STATE of North Carolina
v.
James Robert PRUITT.
No. 8818SC934.
Court of Appeals of North Carolina.
June 20, 1989.*384 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. L. Darlene Graham, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Mark D. Montgomery, Raleigh, for defendant-appellant.
*385 SARAH ELIZABETH PARKER, Judge.
Defendant has grouped his numerous assignments of error into six basic arguments. First, defendant contends that the trial court erred in allowing the State's witnesses to attest to defendant's past sexual conduct. Second, defendant argues that the trial court erred in admitting testimony of one witness to corroborate another witness's testimony about defendant's past sexual conduct. Third, the defendant urges this Court to find error in the trial judge's jury instruction on possession of a deadly weapon. Fourth, defendant asserts that the court committed plain error in allowing the prosecutor to argue to the jury that defendant had failed to put on evidence of consent. Next, defendant contends that the trial court erred in presenting the charges against the defendant to the jury. Finally, defendant argues that the sentences imposed against defendant are unconstitutional because they are cruel and unusual punishment. We address separately each of defendant's contentions.
Defendant argues that he was denied a fundamentally fair trial because the court admitted evidence in violation of G.S. 8C-1, Rule 404 when it allowed two of the State's witnesses, defendant's former lovers, to testify to defendant's past sexual conduct. The State contends that this evidence was admissible under G.S. 8C-1, Rule 404(b) and under State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), as evidence tending to show defendant's modus operandi, motive, intent, preparation and plan.
At trial State's witness D__ B__ testified that she met defendant in mid-January 1986 and consented to sexual intercourse on 28 January 1986. On 4 February 1986, she and defendant went to a motel and engaged in consensual sexual intercourse including oral sex. On this occasion defendant had been drinking. While talking with defendant after intercourse, D__ B__ called defendant Roger instead of Robert. Defendant became upset and called D__ B__ names. D__ B__ started to dress and leave. Defendant then allegedly ripped off her underwear, began beating and kicking her, pulled out a knife and threatened to kill her with the knife. Defendant then forced D__ B__ to engage in anal intercourse and fellatio, and demanded that she urinate on him. When D__ B__ refused, defendant went to the bathroom and D__ B__ was able to escape to the motel office.
P__ S__, a second State's witness, testified that she met defendant in January 1987 and that he moved in with her at the end of March 1987. Thereafter they entered into a consensual sexual relationship which continued until early May 1987. On 13 May 1987, defendant and P__ S__ were riding in his car when defendant suddenly hit her. Defendant drove his car into some woods and continued to beat P__ S__. When he stopped beating her, he allegedly forced her to engage in anal intercourse, fellatio, cunnilingus, and vaginal intercourse. Thereafter, P__ S__ remained with defendant in the woods until it started to get dark. Defendant then drove P__ S__ to the emergency room and left.
General Statute 8C-1, Rule 404(b) prohibits the introduction of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show that he acted in conformity therewith on a particular occasion. Such evidence is admissible, however, for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. Our Supreme Court has ruled that the list of exceptions contained in Rule 404(b) is not exclusive and that extrinsic evidence of conduct is admissible if "relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried." State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986). When the incidents are offered for a proper purpose, the ultimate test of admissibility is "whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403." State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988) (citing State v. Cotton, 318 N.C. 663, 665, 351 S.E.2d 277, 278-79 (1987)).
*386 Our courts have been liberal in admitting evidence of similar sexual offenses under the exceptions listed above. State v. Greene, 294 N.C. 418, 423, 241 S.E.2d 662, 665 (1978). In State v. Bagley, 321 N.C. 201, 362 S.E.2d 244, cert. denied, ___ U.S. ___, 108 S. Ct. 1598, 99 L. Ed. 2d 912 (1987), the defendant was charged with first degree sexual offense for allegedly forcing the victim to submit to cunnilingus by threatening her with a knife. The North Carolina Supreme Court held that testimony from another woman that defendant had pinned her to the ground and threatened her with a knife while he licked her and attempted to perform cunnilingus was relevant and admissible to prove defendant's modus operandi, motive, intent, preparation and plan. Id. at 207-208, 362 S.E.2d at 248. In State v. Morrison, 85 N.C.App. 511, 355 S.E.2d 182, appeal dismissed and disc. rev. denied, 320 N.C. 796, 361 S.E.2d 84 (1987), defendant was charged with rape which he allegedly committed after luring the victim to his apartment on the pretext of changing clothes before they went out on their date. This Court held that testimony from another woman that defendant attempted to rape her after luring her to his apartment on the pretext of changing clothes before they went out on a date was relevant and admissible to show a common scheme or plan to commit the offense with which defendant was charged. Id. at 514, 355 S.E.2d at 184-85.
In the present case we conclude that the strikingly similar behavior attributed to defendant by all three womenbefriending the women; luring them into a dating relationship; and then, after gaining their trust, using physical violence and/or the threat of a deadly weapon to force each woman to engage in vaginal intercourse, anal intercourse, cunnilingus, and fellatio rendered the testimony of defendant's former lovers, D__ B__ and P__ S__, admissible to prove defendant's modus operandi, plan, motive and intent.
Finally, defendant has failed to show that the evidence should have been excluded under the Rule 403 balancing test. Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court, and it will not be reviewed absent a showing of abuse of that discretion. State v. Cotton, 318 N.C. at 668, 351 S.E.2d at 280; State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). In the present case there was no abuse of discretion. The trial judge admitted the evidence of prior misconduct for a limited purpose and specifically instructed the jury before their deliberations that they could consider this evidence only for the limited purposes of considering (i) whether or not the defendant had the necessary intent required to commit the crimes charged and (ii) whether or not there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in these cases. Moreover, the evidence was not grossly shocking or so cumulative as to mislead the jury away from the offenses for which defendant was being tried. State v. Bagley, 321 N.C. at 208, 362 S.E.2d at 248.
