{ "id": 8526388, "name": "STATE OF NORTH CAROLINA v. DAVID FULTZ", "name_abbreviation": "State v. Fultz", "decision_date": "1988-11-15", "docket_number": "No. 8818SC123", "first_page": "80", "last_page": "85", "citations": [ { "type": "official", "cite": "92 N.C. App. 80" } ], "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 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169653 ], "opinion_index": -1, "case_paths": [ "/nc-app/85/0123-01" ] }, { "cite": "358 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727201, 4729487, 4726223, 4727800, 4731129 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0175-03", "/nc/320/0175-05", "/nc/320/0175-02", "/nc/320/0175-04", "/nc/320/0175-01" ] }, { "cite": "355 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170240 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0624-01" ] }, { "cite": "277 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "303 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571816 ], "year": 1981, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0173-01" ] }, { "cite": "340 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] }, { "cite": "342 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702203 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0497-01" ] }, { "cite": "347 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734405 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0237-01" ] }, { "cite": "364 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "364 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "321 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568804 ], "year": 1988, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0541-01" ] }, { "cite": "298 S.E. 2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "307 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "309 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766892 ], "year": 1983, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0382-01" ] }, { "cite": "329 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525981 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0695-01" ] }, { "cite": "241 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "294 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573313 ], "year": 1978, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0418-01" ] }, { "cite": "309 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760895 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0742-01" ] }, { "cite": "358 S.E. 2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729315, 4724903, 4726185, 4727503, 4724211 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0516-03", "/nc/320/0516-04", "/nc/320/0516-02", "/nc/320/0516-05", "/nc/320/0516-01" ] }, { "cite": "354 S.E. 2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169653 ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0123-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11931, "ocr_confidence": 0.829, "pagerank": { "raw": 1.599544729774112e-07, "percentile": 0.6836211300349944 }, "sha256": "f84765cb74c70932e328b51aaf0b949a154af9fe257932ba2c78914c5f3b4cfc", "simhash": "1:33ebc0e20c6b08f7", "word_count": 1936 }, "last_updated": "2023-07-14T21:55:11.858082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID FULTZ" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward five issues on appeal. He argues that these convictions should be reversed because the indictments were insufficient to inform him of the nature of the charges against him. Alternatively, he contends that this court should grant him a new trial because the trial court erred in joining all of the offenses for trial, admitted certain incompetent evidence, and excluded competent evidence offered by . the defense. After a careful review of the record, we hold that defendant received a fair trial free from prejudicial error.\nDefendant contends that the trial court erred in refusing to dismiss the case because the indictments were insufficient to notify him of the acts constituting the charged offenses so that he could properly prepare his defense. In making his argument, defendant concedes that this court in State v. Singleton, 85 N.C. App. 123, 354 S.E. 2d 259, disc. rev. denied and appeal dismissed, 320 N.C. 516, 358 S.E. 2d 530 (1987), approved \u201clanguage nearly identical\u201d to these indictments. Our holding in Singleton controls here. If defendant needed additional or more specific information to adequately prepare or conduct his defense, he could have moved for a bill of particulars pursuant to G.S. 15A-925. State v. Effler, 309 N.C. 742, 309 S.E. 2d 203 (1983). We overrule this assignment of error.\nDefendant further argues that the trial court erred in joining the five offenses charged for a single trial. Joinder decisions are in the sound discretion of the trial court. We find no abuse of discretion here.\nG.S. 15A-926 allows joinder of two or more offenses when they \u201care based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d G.S. 15A-926(a). Our courts have interpreted this statute as not allowing joinder of offenses solely because the offenses charged were the same type of acts unless there is also a \u201ctransactional connection.