State v. Nova

• Court: Court of Appeals of North Carolina
• Decided: September 17, 2024
• Docket: 23-883
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-883

Filed 17 September 2024

Gaston County, No. 18 CRS 50862

STATE OF NORTH CAROLINA

v.

VICTOR MANUEL MEDINA NOVA, Defendant.

Appeal by Defendant from judgment entered 12 January 2023 by Judge David

A. Phillips in Gaston County Superior Court. Heard in the Court of Appeals 14

August 2024.

Stephen G. Driggers, for defendant-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Chris D. Agosto Carreiro, for the State.

STADING, Judge.

Defendant Victor Manuel Medina Nova appeals from judgment entered after a

jury found him guilty of taking indecent liberties with a child. After careful review,

we discern no error.

I. Background

When he was around eight years old, N.R.1 and his family began attending

Casa de Dios Puerta al Cielo (“the church”). By the time he was twelve years old,

1 A pseudonym is used to protect the victim’s identity. STATE V. NOVA

Opinion of the Court

N.R. became involved in the church by participating in the worship team as the

drummer, operating the audio system during services, and attending youth group.

Through his involvement at the church, N.R. had the occasion to meet Defendant.

Defendant is a former adult member of the church who worked with the youth

group and the worship team. N.R. began assisting Defendant with the music during

church services when he was thirteen years old. At the time, N.R. viewed Defendant

as a “mentor” because “he was . . . the only person that was consistent and . . . there

for [him].” N.R. discussed many things with Defendant, including his parents and

school. Over time, Defendant increasingly engaged in inappropriate behaviors with

N.R. including grabbing N.R.’s bottom and touching him when nobody was watching

or around.

During a worship practice in the summer of 2014, when N.R. was thirteen

years old, he told Defendant of his plans to try out for the school soccer team.

Defendant told N.R. that in doing so, N.R. would have to undergo a physical

examination and be “check[ed].” Defendant then asked N.R. if he could “check” him

and “motioned” for N.R. to “stand beside” a large printer in the room. Defendant then

put his hands inside of N.R.’s underwear and nodded his head up and down while

fondling N.R.’s genitalia. As N.R. was leaving, Defendant told him not to tell anybody

what had happened.

N.R. first reported Defendant’s abuse in 2017 to a youth leader at the church.

At this time, N.R. learned that he was not the only youth member to have been abused

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by Defendant. Upon hearing that Defendant also abused B.T.,2 another minor, N.R.

came forward and reported Defendant’s actions to law enforcement.

On 19 February 2018, Defendant was indicted and charged with one count of

taking indecent liberties with a child. Before trial, the State moved to introduce B.T.’s

testimony under Rule of Evidence 404(b). N.C. Gen. Stat. § 8C-1, R. 404(b) (2023).

The trial court granted the State’s motion, concluding that “the facts surrounding the

[D]efendant’s previous child sex offense [were] sufficiently similar to the case before

the [c]ourt,” and that B.T.’s testimony was relevant to show “motive, intent, modus

operandi, preparation, knowledge, identity of the perpetrator, lack of accident and

common scheme or plan.” The trial court also concluded “that the temporal proximity

between the two offenses [was] not so remote that it would render the evidence

inadmissible in the present case,” and that “the probative value of the 404(b) evidence

outweigh[ed] the potential for unfair prejudice. . . .”

Defendant’s trial began on 9 January 2023. During the trial, the State

presented testimony from B.T., testimony from B.T.’s mother, and played a recording

of B.T.’s interview with a children’s advocacy center. Before the introduction of this

evidence, the trial court instructed:

Members of the jury, evidence will be presented tending to show that the defendant touched [B.T.’s] genitals. This evidence is received solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed. That the defendant had the

2 A pseudonym is used to protect the victim’s identity.

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intent, which is a necessary element of the crime charged in this case. That there existed in the mind of the defendant a plan, scheme, system, or design involving the crime charged in this case. If you believe this evidence, you may consider it but only for the limited purpose for which it is received. You may not consider it for any other purpose.

Thereafter, B.T. testified that he and his parents knew Defendant through the

church. B.T. recounted that he and his siblings had stayed with Defendant for several

weeks while their parents traveled to Central America. At some point during this

stay with Defendant, B.T. was watching TV on the couch alone and Defendant

“climbed over [him] . . . started rubbing [his] shoulder . . . and . . . laid down there

with [him].” B.T. said that after heading to bed, Defendant entered his bedroom, “got

underneath the covers” with him, and started touching him “in his private area and

bottom.” Defendant then attempted “to make [B.T.] touch his private area. . . . moved

[B.T.] onto [his] stomach, and . . . rubb[ed] his private area against [B.T.’s] bottom.”

