{
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  "name": "STATE OF NORTH CAROLINA v. WILLIAM RONNIE BARNETT",
  "name_abbreviation": "State v. Barnett",
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      "STATE OF NORTH CAROLINA v. WILLIAM RONNIE BARNETT"
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      {
        "text": "BEASLEY, Judge.\nDefendant appeals from his conviction of second-degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.3(a). For the reasons stated below, we find no error in part and remand for correction of a clerical error in part.\nThe events giving rise to the charged offense in this case occurred twenty-seven years ago in 1985. The prosecuting witness, T.L., was born on 17 July 1969. Defendant, born in 1959, is her uncle.\nDefendant filed a motion in limine to exclude testimony by T.L. and T.I., Defendant\u2019s daughter, under Rules 404 and 403 of the North Carolina Rules of Evidence. During a voir dire hearing on 25 July 2011, T.L., T.I., and C.M., a niece of Defendant and cousin of T.L. and T.I., testified to Defendant\u2019s prior sexual acts with them. The trial court found a \u201cstrikingly similar pattern\u201d of sexual abuse and admitted the evidence to show motive, common plan, or opportunity. The trial court further found that the evidence was more probative than prejudicial and admitted the evidence subject to a limiting instruction. Defendant renewed his objection prior to each witness\u2019s testimony and each objection was overruled. The trial court gave limiting instructions as to the purposes for which the testimonies were offered at the conclusion of each witness\u2019s testimony.\nAt trial, T.L. testified that in late July or early August of 1985 she and her parents traveled from their home in West Virginia to visit her grandparents in Mooresville, North Carolina. At that time, Defendant lived with his wife, Nancy, in a trailer close to his parents\u2019 (T.L.\u2019s grandparents\u2019) house. T.L., then sixteen years old, and her cousin Gary visited Defendant and Nancy at the trailer. On the way to the trailer, Defendant, Nancy, Gary, and T.L. went to the store and purchased fortified wine and some beer. Defendant, Nancy, Gary, and T.L. played cards, drank alcohol, and smoked marijuana at the trailer. T.L. drank an entire bottle of wine over the course of a couple of hours. T.L. was warm, so Defendant told Nancy to give T.L. a pair of her shorts to wear. After putting on the shorts, T.L. mentioned she had a headache. Nancy gave her a yellow pill to help her headache. T.L. swallowed the pill in the kitchen. After taking the pill, T.L. felt \u201cdizzy,\u201d \u201cwoozy,\u201d and \u201csleepy.\u201d The last thing T.L. remembered was taking another shot of wine. When T.L. awoke, she was in Defendant\u2019s bed. T.L. was no longer wearing Nancy\u2019s shorts. Defendant was on top of her, vaginally penetrating T.L. with his penis. Nancy was also in the room. T.L. told Defendant to stop, tried to push Defendant off, and begged Nancy to help her. T.L. remembered nothing between taking the shot in the kitchen and waking up in the bedroom.\nT.L. recounted Defendant\u2019s prior sexual contact with her. In 1977, Defendant touched T.L.\u2019s breasts on several occasions at her grandparents\u2019 swimming hole. She testified that these encounters always occurred at her grandparents\u2019 house. Defendant would send the others away so that he and T.L. were alone when he touched her. On more than one occasion in 1978, Defendant touched her breasts, put her hand on his penis, and made her rub his penis up and down. These incidents ended when T.L. was about ten years old and her grandparents and Defendant moved to North Carolina.\nIn 1980, Defendant also masturbated in front of T.L. on two occasions. T.L. and her parents were unable to visit her grandparents for about three years due to financial troubles. T.L. visited her grandparents\u2019 house again when she was fifteen years old, but no incidents occurred during that visit.\nT.I. was born on 21 March 1979. T.I.\u2019s mother, Julie Barnett (Julie), was married to Defendant. After her parents separated, T.I. lived primarily with her mother but visited Defendant at her grandparents\u2019 house where Defendant lived. When she was three years old, Defendant digitally penetrated her genitals while bathing her. When she was four years old, Defendant masturbated in front of her in his bedroom. Defendant asked T.I. several times to touch him.\nT.I.