Criminal Practice – Rape & Indecent Liberties – Evidence – Incestuous Pornography – Admissible – Motive

State v. Brown. (Lawyers Weekly No. 11-07-0460, 50 pp.) (Linda Stephens, J.) (Robert N. Hunter, J., dissenting) Appealed from Jackson County Superior Court. (Dennis J. Winner, J.) N.C. App. Click here for the full-text opinion.

Holding: Evidence that defendant possessed pornography describing and depicting incest was admissible to prove motive and intent in defendant’s trial for the first-degree rape of his 10-year-old daughter and taking indecent liberties with a minor.

We find no error in defendant’s convictions.

Evidence of possession of pornography is generally admissible if it provides relevant “proof of motive, opportunity,  intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. R. Evid. 404(b).

The possession was of an uncommon and specific type of pornography; the objects of sexual desire aroused by the pornography in evidence were few; and the victim was the clear object of the sexual desire implied by the possession. Accordingly, the relevance of the evidence of defendant’s possession of “Family Letters” is not governed by this court’s prior decisions holding as inadmissible evidence of a defendant’s possession of general pornography, and we conclude that the trial court correctly admitted evidence of defendant’s possession of Family Letters as relevant evidence showing both defendant’s motive and intent in committing the acts underlying the charged offenses, two proper purposes for such evidence under Rule 404(b).

The trial court admitted the Family Letters evidence as “circumstantial evidence” bearing upon defendant’s “motive with respect to the alleged crimes.”

The state may offer evidence of a defendant’s motive “as circumstantial evidence to prove its case where the commission of the act is in dispute when the existence of a motive is a circumstance tending to make it more probable that the person in question did the act.

Evidence of a defendant’s incestuous pornography collection sheds light on that defendant’s desire to engage in an incestuous relationship, and that desire serves as evidence of that defendant’s motive to commit the underlying act – engaging in sexual intercourse with the victim/defendant’s child – constituting the offense charged.

It certainly seems reasonable to infer incestuous desire from one’s possession of incestuous pornography.

We find it logical to conclude that one’s purpose in reading Family Letters, which can only euphemistically be characterized as “erotica,” is not to enjoy the stylistic flourishes or intricate plot twists. Instead, it can be more reasonably inferred that the reader intends to gratify a sexual desire by reading the stories.

Indeed, pornography, by at least one of its definitions, is “a portrayal of erotic behavior  designed to cause sexual excitement.” Miller v. California, 413 U.S. 15 (1973) Where the pornography possessed consists solely of incestuous encounters, there arises a strong inference that the possessor is sexually excited by at least the idea of, if not the act of, incestuous sexual relations.

Accordingly, in this case, the fact of defendant’s possession of incestuous pornography reasonably supports the inference that defendant was sexually desirous of an incestuous relationship.

Anticipating response to this line of reasoning, a comparison between possession of Family Letters and possession of  Oedipus Rex, or any other literature with sociodeviant undertones, is akin to a comparison between possession of a sawed-off shotgun and possession of a Revolutionary War-era pistol. While possession of Family Letters or a sawed-off shotgun strongly supports one obvious inference  – that the possessor is desirous of incestuous relationships or that the possessor is up to no good, respectively  – possession of classic literature or a collectible firearm leads to a myriad of logical inferences about the possessor  – that the possessor has an interest in classical Greek tragedy or Revolutionary War-era relics; that the possessor has an appreciation of irony or classic workmanship; that the possessor desires his potential partners to regard him as well-read or sophisticated  – none of which necessarily lead to any conclusion about the possessor’s potential patricidal, incestuous, or nefarious motivations.

Pornography, especially  such singularly specific pornography like Family Letters, provides an obvious inference about the sexual motivations of the possessor in a way that other reading material cannot.

The issue here is simply whether evidence of defendant’s possession of incestuous pornography was properly admitted in the prosecution of defendant for his alleged sexual relations with his daughter. Because such evidence was relevant to establishing defendant’s motive in engaging in the conduct constituting the underlying offense, we conclude that the trial court’s admission of Family Letters was not error.

We conclude that the evidence of defendant’s possession of Family Letters was relevant to prove intent and that the trial court did not err in admitting the evidence for that purpose.

Finally, we conclude that the evidence of defendant’s possession of Family Letters was also admissible as relevant evidence tending to establish the purpose of defendant’s alleged actions with respect to the charged offense of indecent liberties with a minor.

The gravamen of the offense of taking indecent  liberties under G.S. ¤ 14-202.1(a)(1) is the defendant’s purpose in undertaking the prohibited act. 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.

As prior similar acts are admissible to show intent, so may they be admitted to show a defendant’s purpose under ¤ 14-202.1(a)(1).

Defendant’s possession of Family Letters strongly supports the inference that his “sexual desire” included incestuous relationships, and that defendant’s desire was “gratified” or “aroused” by engaging in the conduct constituting the offense charged. Accordingly, defendant’s possession of Family Letters provides clearly relevant evidence to satisfy the statutory requirement that defendant’s conduct with the victim be for the purpose of arousing his sexual desire.

