But see Rael, 321 N.C. at 534, 364 S.E.2d at 129 (evidence of pornographic videos and magazines seized from the defendant\u2019s house properly admitted to corroborate the victim\u2019s testimony that the defendant had shown him such material at the time of the alleged crimes); State v. Williams, 318 N.C. 624, 632, 350 S.E.2d 353, 358 (1986) (evidence that the defendant had taken his daughter, the victim, to an x-rated movie and told her to watch the scenes depicting graphic sexual acts properly admitted to prove the defendant\u2019s \u201cspecific sexual intent, preparation and plan with regard to his daughter\u201d).\nWe agree with defendant\u2019s contention that the only purpose of such evidence was to impermissibly inject defendant\u2019s character into the case to raise the question of whether defendant acted in conformity with his character at the times in question. As a rule, substantive evidence of a defendant\u2019s past misconduct is generally excluded when its only logical relevancy is to suggest the defendant\u2019s propensity or predisposition to commit the type of offense for which he is charged. State v. Shane, 304 N.C. 643, 653-54, 285 S.E.2d 813, 820 (1982); Maxwell, 96 N.C. App. at 25, 384 S.E.2d at 557. We hold that evidence of defendant\u2019s possession of pornographic materials, without any evidence that defendant had viewed the pornographic materials with the victim, or any evidence that defendant had asked the victim to look at pornographic materials other than the victim\u2019s mere speculation, was not relevant to proving defendant committed the alleged offenses in the instant case and should not have been admitted by the trial court.\nWe further disagree with the State\u2019s contention that the evidence was admissible to corroborate the voir dire testimony of Jennifer Marquis that she and defendant had once looked at a pornographic magazine together. This testimony was never presented to the jury and thus cannot be the basis for admission of otherwise irrelevant testimony. Finally, we disagree with the State\u2019s contention that defendant waived any objection to the admission of evidence concerning his possession of pornographic materials by testifying on cross-examination as to such possession. The record shows that defense counsel consistently objected to questions concerning defendant\u2019s possession of pornographic materials throughout the trial. When the State asked defendant on cross-examination whether he kept pornographic magazines in the house, defense counsel again objected. The trial court overruled defense counsel\u2019s objection and defendant answered the question. Defendant then testified to his possession of both pornographic magazines and videotapes. Having timely objected when the State began its line of questioning concerning defendant\u2019s possession of pornographic materials, defendant was not required to enter another objection. Accordingly, defendant did not waive objection to the admission of this evidence.\nHowever, we agree with the State that the trial court\u2019s admission of evidence of defendant\u2019s possession of pornographic material does not rise to the level of prejudicial error under N.C. Gen. Stat. \u00a7 15A-1443. The State presented A.R.\u2019s testimony that defendant came into her room in February 1999, placed his hand up her shirt, and rubbed her breast. A.R. further testified that on 1 April 1999, defendant inserted his finger in her vagina. A.R.\u2019s mother testified that when she came home on the night of 1 April 1999 she noticed that A.R. had been crying and that something was wrong. A.R.\u2019s mother also testified that A.R.\u2019s statements to her concerning what defendant had done on April 1 were consistent with A.R.\u2019s testimony at trial. Michelle Zimmerman also testified that AR.\u2019s statements to her concerning the alleged sexual abuse were consistent with A.R.\u2019s testimony at trial. Zimmerman also provided expert testimony that, following the alleged instances of sexual abuse, A.R. suffered from post-traumatic stress disorder, which Zimmerman testified can be caused by sexual assault. Finally, the State presented evidence that defendant had made sexually graphic and suggestive comments about A.R. to two of his co-workers. In light of this evidence, we hold that defendant has not shown a reasonable possibility that, had the trial court not admitted evidence of his possession of pornographic videos and magazines, a different result would have been reached at the trial. See N.C.G.S. \u00a7 15A-1443. Admission of the evidence, therefore, was not prejudicial error entitling defendant to a new trial.\nDefendant next contends that the trial court erred in not allowing testimony from A.R.