State v. Morrison

380 S.E.2d 608, 94 N.C. App. 517, 1989 N.C. App. LEXIS 545
CourtCourt of Appeals of North Carolina
DecidedJuly 5, 1989
DocketNo. 8816SC909
StatusPublished
Cited by6 cases

This text of 380 S.E.2d 608 (State v. Morrison) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Morrison, 380 S.E.2d 608, 94 N.C. App. 517, 1989 N.C. App. LEXIS 545 (N.C. Ct. App. 1989).

Opinion

JOHNSON, Judge.

The evidence adduced at trial tended to show that defendant moved into the home of prosecutrix’s mother, which she shared with her two minor daughters, sometime in 1982 or 1983. When defendant began living with them, the prosecutrix was about eight years old. The prosecutrix and defendant developed a father-daughter relationship. Defendant would babysit for the children at times while the mother worked and he ■ also assisted in parenting and disciplinary matters.

During the summer of 1987 when the prosecutrix was thirteen years old, defendant was the primary care giver for the two girls during the day while their mother worked. The prosecutrix testified that on Tuesday, 28 July 1987 she wore a nightgown and panties to bed. She awakened to find her panties pulled down and defendant on top of her with his penis inside her vagina. She testified further that he then had sexual intercourse with her, ejaculated, and told her that he would kill her if she ever told anyone. Defendant then took plaintiff to the bathroom and prepared a douche for her.

The prosecutrix also testified that on the following Saturday her aunt came over to her house to pick her up at around 3:30 p.m. She told her aunt what had happened between her and the [519]*519defendant. Prosecutrix’s aunt then called the prosecutrix’s mother and prosecutrix told her mother about the incident when she arrived. Over defendant’s objection the prosecutrix testified that defendant had engaged in sexual relations with her about twenty times between 26 December 1986, when the first incident occurred, and 28 July 1987, when the incident for which defendant was convicted was committed.

Defendant testified in his own behalf and unequivocally denied ever having sex with his girlfriend’s daughter. He testified that on the night in question, 28 July 1987, he was being driven around in his girlfriend’s car by someone by the name of McNeill. Defendant further stated that his girlfriend’s family did not like him, wanted his relationship with his girlfriend to end, and wanted to gain custody of the children.

On appeal, defendant first argues that the trial court erred by allowing the prosecutrix to testify over his objection concerning prior acts of sexual conduct between the prosecutrix and defendant. He relies upon G.S. sec. 8C-1, Rule 404(b) to support his contention.

G.S. sec. 8C-1, Rule 404(b) provides the following:

Evidence 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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Our courts have been quite liberal in construing the noted exceptions to the general rule to admit evidence of similar sex offenses. State v. Williams, 303 N.C. 507, 279 S.E. 2d 592 (1981). It has also been consistently held that evidence of prior sexual activity between a defendant and a child victim is admissible when it is relevant to prove a fact in issue.

In State v. Spaugh, 321 N.C. 550, 364 S.E. 2d 368 (1988), the Court held that the child victim’s testimony concerning her father’s previous sexual activity with her was relevant and admissible where it clearly tended to establish that the defendant father often took advantage of her availability and vulnerability when she was left in his care. Also, in State v. Oliver, 85 N.C. App. 1, 354 S.E. 2d 527, disc. rev. denied, 320 N.C. 174, 358 S.E. 2d 64 (1987), the prosecuting witness was allowed to testify concerning other acts of [520]*520sexual abuse committed by her mother where the evidence tended to establish a common plan or scheme by defendant to sexually abuse her child. See also State v. Boyd, 321 N.C. 574, 364 S.E. 2d 118 (1988), and State v. Jones, 89 N.C. App. 584, 367 S.E. 2d 139 (1988).

In the case sub judice the prosecuting witness testified to the following concerning previous sexual activity between defendant and her.

Q. [Prosecutrix] before this night of July 28th, had Ronald Morrison ever felt of you before?
A. Yes.
Q. Do you recall when the first time was?
A. I don’t remember the day, but my mother was outside and my sister was on her bike.
Q. Do you know approximately when it was?
A. No.
Q. Before the night of July 28, had he ever had sexual relations with you before?
A. Yes.
Q. Do you recall when the first time was that he had sexual relations with you?
A. The 26th of December.
Q. What year?
A. 1986.
Q. How do you remember the 26th of December?
A. Because that was the day before my birthday.
Q. What happened on that occasion?
A. He came into my room and pulled up my nightgown and pulled my panties off and stuck his penis in my vagina.
Q. Up until then had he ever felt of you or rubbed you in any way?
A. Yes.
[521]*521Q. Now, from the day before your birthday up until July 28, did he have sexual relations with you any other time?
Mr. ROGERS: Object to leading.
THE COURT: Overruled.
A. Yes.
Q. Can you tell us about how many times he had sex relations with you from the 26th of December up until the 28th of July?
A. About twenty.
Q. Where would your mother be when this was going on? A. In her room. She be a sleep.
Q. Was that on all occasions?
A. Most times she be gone.
Q. Pardon?
A. Most time she be gone.
Q. Did anything ever happen to you other than between you and Ronald other than having intercourse?
A. He told me to suck his penis one time.
Q. What day was that on?
A. August 1.
Q. Had he ever done that before?
A. No.
Q. Did he ever ask you to touch it?
A. Once.
Q. When was that?
A. When he was back in my room on the 28th of July.

The court allowed this testimony pursuant to the exception of G.S. sec. 8C-1, Rule 404(b). Because the testimony tended to illustrate defendant’s opportunity to commit these acts, and a plan to molest his girlfriend’s daughter in her absence, both physical [522]

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Cite This Page — Counsel Stack

Bluebook (online)
380 S.E.2d 608, 94 N.C. App. 517, 1989 N.C. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morrison-ncctapp-1989.