B.T.’s mother testified that he was ten years old when this incident occurred.

Defendant moved to dismiss the charge at the close of the State’s evidence,

arguing that the State failed to put on evidence that Defendant acted “for the purpose

of sexual arousal” when he had touched N.R. The State argued that Defendant’s

intent could be inferred from the character evidence presented by B.T. and

Defendant’s nodding while touching N.R. The trial court denied Defendant’s motion

to dismiss. During the presentation of Defendant’s evidence, he elected to take the

stand and denied having touched N.R. inappropriately. Defendant subsequently

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admitted to watching B.T. while his parents were out of town, and he denied ever

touching B.T. inappropriately. Defendant again moved for dismissal of the charge at

the close of all evidence, which was also denied. After deliberating, the jury delivered

a guilty verdict. The trial court sentenced Defendant to sixteen to twenty-nine

months in prison and ordered him to register as a sex offender for a period of thirty

years. Defendant gave notice of appeal in open court.

II. Jurisdiction

This Court has jurisdiction to consider Defendant’s appeal under N.C. Gen.

Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2023).

III. Analysis

Defendant submits one issue for our consideration: whether the trial court

erred in admitting testimony under Rule 404(b) that was dissimilar to the crime

charged and unfairly prejudicial. After careful review, we hold that the trial court

did not err by admitting B.T.’s testimony under Rule 404(b). We also hold that the

trial court did not abuse its discretion when conducting a Rule 403 balancing test.

N.C. Gen. Stat. § 8C-1, R. 403 (2023).

A. Standard of Review

This Court reviews the admission of Rule 404(b) evidence by engaging in a two-

step analysis: (1) whether the evidence is admissible under Rule 404(b), and (2)

whether the trial court abused its discretion in applying a Rule 403 balancing test.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 158-59 (2012) (citation

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omitted). “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.” Id. at 130, 726 S.E.2d at 159.

“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.” Id.

“Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362

N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal quotation marks and citations

omitted). And “[u]nder the abuse of discretion standard, our role is not to surmise

whether we would have disagreed with the trial court, but instead to decide whether

the trial court’s ruling was so arbitrary it could not have been the result of a reasoned

decision.” State v. Turner, 273 N.C. App. 701, 708, 849 S.E.2d 327, 332 (2020)

(citation omitted).

B. Rule 404(b) Evidence

Defendant contends that the trial court erred by concluding that B.T.’s

testimony was admissible under Rule 404(b) because it was not sufficiently similar

or temporally proximate. We disagree. Since Defendant does not contest whether

B.T.’s testimony was admitted for a proper purpose, our review is limited to the

similarity and temporal proximity requirements of Rule 404(b). State v. Godfrey, 263

N.C. App. 264, 270, 822 S.E.2d 894, 899 (2018) (citation and internal brackets

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omitted) (“when prior incidents are offered for a proper purpose, the ultimate test of

admissibility is whether they are sufficiently similar and not so remote as to run afoul

of the balancing test between probative value and prejudicial effect set out in Rule

403.”).

Rule 404(b) of the North Carolina Rules of Evidence provides:

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.

N.C. Gen. Stat. § 8C-1, R. 404(b). Rule 404(b) is “a rule of inclusion, and evidence of

prior bad acts is admissible unless the only reason that the evidence is introduced is

to show the defendant’s propensity for committing a crime like the act charged.” State

v. Pickens, 385 N.C. 351, 356, 893 S.E.2d 194, 198 (2023) (citation omitted). If a party

offers evidence under Rule 404(b), it “should be carefully scrutinized in order to

adequately safeguard against the improper introduction of character evidence.” State

v. al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 122 (2002) (citation omitted). That

said, our courts have “liberal[ly] . . . allow[ed] evidence of similar offenses in trials on

sexual crime charges.” State v. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 300 (1996)

(citation omitted). “This is particularly true where the fact sought to be proved is the

defendant’s intent to commit a similar sexual offense for which the defendant has

been charged.” State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561-62 (1992)

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The admission of evidence under Rule 404(b) is “constrained by the

requirements of similarity and temporal proximity.” Beckelheimer, 366 N.C. at 131,

726 S.E.2d at 159 (citation omitted). “Prior acts are sufficiently similar ‘if there are

some unusual facts present in both crimes’ that would indicate that the same person

committed them.” Id. at 131, 726 S.E.2d at 159 (quoting State v. Stager, 329 N.C.