\u201d State v. Greene, 294 N.C. 418, 421, 241 S.E. 2d 662, 664 (1978). While a motion for joinder of offenses is addressed to the trial court\u2019s discretion, State v. Williams, 74 N.C. App. 695, 329 S.E. 2d 705 (1985), the test we apply on review is \u201cwhether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant.\u201d State v. Corbett, 309 N.C. 382, 389, 307 S.E. 2d 139, 144 (1983).\nHere each of the offenses charged occurred in a Boy Scout environment. Defendant was each victim\u2019s scoutmaster during the entire period. Three of the offenses occurred at a single campsite and the remaining offenses occurred at the troop\u2019s meeting place. We find that these circumstances are not so distinct as to render consolidation unjust. Furthermore, the evidence demonstrates a scheme or plan in which the defendant used his position as troop leader to commit these acts. We overrule this assignment of error.\nDefendant assigns as error the State\u2019s introduction of evidence showing that defendant had a bad temper and used profanity. We agree that evidence of profanity and temper are irrelevant to the charges tried, but defendant has failed to demonstrate how he was prejudiced by their introduction. G.S. 15A-1443(a); State v. Alston, 307 N.C. 321, 298 S.E. 2d 631 (1983). Defendant argues that this evidence prejudiced him in the jury\u2019s assessment of his credibility. In light of the more than eighteen character witnesses defendant called on his behalf who each testified as to defendant\u2019s excellent reputation for truthfulness and moral character, we find the error here to be harmless.\nDefendant argues that the trial court erred in not allowing evidence of defendant\u2019s general character and reputation. The trial court limited the character evidence introduced by defendant to evidence directed to pertinent character traits. The State argues that Rule 404(a) of the North Carolina Rules of Evidence requires that character evidence is admissible only when it addresses pertinent character traits. Our Supreme Court in State v. Squire, 321 N.C. 541, 546, 364 S.E. 2d 354, 357 (1988), held that \u201can accused may no longer offer evidence of undifferentiated \u2018good character\u2019 . . .; he must tailor the evidence to a particular trait that is relevant to an issue in the case.\u201d The trial court\u2019s ruling was proper and the assignment of error is overruled.\nFinally, defendant contends that the trial court erred in allowing the State, during rebuttal, to introduce into evidence acts of unprosecuted misconduct by defendant which occurred more than ten years earlier. The State argues that the evidence was proper rebuttal testimony and was admissible pursuant to Rule 404(b) of the North Carolina Rules of Evidence. We hold that because defendant opened the door, the State\u2019s rebuttal evidence was properly admitted here.\nThe State elicited the complained of testimony from Joseph Johnson, a rebuttal witness. He told of three specific sexually related incidents which occurred between defendant and him in 1976 while he was a member of the same scout troop. During this time defendant was the assistant troop leader. Johnson testified that on two occasions when he was alone with the defendant, defendant told him to masturbate as his initiation into the troop. The first incident occurred while the troop was on a camping trip. The second incident occurred in Chapel Hill where defendant took Johnson to a football game. After the game defendant and Johnson went up into the bell tower and defendant told him to masturbate again. During this second incident, defendant also tickled Johnson\u2019s genitals. Johnson testified that the third incident was when defendant bought him a Playboy magazine. Johnson was in the troop from 1975 until 1977.\nRule 404(b) provides that, while evidence of other wrongs or acts committed by defendant is not admissible to prove defendant\u2019s character, this evidence is admissible to prove motive, opportunity, or plan. G.S. 8C-1, Rule 404(b); State v. Boyd, 321 N.C. 574, 364 S.E. 2d 118 (1988). To be admitted the evidence must not be too remote in time from the incidents for which the defendant is being tried. State v. Scott, 318 N.C. 237, 347 S.E. 2d 414 (1986). In sex offense cases our courts have liberally allowed evidence of similar sex offenses committed by the defendant, State v. Gordon, 316 N.C. 497, 342 S.E. 2d 509 (1986), including evidence of sexual assaults by the defendant against persons other than the victims. Id.\nOnce the trial court establishes that it will admit the evidence pursuant to Rule 404(b), the court must then determine whether the evidence is more probative than prejudicial under Rule 403. State v. DeLeonardo, 315 N.C. 762, 340 S.E. 2d 350 (1986). This record does not reveal that the trial court made any Rule 403 determination. The State argues that, in any event, the evidence was admissible here because the defendant opened the door. We agree.\nOur courts will allow the State to introduce evidence, even when it is not otherwise admissible, if it is \u201coffered to explain or rebut evidence elicited by the defendant himself.