\u2019s mother, Julie, also testified. Upon learning that Defendant had molested T.I., Julie called the police and the hospital. Julie received no help from the police or hospital. Julie then purchased a shotgun and shells. On direct examination, Julie stated without objection that she called Defendant\u2019s father and told him to tell Defendant to come over to her house. Julie told Defendant\u2019s father that she was going to kill him \u201cbecause he messed with [her] baby.\u201d Julie repeated this testimony on cross-examination.\nC.M.\u2019s testimony demonstrated a lengthy history of sexual abuse by Defendant. C.M. was born 21 August 1966 and grew up in West Virginia. Defendant lived with his parents, C.M.\u2019s grandparents, ten miles away. C.M. often visited her grandparents\u2019 house with her sister and brothers. When C.M. was four or five years old, Defendant had sexual intercourse with her twice on a bookcase in his bedroom and in the swimming hole. When C.M. was six or seven years old, Defendant had sexual intercourse with her in an old schoolhouse on her grandparents\u2019 property. Defendant showed C.M. sex positions from pornographic magazines and instructed her to imitate the pictures. When C.M. was eight or nine years old, Defendant had sexual intercourse with her at her parents\u2019 house. During several of these occasions, Defendant had sexual intercourse with C.M. and Defendant would send her brothers out of the room to perform these sexual acts. Defendant had sexual intercourse with C.M. many times after that and did not stop until C.M. was eleven years old and began having her menstrual period.\nThe jury convicted Defendant of second-degree rape on 29 July 2011. Defendant stipulated to his prior conviction for DWI in 2003. The State offered the conviction as an aggravating factor. Defendant presented no evidence of mitigating factors. T.L., T.I., and C.M. gave victim impact testimony. Prior to T.I. and C.M. speaking before the court, the prosecutor stated, \u201cI\u2019m sure that the other ladies may want to be heard; but for purposes of sentencing on the second degree rape, your Honor, that\u2019s my offer, [T.L.]. I\u2019ll leave it up to your Honor.\u201d The prosecutor later asked the trial court to \u201ctake into consideration what [Defendant] has done to the lives of these women, and the lives of the women that you haven\u2019t heard from.\u201d Stating that it only considered the prior conviction, the trial court sentenced Defendant to thirty years in prison under the Fair Sentencing Act. The trial court made no written findings of fact. On the judgment, the clerk marked box \u201c(a)\u201d indicating that no written findings were made because the prison term imposed did not require such findings. Defendant now appeals his conviction and sentence.\nDefendant argues that the trial court erred in admitting testimony regarding Defendant\u2019s prior bad acts under Rules 404(b) and 403. We find no error with regard to the admission of prior bad acts with T.L. as part of a common scheme. Assuming arguendo that it was error to admit the testimony of T.I. and C.M., any error was harmless in light of T.L.\u2019s properly admitted testimony.\nThe Supreme Court North Carolina recently clarified the standard of review for admission of evidence under Rules 404(b) and 403.\nWhen the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court\u2019s Rule 403 determination for abuse of discretion.\nState v. Beckelheimer,_N.C.__,__, 726 S.E.2d 156, 159 (2012).\nIn general, evidence of prior bad acts may not be used to show a defendant\u2019s propensity to commit the charged offense. See N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2011). North Carolina courts have generally-been very liberal in admitting evidence of similar sex offenses under Rule 404(b), see State v. McCarty, 326 N.C. 782, 785, 392 S.E.2d 359, 361 (1990), especially under the common plan or scheme exception, see State v. Gordon, 316 N.C. 497, 504, 342 S.E.2d 509, 513 (1986). This state\u2019s courts are also \u201cquite liberal\u201d in admitting similar, prior sex offenses when both the prior offenses and the charged offense involve the same victim. State v. Thompson, 139 N.C. App. 299, 303, 533 S.E.2d 834, 838 (2000).\n\u201cThough it is a rule of inclusion' Rule 404(b) is still \u2018constrained by the requirements of similarity and temporal proximity.\u2019 \u201d Beckelheimer, __ N.C. at_, 726 S.E.2d at 159 (quoting State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002)). A prior act or crime is considered \u201csimilar\u201d under Rule 404(b) \u201cif there are some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both.