Opinion
No. COA14–839.
02-17-2015
STATE of North Carolina v. Brandon Beverly SMITH.
Attorney General Roy Cooper, by Special Deputy Attorney General Staci Meyer, for the State. Irons & Irons, P.A., by Ben G. Irons II, for Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Staci Meyer, for the State.
Irons & Irons, P.A., by Ben G. Irons II, for Defendant.
STEPHENS, Judge.
Defendant Brandon Beverly Smith was convicted in Wake County Superior Court of one count of sexual battery and one count of assault on a female. Smith is the former headmaster of East Wake Academy, and these charges arose from allegations by two teachers who worked with him there. Smith now appeals from the trial court's denial of his motion in limineto exclude testimony of three other East Wake Academy teachers regarding additional allegations against him of unrelated instances of sexual harassment. Smith contends this evidence was improper under Rule 404(b) and unfairly prejudicial under Rule 403, and he also insists that the trial court committed plain error by allowing these witnesses to testify without objection to matters beyond the scope of their voir diretestimony. Smith further argues that the trial court plainly erred by allowing the detective who investigated the allegations against him to testify without objection about the “tremendous amount of pornography” he found on Smith's school-owned computers and about his ability to profile Smith as an African–American male who “only did this to white women with dark hair.” After careful review, we hold that the trial court did not err in denying Smith's motion to exclude evidence of his prior bad acts under Rule 404(b) because it was introduced for the proper purposes of showing his intent, opportunity, and common plan or scheme. We also hold that the trial court did not plainly err in allowing the introduction of the additional evidence Smith challenges.
Evidence and Procedural History
On 7 August 2012, Smith was indicted by a Wake County grand jury on two charges of sexual battery based on allegations stemming from separate incidents in August and December 2011 involving two teachers, S.Y. and S.W., at East Wake Academy, where Smith served as headmaster. On 26 February 2013, a Wake County grand jury issued a superseding indictment that added two counts of assault on a female based on the same incidents, and also amended the date of the allegations involving S.W. to November of 2011.
To protect their privacy, we refer to both victims by their initials throughout this opinion.
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During Smith's trial, which began on 23 September 2013, S.Y. testified that she began working at East Wake Academy before the 2006 school year as a long-term substitute teacher and, over the course of her eight-year tenure there, eventually transitioned to a middle school health and physical education teacher. S.Y. explained that, during the latter half of her first year working at East Wake Academy, Smith began making inappropriate comments about her appearance, with particular focus on S.Y.'s posterior and how “good” it looked when she wore pants. S.Y. testified that Smith also made a habit of invading her personal space by drawing her into close proximity with awkwardly prolonged embraces, during which he whispered that she “look[ed] so good that he might not be able to control [himself]” and that if she ever told anybody about his conduct, he would just deny it. S.Y. explained that these encounters continued sporadically throughout her eight years working at East Wake Academy and that she typically reacted by putting her arm around Smith, patting him on the back, and then attempting to wiggle out of his embraces, but that she never told him to stop or informed anyone else affiliated with the school out of fear that she would lose her job if she did.
S.Y. also testified that before she began working at the school, she got a tattoo on her lower back of a pattern featuring the moon, stars, butterflies, and a vine. S.Y. acknowledged that she was proud of her tattoo, which was roughly three inches in length and extended at least one inch below her waistband; that she would occasionally show it off to others; and that once while picking up her children, who attended the school prior to S.Y.'s employment there, she showed her tattoo to Smith and another person. On 11 August 2011, this tattoo gave rise to the incident from which Smith's convictions stem when, after a meeting of the Academy's middle school athletic department that Smith and S.Y. both attended, Smith once again commented on S.Y.'s pants, told her that he would not be able to control himself if she wore them again, then followed her into the teacher's lounge. Inside the lounge, as S.Y. checked her mailbox, Smith came up behind her, pulled down her pants, touched the top of her left buttocks with his finger, and asked, “You don't mind if I look at your tattoo again, do you?” S.Y. testified that at this point, she froze and then walked out of the teacher's lounge after one or two minutes feeling shocked and disgusted. Although she did not immediately tell anyone about this incident out of embarrassment and fear for her job, S.Y. subsequently decided to contact a member of the school's board of directors in late January or early February 2012, and then contacted Detective Scott Finch of the Zebulon Police Department in March 2012, after learning that another female teacher, S.W., had similar complaints about Smith's inappropriate conduct.
