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Home / Courts / Criminal Practice – Evidence – Prior Bad Acts – Standard of Review — Sufficient Similarity – 10- to 12-Year Gap

Criminal Practice – Evidence – Prior Bad Acts – Standard of Review — Sufficient Similarity – 10- to 12-Year Gap

State v. Beckelheimer (Lawyers Weekly No. 12-06-0637, 11 pp.) (Robin E. Hudson, J.) Appealed from Chatham County Superior Court. (D. Jack Hooks Jr., J.) On discretionary review from the Court of Appeals. N.C. S. Ct. Full-text opinion.

Holding: Although defendant would have been in his teens at the time of the acts testified to by a prosecution witness, the details of defendant’s acts were sufficiently similar to allow the witness to testify about an incident 10 to 12 years before the one at issue.

We reverse the Court of Appeals’ award of a new trial.

When the trial court has made findings of fact and conclusions of law to support its ruling under N.C. R. Evid. 404(b), as it did here, 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.

Instead of reviewing the similarities noted by the trial court, the Court of Appeals focused on the differences between the incidents and determined they were significant. The Court of Appeals found that the 404(b) witness’s account resembled “apparently consensual” “sexual exploration” by young people rather than a forcible sexual offense, a finding that was not made by the trial court and that we conclude is not supported by the record. The 404(b) witness did not testify that the acts were consensual and explained his single act of oral sex on the defendant as an attempt to stop defendant’s efforts to penetrate him anally. Moreover, even if the record had shown voluntary actions by the witness, as a matter of law a child under age 13 cannot consent to a sex act with a person more than four years older than he.

The Court of Appeals also focused on the age difference between the defendant and the victim in each case: four and a half years versus 16 years. We conclude, as did the trial court, that the similar ages of the victims is more pertinent in this case than the age difference between victim and perpetrator.

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. The prior acts here were sufficiently similar to the charged acts to be admissible under Rule 404(b).

From the evidence that defendant rarely left his mother’s house except to go to work and that both victims were young male cousins of defendant who visited defendant at his mother’s house, the jury here could infer that defendant acted as alleged when he had access to potential victims in the house. The trial court concluded that “given the similarities … temporal proximity is reasonable.” We agree that, given the similarities in the incidents, the remoteness in time was not so significant as to render the prior acts irrelevant as evidence of modus operandi; thus, temporal proximity of the acts was a question of evidentiary weight to be determined by the jury.

The trial judge excluded testimony about one incident that did not share sufficient similarity to the charged actions, thus indicating his careful consideration of the evidence. Moreover, the judge gave the appropriate limiting instruction.

Given the similarities between the accounts of the victim and the 404(b) witness and the trial judge’s careful handling of the process, we conclude 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. The trial court properly admitted the 404(b) evidence here.

Reversed and remanded.

 


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