\u2019s mother that A.R. had watched the movie Crush. Defendant argues that testimony about the movie Crush would have corroborated defendant\u2019s theory of defense \u2014 that A.R. had fabricated the allegations against him in order to further her own interests.\nOn cross-examination, defense counsel asked Denise Joiner if A.R. had watched Crush a day or two before the alleged April 1 incident. The State objected. The trial court removed the jury from the courtroom and conducted a voir dire hearing. Denise testified that she and A.R. had watched the movie together, that A.R. had seen the movie more than once, but that she wasn\u2019t sure about the time frame between the last time A.R. watched Crush and the alleged April 1 incident. Denise also testified about the plot of the movie as follows:\nIt\u2019s a girl who has a crush on this man that moved into their guesthouse or whatever, she had a crush on him and she wanted him to pay her attention and he didn\u2019t. I mean, he did pay her attention but not to the \u2014 the magnitude that she wanted and she did ugly things to people that were in his life, his girlfriend and things like that. And initially she said that he had raped her when he had not.\nAfter hearing Denise\u2019s testimony, the trial court sustained the State\u2019s objection to the admission of any evidence concerning the fact that A.R. had watched the movie. The record does not state the basis of the trial court\u2019s decision to sustain the State\u2019s objection.\nDefendant contends that evidence that A.R. had watched the movie Crush was relevant to corroborate other evidence tending to show that A.R. was disgruntled over her mother\u2019s marriage to defendant, was unhappy about moving to North Carolina, and wanted to return to Virginia. We disagree.\nThe testimony before the trial court concerning the movie Crush only showed that A.R. had watched it on more than one occasion and that the plot involved a girl who made a false rape accusation against an older man who would not pay enough attention to her. There was no testimony tending to show that the details of the movie\u2019s plot were similar to the facts in the instant case. In fact, the two situations appear to be dissimilar, in that here A.R. was allegedly sexually abused by her stepfather, to whom there is no evidence that she was in any way attracted, while in the movie the young girl was attracted to the older man and was upset that the man would not pay enough attention to her. In addition, there was no evidence presented that A.R. had discussed the movie with her mother, or others, or had in any way indicated that the movie made her consider making an accusation against defendant in order to further her own interests. Accordingly, we agree with the State that evidence concerning A.R.\u2019s viewing of Crush was not relevant and was properly excluded.\nDefendant next contends that the trial court erred in not allowing testimony by A.R.\u2019s former neighbor that A.R. had falsely accused him of an improper touching four years prior to defendant\u2019s alleged acts of sexual abuse. Defendant maintains that the neighbor\u2019s testimony was admissible to show AR.\u2019s knowledge of how a young girl could raise accusations against a man with impunity and her intent and plan to make such accusations against defendant.\nOn cross-examination, defense counsel attempted to ask A.R. about her earlier accusation of improper touching against the neighbor. The State objected and the jury was removed from the courtroom. Defense counsel explained that he intended to question A.R. about the accusation and that he also intended to call the neighbor to the stand to deny that the alleged incident took place. The trial court conducted a voir dire hearing in which A.R. testified that the neighbor touched her on the abdomen, kissed her on the cheek, and told her how pretty she was. The alleged incident occurred when A.R. was nine years old. Following arguments of counsel, the trial court first ruled under Rule 412 of the North Carolina Rules of Evidence that it would not allow the testimony of the neighbor, but that it would allow defendant to question A.R. about the accusation. Before bringing the jury back in, the trial court reconsidered the issue and ultimately concluded under Rule 403 of the North Carolina Rules of Evidence that he would not allow defendant to question A.R. about the prior accusation because of the likelihood that it would confuse the jury.\nLater in the trial, during the direct examination of defense witness Serena Sellers, defendant\u2019s sister, the trial court excluded her testimony concerning A.R.\u2019s previous \u201callegation against [the] neighbor for some touching that proved to be false.\u201d However, on redirect examination, Serena Sellers testified without objection that Denise Joiner, A.R.\u2019s mother, told her that A.R.