S.W. testified at Smith's trial that she started working at East Wake Academy at the beginning of the 2010 school year, initially as a math teacher before switching to language arts. While S.W. seldom saw Smith when she first started teaching, she noticed that he began paying more attention to her after an all-faculty meeting during which he called her to him and whispered, “I couldn't help but think to myself [S.W.] wants to sleep with me.” Although briefly taken aback, S.W. assured Smith that she had no interest in sleeping with him and was sorry if he had the wrong idea. Evidently Smith did have the wrong idea, as he then began making frequent visits to S.W.'s classroom during her planning period. During one such visit, Smith told her that he liked the way she wrapped her mouth around a sandwich. S.W. also testified that on multiple occasions Smith pulled her aside in the hallway into unsolicited hugs and whispered, “I know you want to sleep with me. [S.W.] wants to sleep with me,” while S.W. replied “no” and attempted to wriggle out of his grasp. The hug that gave rise to criminal charges against Smith took place in November of 2011 in S.W.'s classroom, when Smith pulled her close and pressed up against her while he had an erection, which S.W. felt against her crotch as Smith whispered, “Do you see what you do to me and now I have to go back out there.” The next month, in December 2011, when the teachers of East Wake Academy received their longevity bonus checks just before Christmas break, Smith explained to S.W. that she did not qualify to receive one because she had not worked at the school long enough, but then whispered, “You know, things could have been different if you would have done what I told you.” In early 2012, S.W. filed a formal complaint with the school's board of directors and then in March 2012 met with Detective Finch.
After meeting with S.Y. and S.W., Detective Finch conducted an investigation into their allegations. As part of his investigation, he interviewed several female teachers and administrative employees from East Wake Academy, and the State subsequently sought to introduce testimony from four of them during Smith's trial. Smith strenuously objected. His trial strategy, as demonstrated during cross-examination of S.Y. and S.W., was to undermine their credibility by: (1) highlighting inconsistencies between their testimony and prior statements; (2) suggesting that both were motivated by the potential of receiving large monetary settlements in a related pending civil suit against him; and (3) claiming that S .Y. had a history of flirting with him, based on an email she sent him two months after the alleged offenses took place to thank him for providing new T-shirts for the physical education department.
At the outset of the proceedings, Smith filed a motion in limineto exclude “any testimony from any witnesses other than the prosecution witnesses, [S.Y. and S.W.], that [Smith] engaged in any conduct and/or behavior, including but not limited to allegations of sexual harassment, where no charges were filed.” In support of this motion, Smith argued that any such testimony would be irrelevant and amount to improper character evidence under North Carolina Rule of Evidence 404(b), and that its probative value would be substantially outweighed by its potential for undue prejudice, thus mandating exclusion under Rule 403. The State countered that the testimony would be relevant under Rule 404(b) for the proper purposes of showing Smith's motive, intent, absence of mistake or accident, and common plan or scheme. The trial court reserved ruling on Smith's motion until each witness had undergone voir direexamination outside the presence of the jury.
The first Rule 404(b) witness the State called for voir direexamination was Jennifer Eddins, who testified that she had worked at East Wake Academy for five years as an English teacher. She testified that Smith was known to be “a little affectionate” and a “touchy kind of person,” whom she had frequently witnessed hugging teachers and students. Although she explained that, “[the teachers] all kind of knew [when they saw Smith at school] there was going to be a hug,” which “made some people more uncomfortable than others” and led to discussions about how best to give and avoid hugs to and from Smith, Ms. Eddins testified that she never personally feared or felt sexually harassed by Smith and had not spoken with S.Y or S.W. about their allegations.
The next Rule 404(b) witness the State called for voir direexamination was Linette Sherwood, who testified that she began working at East Wake Academy in 2002 as a teacher assistant in the exceptional children department before moving to the position of admissions coordinator, which required her to share office space in a trailer with Smith. Ms. Sherwood testified that between 2003 and 2005, Smith frequently played music during the school day and often pulled her and her female coworkers close to dance with him, and that while dancing, Smith would put his nose close to her ear and whisper compliments about her pants, perfume, and dancing abilities. Ms. Sherwood also testified that on at least two occasions, Smith came up behind her while she was seated at her desk, put his hands on her shoulders, squeezed tightly, and whispered that she “was his property between the hours of 7:30 and 4:00.” She testified that in 2004, during a meeting in Smith's office, he noticed a tattoo on her right foot, bent down, took off her sandal, and grabbed her foot.
Ms. Sherwood testified that although Smith made her uncomfortable, she was initially afraid to confront him “[b]ecause he made it well known that he did not like women that overtalked him,” but that she decided to take a stand once she noticed Smith acting similarly toward her female coworkers “[b]ecause [she] felt that [she] wasn't going to let him intimidate other people as much as he intimidated [her].” At that point, in August 2005, Ms. Sherwood complained to the school's board of directors and received a transfer to another office, as well as assurances she would not have to be alone in the same room with Smith ever again. Ms. Sherwood later repeated this testimony for the jury and added, without objection, that during her time sharing an office with Smith “he made it clear that he was in control, and it was his way or the highway” because as an administrative employee she “[could] be replaced at any point in time.” She also testified, without objection, about an occasion when she overheard Smith tell a student that, “[i]f I was 20 years younger, you are a fine-looking high school student.”
