IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-527
No. COA20-515
Filed 2 August 2022
Wake County, No. 17 CRS 214685
STATE OF NORTH CAROLINA
v.
TROY LOGAN PICKENS
Appeal by Defendant from judgments entered 1 November 2019 by Judge Carl
R. Fox in Wake County Superior Court. Heard in the Court of Appeals 19 October
2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri
Horner Lawrence, for the State-Appellee.
Michael E. Casterline for Defendant-Appellant.
COLLINS, Judge.
¶1 Defendant Troy Logan Pickens appeals from judgments entered upon jury
verdicts of guilty of one count of first-degree rape of a child and two counts of
first-degree sexual offense with a child. Defendant argues that the trial court erred
by admitting certain Rule 404(b) evidence and erred in sentencing. We find no error
in the admission of the challenged evidence. We conclude that the trial court
improperly considered Defendant’s exercise of his constitutional right to demand a
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trial by jury in deciding to impose consecutive sentences. Defendant’s convictions
remain undisturbed, and the matter is remanded to the trial court for resentencing.
I. Procedural History and Factual Background
¶2 Defendant was indicted on one count of first-degree rape of a child and two
counts of first-degree sexual offense with a child. The State filed a pretrial notice of
Rule 404(b) evidence, giving notice to Defendant “of the State’s intent to introduce at
the trial of the above cases evidence of other crimes, wrongs, or acts as evidence of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake, entrapment or accident.” Defendant filed a motion in limine “to preclude
the State from introducing any evidence that the Defendant committed sexual assault
in Durham, North Carolina.”
¶3 The trial began on 21 October 2019. At trial, relevant evidence tended to show
that on 1 July 2015, Defendant was hired as the chorus teacher at Durant Middle
School in Raleigh. At the end of July, eleven-year-old Ellen1 began sixth grade at
that school. Ellen was around 4’10” tall, weighed between 60-65 pounds, and “had
not yet reached puberty[.]”
A. Ellen’s Testimony
¶4 While Ellen attended Durant Middle School, she would leave during class
1 We use pseudonyms to protect the identity of both juvenile witnesses in this case.
See N.C. R. App. P. 42(b).
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around lunchtime each day, walk through the school to get a dose of her prescribed
Ritalin from the school nurse, and return to class. One day, a month or two after she
had started the school year, she saw Defendant while she was walking in the
sixth-grade hallway to get her medication. She knew who Defendant was because
some of her friends had chorus with him, but she did not have him as a teacher. He
motioned her over. She asked him, “What do you need?” Defendant replied, “Be
quiet.” He grabbed the back of her shirt and walked her into an empty restroom. He
took her into the handicapped stall at the end of the restroom and told her to take
her clothes off. He then unbuttoned his pants and told her to touch his penis. When
she did not do so, he grabbed her hand and put it on his penis. He then told her to
stroke it and moved her hand. He threatened to hurt her or her family if she told.
After five minutes or less, she left the restroom and went back to class.
¶5 The next time Ellen encountered Defendant in the hallway, he grabbed her
again by her shirt and her ponytail, and the same series of events occurred in the
same bathroom stall: he forced her to undress and stroke his penis, and he threatened
her if she told. Then he told her to bend over the toilet. She felt pressure as he tried
twice to put his penis in her vagina before telling her she was too small. He then put
his penis in her anus.
¶6 The next time Ellen encountered Defendant in the hallway, he took her into
the handicapped stall, told her to undress and stroke his penis, and then told her to
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defecate in the toilet. After she did, he told her to pick her feces out of the toilet.
Saying, “Open up you filthy slut,” he put her feces in her mouth. Feces were also
smeared on the wall of the stall. He told her to bend over and had anal intercourse.
He also touched her chest and her vagina.
¶7 This sequence of events happened every other day for a couple of weeks. Ellen
described him cussing under his breath and muttering “whore” and “slut.” She also
described occasions when Defendant had forced her to perform fellatio. She once tried
to stop him and he threw her, slamming her leg against the toilet. When each episode
was over, Ellen would wash her hands, rinse out her mouth, and go back to class.
B. Kathleen’s 404(b) Testimony
¶8 The State called Kathleen as a Rule 404(b) witness. After voir dire of Kathleen,
the trial court orally denied Defendant’s motion to exclude Kathleen’s testimony.
¶9 Kathleen testified before the jury, essentially as she had in voir dire, as follows:
Defendant had been her chorus teacher at Neal Middle School in Durham when
Kathleen was in the seventh grade. One day, she and her classmates had been
watching a movie in Defendant’s class. When it was time to leave and everyone was
getting up to go, Defendant came over to her, put his hands on her waist, and moved
them down towards her bottom. It made her uncomfortable, and she ran out of the
classroom.
¶ 10 In the eighth grade, she again took chorus from Defendant. He wanted her to
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participate in an extracurricular performance which required practice at a different
school. She did not want to be involved because none of her friends were
participating, but Defendant called her mother, and her mother told him Kathleen
would participate. Kathleen’s mother had a medical condition, so Defendant
volunteered to give Kathleen rides to the practice.
¶ 11 On 2 February 2015, the day after Kathleen turned 14, she was riding to the
final practice with Defendant. He told her he needed to stop at his apartment, and
he told her to come inside with him. They sat on his couch and watched a cartoon
while they ate. After putting the dishes in the sink, he came back and touched her
leg. Kathleen asked him not to touch her. He continued touching her leg, then pulled
her up by her left arm and pulled her into his bedroom as she resisted. Kathleen –
who was then 5’ 2” tall and weighed 100 pounds – testified that he threw her down
on the bed. As she lay on her back, Defendant took off her pants and underwear,
pulled his own pants half-way down, then put his penis into her vagina. She asked
him to stop and was crying, but he did not stop. After a few minutes, he moved away
from Kathleen and went into the bathroom.
¶ 12 Kathleen put her clothes on. When Defendant came back into the room, he
apologized to her and told her that if she told anyone, it would happen again. He
then took her to practice and later gave her a ride home.
¶ 13 At the conclusion of the trial for sexually assaulting Ellen, Defendant was
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found guilty on all charges.
II. Analysis
A. Rule 404(b) Evidence
¶ 14 Defendant argues that the trial court erred in admitting Kathleen’s testimony
under Rule 404(b) because it was not similar to the crime charged and was unduly
prejudicial.