\u2019s previous allegation against the neighbor was a \u201cfalse report.\u201d Serena Sellers then testified at length about the issue on redirect and recross.\nAt the close of defendant\u2019s case, apparently as a result of the testimony of Serena Sellers, the trial court informed the jury that it had reconsidered its earlier ruling and would now allow defendant to question A.R. concerning the previous accusation against the neighbor. A.R. was then questioned by both defense counsel and the State concerning the previous accusation. Following A.R.\u2019s testimony, defendant did not ask the trial court to further reconsider its earlier ruling that the neighbor not be allowed to testify. Having failed to offer the testimony of the neighbor, or otherwise request that the trial court allow the neighbor to testify at that time, defendant waived his right to argue on appeal that the trial court erred in excluding the neighbor\u2019s testimony.\nDefendant next contends that the trial court erred in allowing the testimony of Jennifer Marquis concerning defendant\u2019s previous sexual activity with her when she was fifteen years old.\nOn voir dire, Marquis testified that she had two sexual encounters with defendant while she was babysitting for him. One night, after the two of them consumed mixed drinks and smoked marijuana together, defendant started trying to fool around with Marquis. Marquis testified that she told defendant she was not interested. Nonetheless, defendant pulled Marquis\u2019 pants off and performed oral sex on her. Marquis testified that she told defendant she did not want him to do so but that she didn\u2019t fight him off. The next morning, Marquis was lying on defendant\u2019s bed waiting for him to take a shower so he could take her home. When defendant got out of the shower, he lay down beside Marquis and tried to start \u201cmessing around.\u201d Marquis again testified that she told defendant she was not interested. Defendant pulled down her pants and had sexual intercourse with her. Marquis again testified that the sexual encounter was not consensual but that she did not attempt to fight defendant.\nFollowing Marquis\u2019 testimony on voir dire, the trial court decided to allow Marquis\u2019 testimony under Rule 404(b). The trial court concluded that the evidence was relevant to show absence of mistake and a common plan or scheme, specifically that defendant took advantage of young girls in situations where he had parental or adult responsibility for them. The evidence was also admitted to show defendant\u2019s unnatural attraction to young girls. Following Marquis\u2019 testimony to the jury, the trial court gave a proper limiting instruction that the evidence was only to be considered for the limited purpose of showing an absence of mistake and defendant\u2019s plan, scheme, or design.\nThe courts of this State have been markedly liberal in admitting evidence of prior sexual misconduct of a defendant for the purposes cited in Rule 404(b). See State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated on other grounds by Artis v. North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990); State v. Frazier, 319 N.C. 388, 390, 354 S.E.2d 475, 477 (1987). The use of evidence permitted under Rule 404(b) is guided by two constraints: similarity and temporal proximity. Artis, 325 N.C. at 299, 384 S.E.2d at 481. When the features of the earlier act are similar to the offenses with which the defendant is currently charged and the stretch of time between the instances is not too remote, such evidence has probative value. Id. The similarity between the prior conduct and the crime with which the defendant is charged \u201cneed not rise to the level of the unique and bizarre, but must tend to support a reasonable inference that the same person committed both the earlier and the later acts.\u201d State v. Gary, 348 N.C. 510, 521, 501 S.E.2d 57, 65 (1998).\nIn the instant case, defendant was charged with sexual misconduct with a twelve year old which consisted of rubbing her breast and digitally penetrating her vagina. Marquis testified that, when she was fifteen years old, defendant had sexual intercourse and performed oral sex on her without her consent. While this Court appreciates the age difference between Ms. Marquis and the victim in the instant case, and the fact that Ms. Marquis never reported the alleged sexual encounters between her and defendant to the authorities until the investigation in the instant case, we conclude that those distinctions go to the weight of Ms. Marquis\u2019 testimony and not to its admissibility. We conclude that defendant\u2019s conduct with the two women was sufficiently similar and proximate in time to support its admission under Rule 404(b).