The third Rule 404(b) witness the State called for voir direexamination was Lisa Jackson, who testified that she worked at East Wake Academy as a fifth grade teacher for two and a half years beginning in 2002 and then, after taking time off following the birth of her child, returned to work in 2007 as an English teacher at the Academy's high school. Ms. Jackson described Smith's behavior as flirtatious, noting that between 2002 and 2004, he routinely complemented her hair and told her during private meetings in his office that, “if you and I were ever both single at the same time, that would be dangerous.” Ms. Jackson also testified that Smith frequently made her feel uncomfortable by giving her unsolicited hugs and telling her, “You know that I love you, don't you?” She specifically recalled an unusually long hug Smith gave her in the spring of 2011 in his office after positioning himself in a spot where nobody else could see them. Ms. Jackson testified that she never told Smith to stop “because I felt like he was in a position of power, and I needed my job, and I knew that I needed to stay on the good side.” When Ms. Jackson later repeated her testimony for the jury, she also described without objection an incident when Smith kissed her on the cheek in the far corner of the school's gymnasium.
The fourth and final Rule 404(b) witness the State called for voir direexamination was Emily Jones, who testified that she started working as a social studies teacher at East Wake Academy's high school in 2003. Ms. Jones testified that she had a normal employee/boss relationship with Smith until September of 2011, when he approached her while she was performing her morning carpool duty and said that he had come down to tell her how good she looked standing out there. When Ms. Jones tried to defuse the situation by telling Smith that he was “looking might[y] sharp [himself] today,” Smith grabbed her hand, pulled her close, looked her in the eye and said, “No, you look good,” which left Ms. Jones feeling “embarrassed, humiliated, and intimidated.” Ms. Jones further testified that one month later, Smith again approached her during carpool duty and whispered in her ear that he had been watching her all weekend on Facebook. When Ms. Jones realized he was referring to a video posted online of her dancing with other teachers and students at the school's annual Cowboy Day Dance, she told Smith that she was not the only one who had been dancing, which prompted him to reply, “Yes, but you were the only one I was watching.” When Ms. Jones later repeated her testimony for the jury, she added, without objection, that she eventually filed a complaint against Smith for sexual harassment and explained how that complaint ultimately led to his dismissal as headmaster.
At the conclusion of each voir direexamination, Smith argued that the witness's testimony described conduct that was not sufficiently similar to, and too remote in time from, the charged offenses to be relevant, and therefore amounted to impermissible character evidence under Rule 404(b), the probative value of which was substantially outweighed by its potential for undue prejudice under Rule 403. The trial court granted Smith's motion to exclude Ms. Eddins' testimony, but denied his motion with regards to Ms. Sherwood, Ms. Jackson, and Ms. Jones, reasoning that their testimony was properly admissible under Rule 404(b) for the purposes of showing Smith's intent, motive, opportunity, common plan or scheme, and absence of mistake. The court noted Smith's objection for the record and agreed to provide limiting instructions for the jury.
The State then called Detective Finch to testify about his investigation into the allegations of S.Y. and S.W. He testified that, after meeting with S.Y. and S.W., he conducted interviews with other teachers and administrators at East Wake Academy, including Ms. Eddins, Ms. Sherwood, Ms. Jackson, and Ms. Jones, and also obtained search warrants for Smith's school and home computers because “computers and sexually related crimes go together.” After seizing three school-owned computers from Smith, Detective Finch sent them to a contact at the State Bureau of Investigation who, after careful analysis, reported that they contained “a tremendous amount of pornography.” Detective Finch testified further that, based on the interviews he conducted, he put together “a profile of the type of person that would accuse [Smith], based on the people that were [at the school]” and that, after concluding that “it appeared, based on the interviews ... that [Smith] only did this to white females [with] dark hair,” he used that profile to search for other potential witnesses and victims. After concluding his interviews at the school, Detective Finch met with Smith regarding the allegations against him and ultimately decided to charge Smith with two counts of sexual battery and two counts of assault on a female.
At the close of the State's evidence, Smith made motions to dismiss all the charges against him, arguing that the State had failed to present sufficient evidence on each of the elements of the crimes alleged by both S.Y. and S.W. After the trial court denied these motions, Smith called several witnesses, including a teacher and two administrators from East Wake Academy, who testified that they had never witnessed or otherwise been aware of any prior criminal or sexual allegations against Smith, and also cast doubt on the credibility of S.Y. and S.W.
On 30 September 2013, the jury returned its verdict finding Smith guilty on one count of sexual battery on S.Y. and one count of assault on a female on S.Y. The jury was unable to reach a verdict on the charges relating to S.W., and a mistrial was declared with regard to those two counts. After observing that Smith “treated women like chattel,” the trial court sentenced him to two consecutive terms of 60 days in the custody of the Sheriff of Wake County. Smith gave oral notice of appeal in open court.