Aside from defendant’s own unsupported contention, there is nothing to show that the jury convicted defendant solely out of “disgust” for the content of his pornography. As such, we must conclude that the jury’s  potential disapproval of defendant’s possession of the pornography did not substantially outweigh the strong probative value of the evidence in showing defendant’s motive, intent, and purpose with respect to the alleged conduct.

Furthermore, when the trial court admitted Family Letters into evidence, the court issued a limiting instruction to the jury, stating, “If you find the testimony about [Family Letters] to [be] credible, you may consider that only if you find that it bears upon [defendant’s] motive or intent to commit the charged offenses and for no other purpose than that.”

There is nothing to indicate that the jury ignored the trial court’s limiting instruction and considered Family Letters as anything other than evidence of defendant’s motive or intent in committing the alleged conduct. Accordingly, we conclude that the evidence of defendant’s possession of Family Letters did not unfairly prejudice him and, therefore, was properly admitted by the trial court.

Satellite-Based Monitoring

The elements of the charged offenses  – indecent liberties with a minor and first degree rape  – do not “fit within” the second statutory definition of “aggravated offense”, G.S. ¤ 14-208.6(1a), because obviously neither a child under the age of 16 years, nor a child under the age of 13 years, is necessarily also a child less than 12 years old without looking at the underlying facts.

However, according  to this court’s opinion in State v. Clark, __ N.C. App. __, __ S.E.2d __ (2011), because rape of a child under the age of 13 “necessarily involves _the use of force or threat of serious violence,” “the essential elements of first degree rape [of a child] fit within the [first] statutory definition of an “aggravated offense.” Accordingly, we conclude that the trial court properly found that defendant was convicted of an aggravated offense such that enrollment in lifetime SBM was not error.

Dissent

The majority opinion conflicts with this court’s decisions in State v. Smith, 152 N.C. App. 514, 568 S.E.2d 289 (2002), and State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004).

However, if, as the majority contends, Smith and Bush do not create a bright line rule of exclusion under these facts, the majority’s approach is still deficient for two reasons. First, the Family Letters publication’s logical relevancy requires an impermissible character inference. Second, the unfair prejudice inherent in this evidence substantially outweighed the publication’s probative value. Therefore, I must respectfully dissent.

In Smith, we held that “evidence of [the] defendant’s possession of pornographic materials, without any evidence that [the] defendant had viewed the pornographic materials with the victim, or any evidence that [the] defendant had asked the victim to look at pornographic materials other than the victim’s mere speculation” was irrelevant to establishing whether the defendant was guilty of first-degree sexual offense and taking indecent liberties with a minor.  In Bush, we interpreted the holding in Smith to establish the following rule: “[T]he possession of [pornographic materials] is held only to show the defendant has the propensity to commit the offense for which he is charged and to be highly inflammatory.”

The rule articulated in Bush makes no exception for pornography that is thematically similar to the crime charged. Therefore, I would hold the trial court erred in admitting evidence of the Family Letters publication. I would also hold that the error was sufficiently prejudicial to merit a new trial.

The majority approach disregards a critical principle underlying the character evidence rule: uncharged conduct evidence may not be admitted unless there is a rational chain of inferences that does not require an evaluation of character.

An impermissible character inference is necessary to establish the Family Letters publication’s logical relevancy to defendant’s motive or intent to commit the crimes  charged.

The majority contends that, if evidence of a desire for monetary gain is admissible to establish a defendant committed a crime to satisfy his monetary desire, then evidence of defendant’s desire to engage in incest is admissible to prove he committed a crime to satisfy his sexual desire. Under this reasoning,  no uncharged conduct reflecting on motive would be excluded by the character evidence rule.

Evidence of a prior conviction for murder would be admissible in a murder trial because the prior conviction suggests the defendant is the type of person who desires to kill people-by killing the victim, the defendant was seeking to satisfy that desire. The same would be true for rape convictions in rape cases and larceny convictions in larceny cases.

But what distinguishes the forbidden use of motive evidence from the proper use of motive evidence? A moral judgment about the defendant.

The Family Letters publication cannot be relevant to defendant’s propensity to commit a sex offense without inferring he has a depraved sexual interest in incest. This is a moral judgment specific to defendant in contrast to the general, non-moral inference in monetary gain cases.

The majority’s indecent-liberties-purpose theory not only suffers from low probative value, but using the publication to establish defendant’s purpose is unnecessarily superfluous in light of the unfair prejudice. There was direct testimony from the victim that defendant forced her to perform oral sex. Evidence of the act itself is sufficient to establish defendant sought to gratify a sexual desire.

The trial court’s limiting instruction was insufficient to mitigate the extreme danger of unfair prejudice. While there is a presumption that the jury heeds limiting instructions that the trial judge gives regarding the evidence, it cannot be presumed that a limiting instruction is automatically sufficient to negate highly inflammatory evidence.

While the publication should have been excluded on character evidence/relevancy grounds, even if there was some modicum of  legitimate probative value, it was substantially outweighed by the danger of unfair prejudice.