\nWe write further to voice our disapproval of the trial court\u2019s refusal to let defense counsel question Ms. Marquis on voir dire, as well as the trial court\u2019s failure to show on the record that it performed the balancing test set forth under Rule 403. However, we do not feel that either of these mistakes rises to the level of error. Assuming, arguendo, that these mistakes were error, we conclude that they do not rise to the level of prejudicial error under N.C. Gen. Stat. \u00a7 15A-1443 in light of the other convincing evidence presented at trial.\nIn defendant\u2019s final contention, he argues that the trial court abused its discretion and violated his constitutional right to be present at trial in refusing to grant a continuance or mistrial due to defendant\u2019s illness. We disagree.\nOn one of the days of trial, defendant twice ran out of the courtroom to go to the restroom. Defense counsel subsequently informed the trial court that defendant was nauseated and moved that the trial be continued until the next day. The trial court agreed to let defendant see a doctor but indicated that he would not continue the trial if the only problem was defendant\u2019s nervous stomach. The trial court allowed the examination of the witness on the stand to be completed and recessed court to allow defendant to see a doctor.\nDefendant was examined by a doctor during the recess. The doctor wrote the following note, which was presented to the trial court:\nIn re: Franklin Smith [Defendant]\nMr. Smith was found to have a highly elevated blood pressure. He needs further evaluation by his own physician. In addition, he was treated for the nausea and vomiting. He should not continue with his court today.\nThe note was signed, Walter Holton, M.D. Defense counsel informed the trial court that the doctor had treated defendant\u2019s nausea with Phenergan 25, which defense counsel contended was a sedative. The trial court was also informed that defendant\u2019s blood pressure was 152 over 118 and approximately fifteen minutes later was 145 over 105.\nThe State then called to the stand the sheriff\u2019s deputy who had escorted defendant to the doctor. The deputy testified that defendant had predicted that his blood pressure would be 160 over 108 and that defendant told the nurse that he had suffered from a blood pressure problem for quite awhile. Following arguments of counsel, the trial court made the following ruling:\nThe Court has observed the defendant, has observed his assistance to you this morning and in the last five minutes. And also would make the personal observation that he looks no different than he has looked the whole week. Been red-faced the whole week. Also, the Court will find that he knew about his high blood pressure, that he has been medicated for the nausea and that he is able to assist you in the defense of the matter and the motion to continue is denied.\nFollowing this ruling, counsel for defendant called his remaining witnesses and then put defendant on the stand himself to testify. Prior to defendant taking the stand, defense counsel did not renew his motion to continue. At the beginning of his testimony, defendant stated that he felt sleepy and was having trouble putting words together. Later in his testimony, defendant stated he was having trouble paying attention and attributed it to the drugs the doctor had given him. However, at no time during defendant\u2019s testimony did defense counsel renew the motion to continue.\nAt the close of the evidence, defendant moved for a mistrial based on the trial court\u2019s refusal to continue the trial the previous day due to defendant\u2019s illness. The trial court recited the events of the previous day and ruled as follows:\nThe Court was addressed \u2014 or notified that the defendant felt bad yesterday morning, and had been throwing up but no request was made of the Court to stop the proceedings at that point. And the defendant did become physically ill and the Court allowed him to be excused and stopped the proceedings twice, I think, while he did that.\nAt about 11 o\u2019clock the Court was requested to stop the proceedings and allow the defendant to be examined, which the Court did. The defendant was examined. The examination revealed that the defendant was aware of his high blood pressure, symptoms which he had had for some time and neglected to treat, knew about before this proceeding. Defendant was \u2014 and testified that the proceedings had made him physically ill and Court will take judicial notice that that is a possibility for any defendant faced with what this defendant is facing and the possibilities of that. And Court has observed the defendant throughout the proceedings, his physical appearance has not changed since Monday. And he has shown \u2014 other than getting physically ill yesterday morning prior to being treated, he has shown the same physical traits and conduct that he\u2019s shown from the very beginning of the proceedings on Tuesday.