Analysis
A. Motion to exclude under Rule 404(b)
Smith first argues that the trial court erred in denying his motion in limineto exclude evidence of unrelated incidents of sexual harassment involving persons other than the victims of the offenses charged. Specifically, Smith contends that the testimony of Ms. Sherwood, Ms. Jackson, and Ms. Jones was not relevant for any proper purpose under Rule 404(b) and thus amounted to improper character evidence. Alternatively, Smith contends that even if the challenged testimony was relevant, the incidents detailed therein were not sufficiently similar to, and were too remote in time from, the offenses charged. Smith also argues that because the prejudicial effect of this evidence outweighed its probative value, it should have been excluded under Rule 403. We disagree.
It is well established that when reviewing a trial court's admission of evidence under Rule 404(b), our State's appellate courts
conduct distinct inquiries with different standards of review. When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, as it did here, we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novothe legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012) (italics added). Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith,” but such evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen.Stat. § 8C–1, Rule 404(b) (2013). Our Supreme Court has characterized Rule 404(b) as
a clear general rule of inclusionof relevant evidence of other crimes, wrongs, or acts by a defendant, subject to but one exceptionrequiring its exclusion if its onlyprobative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990) (emphasis in original). Furthermore, this Court has recognized that
[w]hen the evidence is offered for a proper purpose, the ultimate test of admissibility is whether the incidents are sufficiently similar to those in the case at bar and not so remote in time as to be more prejudicial than probative under the Rule 403 test.... The similarities between the acts do not have to be unique or bizarre; rather, they must tend to support a reasonable inference that the same person committed both acts.... Remoteness in time generally affects the weight to be given to the evidence, but not its admissibility.
State v. Love, 152 N.C.App. 608, 612, 568 S.E.2d 320, 323 (2002) (citations omitted), disc. review denied,357 N.C. 168, 581 S.E.2d 66 (2003). Therefore,
even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also is relevant for some purpose other thanto show that [the] defendant has the propensity for the type of conduct for which he is being tried.
State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (citation and internal quotation marks omitted; emphasis in original), cert. denied,485 U.S. 1036, 99 L.Ed.2d 912 (1988). In Bagley,our Supreme Court recognized that Rule 404(b) evidence can be introduced for the legitimate purpose of establishing any element of the offense charged, notwithstanding its tendency to demonstrate a defendant's propensity for committing similar crimes or acts. See id.at 208, 362 S.E.2d at 248 (approving of the trial court's charge to the jury that it “may consider this evidence for two purposes only [including, first] whether or not the defendant had the intent, which is a necessary element of the crime charged in this case”).
In the present case, Smith first contends that the trial court erred in denying his motion to exclude the testimony of Ms. Sherwood, Ms. Jackson, and Ms. Jones under Rule 404(b) because the incidents they described were not relevant to the charges against him and thus had no probative value except to prove his bad character. This argument fails, however, given that the charges against Smith required the State to prove the element of intent, which the plain language of Rule 404(b) and this Court's prior holdings make clear is a proper purpose for admitting evidence of prior acts.
In the context of sex offense prosecutions, our State's appellate courts have been “markedly liberal in holding evidence of prior sex offenses admissible for one or more purposes listed in Rule 404(b).” State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992) (citations, internal quotation marks, and brackets omitted). “This is particularly true where the fact sought to be proved is the defendant's intent to commit a similar sexual offense for which the defendant has been charged.” Id.at 612, 419 S.E.2d at 562 (citation omitted). “A defendant's purpose in performing an act, like intent, is a mental attitude and is seldom provable by direct evidence and must ordinarily be proven by inference.” State v. Brown, 211 N.C.App. 427, 437, 710 S.E.2d 265, 272 (2011) (citations and internal quotation marks omitted), affirmed per curiam,365 N.C. 465, 722 S.E.2d 508 (2012). Therefore, our Supreme Court has often held that prior similar conduct by a defendant may be highly probative of his intent. See, e.g., White, 331 N.C. at 613, 419 S.E.2d at 562.
Here, Smith was charged with two counts of sexual battery, which is a crime that requires the State to offer proof of intent. Our General Statutes provide that a person is guilty of sexual battery “if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person ... [b]y force and against the will of the other person.” N.C. Gen.Stat. § 14–27.5A (2013). Given that the offense of sexual battery requires the State to offer proof of his intent, we conclude that the trial court did not err in its ruling that the testimony of the State's three Rule 404(b) witnesses was admissible for the purpose of showing Smith's intent, as well as his common plan or scheme, opportunity, motive, and lack of mistake.
Because the “ultimate test” when evidence is offered for a proper purpose under Rule 404(b) “is whether the incidents are sufficiently similar to those in the case at bar and not so remote in time as to be more prejudicial than probative under the Rule 403 test,”see Love, 152 N.C.App. at 612, 568 S.E.2d at 323, we turn now to Smith's arguments regarding similarity and temporal proximity. Here, Smith makes two related arguments. First, Smith argues that the prior acts detailed in the testimony of the State's Rule 404(b) witnesses are not sufficiently similar to the incidents that gave rise to the criminal charges against him. Second, Smith argues that the prior acts the State's Rule 404(b) witnesses described are too remote in time to be considered relevant. Both these arguments fail.
