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  "name": "STATE OF NORTH CAROLINA v. WILLIAM DICKSON MAXWELL",
  "name_abbreviation": "State v. Maxwell",
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    "judges": [
      "Judges BECTON and PARKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM DICKSON MAXWELL"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nDefendant\u2019s convictions relate to three separate incidents of alleged sexual abuse. The prosecutrix, who is the adopted daughter of the defendant, was 14 years old at the time she testified. She stated that in January of 1985 her mother was hospitalized for surgery. She and the oldest of her two brothers were being picked up from school and served dinner by their paternal grandparents during that period. Each evening, the two were taken home and put to bed by their father. On 3 January 1985, after the prosecutrix and her brother had been put to bed, defendant disrobed and went into the prosecutrix\u2019 room. Defendant allegedly climbed into bed on top of her, removed her underwear and forced her to engage in sexual intercourse with him.\nThe prosecutrix further testified that on 30 March 1986, Easter Sunday morning, defendant entered her room wearing only a robe. He then sat on her bed and awakened her by touching her on her chest and on her vaginal area. Defendant\u2019s sexual advances were interrupted when the prosecutrix\u2019 two younger brothers entered her room and refused to leave. The prosecutrix\u2019 mother entered her room and asked defendant and the two younger children to leave. The prosecutrix then dressed and joined her family for breakfast.\nThe final incident allegedly occurred on 4 January 1987 after the prosecutrix\u2019 parents were separated. Defendant was babysitting for the three children while their mother was away for the day. On that evening, after all three children had been put to bed, defendant entered the prosecutrix\u2019 room and forced her to have sex with him. When the prosecutrix\u2019 mother returned, defendant left and spent the night at his parents\u2019 home.\nOn 24 January 1987, while the prosecutrix was on an overnight ski trip with her mother and a friend of her mother\u2019s, the prosecutrix\u2019 aunt found a letter she had written to a rock band named \u201cMotley Crue.\u201d In this letter, the prosecutrix stated that her father had been forcing her to have sex with him since she was four years old. She also asked the band for their help. The prosecutrix\u2019 aunt told the girl\u2019s grandparents who then told the prosecutrix\u2019 mother. Her mother thereafter told James Graves, a family friend, about these alleged incidents. Mr. Graves first confronted defendant with these allegations and then contacted the Burlington Police. Thereafter, the prosecutrix was interviewed by employees from the Burlington Police Department and from the Alamance County Department of Social Services. Following an examination of the prosecutrix by a physician and a child psychologist, the defendant was arrested and charged as previously indicated.\nDefendant denies all allegations of sexual misconduct. He contends that his daughter has fabricated these stories and that she is not a credible witness.\nDefendant has raised 12 issues in his appeal before this Court. The first of the three issues which we address and which in part forms the basis of our decision to grant defendant a new trial relates to the admission of prejudicial evidence. The second issue we address relating to the court\u2019s exclusion of relevant and probative information also supports our decision to grant defendant a new trial. The final issue we address which relates to the admission of corroborating testimony is discussed in this opinion due to the likelihood that this issue may arise again in defendant\u2019s new trial.\nI.'\nThe first issue which we shall address is whether the trial court erred in admitting testimony of alleged prior bad acts of a sexual nature committed by defendant. Defendant argues that this testimony, which was admitted in violation of G.S. 8C-1, Rule 403, is unduly prejudicial to him. The State contends that the evidence was properly admitted pursuant to G.S. 8C-1, Rule 404(b) to show defendant\u2019s plan or scheme to take advantage of his daughter.\nG.S. 8C-1, Rule 403 states: \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d In order to determine whether this testimony should have been admitted, the trial court was required to perform a balancing test, thereby weighing the probative value of the proffered testimony against its potential prejudicial impact on the jury. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985). This decision rests within the sound discretion of the court. Id.\nThe three areas of alleged personal misconduct to which several witnesses testified are defendant\u2019s frequent nudity, his frequent fondling of himself and an adulterous affair, all of which were objected to by defendant.