Defendant's second argument is that the trial court erred when it admitted the testimony of Detective Mary Ann Harper to corroborate the testimony of D__ B__. Ms. Harper was the police detective who investigated D__ B__'s charges against defendant after the alleged sexual assault in 1986. Ms. Harper's testimony, in fact, was limited to the description of events given to her by D__ B__ with regard to the alleged assault on D__ B__ by defendant. The trial court admitted this evidence solely for the purpose of corroborating D__ B__'s testimony.
The North Carolina Supreme Court has permitted prior consistent statements of a witness as corroborative evidence even when the witness has not been impeached. State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983). Since Ms. Harper's testimony was limited to the prior consistent statement made by D__ B__ regarding defendant's sexual attack, we conclude that this testimony was properly admitted to corroborate D__ B__'s in-court statement. See also State v. Riddle, 316 N.C. 152, 340 S.E.2d 75 (1986); State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986).
*387 Next, defendant argues that the trial court erred when instructing the jury on "use of a deadly weapon" as a necessary element of first degree rape or first degree sexual offense. The judge's instruction to the jury on use of a deadly weapon was as follows:
And fourth, that the defendant employed or displayed a dangerous or deadly weapon. A dangerous or deadly weapon is a weapon which is likely to cause death or serious bodily injury. The State is not required to prove that a dangerous or deadly weapon was used in a particular manner. A dangerous or deadly weapon is employed when a person has such in his possession at the time of the alleged crime.
The North Carolina Supreme Court has held that the State is not required to prove "that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first degree rape." State v. Langford, 319 N.C. 340, 344, 354 S.E.2d 523, 525 (1987). The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon, because it had been displayed or employed. See id. Although the trial court's instruction did not emphasize the victim's awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion. The victim's testimony indicates that not only did defendant have a knife in his possession during his sexual assault on her, defendant threatened her with this knife, and the knife remained on the bedside table, within eight feet of defendant, throughout the attack. This assignment of error is, therefore, overruled.
Fourth, defendant contends that the trial court erred in allowing the prosecutor to argue to the jury that defendant had failed to put on evidence of consent because, in effect, counsel was commenting on defendant's failure to take the stand. We note at the outset that defendant did not object to this argument at trial; therefore, Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure bars the assignment of error. Defendant also contends, however, that the judge committed plain error by failing to intervene ex mero motu.
Defendant objects to the following portion of the prosecutor's argument:
[Defendant's Counsel] indicated that the main thing you would have to decide in this case was their contention that [the victim] had consented to all of these sexual acts that you've heard, that she was a willing and voluntary participant with Mr. Pruitt in all of these acts. He said he'd have evidence. Well, the only evidence that you've had in this trial of consent from the witness chair is evidence of no consent or lack of consent.
This argument is merely a reference to the failure of defendant to put on any evidence. Such an argument is permissible. See State v. Griffin, 308 N.C. 303, 314, 302 S.E.2d 447, 455 (1983); State v. Tilley, 292 N.C. 132, 143, 232 S.E.2d 433, 441 (1977). The defendant contends that this is an improper reference to defendant's failure to testify because only the defendant could have testified to the victim's consent. We note that even where the defendant has chosen not to testify and the prosecution, in closing, has explicitly stated "[t]hat's something no one here can answer except the defendant," the North Carolina Supreme Court has held that the trial judge was not required to intervene ex mero motu. State v. Wilson, 311 N.C. 117, 130, 316 S.E.2d 46, 54-55 (1984). Moreover, any prejudice which might have resulted from the prosecutor's remarks was cured by the following instruction contained in the jury charge:
The defendant in this case has not testified. The law of the State of North Carolina gives him this privilege. This same law also assures him that his decision not to testify creates no presumption against him. Therefore, his silence is not to influence your decision in anyway [sic].
See id.; State v. Hopper, 292 N.C. 580, 585-86, 234 S.E.2d 580, 583 (1977).
Next, defendant argues that the court erred in presenting the charges *388 against the defendant to the jury because the court used phrases from the indictment such as "did ravish and carnally know" and "willfully and feloniously." The trial court may refer to and summarize the indictments when explaining the charges against defendant and the circumstances under which the defendant is being tried. State v. Leggett, 305 N.C. 213, 217-18, 287 S.E.2d 832, 835-36 (1982); State v. Shelton, 53 N.C.App. 632, 639-40, 281 S.E.2d 684, 690 (1981), disc. rev. denied and appeal dismissed, 305 N.C. 306, 290 S.E.2d 707 (1982); State v. Laughinghouse, 39 N.C. App. 655, 657-58, 251 S.E.2d 667, 668-69, cert. denied, 297 N.C. 615, 257 S.E.2d 438 (1979). The record shows that the trial court did not read the entire indictment to the jury. Therefore, defendant's assignment of error is without merit.
Finally, defendant asserts that imposing three consecutive life sentences against defendant constitutes cruel and unusual punishment. The punishment imposed for each conviction was within the statutory limits. The North Carolina Supreme Court has consistently held that a sentence which is within the maximum authorized by statute is not cruel or unusual punishment. See State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983); State v. Mitchell, 283 N.C. 462, 471, 196 S.E.2d 736, 742 (1973). Accordingly, this assignment of error is overruled.
No error.
PHILLIPS and COZORT, JJ., concur.