¶ 15 The trial court’s determination as to whether the evidence of other crimes,
wrongs, or acts falls within the scope of Rule 404(b) is a question of law, which we
review de novo on appeal. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156,
159 (2012).
¶ 16 Under North Carolina Rule of Evidence 404(b), “[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.” N.C. Gen. Stat. § 8C-1, Rule 404(b) (2019).
Such evidence “may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake, entrapment or accident.” Id. “Generally, Rule 404 acts as a gatekeeper
against ‘character evidence,’” State v. Pabon, 380 N.C. 241, 2022-NCSC-16, ¶ 60
(quoting N.C. Gen. Stat. § 8C-1, Rule 404(a)), and evidence admitted under Rule
404(b) “should be carefully scrutinized in order to adequately safeguard against the
improper introduction of character evidence against the accused,” State v.
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Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (citation omitted).
¶ 17 Notwithstanding this important protective role, our North Carolina Supreme
Court has repeatedly held that “Rule 404(b) state[s] a clear general rule of inclusion.”
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990); see Al-Bayyinah, 356
N.C. at 153-54, 567 S.E.2d at 122 (quoting Coffey for this same proposition).
Accordingly, relevant evidence of a defendant’s past crimes, wrongs, or acts is
generally admissible for any one or more of the purposes enumerated in Rule 404(b)’s
non-exhaustive list, “subject to but one exception requiring its exclusion if its only
probative value is to show that the defendant has the propensity or disposition to
commit an offense of the nature of the crime charged.” Coffey, 326 N.C. at 278-79,
389 S.E.2d at 54 (emphasis in original); see Beckelheimer, 366 N.C. at 130, 726 S.E.2d
at 159 (noting that Rule 404(b)’s list “is not exclusive, and such evidence is admissible
as long as it is relevant to any fact or issue other than the defendant’s propensity to
commit the crime” (quotation marks and citation omitted)).
¶ 18 “[T]he rule of inclusion described in Coffey is constrained by the requirements
of similarity and temporal proximity.” Al-Bayyinah, 356 N.C. at 154, 567 S.E.2d at
123 (citations omitted). Prior acts are sufficiently similar under Rule 404(b) “if there
are some unusual facts present in both crimes that would indicate that the same
person committed them.” Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 159 (quotation
marks and citation omitted). “While these similarities must be specific enough to
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distinguish the acts from any generalized commission of the crime, ‘we do not require
that they rise to the level of the unique and bizarre.’” Pabon, 380 N.C. 241,
2022-NCSC-16, ¶ 63 (quoting Beckelheimer, 366 N.C. at 131, 726 S.E.2d at 156)
(brackets omitted).
¶ 19 Regarding temporal proximity, “a greater lapse in time between the prior and
present acts generally indicate[s] a weaker case for admissibility under Rule 404(b),”
id., but “remoteness for purposes of 404(b) must be considered in light of the specific
facts of each case[,] . . . [and t]he purpose underlying the evidence also affects the
analysis.” Id. (quotation marks, citations, brackets, and ellipsis omitted). “Evidence
of a prior bad act generally is admissible under Rule 404(b) if it constitutes
substantial evidence tending to support a reasonable finding by the jury that the
defendant committed the similar act.” Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at
123 (quotation marks, emphasis, and citations omitted).
¶ 20 “With respect to prior sexual offenses, we have been very liberal in permitting
the State to present such evidence to prove any relevant fact not prohibited by Rule
404(b).” State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561 (1992). As our
Supreme Court noted,
our decisions, both before and after the adoption of Rule
404(b), have been “markedly liberal” in holding evidence of
prior sex offenses “admissible for one or more of the
purposes listed [in Rule 404(b)] . . . .”
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Coffey, 326 N.C. at 279, 389 S.E.2d at 54 (quoting 1 Henry Brandis, Jr., Brandis on
North Carolina Evidence § 92 (3d ed. 1988)).
¶ 21 In this case, the assaults of Ellen took place in or around August or September
of 2015 and the alleged assault of Kathleen took place in February of 2015. Defendant
does not contest that this six-to-seven month time frame does not meet the temporal
proximity requirement under Rule 404(b). Therefore, the sole issue before this Court
is whether the 404(b) evidence was sufficiently similar to the acts at issue.
¶ 22 Here, the sexual assaults described by Ellen and the alleged sexual assault
described by Kathleen contained key similarities. Most significantly, in both cases,
Defendant used his position as a middle school teacher to gain access to, exercise
authority over, and ultimately assault diminutive, middle-school-aged girls. In both
cases, Defendant first encountered the girl during school hours inside the middle
school where he worked as a choral teacher. Ellen and Kathleen were both middle
school students and were similar in age when they were assaulted: Ellen was 11
years old, and Kathleen had just turned 14 years old. The girls were similar in build
when they were assaulted: Ellen was around 4’10” tall and weighed approximately
60-65 pounds while Kathleen was 5’2” tall and weighed 100 pounds. In each case,
Defendant grabbed the girl and pulled her to the isolated area where he assaulted
her. Defendant also ignored each girl’s tears. Also, in each case, Defendant pulled
his pants and underwear half-way down. Defendant similarly sexually assaulted
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each girl: Defendant attempted to put his penis in Ellen’s vagina but, when he was
not able to, he put his penis in her anus. Defendant put his penis in Kathleen’s
vagina. Each assault lasted a brief period of time. In each case, Defendant used
threats after the sexual assault to discourage reporting. Based on all these points of
commonality, we conclude that Kathleen’s testimony was sufficiently similar to the
offenses charged to be relevant and admissible for the proper purpose of showing
Defendant’s intent, motive, plan, and design. See State v. Houseright, 220 N.C. App.