\nIn the case before us, the prosecutrix\u2019 mother testified as follows:\nQ. Now during the \u2014 the time that \u2014 that you were married to Mr. Maxwell, how did he normally \u2014 what did he normally sleep in in terms of dress?\nA. He slept in the nude.\nMR. MESSICK: Objection.\nCOURT: Overruled.\nQ. You may answer.\nA. He slept in the nude.\nQ. And was that still after the children were born?\nA. Yes, sir.\nQ. Now were there ever occasions when he would present himself to Shannon in the nude?\nMr. MESSICK: Object.\nQ. Were there ever times when you were in the room with your husband and Shannon and he had no clothes on?\nA. Yes, sir.\nQ. And how old was Shannon at that time?\nA. At all ages.\nQ. And was he still \u2014 did it still happen then when she was eleven?\nA. Yes, sir.\nQ. Did you ever say anything to him about it?\nA. Yes, I did.\nA. I felt that it wasn\u2019t proper to run around without your clothes on in front of a child her age, even the boys for that matter. I was constantly telling him that I didn\u2019t appreciate it and asking him not to do it.\nQ. And what was his response?\nA. That \u2014 that was the way he was going to do things and if I didn\u2019t like it too bad.\nThis witness further testified that defendant would go to the children\u2019s bedrooms in the nude to check on them. She stated that this situation was a \u201cconstant battle\u201d between her and her ex-husband. She testified that defendant would fondle himself in front of her and the children. According to her testimony, this \u201cwas a constant thing with him.\u201d She stated that defendant would use his hand and stroke his penis in the presence of the prosecutrix. When she would complain about his behavior, defendant would respond that he could do what he wanted to do in his house. The prosecutrix\u2019 mother also testified about having allegedly \u201ccaught him [defendant] with this other woman.\u201d She testified at length to having sat outside this other woman\u2019s apartment and having followed the two to a Holiday Inn. She further testified to a fist fight which took place between herself, defendant and her sister when she refused to allow him to enter their home after discovering his alleged affair.\nThe prosecutrix\u2019 aunt testified that the prosecutrix\u2019 mother had told her of her arguments with defendant concerning his frequent nudity and his alleged affair. Mr. Graves, a family friend, further testified that he stopped visiting defendant and his family because he could \u201cno longer tolerate his [adulterous] behavior.\u201d He testified that defendant admitted to him that he was \u201crunning around on his wife.\u201d\nAfter closely scrutinizing this testimonial evidence, we are unable to agree with the State\u2019s contention that this testimony was properly admitted as evidence of defendant\u2019s plan or scheme to take advantage of his daughter. The prosecutrix\u2019 mother stated that defendant regarded nudity as normal; therefore, there is no evidence that he was attempting to prepare the prosecutrix for sexual intercourse with him by \u201cmaking her aware of such sexual conduct and arousing her\u201d as was the case in State v. Williams, 318 N.C. 624, 632, 350 S.E.2d 353, 358 (1986). Furthermore, the only testimony from the prosecutrix regarding defendant\u2019s fondling of himself in her presence involved one occasion when she was younger in which she stated that she had gotten up from a nap and had gone into a room where her father was seated on the couch \u201cplaying with himself.\u201d When she entered the room, defendant told her to \u201cget back upstairs and get in the bed.\u201d She also testified that on one other occasion when she was 11 years old, she observed her father fondling himself with a book in his lap in an attempt to hide what he was doing. She stated that she was only in the room for a \u201csecond\u201d at that time.\nThere was'no connection between evidence of defendant\u2019s alleged affair and the crimes with which he was charged. This evidence does not establish a plan or scheme to commit the offenses charged. In fact, it does little more than impermissibly inject character evidence which raises the question of whether defendant acted in conformity with these character traits at the times in question. See G.S. 8C-1, Rule 404. \u201c[SJubstantive evidence of a defendant\u2019s past, and distinctly separate, criminal activities or misconduct is generally excluded when its only logical relevancy is to suggest defendant\u2019s propensity or predisposition to commit the type of offense with which he is presently charged.