\nCourt observed the defendant throughout his testimony and observed that he answered the questions, understood the questions, had detailed answers to the questions, supplied testimony that was responsive to the questions and gave examples, dates in response to the questions, and cannot find that the defendant was unable to proceed with his case or to assist in his defense and denies the motion to mis-try the action.\nA motion for a continuance, and here the motion for a mistrial after no continuance was granted, \u201cis ordinarily addressed to the sound discretion of the trial court and its ruling is not subject to review absent abuse of discretion.\u201d State v. Thomas, 294 N.C. 105, 111, 240 S.E.2d 426, 431 (1978). However, where the motion is based on a constitutional right, \u201cthe question presented is one of law and not discretion, and the ruling of the trial court is reviewable on appeal.\u201d Id. \u201cWhether a defendant bases his appeal upon an abuse of judicial discretion or a denial of his constitutional rights, he must show both that there was error in the denial of the motion and that he was prejudiced thereby before he will be granted a new trial.\u201d Id. at 111, 240 S.E.2d at 431-32.\nIn State v. Rhodes, 202 N.C. 101, 161 S.E. 722 (1932), the defendant moved for a continuance on 5 March 1931 on the ground that he was not physically able to go to trial, and produced two certificates, each signed by a reputable physician, indicating the defendant\u2019s \u201chighly nervous state\u201d and the probability of a nervous collapse or breakdown. The motion was denied and the case was set for trial the following Monday, 9 March 1931. The case was not called at that time but the trial court requested that a physician examine the defendant. The physician found no organic disease, attributed the defendant\u2019s condition to large doses of hypnotic drugs, and expressed the opinion that under certain conditions the defendant would soon be able to undergo the trial. The case was finally called on 11 March 1931 and the defendant\u2019s motion to continue was again overruled. On appeal, the Supreme Court held that the trial court\u2019s denial of the defendant\u2019s motion for a continuance was not an abuse of discretion, because the trial court \u201cmade a careful and patient investigation of the circumstances pending the several motions of the defendant and refused a continuance after sufficient opportunity for reflection.\u201d Id. at 103, 161 S.E. at 723.\nIn State v. Ipock, 242 N.C. 119, 86 S.E.2d 798 (1955), the defendant moved for a continuance on the ground that he was physically unable to attend court. In support of the motion, the defendant presented a doctor\u2019s note advising home care. The Supreme Court held that, since the doctor\u2019s note did not say that the defendant was unable to stand trial or that a trial would endanger his health, the trial court did not abuse its discretion in denying the defendant\u2019s motion to continue.\nIn State v. Bacon, 326 N.C. 404, 390 S.E.2d 327 (1990), the defendant became ill during jury selection. A doctor was summoned who examined the defendant and reported that the defendant\u2019s blood pressure was fine, his pulse \u201cwas a little high which is understandable,\u201d and \u201cI think he\u2019s basically fit to undergo the trial.\u201d Id. at 415, 390 S.E.2d at 333. Jury selection resumed. Defendant objected and was allowed to state how he felt on the record. The defendant indicated that he had a headache and an upset stomach and was having difficulty paying attention to what the jurors were saying, but that his condition had not affected his abilitiy to understand the charges against him. The trial court noted that the defendant appeared well and refused to grant a continuance. The trial court requested that defense counsel let it know if the defendant was unable to communicate with him. Defense counsel never so informed the trial court. The Supreme Court stated that the defendant failed \u201cto demonstrate even one occasion where he was unable to comprehend the proceedings or to communicate his opinions of the jurors to his counsel as a result of his alleged illness.\u201d Id. at 416, 390 S.E.2d at 334. Accordingly, the Supreme Court found no abuse of discretion by the trial court.