495, 500, 725 S.E.2d 445, 449 (2012) (404(b) witness’s testimony as to her sexual
encounter with defendant “was admissible for the purpose of showing defendant’s
plan or intent to engage in sexual activity with young girls” where the 404(b) witness
testified that defendant engaged in sexual conduct with her when she was 13 or 14
years old; the indictments alleged that defendant engaged in sexual activity with the
victim over a period of years when she was 13 to 15 years old; and defendant’s conduct
with the 404(b) witness took place within the same time period as the offenses alleged
in the indictments); State v. Smith, 152 N.C. App. 514, 527, 568 S.E.2d 289, 297-98
(2002) (404(b) witness’s testimony was “relevant to show absence of mistake and a
common plan or scheme, specifically that defendant took advantage of young girls in
situations where he had parental or adult responsibility for them. . . . [and] was also
admitted to show defendant’s unnatural attraction to young girls” where defendant
was charged with sexual misconduct with a 12-year-old which consisted of rubbing
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her breast and digitally penetrating her vagina, and the 404(b) witness testified that
when she was 15 years old, defendant had sexual intercourse with her and performed
oral sex on her without her consent).
¶ 23 To be sure, there are differences between the acts and their attendant
circumstances. However, “[o]ur case law is clear that near identical circumstances
are not required[;] rather, the incidents need only share ‘some unusual facts’ that go
to a purpose other than propensity for the evidence to be admissible.” Beckelheimer,
366 N.C. at 132, 726 S.E.2d at 160 (citations omitted).
¶ 24 In his brief, Defendant analogizes this case to State v. Watts, 246 N.C. App.
737, 783 S.E.2d 266 (2016), modified in part and aff’d by 370 N.C. 39, 802 S.E.2d 905
(2017), where a divided panel of this Court awarded a new trial, holding that the trial
court erred by admitting certain 404(b) evidence. However, contrary to Defendant’s
assertion, our North Carolina Supreme Court did not affirm Watts based on the Court
of Appeals’ majority’s analysis and conclusion. Instead, the Supreme Court modified
the Court of Appeals’ majority opinion and affirmed the decision to award a new trial
based on the trial court’s failure to deliver a limiting instruction concerning the
admitted 404(b) evidence. 370 N.C. at 41, 802 S.E.2d at 907.
¶ 25 In Watts, the Court of Appeals’ majority held that evidence of a prior sexual
assault was inadmissible in the sexual assault case before it under Rule 404(b) where
“both instances involved the sexual assault of minors, the minors were alone at the
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time of the assaults, [the] defendant was an acquaintance of the minors, [the]
defendant used force, and [the] defendant threatened to kill each minor and the
minors’ families.” 246 N.C. App. at 747, 783 S.E.2d at 273. The majority found “these
similarities [were not] unusual to the crimes charged” and held “the [] differences are
significant and undermine the findings of similarity by the trial court.” Id. at 747-48,
783 S.E.2d at 273-74.
¶ 26 Upon the State’s appeal to the Supreme Court, the Supreme Court, on its own
motion, ordered the parties to “submit supplemental briefs addressing the issues of
whether the trial court erred by failing to deliver a limiting instruction concerning
the testimony delivered by [the 404(b) witness] pursuant to N.C.G.S. § 8C-1, Rule
404(b) and, if so, whether any error that the trial court may have committed
constituted prejudicial error or plain error, depending upon the position taken by the
party.” State v. Watts, No. 132A16, 2017 N.C. LEXIS 1028 (2017) (unpublished). In
its opinion modifying and affirming the lower appellate court, the Supreme Court
held:
Our General Statutes provide that “when evidence which
is admissible . . . for one purpose but not admissible . . . for
another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the
jury accordingly.” N.C.G.S. § 8C-1, Rule 105 (2015)
(emphasis added). “Failure to give the requested
instruction must be held prejudicial error for which [a]
defendant is entitled to a new trial.” State v. Norkett, 269
N.C. 679, 681, 153 S.E.2d 362, 363 (1967); cf. State v.
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Stager, 329 N.C. 278, 406 S.E.2d 876 (1991) (failure to give
a limiting instruction not requested by a defendant is not
reviewable on appeal); State v. Jones, 322 N.C. 406, 368
S.E.2d 844 (1988) (same). Accordingly, because defendant
was prejudiced by the trial court’s failure to give the
requested limiting instruction, we affirm, as modified
herein, the opinion of the Court of Appeals that reversed
defendant’s convictions and remanded the matter to the
trial court for a new trial.
370 N.C. at 41, 802 S.E.2d at 907. Consequently, the Supreme Court impliedly, if not
explicitly, held that the challenged 404(b) evidence was admissible.
¶ 27 In the present case, the unusual facts present in both the sexual assaults
described by Ellen and the alleged sexual assault described by Kathleen are even
more marked than the unusual facts present in Watts. Accordingly, the Rule 404(b)
evidence was sufficiently similar and not too remote in time and the trial court did
not err by admitting it.
B. Rule 403
¶ 28 As the trial court did not err under Rule 404(b) by admitting the challenged
evidence, we must review the trial court’s Rule 403 determination for abuse of
discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
¶ 29 Pursuant to Rule 403, “[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-
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1, Rule 403 (2019). It is well settled “[w]hile all evidence offered against a party
involves some prejudicial effect, the fact that evidence is prejudicial does not mean
that it is necessarily unfairly prejudicial.” State v. Rainey, 198 N.C. App. 427, 433,
680 S.E.2d 760, 766 (2009) (citations omitted). Rather, “[t]he meaning of ‘unfair
prejudice’ in the context of Rule 403 is an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, as an emotional one.” Id.
(quotation marks and citation omitted). Furthermore, “[t]he party who asserts that
evidence was improperly admitted usually has the burden to show the error and that
he was prejudiced by its admission.” State v. Ferguson, 145 N.C. App. 302, 307, 549
S.E.2d 889, 893 (2001) (quotation marks and citation omitted). Thus, Defendant
must carry the burden of proving the evidence was unfairly prejudicial.
¶ 30 Here “a review of the record reveals that the trial court was aware of the
potential danger of unfair prejudice to defendant and was careful to give a proper
limiting instruction to the jury.” State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d 625,
642 (1998). The trial court first heard Kathleen’s testimony outside the presence of
the jury, then heard arguments from the attorneys and ruled on its admissibility,
stating that “the probative value of the evidence outweighs any undue prejudice that
is caused by the admission of these acts[.]” Moreover, the trial court gave the
appropriate limiting instruction. Given the similarities between Ellen’s and
Kathleen’s accounts, and the trial court’s careful handling of the process, we conclude
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that it was not an abuse of discretion for the trial court to determine that the danger
of unfair prejudice did not substantially outweigh the probative value of the evidence.