\u201d State v. Shane, 304 N.C. 643, 653-54, 285 S.E.2d 813, 820 (1982). The admission of this inflammatory evidence was highly prejudicial to defendant\u2019s defense. Moreover, we find that this is essentially a case of who and what to believe \u2014 the prosecutrix\u2019 accusations or defendant\u2019s claim of innocence. There was no medical or other physical evidence presented by the State in support of the prosecutrix\u2019 claims. There were no eyewitnesses to these alleged events; therefore, the outcome of this case depended upon the jury\u2019s perception of the truthfulness of each witness. Consequently, the court\u2019s admission of evidence which could inflame the jury and cause a verdict to be entered on an improper basis, such as emotion, was prejudicial. In the absence of this extensive, highly prejudicial evidence, which was of questionable relevance and which tended to make defendant appear to be a sexual deviant, we cannot say that a different result could not have been reached. See State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987). Defendant has met his burden of demonstrating prejudice under G.S. 15A-1443.\nII.\nDefendant further asserts that he was prejudiced by the court\u2019s exclusion of evidence regarding a prior accusation of sexual misconduct made by the prosecutrix directed at her uncle. The State contends that this evidence was properly excluded because there is no proof that the allegation was false, and because the allegation was made at least nine years prior to this trial. We reject the State\u2019s argument for the following reasons.\nThe excluded testimony related to an incident when the prosecutrix was approximately four years of age. After observing the prosecutrix masturbating, her parents asked her why she was behaving that way. She stated that her \u201cUncle Scott showed [her].\u201d Two of the charges before us today involve testimony by the prosecutrix that her father had been sexually molesting her since age four. This evidence of a previous allegation involving untoward sexual behavior perpetrated on the prosecutrix is highly relevant to the charges against defendant. If we accept her prior allegations as true, then, as the State has pointed out, the prosecutrix\u2019 excessive masturbation might have been indicative of sexual abuse. The accusation against her Uncle Scott is probative of identifying the perpetrator of that abuse. In State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988), our Supreme Court stated that: \u201c \u2018Any evidence calculated to throw light upon the crime charged\u2019 should be admitted by the trial court.\u201d Id. at 13, 366 S.E.2d at 449. The court then concluded that the trial court\u2019s exclusion of one of defendant\u2019s exhibits which could have constituted a possible alternative explanation about the crime with which defendant was charged was error. Id. Likewise, we find that the trial court\u2019s exclusion of this evidence was error as well.\nIII.\nThe remaining issue which we shall discuss relates to whether the trial court erred in admitting the testimony of several witnesses for corroborative purposes when such testimony did not corroborate the testimony of prior witnesses. Defendant contends that the trial court erred in allowing testimony from eight witnesses to be received as substantive evidence. He claims that multiple hearsay was admitted for the purpose of corroborating statements which the witnesses had not made. Furthermore, he contends that much of the evidence was unduly prejudicial to him in violation of G.S. 8C-1, Rule 403.\nIn order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness\u2019s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\nState v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986). Moreover, \u201c[t]o be admissible as corroborative evidence, testimony of a prior statement by the witness sought to be corroborated does not have to be precisely identical to such prior testimony of that witness.\u201d State v. Madden, 292 N.C. 114, 128, 232 S.E.2d 656, 665 (1977).\nThe prosecutrix gave testimony on direct and cross-examination regarding two alleged incidents of rape and one alleged incident of indecent liberties being taken with her. She stated that after her aunt found the letter which she had written to \u201cMotley Crue,\u201d she told her two best friends, who were her schoolmates, about these incidents. Thereafter, the prosecutrix was interviewed by a policewoman from the Burlington Police Youth Division, a social worker with the Alamance County Department of Social Services, a child psychologist and a gynecologist. The prosecutrix told each of these witnesses about the alleged sexual abuse during her conversations with them.