\nIn the case sub judice, the trial court allowed defendant to be examined by a doctor who indicated that defendant \u201cshould not continue with his court today,\u201d due to his elevated blood pressure and his treatment for nausea and vomiting. The doctor\u2019s note did not state that defendant was physically unable to stand trial or that the trial would endanger defendant\u2019s health. See Ipock, 242 N.C. at 120, 86 S.E.2d at 800. The record shows that the trial court considered the doctor\u2019s opinion, but then reached its own conclusion based on its personal observation that defendant was able to assist in his defense. Defendant was then called to the stand and testified. The trial court observed defendant throughout his testimony and concluded that defendant understood the questions, gave detailed answers to the questions, and was able to assist in his defense. Having reviewed defendant\u2019s testimony, we agree with the trial court that defendant was responsive to counsel\u2019s questions and provided clear testimony. Accordingly, we conclude that the trial court did not err in denying defendant\u2019s motion for a continuance and subsequent motion for a mistrial.\nIn conclusion, we hold that the trial court erred in admitting evidence of defendant\u2019s possession of pornographic materials but this error was not prejudicial under N.C. Gen. Stat. \u00a7 15A-1443. Defendant\u2019s remaining assignments of error are overruled.\nNo prejudicial error.\nJudges MARTIN and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Jill B. Hickey, for the State.",
      "Cheshire, Parker, Schneider, Wells & Bryan, by Joseph B. Cheshire, V, and John Keating Wiles, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FRANKIE RAY SMITH .\nNo. COA01-1154\n(Filed 3 September 2002)\n1. Evidence\u2014 indecent liberties prosecution \u2014 possession of pornography \u2014 nonprejudicial error\nThe trial court in a prosecution for indecent liberties and first-degree sexual offense erred in the admission of defendant\u2019s possession of pornographic magazines and videos where there was no evidence that defendant had viewed the materials with the victim, nothing more than speculation that defendant asked the victim to view the materials, the testimony which the materials were supposed to corroborate was never presented to the jury, and defendant did not waive his objection by testifying about the material on cross-examination because he had timely objected when the State began the line of questioning. However, this error was not prejudicial because there was no reasonable possibility of a different result without the evidence.\n2. Evidence\u2014 indecent liberties \u2014 victim watching movie about false accusation \u2014 excluded\nThere was no error in a prosecution for indecent liberties and first-degree sexual offense in the exclusion of evidence that the victim had watched a movie in which a girl with an unrequited crush on an older man made a false accusation of rape. There was no testimony tending to show that the details of the movie\u2019s plot were similar to the facts of this case, and there was no evidence that the victim had discussed the movie with others or had indicated that the movie led her to consider making an accusation against defendant.\n3. Appeal and Error\u2014 exclusion of testimony \u2014 no request to reconsider ruling \u2014 waiver\nThe defendant in a prosecution for indecent liberties and first-degree sexual offense waived the right to argue on appeal that the court erred by excluding testimony by a neighbor of the victim that the victim had falsely accused him of an improper touching four years earlier where defendant failed to request the court to reconsider its ruling prohibiting testimony by the neighbor after the court changed its earlier ruling to permit questioning of the victim about the prior accusation.\n4. Evidence\u2014 indecent liberties \u2014 sexual offenses \u2014 child victim \u2014 prior sexual misconduct with babysitter\nEvidence that defendant had previously engaged in sexual misconduct with a 15-year-old babysitter was admissible under Rule 404(b) in a prosecution for taking indecent liberties and sexual offense with his 12-year-old stepdaughter to show the absence of mistake and defendant\u2019s plan, scheme or design. N.C.G.S. \u00a7 8C-1, Rule 404(b).\n5. Criminal Law\u2014 presence at trial \u2014 defendant nauseated\u2014 continuance denied\nThe trial court did not violate a defendant\u2019s right to be present at trial by refusing to grant a continuance and refusing to grant a mistrial where defendant complained of nausea, was examined by a doctor who recommended that the trial not continue that day, defendant was given medicine which he indicated made him sleepy, and the court made its decision based on personal observation of defendant.\nAppeal by defendant from judgments entered 16 March 2001 by Judge W. Russell Duke, Jr., in Dare County Superior Court. Heard in the Court of Appeals 23 May 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Jill B. Hickey, for the State.\nCheshire, Parker, Schneider, Wells & Bryan, by Joseph B. Cheshire, V, and John Keating Wiles, for defendant-appellant."
  },
  "file_name": "0514-01",
  "first_page_order": 542,
  "last_page_order": 560
}