\u201d State v. Albert, 303 N.C. 173, 177, 277 S.E. 2d 439, 441 (1981); see also State v. Teeter, 85 N.C. App. 624, 355 S.E. 2d 804, disc. rev. denied and appeal dismissed, 320 N.C. 175, 358 S.E. 2d 66 (1987). On direct examination the defendant testified to the following:\nQ. Have you ever fondled a boy\u2019s private parts or touched him in any improper way?\nA. No, sir, I have not.\n* * *\nQ. Did you ever touch [the victims] in any improper way or fondle them?\nA. I never touched any boy in my troop in an improper way.\nDefendant explicitly testified that he had never touched or fondled a member of his scout troop. Johnson\u2019s testimony, then, was proper rebuttal testimony. Furthermore, defendant had previously called Jeffrey Edward Berthold as a witness and questioned him concerning events while Berthold was a member of the troop from 1977 until 1981. Accordingly, we hold that defendant opened the door to testimony about this remote time period. Defendant having opened the door, we find no prejudicial error in admitting the complained of evidence.\nOur review of the record convinces us that defendant has received a fair trial free from prejudicial error.\nNo error.\nJudges Phillips and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Assistant Attorney General Philip A. Telfer, for the State.", "Tharrington, Smith & Hargrove, by Roger W. Smith, Wade M. Smith and Melissa H. Hill, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID FULTZ\nNo. 8818SC123\n(Filed 15 November 1988)\n1. Rape and Allied Offenses \u00a7 19\u2014 taking indecent liberties \u2014 indictment\u2014sufficient\nThe indictments in a prosecution for taking indecent liberties with a child were sufficient where there was nearly identical language to the indictments in State v. Singleton, 85 N.C. App. 123.\n2. Criminal Law \u00a7 92.4\u2014 taking indecent liberties \u2014 five counts \u2014 joinder proper\nThe trial court did not err by joining five charges of taking indecent liberties with children for trial where each of the offenses occurred in a Boy Scout environment; defendant was each victim\u2019s scoutmaster during the entire period; three of the offenses occurred at a single campsite; and the remaining offenses occurred at the troop\u2019s meeting place. N.C.G.S. \u00a7 15A-926(a).\n3. Criminal Law \u00a7 86\u2014 taking indecent liberties with children \u2014evidence of defendant\u2019s had temper and use of profanity \u2014 admission not prejudicial\nThere was no prejudicial error in a prosecution for taking indecent liberties with children from the admission of evidence of defendant\u2019s use of profanity and bad temper in light of the more than eighteen character witnesses defendant called on his behalf who testified as to defendant\u2019s excellent reputation for truthfulness and moral character. N.C.G.S. \u00a7 15A-1443(a).\n4. Criminal Law \u00a7 85\u2014 indecent liberties with children \u2014 evidence of general character excluded \u2014 no error\nThe trial court did not err in a prosecution for taking indecent liberties with children by excluding evidence of defendant\u2019s general character and reputation. N.C.G.S. \u00a7 8C-1, Rule 404(a).\n5. Criminal Law \u00a7 34.8\u2014 indecent liberties \u2014 other offenses \u2014 admissible\nThe trial court did not err in a prosecution for taking indecent liberties with children by allowing the State to introduce into evidence acts of un-prosecuted misconduct by defendant which occurred more than ten years earlier, despite the lack of a determination under N.C.G.S. \u00a7 8C-1, Rule 403, that the evidence was more probative than prejudicial, because defendant opened the door. N.C.G.S. \u00a7 8C-1, Rule 404.\nAppeal by defendant from DeRamus, Judge. Judgments entered 4 September 1987 in Superior Court, GUILFORD County. Heard in the Court of Appeals 27 September 1988.\nIn five separate indictments the Guilford County grand jury charged defendant, David Fultz, with taking indecent liberties with children, a violation of G.S. 14-202.1. The defendant was a Boy Scout troop leader and each of the three victims were members of defendant\u2019s troop at the time of the alleged misconduct. The indictments concerned events spanning an eleven month period.\nDefendant moved to dismiss the indictments before trial stating that they did not sufficiently apprise him of the nature of the offenses charged. The trial court denied the motion. Upon the State\u2019s motion, and over defendant\u2019s objection, the trial court joined the offenses for a single trial. A jury found defendant guilty of each of the five charges. In 86CRS66646 and 86CRS66647 the trial court sentenced defendant to two consecutive five year prison terms. For the remaining offenses the trial court sentenced defendant to five years, suspended for five years, with supervised probation for five years to begin at the expiration of the active prison terms. From the judgment entered, defendant appeals.\nAttorney General Thornburg, by Assistant Attorney General Philip A. Telfer, for the State.\nTharrington, Smith & Hargrove, by Roger W. Smith, Wade M. Smith and Melissa H. Hill, for defendant-appellant." }, "file_name": "0080-01", "first_page_order": 110, "last_page_order": 115 }