\nThe transcript reveals that these four professionals testified to the incidents of alleged abuse as they had been described by the prosecutrix. Nicole Cox, one of the prosecutrix\u2019 schoolmates, testified, without objection from the defense, about a conversation in which the prosecutrix told her she had been molested by her father since the age of four. Marissa Forbes, another schoolmate, gave the same testimony. When viewing the testimony of these witnesses which described the alleged sexual abuse, we find that their statements do essentially corroborate the statements made by the prosecutrix. Although Marissa Forbes\u2019 testimony went beyond what the prosecutrix testified to telling Marissa, her statements mirrored those of Nicole Cox which were received without objection. Consequently, defendant waived his right to challenge that testimony on appeal. See State v. Moses, 316 N.C. 356, 362, 341 S.E.2d 551, 555 (1986).\nLikewise, defendant\u2019s challenge to the admission of statements made by the prosecutrix\u2019 mother and aunt regarding the alleged sexual abuse must also fail. The admission of their testimony is not reversible error. Testimony of the same nature was properly received from other witnesses as corroboration of the prosecutrix\u2019 statements. Therefore, the testimony from her mother and aunt was, at worst, redundant and not prejudicial to defendant\u2019s case. Id.\nBased upon the foregoing, we hold that defendant is entitled to a new trial. We have considered the collective impact of the evidence which was admitted in error and we find that although each individual witness\u2019s testimony may not have been sufficient independent grounds for reversal, the aggregate effect of such evidence was to prejudice defendant\u2019s right to a fair trial. As to defendant\u2019s remaining assignments of error, we find them to be without merit and decline to address them.\nNew trial.\nJudges BECTON and PARKER concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.",
      "Latham, Wood, Eagles & Hawkins, by William A. Eagles; and Singleton, Murray & Craven, by Rudolph G. Singleton, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM DICKSON MAXWELL\nNo. 8815SC784\n(Filed 17 October 1989)\n1. Rape and Allied Offenses \u00a7 4.1 (NCI3d)\u2014 rape and taking indecent liberties with minor \u2014 attempt to show defendant as sexual deviant \u2014 evidence improperly admitted\nIn a prosecution of defendant for taking indecent liberties with a minor, his adopted daughter, and first degree statutory rape, the trial court erred in admitting evidence of defendant\u2019s frequent nudity, his frequent fondling of himself, and an adulterous affair, since the testimony was not evidence of defendant\u2019s plan or scheme to take advantage of his daughter; there was no medical or other physical evidence presented by the State in support of the prosecutrix\u2019s claims and no eyewitnesses so that the outcome of the case depended upon the jury\u2019s perception of the truthfulness of each witness; and the evidence, which was of questionable relevance and tended to make defendant appear to be a sexual deviant, could inflame the jury and cause a verdict to be entered on an improper basis. N.C.G.S. \u00a7 8C-1, Rules 403 and 404(b).\nAm Jur 2d, Rape \u00a7\u00a7 65, 67, 95.\n2. Criminal Law \u00a7 35 (NCI3d) \u2014 rape and taking indecent liberties with minor \u2014prosecutrix\u2019s prior accusation against uncle \u2014evidence improperly excluded\nIn a prosecution of defendant for taking indecent liberties with a minor, his adopted daughter, and first degree statutory rape, the trial court erred in excluding evidence regarding a prior accusation of sexual misconduct made by the prosecutrix directed at her uncle, since it was error to exclude defendant\u2019s evidence which could show a possible alternative explanation about the crime with which he was charged.\nAm Jur 2d, Rape \u00a7 87.\n3. Criminal Law \u00a7 89.3 (NCI3d)\u2014 corroborating witnesses \u2014 testimony properly admitted\nThere was no merit to defendant\u2019s contention that the trial court erred in allowing testimony of several witnesses for corroborative purposes when such testimony did not corroborate the testimony of prior witnesses, since some of the testimony was not objected to by defendant, and some of the testimony, though going beyond the prosecutrix\u2019s testimony, essentially corroborated the statements made by the prosecutrix.\nAm Jur 2d, Rape \u00a7\u00a7 94-99.\nAPPEAL by defendant from Allen (J. B., Jr.), Judge. Judgment entered 15 January 1988 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 21 February 1989.\nDefendant was convicted on one charge of taking indecent liberties with a minor and two separate charges of first-degree statutory rape. Defendant was committed to two life sentences for the rapes, and a three-year sentence for the indecent liberties conviction. The court ordered defendant to serve the terms concurrently. From this order, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.\nLatham, Wood, Eagles & Hawkins, by William A. Eagles; and Singleton, Murray & Craven, by Rudolph G. Singleton, Jr., for defendant-appellant."
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