Whaley, 362 N.C. at 160, 655 S.E.2d at 390. The trial court thus properly admitted
the 404(b) evidence here.
C. Sentencing
¶ 31 Defendant next argues that the trial court considered impermissible factors
before imposing consecutive sentences.
A sentence within statutory limits is “presumed to be
regular.” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459,
465 (1977). Where the record, however, reveals the trial
court considered an improper matter in determining the
severity of the sentence, the presumption of regularity is
overcome. Id. It is improper for the trial court, in
sentencing a defendant, to consider the defendant’s
decision to insist on a jury trial. State v. Cannon, 326 N.C.
37, 39, 387 S.E.2d 450, 451 (1990). Where it can be
reasonably inferred the sentence imposed on a defendant
was based, even in part, on the defendant’s insistence on a
jury trial, the defendant is entitled to a new sentencing
hearing. Id.
State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885 (2002).
¶ 32 At the sentencing hearing, the trial court addressed those in the court room,
and specifically Defendant, in part, as follows:
It would be difficult for an adult to come in here and testify
in front of God and the country about what those two girls
came in here and testified about. It would be
embarrassing. It would be embarrassing to testify about
consensual sex in front of a jury or a bunch of strangers.
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And in truth, they get traumatized again by being here, but
it’s absolutely necessary when a defendant pleads not guilty.
They didn’t have a choice and you, Mr. Pickens, had a
choice.
(Emphasis added). Immediately after this statement, the trial court sentenced
Defendant to three consecutive active prison terms of 300 to 420 months.
¶ 33 We conclude that it is apparent from the trial court’s remarks that the trial
court improperly considered Defendant’s exercise of his constitutional right to
demand a trial by jury. As the trial court’s decision to impose three consecutive
sentences was, at least partially, based on Defendant’s decision to plead not guilty,
this case must be remanded for re-sentencing. State v. Hueto, 195 N.C. App. 67, 78,
671 S.E.2d 62, 69 (2009) (citing Boone, 293 N.C. at 711-13, 239 S.E.2d at 465 (1977)).
¶ 34 In reaching this result, we are cognizant that a trial court may, in its
discretion, impose consecutive sentences. See N.C. Gen. Stat. § 15A-1340.15(a) (2019)
(“This Article does not prohibit the imposition of consecutive sentences.”). Indeed,
“[t]he trial judge may have sentenced defendant quite fairly in the case at bar[.]”
Boone, 293 N.C. at 712, 239 S.E.2d at 465 (quotation marks omitted). Nonetheless,
we also conclude there is a clear inference that a greater sentence was imposed
because Defendant did not plead guilty. See id. We vacate Defendant’s sentence and
remand to the trial court for resentencing.
III. Conclusion
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¶ 35 We find no error in the admission of the challenged Rule 404(b) evidence. We
conclude that the trial court improperly considered Defendant’s exercise of his
constitutional right to demand a trial by jury in deciding to impose three consecutive
sentences. We vacate Defendant’s sentence and remand to the trial court for
resentencing.
NO ERROR IN PART; VACATED AND REMANDED FOR RESENTENCING.
Judge ZACHARY concurs.
Judge MURPHY dissents by separate opinion.
No. COA20-515 – State v. Pickens
MURPHY, Judge, dissenting.
¶ 36 While I do not disagree with the Majority’s analysis of the Rule 403 or
resentencing issues in ¶¶28-34, those issues would be rendered moot by my resolution
of the Rule 404(b) issue. I would hold that the trial court erred in admitting evidence
of a prior sexual assault under Rule 404(b) and that Defendant was prejudiced to the
degree required for him to be entitled to a new trial, and I would not reach the
remaining issues. Therefore, I respectfully dissent.
¶ 37 Rule 404(b) allows a jury to consider evidence of prior bad acts when the
evidence is admitted for purposes such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or the absence of mistake, entrapment, or
accident. However, before applying Rule 404(b), the prior bad act must be shown to
be sufficiently similar and in sufficient temporal proximity to the offense charged.
Here, the trial court erred by admitting evidence of Defendant’s alleged prior sexual
assault of a minor where it was not sufficiently similar to the sexual assault for which
Defendant was on trial.
BACKGROUND
¶ 38 Defendant Troy Logan Pickens was indicted for first-degree rape of a child and
two counts of sexual offense with a child by an adult based on allegations of the
victim, Cindy.2 At the time of the alleged offenses, Defendant was a chorus teacher
2 Pseudonyms are used for all relevant persons throughout this opinion to protect the
identities of the juveniles and for ease of reading.
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at Cindy’s middle school.
¶ 39 Prior to trial, on 4 October 2019, the State filed a notice of intent to offer Rule
404(b) evidence, prompting Defendant to file a motion in limine in response on 11
October 2019. Correctly assuming the State was referring to a prior allegation that
Defendant sexually assaulted Wilma, a former student in Defendant’s chorus class,
in 2015, Defendant argued that the differences between the crimes were so significant
as to make the Rule 404(b) evidence inadmissible. Defendant further argued that,
even if the evidence had probative value, the probative value would be far outweighed
by the danger of unfair prejudice, confusing the issues, and misleading the jury,
necessitating exclusion under Rule 403.
¶ 40 On 21 October 2019, the trial court denied Defendant’s motion to exclude the
State’s proffered Rule 404(b) evidence. The trial court did not issue an order with
explicit findings of fact or conclusions of law; instead, the trial court orally ruled on
Defendant’s motion in limine regarding the Rule 404(b) evidence, stating:
Well, I don’t know that the -- I think the temporal
proximity in this case exists. I think that this -- the fact
that he was a teacher on both of these occasions, even
though he wasn’t a teacher of one of the -- well, the victim
in this case, that it was the fact that he was a teacher that
gave him access to the victim in each case, the fact that he
or it’s alleged that on each case he grabbed the girls by one
arm and pulled them where he wanted to go, that he -- that
both these girls, by their description, seem to be girls who
were relatively small in stature and, therefore, to some
extent, physically helpless and that they are sufficiently
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similar so as to be admissible and that they -- the probative
value of the evidence outweighs any undue prejudice that
is caused by the admission of these acts, and they certainly
are relevant, and they do tend to indicate evidence of
intent, motive, plan, and design, and that, therefore, this
Court finds that they are admissible in the trial of this case,
and, therefore, the motion to prohibit that admissibility of
this evidence is denied, and the exception is noted for the
record.