\u201d State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991)(cita-tions omitted)(internal quotation marks omitted). \u201c[R]emoteness in time tends to diminish the probative value of the evidence and enhance its tendency to prejudice.\u201d State v. Artis, 325 N.C. 278, 300, 384 S.E.2d 470, 482 (1989), vacated and remanded on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Temporal proximity is not eroded when the remoteness in time can be reasonably explained. See State v. Jacob, 113 N.C. App. 605, 611-12, 439 S.E.2d 812, 815-16 (1994)(lack of access to preferred victim); State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990)(incarceration).\nWhen the prior bad acts occur in the same place as the charged offense, our courts have found the prior acts to be similar to the charged offense. See State v. Boyd, 321 N.C. 574, 577-78, 364 S.E.2d at 120 (1988); State v. Thaggard, 168 N.C. App. 263, 271, 608 S.E.2d 774 (2005). When there are still other similarities, prior incidents and the charged offense are not dissimilar even though the charged offense occurred in private and the prior incidents occurred in plain view. State v. Khouri,_N.C. App._,_, 716 S.E.2d 1, 8 (2011).\nIn this case, we hold that the prior acts with T.L. are sufficiently similar to the charged offense. T.L.\u2019s testimony shows a progression from inappropriate touching in 1977 to sexual intercourse in 1985. These assaults occurred where Defendant was living at the time, either his parents\u2019 house in North Carolina or the trailer he shared with his then-wife. Though the prior incident in the bedroom window occurred in plain view while S.M. was present, it is not too dissimilar from the charged offense that is alleged to have occurred in the relative privacy of the bedroom in Nancy\u2019s presence.\nThe prior offenses and the charged offense are also not too remote. Though it appears that there is a five-year gap between the instances when T.L. was eleven years old and the charged incident when T.L. was sixteen years old, T.L.\u2019s testimony provides a reasonable explanation for three years of the gap financial difficulties. Given this reasonable explanation, the lapse is therefore only two years. See Jacob, 113 N.C. App. at 611-12, 439 S.E.2d at 815-16 (ignoring the years in which defendant did not have access to preferred type of victim in analyzing temporal proximity). There is also a lapse of two years between when T.L. was nine years old and when T.L. was eleven years old. We do not find two lapses of two years each to warrant exclusion of T.L.\u2019s testimony regarding prior incidents with Defendant. See State v. Moore, 173 N.C. App. 494, 502, 620 S.E.2d 1, 7 (2005)(holding that seventeen-month lapse was not significant); see also State v. Frazier, 344 N.C. 611, 615-16, 476 S.E.2d at 300 (1996) (citing cases holding lapses of seven years, ten years, and twenty years to be permissible). We hold that the trial court properly admitted T.L.\u2019s testimony to show a common plan.\nEvidence, though relevant, may still be excluded if its \u201cprobative value is substantially outweighed by the danger of unfair prejudice^]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2011). When limiting instructions are given, this Court presumes that the jury follows such instructions. State v. Brown,_N.C. App._,_, 710 S.E.2d 265, 273 (2011), aff\u2019d, _. N.C. _, _, 722 S.E.2d 508 (2012). Limiting instructions mitigate the danger of unfair prejudice to the defendant. See Beckelheimer,_N.C. at_, 726 S.E.2d at 160.\nHere, the probative value of the prior incidents with T.L. outweighs any unfair prejudice to Defendant. The trial court gave the jury a limiting instruction following T.L.\u2019s testimony, and we assume that the jurors followed the instruction. The trial court did not abuse its discretion under Rule 403.\nTurning to the testimonies of T.I. and C.M., their testimonies also show some similarities with the 1985 incident and a progression of sexual abuse. All three women are family members of Defendant. T.L., T.L, and C.M. were all prepubescent girls when Defendant began touching them. Defendant molested them at his home, except for the incident at C.M.\u2019s parents\u2019 house. Though we acknowledge there are some differences between the charged offense and the prior bad acts with T.I. and C.M., prior bad acts with T.I. and C.M. were similar for the purposes of Rule 404(b) and, if not, then any error due to their testimonies was harmless error.