On the one hand, to support his claim that the prior acts described in the challenged testimony were not sufficiently similar to be admissible under Rule 404(b), Smith relies on this Court's decision in State v. White, 135 N.C.App. 349, 520 S.E.2d 70 (1999). In White,we granted a new trial to a defendant who had been convicted of first-degree rape and non-felonious breaking or entering because he was prejudiced when the trial court erroneously allowed the State to introduce evidence pursuant to Rule 404(b) of his subsequent act of sexual misconduct that was not sufficiently similar to the offense charged. Id.at 353, 520 S.E.2d at 73. As we explained, although both the offense charged and the Rule 404(b) evidence involved allegations of assault against young female victims in their homes, these few points of similarity were considerably outweighed by the differences in the settings and time of day when the incidents took place, the nature of each assault including the use of threats and weapons to perpetrate one but not the other, and the reactions of the victims. Id.Given our determination that the two incidents were not sufficiently similar, we held that the Rule 404(b) evidence “tend [ed] only to show the propensity of the defendant to commit sexual acts against young female children, a purpose for which the evidence cannot be admitted .” Id.at 354, 520 S.E.2d at 74.
Smith argues that here, as in White,the Rule 404(b) evidence lacked sufficient similarity to the offense charged and thus could only have been admitted in error. However, the present case is easily distinguishable from Whitebecause of the strong similarities between the crimes charged and the incidents described by all three Rule 404(b) witnesses in terms of the type of victim, the timing and location where the incidents occurred, and the nature of the incidents. Specifically, S.Y., S.W., and all three Rule 404(b) witnesses were teachers or administrators at East Wake Academy where Smith had authority over them by virtue of his role as headmaster. Moreover, each incident took place at school, during working hours, often in secluded areas where no other witnesses were present. Further, the incidents all involved invasions of personal space, inappropriate sexually suggestive comments, or unwanted touching by Smith, who frequently implied that rejecting his advances would have adverse effects on the victims' employment. Based on these points of commonality, we conclude that the testimony of the State's Rule 404(b) witnesses was sufficiently similar to the offenses charged to be relevant and admissible for the proper purpose of showing that Smith acted with the requisite intent of sexual arousal or gratification.
On the other hand, to support his claim that the prior acts described by the incidents detailed in the challenged testimony were too remote in time to be admissible under Rule 404(b), Smith relies on our Supreme Court's decision in State v. Jones, 322 N.C. 585, 369 S.E.2d 822 (1988). In Jones,our Supreme Court granted a new trial to a defendant who had been convicted of first-degree rape and taking indecent liberties with a child because the trial court erroneously admitted evidence of his past acts of sexual misconduct under Rule 404(b) for the purpose of showing his common plan or scheme. Id.at 590, 369 S.E.2d at 825. In so holding, the Court's rationale was that the prior acts were too remote to be probative, given the seven-year gap between them and the offense charged. Id.at 591, 369 S.E.2d at 825. In the present case, Smith highlights the fact that some of the Rule 404(b) testimony, including Ms. Sherwood's allegations of inappropriate conduct between 2003 and 2005, described incidents that date back at least six to eight years, and therefore contends the same logic that applied to the seven-year gap in Jonesshould apply here as well.
However, as our Supreme Court has noted subsequent to Jones,“[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan.” State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (citation omitted) (explaining that gaps of seven, ten, and even twenty years between evidence of past acts and the offense charged do not automatically render the past acts too remote to be admissible under Rule 404(b) ). In the present case, in addition to the 2011 allegations by S.Y. and S.W., the Rule 404(b) testimony presents an ongoing pattern of misconduct by Smith, beginning with the incidents detailed by Ms. Sherwood between 2003 and 2005, then continuing with Ms. Jackson in 2005, S.Y. starting in 2006, and Ms. Jones and S.W. in 2011. As noted already, Smith was in a position of power over all these female employees, and their testimony reveals he was able to gain access to them in situations where his conduct would go unnoticed by others. We therefore conclude that here, as in Frazier,these were similar acts, performed continuously over a period of years, thus making them highly probative as to the existence of a common plan or scheme and rendering the gap in temporal proximity immaterial to their relevance and admissibility under Rule 404(b). Accordingly, we hold that the trial court did not err in denying Smith's motion in limineto exclude the testimony of Ms. Sherwood, Ms. Jackson, and Ms. Jones under Rule 404(b).
B. Rule 403 and unfair prejudice
Smith next argues that even if the testimony of the Rule 404(b) witnesses is relevant, the trial court abused its discretion in admitting it because its probative value was substantially outweighed by the risk of unfair prejudice under Rule 403. We disagree.