A. Assaults of Cindy
¶ 41 According to the testimony at trial, in July 2015, Cindy began middle school at
eleven years old. While in school, Cindy took daily prescription medication around
lunch time that the staff members at Cindy’s middle school were authorized to
administer. She typically took her medication around 12:10 p.m. Defendant had a
planning period from 12:15 p.m. to 1:00 p.m.
¶ 42 According to Cindy’s testimony, about one to two months into the school year,
she saw Defendant in the hallway when she was out of her class to take her
medication. Defendant motioned for Cindy to approach him, told her “[b]e quiet,”
grabbed the back of her shirt, and took her to a handicapped stall inside the sixth-
grade girls’ restroom. Defendant told Cindy to take off her clothes, he unbuttoned his
pants, and told her to stroke his penis. At some point, Defendant stopped and Cindy
left the bathroom to go back to class. Defendant threatened to hurt Cindy or her
family if she told anyone about the incident. As a whole, this encounter occurred over
the course of five minutes or less.
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2022-NCCOA-527
Murphy, J., dissenting.
¶ 43 Cindy also testified about another assault with Defendant that occurred after
she saw him again in the hallway. Defendant again grabbed Cindy by the back of her
shirt—and, this time, also by her ponytail—and took her to the handicapped stall of
the bathroom. He told her to get undressed again, pulled his pants down partially,
made her stroke his penis, told Cindy to bend over and tried to put his penis in Cindy’s
vagina twice. Defendant stated something along the lines of “you’re too small” and “I
thought this would be a problem,” then put his penis in Cindy’s anus. This encounter
occurred over the span of about five minutes.
¶ 44 Cindy testified that on another day, Defendant stopped Cindy in the hallway
on the way to get her medication and again took her to the bathroom. This time,
Defendant instructed Cindy to defecate in the toilet, pick up the feces, and then
Defendant put the feces in Cindy’s mouth while saying “you filthy slut.” He again
threatened to hurt her family if she did not comply. Either Defendant or Cindy
smeared feces on the wall in the process, and Defendant again put his penis in Cindy’s
anus. Defendant also touched Cindy’s chest and vagina with his hand. This occurred
over five to seven minutes.
¶ 45 According to Cindy’s testimony, she would see Defendant in the hallway every
other day.3 She testified that Defendant continued to sexually assault Cindy,
3 Based on the testimony, it is unclear if the sexual assaults occurred every other day.
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Murphy, J., dissenting.
including one occasion when Cindy tried to resist and Defendant threw her into the
wall or toilet and another occasion where Defendant hit her across the face.
Defendant allegedly sexually assaulted Cindy repeatedly over the course of a couple
weeks, with multiple instances of Defendant calling Cindy a “whore” or “slut,”
Defendant making Cindy put his penis in her mouth, Defendant putting his penis in
Cindy’s anus, and Defendant making Cindy eat her feces. At the time of these
incidents, Cindy was shorter than five feet tall, and was “pretty small.”4
¶ 46 Almost two years later, in April 2017, Cindy first reported these incidents to a
third party when she text messaged her mother something along the lines of “Mom,
[Defendant] hurt me, touched me in ways that he shouldn’t have.” Cindy told her
mother at this time because one of her friends had stated that Defendant had been
arrested for hurting another girl and she had confirmed Defendant’s arrest on Google.
B. Assault of Wilma
¶ 47 Additionally, at Defendant’s trial for sexually assaulting Cindy, Wilma, a
former student of Defendant, testified that Defendant sexually assaulted her in 2015,
when she was fourteen years old. Her testimony regarding the sexual assault was
4 To help gauge the meaning of “pretty small,” later testimony reflects that, in the
aftermath of the sexual assault, when Cindy was twelve years old, she developed severe food
aversions and was eventually admitted to a hospital for treatment related to Avoidant
Restrictive Food Intake Disorder. At the time of her admission, she weighed about fifty-nine
pounds and was four feet ten inches tall.
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2022-NCCOA-527
Murphy, J., dissenting.
admitted as Rule 404(b) evidence over Defendant’s objections, and a limiting
instruction was given prior to the testimony describing the sexual assault.5 According
to Wilma’s testimony, starting in seventh grade, at another middle school, Wilma had
been in chorus class with Defendant as her teacher. Defendant took particular
interest in Wilma and three of her friends as they were good singers. Near the end
of seventh grade, after watching a movie in the classroom and while students were
getting up and leaving the classroom, Defendant placed his hands on Wilma’s waist
and moved them down towards her buttocks. In response, Wilma ran out of the room.
¶ 48 Wilma took chorus with Defendant in eighth grade as well. That year,
Defendant asked Wilma to join a singing and dancing performance held at a local
5 The limiting instruction stated:
When evidence has been received tending to show that at an
earlier time, [] [D]efendant may have done or participated in
other crimes, wrongs, or acts, this evidence may not be
considered by you as proof of the character of [] [D]efendant in
order to show that he acted in conformity therewith.
If you believe [] [D]efendant committed or participated in these
other crimes, wrongs, or acts, you may consider them for one
purpose only, and that is whether they constitute proof of one or
more of the following things: Motive, opportunity, intent, plan,
scheme, or system as to the charges against him in this case.
You may not consider them for any other purpose and you may
not convict [] [D]efendant of the crimes charged because of any
evidence he participated in or committed any other crimes,
wrongs, or acts at an earlier time.
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2022-NCCOA-527
Murphy, J., dissenting.
high school. Wilma indicated she was not interested, but Defendant called Wilma’s
mother. Her mother, believing that Wilma was interested in participating, told
Defendant that Wilma would participate. The practices for the performance took
place at the high school, and Defendant arranged with Wilma’s mother to drive
Wilma from the middle school to the high school. No other students joined Defendant
and Wilma on their drives to the high school.
¶ 49 Wilma testified that, in 2015, while Defendant was driving her to the last
practice at the high school, he stopped by his apartment because he said he wanted
to change clothes. Initially, Wilma indicated she would stay in the car, but Defendant
encouraged her to come up to the apartment. Once in the apartment, Defendant
made himself and Wilma a sandwich, and Wilma watched television on the couch.
