EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, November 5, 2010

Not Like The Other: Court Of Appeals Of North Carolina Stretches To Find Prior Rape Evidence Admissible Under Rule 404(b)

Federal Rule of Evidence 413(a) provides that

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

North Carolina does not have a counterpart to Federal Rule of Evidence 413(a), but it does have North Carolina Rule of Evidence 404(b), which provides in relevant part that

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.

So, can the prosecution in a rape case present evidence of prior similar rapes to prove that the defendant has a common plan or scheme for committing rape? According to the recent opinion of the Court of Appeals of North Carolina in State v. Davis, 2010 WL 4292081 (N.C.App. 2010), the answer is "yes," at least based upon the case before the court.

In Davis, Jon Raymond Davis, Jr. was indicted on one count of second-degree rape and one count of second-degree forcible sexual offense. At trial,

The prosecuting witness and victim in this case, Kendra, testified that on 24 June 2007, she received a phone call from Defendant inviting her to a cookout in Caldwell County. Kendra had met Defendant once before and thought at the time that he "seemed like a very nice man." Kendra accepted Defendant's invitation and gave Defendant directions to her parents' home where she was living. Defendant picked her up and took her back to his home. Kendra was 5′1″ tall and weighed about 95 pounds.

When they arrived at Defendant's home, another person named Travis was there. Kendra sat down in the living room and talked to Travis but Defendant left the room. Kendra opened a beer and consumed "maybe...like the top of it." After about ten to fifteen minutes, Kendra began to wonder what was going on because there "wasn't [sic] many people there for what was supposed to be the cookout. There wasn't any food or you know...." Kendra got up and went to look for Defendant. Kendra walked into a back bedroom. The door was halfway shut and when she walked in, Defendant stepped out from behind the door and shut the door behind her. It was dark outside but dimly lit inside, and she saw that he was naked from the waist down and had a condom on.

When Kendra attempted to leave the room, Defendant stepped in front of the door and backed up against it. Defendant said, "'Well, how aggressively do you want to fight[?]'" Defendant pushed Kendra back into the room toward a bed. Defendant instructed Kendra to remove her shorts, and when she refused, he grabbed her shirt and told her, "'Well, there is an easy way or we're going to do this the hard way, but it's going to happen.'" Defendant pushed her back onto the bed. Kendra felt that there was no way to get away from Defendant so she took her shorts off. Defendant got on top of her, forced her legs apart, and put his penis into her vagina. While he raped her, he held her wrist to her side and held her down, grabbed her face and forced her to look at him, and said several times, "You know you want this." He then held Kendra by the hair and forced her to perform oral sex on him for ten to fifteen minutes.

When he finished sexually assaulting Kendra, Defendant forced her to snort some white powder, threatening to give her "some more of it[,]" meaning sexual assault, if she refused. Afterward, Defendant drove Kendra back to her parents' house. On the way to her home, Defendant threatened that if she told anybody, he would hurt her daughter and "would say that [the sex] was over drugs." Defendant let Kendra use his cell phone on the way to let her family know she was on her way home.


The State offered the testimony of Laura under Rule 404(b). After conducting a voir dire of Laura, the trial court determined that Laura's testimony was admissible to show the existence of a common plan or scheme on the part of Defendant and, over Defendant's objection, allowed Laura to testify before the jury. Laura testified that in 1979 Defendant raped her. She testified that after having run into Defendant at a place called P.D. Scotts, Defendant twice stopped by her home, once when she was at her mailbox, and another time to ask directions. On 6 November 1979, he again stopped by her house late at night. Laura and her roommate invited Defendant in. After watching television for about 30 minutes, Defendant invited Laura to go with him to his friend's house. Laura accepted Defendant's invitation, and Defendant drove her to what ended up being his cousin's house. She and Defendant both had some mixed drinks while there.

When Laura first met Defendant, she was excited and had a positive perception of him. However, as the evening progressed, she "didn't care for the group [she] was with or how [Defendant] started treating or talking to [her]." When she told Defendant that she wanted to go home, he told her to walk. Laura began to walk home, but after she had walked about a half mile, Defendant pulled up beside her in his car. He apologized to her and told her that he would take her home. Laura got into his car, and Defendant began driving toward her home. When Defendant turned right at a place where he should have gone straight, Laura reiterated that she wanted to go home. Defendant told her that he was going to take her to one more place and then would take her home. Defendant took her to the end of a dead-end road at the Caldwell County landfill.

Defendant parked the car and began kissing Laura. When she moved to get out the passenger side door, he grabbed the door and locked it. Defendant pinned her down and was on top of her, having undone both her jacket and bra. At the time, Laura weighed "105, 115 [pounds] at the most." Defendant pinned one of her arms to her side while she attempted to start the car with the other hand. Defendant took the keys out of the ignition and threw them in the backseat. While Laura struggled to get to the other door, Defendant took off one leg of her jeans and one leg of her underwear. He then inserted his penis into her vagina. After he finished assaulting her, Defendant got the keys from the backseat and drove her home. When they arrived at her home, Laura told him not to ever come around her again. "[H]e just looks at me like I am insane. Like he hasn't done a thing in the world wrong."

After Davis was convicted, he appealed, claiming that Laura's testimony was insufficient to prove that he had a common plan or scheme for committing rape. The Court of Appeals of North Carolina disagreed, finding that

the challenged testimony tends to show that Defendant displayed similar behavior here in comparison to his actions in the prior rape of Laura. Specifically, in each situation, Defendant approached his victim and presented himself as a pleasant, harmless individual. Defendant knew both women socially, but did not have a relationship with them. Defendant invited each woman to accompany him. In each situation, Defendant was consuming alcohol and the victims each consumed some alcohol. On what was essentially the first date in each instance, Defendant secluded himself with the victim, either in a car or in a room, and blocked the door when the victim attempted to leave. In each case, the victim was petite. Defendant held the victim's wrist, pinned her body under him, got on top of her, and penetrated each one with his penis. After completing each assault, Defendant took the victim home. Both assaults took place at night in Caldwell County.

Moreover, the court rejected Davis' argument that the similarities between the 1979 assault and the present assault were simply "characteristics inherent to most crimes of that type," finding that "[t]he similarities between the crime charged and the prior acts admitted under Rule 404(b) need not 'rise to the level of the unique or bizarre' in order to be admissible." The court also found no problem with the fact that the prior crime was committed in 1979, concluding that "although there was a 28-year gap between the 1979 offense and the present offense, Defendant spent approximately 22 of those 28 years in prison, leaving only six years between the two crimes for purposes of the temporal requirement."

It seems to me that the court was really stretching in reaching these conclusions. One victim was 95 pounds and the other was 105-115 pounds, so that makes both victims "petite," and creates a similarity? One rape was in a car and the other was in a room, but Davis isolated both, so that creates a similarity? Davis forced one victim to use drugs and threatened her in the event that she told, and acted like he did nothing wrong with the other victim, but he took both victims home, so that creates a similarity? Sure, there were some broad similarities between the two crimes, but it seems to me that the dissimilarities far outweighed any similarities and that the court should have deemed the evidence inadmissible under North Carolina Rule of Evidence 404(b).



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