Rule 403 provides that “[a]lthough 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.” N.C. Gen.Stat. § 8C–1, Rule 403. However, as this Court has repeatedly recognized, “[e]vidence is not excluded under [Rule 403 ] simply because it is probative of the offering party's case and is prejudicial to the opposing party's case. Rather, the evidence must be unfairlyprejudicial.” State v. Gabriel, 207 N.C.App. 440, 452, 700 S.E.2d 127, 134 (2010) (citations omitted) (emphasis in original), disc. review denied,365 N.C. 211, 710 S.E.2d 19 (2011). The balancing of the factors enumerated in Rule 403 is “within the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision.” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (citation, internal quotation marks, and brackets omitted), cert. denied, 531 U.S. 1114, 148 L.Ed.2d 775 (2001).
In the present case, Smith contends that he was unfairly prejudiced by the admission of the challenged Rule 404(b) testimony because of its undue tendency to suggest a decision by the jury on an improper basis. Specifically, citing our Supreme Court's decision in State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986), Smith argues that allowing the State to present a long history of his past indiscretions painted him as a lecherous sexual predator and invited the jury to base its verdict on a desire to punish him for his prior uncharged conduct. Smith puts particular emphasis on the prejudicial impact of the trial court's failure to give a limiting instruction to the jury before allowing Ms. Sherwood's testimony that he regularly referred to her as his “property,” and cites the trial court's own observation during sentencing that he “treated women like chattel” as further proof of prejudice.
After careful consideration of the record, we find no abuse of discretion here. First, it is clear from the transcript that the trial court performed exactly the sort of balancing inquiry that Rule 403 requires. Before admitting the challenged Rule 404(b) testimony, the trial court allowed extensive voir direexamination of each witness by both parties. Moreover, the trial court granted Smith's motion in limineto exclude the testimony of Ms. Eddins, and it also provided limiting instructions to insure that the jury only considered the testimony of Ms. Jackson and Ms. Jones for proper purposes. Further, although Smith is correct that the trial court did not include a limiting instruction with regard to Ms. Sherwood's testimony, the transcript demonstrates that Smith never requested such an instruction, and “[i]n North Carolina, the rule has long been that an instruction limiting admissibility of testimony ... is not required unless counsel specifically requests such instruction.” State v. Isenberg, 148 N.C.App. 29, 40, 557 S.E.2d 568, 575 (2001) (citation and internal quotation marks omitted), disc. review denied and appeal dismissed, 355 N.C. 288, 561 S.E.2d 268 (2002). This argument is overruled.
Smith's reliance on DeLeonardoto support his claim of unfair prejudice is similarly misplaced. In that case, our Supreme Court defined unfair prejudice in the Rule 403 context as “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.” 315 N.C. at 772, 340 S.E.2d at 357. But Smith's argument that DeLeonardoshould control the outcome here ignores the fact that the DeLeonardoCourt ultimately held that the probative value of the challenged evidence was not substantially outweighed by its danger of unfair prejudice because it was admitted for a proper purpose under Rule 404(b), and further found “no suggestion that the jury may have reached its decision on an improper basis.” Id.
Here, as in DeLeonardo,the trial court admitted the evidence for proper purposes under Rule 404(b), and Smith has not offered any evidence to support his bald assertion that the jury convicted him based on an improper basis, apart from the trial court's comment about “chattel” during the sentencing hearing. While this remark certainly would have been improper had it been made during the guilt/innocence phase of Smith's trial, we do not see how it could possibly have had any prejudicial impact on the jury after it had already rendered its verdict. Smith contends that the remark demonstrates just how pervasive the unfair prejudice resulting from admission of the challenged Rule 404(b) testimony was, but his argument that the jury reached its verdict out of an improper desire to punish him for prior uncharged conduct is fundamentally undermined by the fact that the jury only found him guilty on two of the four counts with which he was charged.
In sum, we do not believe that the trial court's Rule 403 determination “was manifestly unsupported by reason.” See Hyde, 352 N.C. at 55, 530 S.E.2d at 293. Accordingly, we hold that the trial court did not abuse its discretion in admitting the testimony of Ms. Sherwood, Ms. Jackson, and Ms. Jones.
C. Plain error and surprise testimony
Smith next argues that the trial court committed plain error by allowing the jury to hear additional irrelevant and prejudicial testimony that the State's Rule 404(b) witnesses did not first mention during voir direexamination. We disagree.
Smith acknowledges that because he failed to preserve this issue for appellate review by timely objecting when the evidence was admitted at trial, the standard of review is plain error. Under a plain error analysis, Smith is entitled to a new trial only if he can demonstrate that the trial court committed an error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Brunson, 187 N.C.App. 472, 477, 653 S.E.2d 552, 555 (2007) (citation omitted).