After they finished eating, Defendant began to touch Wilma’s thigh, to which Wilma
responded by moving his hand and asking him not to do so. Defendant continued to
touch her thigh, then pulled Wilma by her arm into his bedroom, where he threw
Wilma onto the bed, removed her pants and underwear, pulled his pants down, and
put his penis in her vagina. When asked how long this lasted, Wilma testified “it
wasn’t long.” After Defendant stopped, he went to the bathroom and, upon returning
to the bedroom, apologized to Wilma and “said that if [she were] to tell anyone, it
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Murphy, J., dissenting.
would happen again.”6
C. Sentencing
¶ 50 Following the conclusion of the trial for sexually assaulting Cindy, Defendant
was found guilty on all charges.
¶ 51 At the sentencing hearing, the trial court stated:
To say the facts of this case are egregious is putting it
mildly. The facts of this case are among the worst I’ve ever
seen, and I’ve seen a lot of cases, thousands as a prosecutor,
thousands as a judge. One of the things that one has to
understand -- I was thinking about this earlier -- is that
children the age of 11, unless they are really in an usual
environment, have no idea about sex acts. They just don’t.
I mean, I’m sure – I’ve seen girls who were pregnant at that
age, but they shouldn’t have been, but were raped. They
weren’t consensual acts.
The Legislature did something several years ago when they
enacted this structured sentencing that I totally agreed
with and I advocated for for ten years before they did it,
and that was to make -- send a clear message that there
was a difference between a violent crime and crimes
against -- and nonviolent crimes, crimes against property,
because the effect is totally different. I mean, just seeing
these children testify in this case was just evidence to
anyone who opened their eyes who had listened to it as to
how damaged these children were by their experience. I
don’t -- given the number of women out here in the world,
I don’t understand why some people choose underage girls,
but it’s wrong. It’s morally wrong. It’s legally wrong, and
there’s no justification for it.
6 At the time, Wilma was fourteen years old, weighed one hundred pounds, and was
five feet two inches tall.
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Murphy, J., dissenting.
It would be difficult for an adult to come in here and testify
in front of God and the country about what those two girls
came in here and testified about. It would be
embarrassing. It would be embarrassing to testify about
consensual sex in front of a jury or a bunch of strangers.
And in truth, they get traumatized again by being here, but
it’s absolutely necessary when a defendant pleads not
guilty. They didn’t have a choice and you, Mr. Pickens, had
a choice.
All right. If you’ll stand up, Mr. Pickens. I assume this
was a B1 felony in 2015. In this case, [] [D]efendant, Troy
Logan Pickens, having been convicted by a jury -- found
guilty by a jury in count one, guilty of first-degree rape of a
child, the Court makes no findings in aggravation or
mitigation because the prison time -- prison sentence is
required by law under 14-27.23.
Immediately after these statements, the trial court sentenced Defendant to three
consecutive active sentences of 300 to 420 months. Defendant timely appealed.
ANALYSIS
¶ 52 On appeal, Defendant argues “[t]he trial court erred in admitting testimony
under Rule 404(b) which was not similar to the crime charged and was unfairly
prejudicial.” He also argues he “is entitled to a new sentencing hearing because the
trial court considered impermissible factors before imposing consecutive sentences.”
The trial court committed prejudicial error in admitting the challenged testimony
under Rule 404(b). As a result, I do not address the sentencing issue, and would
vacate the judgement and remand for a new trial.
A. Rule 404(b) Evidence
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Murphy, J., dissenting.
¶ 53 Defendant contends the trial court erred by admitting Rule 404(b) evidence
regarding his prior sexual assault as the events were not sufficiently similar and the
probative value of the evidence was outweighed by the prejudice to Defendant under
Rule 403. I would resolve this challenge on the basis of Rule 404(b) and, as a result,
do not reach the Rule 403 issue.
¶ 54 Our Supreme Court has held:
Though this Court has not used the term de novo to
describe its own review of 404(b) evidence, we have
consistently engaged in a fact-based inquiry under Rule
404(b) while applying an abuse of discretion standard to
the subsequent balancing of probative value and unfair
prejudice under Rule 403. For the purpose of clarity, we
now explicitly hold that when analyzing rulings applying
Rules 404(b) and 403, we 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, . . . we look to whether the evidence supports
the findings and whether the findings support the
conclusions. We review de novo the legal conclusion that
the evidence is, or is not, within the coverage of Rule
404(b). We then review the trial court’s Rule 403
determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 158-59 (2012) (citation
omitted).
¶ 55 Rule 404(b) establishes 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. It may, however, be
admissible for other purposes, such as proof of motive,
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2022-NCCOA-527
Murphy, J., dissenting.
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2021). Rule 404(b)
state[s] a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a defendant,
subject to but one exception requiring its exclusion if its
only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature
of the crime charged. Thus, 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 than to show that [the] defendant has the propensity
for the type of conduct for which he is being tried.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (marks and citation
omitted). “Though it is a rule of inclusion, Rule 404(b) is still constrained by the
requirements of similarity and temporal proximity.” Beckelheimer, 366 N.C. at 131,
726 S.E.2d at 159 (marks and citation omitted). Additionally, “North Carolina courts
have been consistently liberal in admitting evidence of similar sex offenses in trials
on sexual crime charges.” State v. Jacob, 113 N.C. App. 605, 608, 439 S.E.2d 812, 813
(1994).
¶ 56 As Defendant has only challenged the Rule 404(b) evidence on the basis of
similarity, I address only similarity and not temporal proximity. See N.C. R. App. P.
28(a) (2022) (“Issues not presented and discussed in a party’s brief are deemed
abandoned.”). Additionally, I address only “the purposes identified by the trial court
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Murphy, J., dissenting.
below in admitting the testimony into the evidence at trial”—in this case, intent,
motive, plan, and design.7 State v. Watts, 246 N.C. App. 737, 745, 783 S.E.2d 266,
272 (2016), aff’d as modified per curium, 370 N.C. 39, 802 S.E.2d 905 (2017) (refusing
to address purposes that the trial court did not identify for the admissibility of Rule
404(b) evidence).