278, 304, 406 S.E.2d 876, 890-91 (1991)). But “[w]e do not require that the

similarities ‘rise to the level of the unique and bizarre.’” Id. (quoting State v. Green,

321 N.C. 594, 604, 365 S.E.2d 587, 593 (1988)). “Our 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.” Id. at 132, 726 S.E.2d at 160 (internal quotation marks and citations

omitted).

Defendant acknowledges that Rule 404(b) is a rule of inclusion but argues the

similarity and temporal requirements of Beckelheimer are not met here.

Beckelheimer, 366 N.C. 127, 131, 726 S.E.2d 156, 159. In Beckelheimer, the defendant

was charged with three counts of indecent liberties with a child and one count of first-

degree sexual offense after he “placed his hands in the victim’s pants, then unzipped

the victim’s pants and performed oral sex on him while holding him down.” Id. at

128, 726 S.E.2d at 157. At trial, the State offered prior acts evidence from the victim’s

half-brother pursuant to Rule 404(b). Id. The half-brother testified that when he

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was about thirteen years old, “defendant . . . touched [his] genital area outside of his

clothes while pretending to be asleep, . . . reach[ed] inside his pants to touch his

genitals, [and] . . . performed oral sex on him.” Id. at 129, 726 S.E.2d at 158. The

trial court concluded that the prior act contained sufficient similarities with respect

to the victim’s age, the location of the abuse, and “how the occurrences were brought

about.” Id. at 131, 726 S.E.2d at 159. Although the half-brother’s assault took place

“ten to [twelve] years ago,” the trial court “concluded that given the similarities,

particularly the location of the occurrence, how the occurrences were brought about,

and the age range of each of the alleged victims at the time of the acts which occurred

in the bedroom, that temporal proximity is reasonable.” Id. at 129, 726 S.E.2d at 158.

Thereafter, the Beckelheimer defendant appealed the introduction of the half-

brother’s testimony on the grounds of similarity and temporal proximity. Id. at 129-

30, 726 S.E.2d at 158. Our Supreme Court held that there was sufficient similarity

and temporal proximity “to support the State’s theory of modus operandi in th[e]

case.” Id. In reaching this decision, the court noted that Rule 404(b) does not “require

circumstances to be all but identical for evidence to be admissible. . . .” Id. at 132,

726 S.E.2d at 160 (citation omitted). Rather, “the incidents need only share some

unusual facts that go to a purpose other than propensity.” Id. (internal quotation

marks and citations omitted). As to the issue of temporal proximity, the court noted

that “[r]emoteness in time is less important when the other crime is admitted because

its modus operandi is so strikingly similar to the modus operandi of the crime being

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tried as to permit a reasonable inference that the same person committed both

crimes.” Id. at 132-33, 726 S.E.2d at 160 (citation omitted). In these types of cases,

“remoteness in time goes to the weight of the evidence rather than its admissibility.”

Id. at 133, 726 S.E.2d at 160 (citations omitted).

Here, the trial court’s findings support its conclusion that B.T.’s testimony

satisfied the admissibility requirements of Rule 404(b) because there are sufficient

similarities between the two alleged incidents. Contrary to Defendant’s urging, B.T.

and N.R. were sufficiently close in age at the time of the alleged acts. Both victims

were young boys—B.T. was ten years old, and N.R. was thirteen.3 Defendant also

seeks to differentiate between the setting as one alleged incident occurred in a back

room of the church and the other occurred in a bedroom. This distinction of exact

setting is one of lesser significance than the trial court’s finding Defendant’s behavior

taking place when both boys were isolated away from adults. Defendant then

attempts to juxtapose the trial court’s findings regarding acts of abuse because

Defendant not only touched B.T.’s “genital area”—as he did with N.R.—but he also

“pressed his genitals into [B.T.’s] buttocks region.” Evidence of Defendant’s

additional acts committed against B.T. does not negate the similarity of the initial

act committed against both boys. Furthermore, the trial court found, and evidence

3 Citing page fourteen of the record, Defendant’s brief asserts that “the incident with N.R.

occurred in 2014, when N.R. was 14 years old.” However, pages three and twelve of the record show that N.R. was still thirteen on the day of the incident. Furthermore, the trial court’s order states on the same page cited by Defendant that “[t]he victim . . . was 13 years of age. . . .”