\n\u201cThe test for prejudicial error is whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.\u201d State v. Goodwin, 186 N.C. App. 638, 644, 652 S.E.2d 36, 40 (2007) (internal quotation marks and citations omitted). A new trial will only be ordered if the defendant shows prejudicial error. State v. Macon, 346 N.C. 109, 117, 484 S.E.2d 538, 543 (1997).\nThough Nancy\u2019s testimony generally denied T.L.\u2019s version of events and there was no physical evidence from twenty-seven years ago to corroborate T.L.\u2019s testimony, T.L.\u2019s testimony showed a common scheme to molest her. The jury could have regarded Nancy\u2019s testimony as self-serving since T.L.\u2019s testimony painted Nancy in an unflattering light. We cannot say that but for the admission of T.I.\u2019s and C.M.\u2019s testimonies that the jury would not have convicted Defendant; therefore, we find any error in admitting their testimonies harmless.\nNext, Defendant argues that it was plain error to allow Julie to testify that she bought a shotgun and was going to shoot Defendant. We find no error.\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Lawrence,_N.C._,_, 723 S.E.2d 326, 334 (2012)(inter-nal quotation marks and citations omitted).\nThere is no prejudice to the defendant when cross-examination elicits testimony substantially similar to the evidence challenged. State v. Eubanks, 151 N.C. App. 499, 502, 565 S.E.2d 738, 741 (2002). We assumed without deciding that the witnesses\u2019 testimonies were inadmissible under Rule 404(b) but still found no prejudice since the defendant elicited similar testimony on cross-examination. Id.\nIn this case, the particular statements Defendant has selected from Julie\u2019s testimony that he argues were improper were elicited on direct examination without objection as well as on cross-examination. We hold that Defendant was not prejudiced by this evidence, nor was it plain error.\nDefendant argues that the trial court erred by not making written findings in imposing a prison term greater than the presumptive sentence. Defendant also argues that the trial court improperly considered victim impact testimony from T.I. and C.M. who were not prosecuting witnesses and that he was denied due process. We find no legal error as to the lack of written findings for his sentence and remand the case for correction of a clerical error. We find no error in allowing T.I. and C.M. to give victim impact testimony. As Defendant only cursorily argues that he was denied due process and cites no authority in support of his argument, we decline to address that portion of his argument. N.C. R. App. P. 28(b)(6).\nThe State contends that Defendant failed to preserve the sentencing issue for appeal. No objection is necessary to preserve an issue for appellate review when the challenge is that \u201c[t]he sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.\u201d N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2011). The Supreme Court has held that this statute does not conflict with a specific provision of Appellate Rule 10 and operates as a \u201crule or law\u201d that deems a sentencing issue preserved for appellate review. State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917 (2010). We have jurisdiction to hear Defendant\u2019s sentencing argument.\nSentencing in this case is controlled by the Fair Sentencing Act since the rape occurred in 1985. See State v. Lawrence, 193 N.C. App. 220, 222, 667 S.E.2d 262, 263 (2008). Under the Fair Sentencing Act, \u201c \u2018[a] judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u2019 \u201d State v. Vaughters,_N.C. App._,_, 725 S.E.2d 17, 20 (2012)(quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)).\nIf the judge imposes a prison term for a felony that differs from the presumptive term . . ., the judge must specifically list in the record each matter in aggravation or mitigation that he finds proved by a preponderance of the evidence. If he imposes a prison term that exceeds the presumptive term, he must find that the factors in aggravation outweigh the factors in mitigation ....