1. Similarity
¶ 57 Our Supreme Court has held:
Under Rule 404(b) a prior act or crime is “similar” if there
are some unusual facts present in both crimes or
particularly similar acts which would indicate that the
same person committed both. However, it is not necessary
that the similarities between the two situations rise to the
level of the unique and bizarre. Rather, the similarities
simply must tend to support a reasonable inference that
the same person committed both the earlier and later acts.
State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890-91 (1991) (marks and citations
omitted). Our Supreme Court has also previously found a prior act not to be
sufficiently similar where the only similarities between the prior act and the crime
charged were common to most occurrences of that type of crime. See State v. Al-
Bayyinah, 356 N.C. 150, 155, 567 S.E.2d 120, 123 (2002) (“The [S]tate failed to show,
7 I note that, although the trial court denied the motion in limine and allowed the Rule
404(b) evidence for the purposes of intent, motive, plan, and design, the trial court’s limiting
instruction mentioned the purposes of motive, opportunity, intent, plan, scheme, or system.
I rely on the purposes articulated in the trial court’s ruling on the motion in limine.
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2022-NCCOA-527
Murphy, J., dissenting.
however, that sufficient similarities existed between the [prior] robberies and the
present robbery and murder beyond those characteristics inherent to most armed
robberies, i.e., use of a weapon, a demand for money, immediate flight.”); see also
Watts, 246 N.C. App. at 747, 783 S.E.2d at 273 (“Like our Supreme Court in Al–
Bayyinah, we do not find these similarities[—that both instances involved the sexual
assault of minors, the minors were alone at the time of the assaults, [the] defendant
was an acquaintance of the minors, [the] defendant used force, and [the] defendant
threatened to kill each minor and the minors’ families—]unusual to the crimes
charged. Moreover, we think the trial court’s broad labelling of the similarities
disguises significant differences in the sexual assaults.”).
¶ 58 In Watts, we addressed the similarity between two alleged sexual assaults of
minors by an adult defendant. Watts, 246 N.C. App. at 747-48, 783 S.E.2d at 273-74.
The trial court had allowed Rule 404(b) evidence of a prior sexual assault where “both
instances involved the sexual assault of minors, the minors were alone at the time of
the assaults, [the] defendant was an acquaintance of the minors, [the] defendant used
force, and [the] defendant threatened to kill each minor and the minors’ families.” Id.
at 747, 783 S.E.2d at 273. However, we found “these similarities [were not] unusual
to the crimes charged” and held “the [] differences are significant and undermine the
findings of similarity by the trial court.” Id. at 747-48, 783 S.E.2d at 273-74. The
relevant differences included a six-year difference in the age of the minors; the
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2022-NCCOA-527
Murphy, J., dissenting.
circumstances of the sexual assaults differing significantly, with one occurring where
the minor requested to stay with the defendant and was taken to his home with
consent of the minor’s mother and the other occurring by forcible entry into the
minor’s apartment; the relationships differing significantly, where one minor viewed
the defendant like a grandfather and the other minor knew the defendant but did not
have a close relationship with him; and the method differing significantly, with the
defendant using a razor knife in one sexual assault and strangulation without the
use of a weapon in the other. Id. We went on to grant the defendant a new trial as
the lack of similarity between the events rendered the trial court’s admission of the
Rule 404(b) evidence erroneous. Id.
¶ 59 I find Watts to be controlling on the facts sub judice. Here, regarding
similarity, the trial court stated:
I think that this -- the fact that he was a teacher on both of
these occasions, even though he wasn’t a teacher of one of
the -- well, the victim in this case, that it was the fact that
he was a teacher that gave him access to the victim in each
case, the fact that he or it’s alleged that on each case he
grabbed the girls by one arm and pulled them where he
wanted to go, that he -- that both these girls, by their
description, seem to be girls who were relatively small in
stature and, therefore, to some extent, physically helpless
and that they are sufficiently similar so as to be admissible
....
¶ 60 Although I find the differences between the alleged sexual assaults to be more
significant for the Rule 404(b) purposes under which the evidence was admitted, the
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Murphy, J., dissenting.
trial court correctly identified some general similarities between these events.8 First,
Defendant had access to and authority over Cindy and Wilma by virtue of Defendant’s
career as a teacher. Second, Cindy and Wilma were middle school aged girls.9 Third,
Defendant did not fully remove his pants during the sexual assaults. Fourth, the
sexual assaults occurred over a short period of time. Fifth, in both instances, at least
some of the acts occurred at a middle school. Sixth, Wilma and Cindy were both of
relatively small stature.10 Although these similarities could contribute to a
conclusion of unusual similarity in another case when considered in conjunction with
other supporting similarities, I do not believe that these facts reflect an unusual
8 Similarities common to most instances of the offense that were present here include
the use of threats after the sexual assaults to discourage reporting, that Defendant was in
control during each sexual assault, that Defendant attempted to put his penis in Cindy’s
vagina and Defendant put his penis in Wilma’s vagina, that Defendant removed Cindy and
Wilma’s pants and underwear, and that Defendant used force to take Cindy and Wilma to a
more private location where the sexual assault took place. As a result of these aspects being
common to sexual assaults in general, I do not find that they rendered this offense and the
prior act sufficiently similar. See Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123.
I also note that, if there were something unusual to any of these aspects, such as the
content of a threat or the manner that Cindy and Wilma’s clothes were removed, those
similarities could contribute to there being an unusual similarity. However, here, there were
no unusual similarities of this kind between the sexual assaults.
9 Cindy was eleven and Wilma was fourteen. This difference in age is arguably
sufficient to constitute a difference rather than a similarity. Indeed, it is not uncommon for
an eleven-year-old child to be characterized as elementary school aged rather than middle
school aged.
10 There is not clear evidence on what Cindy’s approximate height and weight were at
the time of the sexual assault. If we were to use Cindy’s height and weight about eight
months after the alleged sexual assault, there would have been a four-inch height difference
and potentially as much as a forty-pound weight difference between Cindy and Wilma at the
times of the sexual assaults. This also could more properly constitute a difference.
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Murphy, J., dissenting.
similarity such that they evidence a similar intent, motive, plan, or design under
these circumstances.