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shows, a key similarity in that Defendant met and developed relationships with both

boys through the church. Thus, there are “some unusual facts present in both crimes

that would indicate that the same person,” Defendant, “committed them.” Id. at 131,

726 S.E.2d at 159 (citations and internal quotation marks omitted).

Although there is no brightline rule addressing how much time is too remote

to show temporal proximity, the incident with N.R. occurred only two years before

the incident with B.T. See Beckelheimer, 366 N.C. at 133, 726 S.E.2d at 160 (a ten-

to-twelve-year separation between two instances is reasonable if the “modus

operandi is so strikingly similar to the modus operandi of the crime being tried.”); see

also State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 825 (1988) (a seven-year gap

between prior acts and the charged acts rendered 404(b) evidence inadmissible since

“its probative impact . . . [amounted to] little more than character evidence

illustrating the predisposition of the accused.”). Here, the modus operandi of the

crime being tried is not only strikingly similar to B.T.’s testimony, but also occurred

only two years earlier. Accordingly, the temporal proximity requirement of Rule

404(b) has been sufficiently satisfied.

We hold that the trial court did not err by concluding that B.T.’s testimony was

admissible because the prior act was sufficiently similar and temporally proximate to

the incident involving N.R. Id. at 132, 726 S.E.2d at 159 (citation omitted).

C. Rule 403 Balancing Test

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Defendant next contends that the trial court abused its discretion by admitting

B.T.’s testimony because its probative value was outweighed by unfair prejudice

pursuant to Rule 403. Defendant argues that “the jury could not properly evaluate

N.R.’s credibility, given the over-persuasive impact of B.T.’s 404(b) evidence.” We

disagree.

“Although 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-1, R. 403. “Unfair

prejudice, as used in Rule 403, means an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, as an emotional one.” State v.

Wilson, 345 N.C. 119, 127, 478 S.E.2d 507, 513 (1996) (citations and internal

quotation marks omitted). “Necessarily, evidence which is probative in the State’s

case will have a prejudicial effect on the defendant; the question is one of degree.”

State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994). “In general, the

exclusion of [404(b)] evidence under the balancing test of Rule 403 of the North

Carolina Rules of Evidence is within the trial court’s sound discretion.” Wilson, 345

N.C. at 127, 478 S.E.2d at 513 (citation omitted). “In our review, we consider not

whether we might disagree with the trial court, but whether the trial court’s actions

are fairly supported by the record.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d

388, 390 (2008) (citations and internal quotation marks omitted).

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Here, the trial court concluded that “the probative value of the 404(b) evidence

outweigh[ed] the potential for unfair prejudice in that the evidence is relevant to show

motive, intent, modus operandi, preparation, knowledge, identity of the perpetrator,

lack of accident, and common scheme or plan.” The trial court’s conclusion is

supported by reason because both instances involved “young [h]ispanic males. . . .

both knew [ ] [D]efendant through the church. Both allegations involved [ ]

[D]efendant fondling each young man’s [genitals]. . . . [and] in each case, [ ]

[D]efendant isolated the victim away from other adults.” These similarities also are

fairly supported by the record because “the trial court conduct[ed] voir dire on the

evidence, ma[de] extensive findings, [and] concluded the evidence [was] relevant for

a purpose such as showing common plan. . . .”

The trial court also properly curtailed the risk of unfair prejudice by issuing a

limiting jury instruction as follows: “[i]f you believe this evidence, you may consider

it but only for the limited purpose for which it is received. You may not consider it

for any other purpose.” See State v. Barnett, 223 N.C. App. 450, 456, 734 S.E.2d 130,

135 (2012) (“Limiting instructions mitigate the danger of unfair prejudice to the

defendant”). By limiting the scope in which the jury could view B.T.’s testimony, the

judge mitigated the risk of the evidence having an “undue tendency to suggest

decision on an improper basis.” Wilson, 345 N.C. at 127, 478 S.E.2d at 513 (citations

and internal quotation marks omitted). For these reasons, we conclude that the trial

court’s ruling was not “arbitrary,” but was “the result of a reasoned decision.” Turner,

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273 N.C. App. at 708, 849 S.E.2d at 332 (citation omitted).

The trial court’s conclusion following a Rule 403 balancing test was well-

reasoned and rests within its sound discretion. Any risk of unfair prejudice was

adequately tempered by the trial court’s limiting instruction.

IV. Conclusion

We hold that the trial court did not err by admitting B.T.’s testimony because

it satisfies the similarity and temporal proximity requirements of Rule 404(b). We

also hold that the trial court did not abuse its discretion in determining that B.T.’s

testimony was more probative than prejudicial after conducting a Rule 403 balancing

test. There was thus no error at trial, and we affirm the judgment.

NO ERROR.

Judges TYSON and THOMPSON concur.

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