Here, Smith contends that Ms. Sherwood, Ms. Jackson, and Ms. Jones all testified about certain matters before the jury that they did not mention during voir direexamination and that these comments were unfairly prejudicial because of their undue tendency to suggest decision on an improper basis. To support this claim, Smith has highlighted several allegedly prejudicial statements and we consider each of them in turn.
First, Smith argues that Ms. Sherwood's testimony that he “made it clear that he was in control ... it was his way or the highway” was inherently prejudicial because of its tendency to suggest that he oppressed her and all females that worked under his supervision. However, Smith's argument that this statement to the jury differed from Ms. Sherwood's voir diretestimony ignores the fact that she offered strikingly similar testimony under voir direexamination, when she explained that Smith told her “you are my property from 7:30 to 4:00” and that Smith “made it well known that he did not like women that overtalked him.” The trial court considered both those statements before it ruled that Ms. Sherwood's testimony was admissible under Rule 404(b) for the proper purpose of showing Smith's intent. Thus, given our holding that the trial court did not err in admitting Ms. Sherwood's testimony into evidence, and the fact that the statement Smith objects to now basically amounts to a mere rephrasing of that testimony, we do not believe that the trial court's decision to allow this testimony without objection amounted to an error that was “so fundamental as to amount to a miscarriage of justice,” see id.,and we therefore conclude that the trial court did not commit plain error in admitting this statement.
Second, Smith argues that Ms. Sherwood's testimony that she heard Smith tell a high school student that, “if I was 20 years younger, you are a fine-looking high school student” was prejudicial because it portrayed him as a sexual predator of children, and irrelevant because there were no incidents of any kind involving children at issue in his case. We agree with Smith that it is difficult to discern the relevance of this testimony. Nevertheless, even assuming arguendothat the trial court erred in allowing it, we do not believe this error “probably resulted in the jury reaching a different verdict than it otherwise would have reached,” see id.,because the testimony of S.Y., standing alone, provided sufficient grounds for the jury to convict Smith of assault on a female and sexual battery. Our General Statutes provide that a person is guilty of sexual battery if “for the purpose of sexual arousal, sexual gratification, or sexual abuse, [he] engages in sexual contact with another person ... [b]y force and against the will of the other person.” N.C. Gen.Stat. § 1427.5A. Moreover, as this Court's prior decisions make clear, assault on a female “may be proven by finding either an assault or a battery of the victim.” State v. West, 146 N.C.App. 741, 743, 554 S.E.2d 837, 839–40 (2001).
Here, based on S.Y.'s testimony that Smith pulled down her pants and touched her left buttocks, the jury could have found beyond a reasonable doubt that Smith engaged in a sexual contact. The jury could have also found that this contact was by force and against S.Y .'s will, given her testimony that she never gave Smith permission to engage in it. Further, the jury could have properly inferred that Smith's conduct was for the purpose of sexual arousal or gratification based on S.Y.'s testimony that he told her he could not control himself if she continued to wear pants. Thus, even without any testimony from Ms. Sherwood, Ms. Jackson, or Ms. Jones, there was sufficient evidence for the jury to convict Smith of sexual battery, which would in turn allow for a conviction of assault on a female. Consequently, we conclude that the trial court did not commit plain error in allowing this testimony.
Next, Smith argues that Ms. Jackson's testimony that he told her that, “if you and I were single at the same time, that would be dangerous” and that, “if you and I were single, I would take you out for coffee” was prejudicial because it further tempted the jury to convict him of sexually assaulting S.Y. in order to punish him for unrelated noncriminal behavior. For the same reasons, Smith contends that Ms. Jackson's testimony that he kissed her on the cheek in a far corner of the school's gymnasium was also prejudicial. Smith's first argument ignores the fact that during voir direexamination Ms. Jackson testified about substantially similar comments Smith made to her. While Smith's second argument is more accurate, insofar as Ms. Jackson did not mention the gymnasium kiss during voir dire,it ignores a strikingly similar incident she described during which Smith gave her an unwanted prolonged hug in a corner of his office where nobody else could see.
Both these arguments are based on testimony that added little or nothing to the evidence the trial court considered before ruling Ms. Jackson's testimony admissible under Rule 404(b). Given our holding that the trial court did not err in that decision, we do not believe the trial court's decision to allow this testimony without objection amounted to an error that was “so fundamental as to amount to a miscarriage of justice.” See Brunson, 187 N.C.App. at 477, 653 S.E.2d at 555. Moreover, even assuming arguendothat the trial court erred in allowing it, in light of S.Y.'s testimony, we do not believe this error “probably resulted in the jury reaching a different verdict than it otherwise would have reached.” See id.We therefore conclude that the trial court did not commit plain error in admitting these statements.