¶ 61 Instead, under Watts, I believe these features are insufficient to establish
unusual similarity. In Watts, the similarities referred to by the trial court concerned
general characteristics of the crimes that, although meaningful, were held
insufficient to establish an unusual similarity between the events, especially where
“the trial court’s broad labelling of the similarities disguise[d] significant differences
in the sexual assaults.” Watts, 246 N.C. App. at 747, 783 S.E.2d at 273. Here,
considering the general nature of the similarities identified by the trial court, along
with the significant differences between the sexual assaults, the trial court erred in
finding there was an unusual similarity justifying the admittance of the Rule 404(b)
evidence to show a similar intent, motive, plan, or design.
¶ 62 The specifics of the alleged assaults were remarkably distinct. First, the way
Defendant knew Wilma and Cindy differed—Defendant knew Wilma by virtue of
being her chorus teacher for seventh and eighth grade, whereas Defendant did not
know Cindy prior to sexually assaulting her.
¶ 63 Second, the manner in which the sexual assaults were brought about differed.
Defendant manufactured the opportunity to isolate Wilma and sexually assault her
by inviting her to participate in a performance, then following up with her mother
knowing she did not intend to participate and offering to drive her. Defendant’s
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2022-NCCOA-527
Murphy, J., dissenting.
opportunity to sexually assault Cindy was incidental, with Cindy already walking to
get her medication daily around noon.
¶ 64 Third, the progression of the actions differed significantly. Defendant’s
attempted grooming behavior began by getting to know Wilma through the chorus
class and showing a preference for her, then inappropriately touching her waist, then
creating an opportunity for him to spend time alone with her, and then sexually
assaulting her. With Cindy, Defendant immediately sexually assaulted her by
making her undress and touch his penis, then progressed to more extreme actions.
Defendant’s interactions with Cindy began with sexual assault, whereas those with
Wilma escalated to sexual assault.
¶ 65 Fourth, the locations of the actions committed differed significantly. Although
Defendant touched Wilma’s waist at school, Defendant sexually assaulted her at his
home in a bed. With Cindy, the sexual assaults occurred exclusively in a school
bathroom. It is important that Defendant did not sexually assault Wilma at the
school, as there is a significant methodological difference between a single sexual
assault in a private place and repeated sexual assaults in a public restroom.
¶ 66 Fifth, the actions alleged widely differed. With Wilma, Defendant groped her
legs and forcibly put his penis in her vagina. With Cindy, Defendant made her touch
his penis, touched her breasts and vagina, attempted to put his penis in her vagina,
forced her to put his penis in her mouth, made her defecate and eat her feces, and put
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Murphy, J., dissenting.
his penis in her anus.
¶ 67 Finally, the frequency of the actions significantly differed. With Wilma, there
were two instances of inappropriate conduct and one instance of sexual assault. With
Cindy, the sexual assaults recurred over the course of a couple weeks, occurring at
least five times and potentially occurring as often as every other day during this time
period.11
¶ 68 The differences between Defendant’s sexual assaults on Wilma and Cindy
significantly undermine a finding that the events were sufficiently similar to show
Defendant’s intent, motive, plan, and design. Indeed, the plan or design for these
events significantly differed in that Defendant’s sexual assault on Wilma resulted
from gradually escalating attempted grooming behavior towards a student in his
class, ending in a single incidence of sexual assault outside of the school, whereas his
sexual assault on Cindy resulted from a sudden attack on a student unknown to
Defendant that recurred at the school over the course of two weeks with increasing
depravity. Furthermore, the extreme differences between the specific acts that
Defendant committed during the sexual assaults demonstrates there was not a
similar intent, motive, plan, or design. The only similarity in Defendant’s intent or
motive would be in the general purpose to sexually assault a middle school aged girl,
11 Cindy testified to the specific details of at least five separate instances of sexual
assault.
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Murphy, J., dissenting.
which does not alone rise to the level of an unusual similarity.
¶ 69 “Comparing the alleged prior sexual assault to the alleged sexual assault for
which [the] defendant is now on trial, [I would] hold the above differences are
significant and undermine the findings of similarity by the trial court.” Watts, 246
N.C. App. at 748, 783 S.E.2d at 274. The prior bad act was not sufficiently similar to
the Defendant’s alleged actions for which he was on trial. As a result, the trial court
erred by admitting Wilma’s testimony under Rule 404(b) as it was not sufficiently
similar and was only relevant to show “[D]efendant’s character or propensity to
commit a sexual assault [on a minor].” Watts, 246 N.C. App. at 748, 783 S.E.2d at
274.
2. Prejudice
¶ 70 I must also consider whether this error was prejudicial. A preserved error is
prejudicial “when there is a reasonable possibility that, had the error in question not
been committed, a different result would have been reached at the trial out of which
the appeal arises.” N.C.G.S. § 15A-1443(a) (2021). I conclude there is a reasonable
possibility that the jury would have reached a different verdict if this evidence had
not been admitted. There were no witnesses to Defendant’s sexual assaults of Cindy,
and there was no physical evidence of Defendant’s guilt. As a result, the credibility
of Cindy’s testimony was essential to the jury’s guilty verdict. Furthermore, there
was evidence that might undermine Cindy’s testimony, such as her assertion that she
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2022-NCCOA-527
Murphy, J., dissenting.
was using crutches due to an injury caused by Defendant when she met with the
principal of her school, which was undermined by her mother’s denial of Cindy having
used crutches that day; accusations that the principal of the middle school yelled at
her, called her vulgar names, and broke her wrist, which were undermined by the
counselor who was present for the whole meeting; expert evidence that Cindy “scored
extremely high on confusion between reality and imagining things”; and Cindy’s
parents’ suspicions of a prior sexual trauma.
¶ 71 In light of the facts of this case, the erroneous admission of Defendant’s alleged
sexual assault on Wilma created a reasonable possibility that the jury would have
reached a different verdict if this evidence had not been admitted. The erroneous
admission of the Rule 404(b) evidence was prejudicial to Defendant. Defendant is
entitled to a new trial, and I would not reach Defendant’s other arguments on appeal.
See Watts, 246 N.C. App. at 748, 783 S.E.2d at 274 (granting a new trial where we
held Rule 404(b) evidence was improperly admitted and was prejudicial, and noting
that our holding disposed of the case on appeal).
CONCLUSION
¶ 72 The trial court committed prejudicial error by admitting evidence of a prior
sexual assault under Rule 404(b), entitling Defendant to a new trial.