\nN.C. Gen. Stat. \u00a7 15A-1340.4(b) (1991)(repealed 1993). Failure to make written findings regarding the aggravating factors is reversible error, State v. Ledford, 315 N.C. 599, 625, 340 S.E.2d 309, 325 (1986), unless the trial transcript makes it clear that the error was merely clerical, see State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000). No specific findings that the aggravating factors outweigh the mitigating factors are necessary when there is a single aggravating factor. State v. Summerlin, 98 N.C. App. 167, 177, 390 S.E.2d 358, 363 (1990)(citing State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985)). Twelve years was the presumptive sentence for second-degree rape, a Class D felony, under Fair Sentencing. N.C. Gen. Stat. \u00a7\u00a7 14-27.3(b) (1991)(amended 1993), 15A-1340.4(f)(2) (1991)(repealed 1993).\nThe trial court in the instant case imposed a sentence of thirty years, well in excess of the presumptive term. Thus, written findings were required; however, we find no error based on the case law stated above.\nThe prosecutor moved the trial court to consider the conviction, to which Defendant stipulated, as an aggravating factor. The trial court stated that it could properly consider the conviction under the Fair Sentencing Act. Given this context, it is evident that the trial court found an aggravating factor but the incorrect box was marked on the judgment. Thus, we remand the case to correct the clerical error.\nWe find no error in allowing T.I. and C.M. to give victim impact testimony because, even if it was error to allow victims other than the prosecuting witness to give victim impact testimony, Defendant has failed to show that the trial court in fact considered their testimonies in sentencing him.\n\u201cWe presume that the trial court disregarded incompetent evidence unless there is affirmative evidence to the contrary.\u201d State v. Flowers, 100 N.C. App. 58, 61, 394 S.E.2d 296, 298 (1990). Defendant has not established affirmative evidence that the trial court considered their testimonies in deciding his sentence. Although the prosecutor urged the trial court to sentence Defendant based on the effect he had on all three women\u2019s lives, contradicting her prior offer of only T.L.\u2019s testimony, the trial court made no mention of considering the other victims\u2019 testimonies in pronouncing the sentence. We find no error.\nFor the reasons stated above, we find no error in part and remand for correction of clerical error in part.\nNo error in part; Remanded in part for correction of clerical error.\nJudges MCGEE and THIGPEN concur.\n. We will use initials to protect the identities of the witnesses in this case.",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM RONNIE BARNETT\nNo. COA12-381\n(Filed 20 November 2012)\n1. Evidence \u2014 prior crimes or bad acts \u2014 testimony\u2014common scheme\nThe trial court did not err in a second-degree rape case by admitting testimony regarding defendant\u2019s prior bad acts under N.C.G.S \u00a7 8C-1, Rules 404(b) and 403 as part of a common scheme. Assuming arguendo that it was error to admit the testimony of T.I. and C.M., any error was harmless in light of T.L.\u2019s properly admitted testimony. Further, the probative value of the prior incidents with T.L. outweighed any unfair prejudice to defendant.\n2. Evidence \u2014 cross-examination elicited substantially similar evidence \u2014 no plain error\nThe trial court did not commit plain error in a second-degree rape case by allowing a witness to testify that she bought a shotgun and was going to shoot defendant. There is no prejudice to the defendant when cross-examination elicits testimony substantially similar to the evidence challenged.\n3. Sentencing \u2014 no written findings \u2014 remanded for clerical error\nAlthough the trial court did not err in a second-degree rape case by not making written findings in imposing a prison term greater than the presumptive sentence, the case was remanded for correction of a clerical error since the trial court found an aggravating factor but the incorrect box was marked on the judgment.\n4. Appeal and Error \u2014 preservation of issues \u2014 failure to argue \u2014 failure to cite authority\nThe trial court did not err in a second-degree rape case by allowing T.I. and C.M. to give victim impact testimony. As defendant only cursorily argued that he was denied due process and cited no authority in support of his argument, the Court of Appeals declined to address that portion of his argument. N.C. R. App. P. 28(b)(6).\nAppeal by Defendant from judgment entered 29 July 2011 by Judge Anna Mills Wagoner in Iredell County Superior Court. Heard in the Court of Appeals 11 September 2012.\nAttorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant."
  },
  "file_name": "0450-01",
  "first_page_order": 460,
  "last_page_order": 470
}