Lastly, Smith argues that Ms. Jones's testimony that he was dismissed from his position as headmaster soon after she filed a sexual harassment complaint against him was wholly irrelevant to any fact at issue and prejudicial because its only purpose was to show his bad character. While we agree with Smith that it is difficult to discern the relevance of this testimony, we nevertheless conclude once again that, even assuming arguendothat the trial court erred in allowing it, in light of S.Y.'s testimony, we do not believe this error “probably resulted in the jury reaching a different verdict than it otherwise would have reached.” See id.We therefore conclude that the trial court did not commit plain error in admitting this statement.
D. Plain error, pornography, and racial-profiling
Finally, Smith argues that the trial court committed plain error in allowing Detective Finch to testify about pornography he found on Smith's computers and about his ability to profile Smith as an African–American male who “only did this to white women with dark hair.” We disagree.
Smith acknowledges that because he failed to preserve this issue for appellate review by timely objecting when the evidence was admitted at trial, the standard of review is plain error. See Brunson, 187 N.C.App. at 477, 653 S.E.2d at 555.
Smith first contends that the trial court plainly erred by allowing Detective Finch to testify without objection that he found “a tremendous amount of pornography” on Smith's computer. In support of his argument that this evidence was both irrelevant and prejudicial, Smith cites this Court's prior decisions in State v. Smith, 152 N.C.App. 514, 568 S.E.2d 289, appeal dismissed and disc. review denied,356 N.C. 623, 575 S.E.2d 757 (2002), and State v. Moore, 173 N.C.App. 494, 620 S.E.2d 1 (2005). However, Smith's reliance on Smithand Mooreis misplaced. In both these cases, we held that the trial court erred by admitting evidence that the defendant possessed pornography under Rule 404(b) because “[e]vidence of a defendant's mere possession of pornographic materials does not tend 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” and “[w]ithout any evidence that a defendant had viewed the pornographic materials with the victim, or any evidence that [the] defendant had asked the victim to look at pornographic materials, the pornographic material is not relevant to proving a defendant committed the alleged sexual offenses.” Moore, 173 N.C.App. at 503, 620 S.E.2d at 8 (quoting Smith, 152 N.C.App. at 522–23, 568 S.E.2d at 29495) (citation, internal quotation marks, and some brackets omitted). Nevertheless, in both cases, we ultimately concluded that the trial court's error did not rise to the level of prejudicial error and affirmed the defendants' convictions because they each failed to show “a reasonable possibility that, had the trial court not admitted evidence of his possession of pornographic [materials], a different result would have been reached at the trial .”Smith, 152 N.C.App. at 524, 568 S.E.2d at 295.
In the present case, the evidence that Smith possessed pornographic materials is arguably more relevant than it was in Smithand Moore,in light of the fact that here, Smith's pornography was found on school-owned computers, at least one of which was recovered from East Wake Academy. Given that all of the incidents that S.Y. and S.W. complained of took place at school, as did the incidents described by the State's three Rule 404(b) witnesses, we believe that Smith's possession of pornography on his school computer is relevant for the purpose of showing his repeated pattern of sexual arousal or gratification while at school, which goes to the element of intent and is therefore admissible under Rule 404(b). But even assuming arguendothat the trial court erred in allowing Detective Finch to testify about Smith's extensive digital pornography collection, we conclude that, just as in Smithand Moore,this does not rise to the level of plain error. Put simply, in light of S.Y.'s testimony and all the other evidence properly admitted against Smith, the jury had sufficient evidence to convict him of the offenses charged, and we consequently do not believe that the admission of Detective Finch's testimony “probably resulted in the jury reaching a different verdict than it otherwise would have reached.” Brunson, 187 N.C.App. at 477, 653 S.E.2d at 555. Smith's related argument that the prejudice resulting from the admission of this evidence was exacerbated by Detective Finch's statement that “computers and sexually related crimes go together” fails for the same reasons.
In a final attempt to satisfy the high bar our plain error standard of review presents, Smith insists that he was unfairly prejudiced by Detective Finch's statement that he was able to profile Smith as an African–American male who “only did this to white women with dark hair.” Smith claims this statement likely affected the verdict because it tended to prejudice the jury against him as an African–American while invoking sympathy for the white victims, S.Y. and S.W. This Court does not take lightly allegations that racial bias impacted a jury's verdict. In the present case, however, those allegations are based on a misrepresentation of Detective Finch's testimony, as a review of the transcript makes clear that Detective Finch was not testifying about any efforts to profile Smith himself, but instead describing how he used similar characteristics shared by the victims and Rule 404(b) witnesses to guide his investigation at East Wake Academy and his efforts to identify additional victims and witnesses. Moreover, in light of all the evidence properly admitted against Smith, as well as the fact that a mistrial had to be declared on the charges regarding S.W. after the jury failed to reach a verdict, we do not believe that the admission of this testimony constituted an error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” Id.Accordingly, we hold that the trial court did not commit plain error by allowing Detective Finch's testimony.
NO ERROR.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
Opinion
Appeal by Defendant from judgments entered 30 September 2013 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 4 December 2014.