# State v. Brown > Court of Appeals of North Carolina · May 3, 2011 · 211 N.C. App. 427 URL: https://www.frixlaw.com/law-library/cases/9781556 ## Case - **Full name:** State of North Carolina v. Henry Eugene Brown - **Court:** Court of Appeals of North Carolina - **Decided:** May 3, 2011 - **Citations:** 211 N.C. App. 427; 710 S.E.2d 265; 2011 N.C. App. LEXIS 837 - **Precedential status:** Published - **Opinion:** Dissent by Hunter - **Judges:** Stephens, Steelman, Hunter, Robert - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781556 ## Opinion text HUNTER, JR., Robert N., Judge, dissenting. 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 outweighs 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. 152 N.C. App. at 523 , 568 S.E.2d at 295 . 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.” 164 N.C. App. at 262 , 595 S.E.2d at 720 (emphasis added). Consequently, we explained, “the mere possession of pornographic materials does not meet the test of relevant evidence under Rule 401 of the North Carolina Rules of Evidence.” Id. Our decision to find error in Bush was clearly premised on this expansive reading of Smith. See id. at 263, 595 S.E.2d at 721 (“We see no way around the facts and holdings in Smith, Doisey and Maxwell in attempting to apply Rule 404(b) to admit the evidence in question.”). Therefore, we cannot disregard the articulation of the rule in Bush as mere dicta, and we are bound to apply it here. See Trs. of Rowan Technical Coll. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230, 242 , 328 S.E.2d 274, 281 (1985) (“Language in an opinion not necessary to the decision is obiter dictum and later decisions are not bound thereby.”); In re Civil Penalty, 324 N.C. 373, 384 , 379 S.E.2d 30, 37 (1989) (“Where a *445 panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). 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. More importantly, assuming arguendo Bush and Smith did not create a bright line rule regarding the possession of all pornographic materials, the majority opinion would weaken a critical aspect of the character evidence rule, stripping our case law of a logical stopping point at which the rule comes into effect. North Carolina Rule of Evidence 404 contains the traditional character evidence rule: “Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion . . . .” N.C. R. Evid. 404(a). Subsection (b) provides a nonexclusive list of purposes for which uncharged conduct evidence may be offered without violating the character evidence rule. N.C. R. Evid. 404(b); State v. Everhardt, 96 N.C. App. 1, 17 , 384 S.E.2d 562, 572 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391 (1990). Thus, Rule 404(b) is “a specialized rule of relevancy.” United States v. Moore, 732 F.2d 983, 987 (D.C. Cir. 1984); see also State v. Jeter, 326 N.C. 457, 459 , 389 S.E.2d 805, 807 (1990) (“[W]e have stressed repeatedly that the rule is, at bottom, one of relevancy.”). Logic governs relevancy. If the evidence survives Rule 404, Rule 403 requires the trial court to exclude the evidence if the danger of unfair prejudice, among other things, substantially outweighs probative value. N.C. R. Evid. 403; see also State v. Gibson, 333 N.C. 29, 43 , 424 S.E.2d 95, 103 (1992) (explaining that evidence not excluded by Rule 404 may still be excluded by Rule 403), overruled on other grounds by State v. Lynch, 334 N.C. 402, 410 , 432 S.E.2d 349, 353 (1993). 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.” David P. Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events § 8.3, at 495 (2009); accord 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28, at 746-47 (3d ed. 2007). In other words, the proponent must establish the evidence is logically relevant without *446 relying on a character inference. Whilé Rule 404(b) contains a nonexclusive list of permissible purposes for which evidence may be offered, that evidence must be excluded if its logical link to one of those purposes requires a character inference. See e.g., Mueller & Kirkpatrick, supra, § 4:28, at 746-47 (“[P]roof offered [of other bad acts] is not saved from the principle of exclusion by the mere fact that it supports a specific inference to a point like intent if the necessary logical steps include an inference of general character or propensity ....”); United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994) (“[WJhen evidence of prior bad acts is offered, the proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.” (emphasis added)); United States v. Commanche, 577 F.3d 1261, 1267 (10th Cir. 2009) (“Because of the rule’s structure, we do not read the permissible purposes demarcating the boundaries of 404(b)’s prohibition on propensity inferences as trumping the general proscription contained in the rule.”). 12 This part of the rule is critical. If a character inference can be used to connect evidence to a non-character purpose, the character evidence rule is effectively a dead letter because any number of character inferences about the defendant could be strung together to reach a “non-character purpose.” A prosecutor cannot establish a proper purpose by merely mouthing the magic words “motive, opportunity, intent, preparation, plan, knowledge, identity” and so forth. He or she must articulate how the evidence is logically relevant to such a purpose without requiring a character inference. Here, an impermissible character inference is necessary to establish the Family Letters publication’s logical relevancy to Brown’s motive or intent to commit the crimes charged. The following logical reasoning is required to establish motive: (1) Brown was in possession of a publication describing incestuous encounters in graphic detail; (2) Brown is the type of person who desires to engage in incest *447 because he reads graphic literature about incest; (3) Brown had a motive to engage in sex with his children: satisfying his incestuous desires; (4) Brown has a propensity to engage in sexual intercourse with relatives; and therefore, (5) the admission of the Family Letters publication tends to suggest Brown molested Sally. Similar reasoning is required with respect to intent: (1) Brown was in possession of a publication describing incestuous sexual encounters in graphic detail; (2) Brown is the type of person who desires to engage in incestuous sex because he reads graphic literature about incest; (3) Brown intended to engage in sex with his children to satisfy his incestuous desires; and therefore, (4) the admission of the Family Letters publication tends to suggest Brown molested Sally. In an attempt to justify this line of reasoning, the majority draws an analogy to several cases involving monetary gain as a motive. 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 Brown’s desire to engage in incest is admissible to prove Brown 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. As the late Professor David Leonard explained, motive reasoning requires two steps. In the context of uncharged misconduct evidence, the first step is from the evidence to the existence of a motive, and the second is from the motive to action in conformity therewith. This looks very similar to character reasoning. How, then, does it differ? . . . The character rule is based on the deeply entrenched view that trials are conducted to determine what happened in the situation at issue and not to judge the morality of the parties. Because a person’s “character” is driven by her morality, the law restricts evidence offered to prove character. *448 ... [T]he law assumes that motive is more specific than character, and its existence in a given situation does not depend on the person’s morality. Under the right set of circumstances, even non-violent people can possess a motive to act violently, and honest people can have a motive to lie. ... We assume that a motive might exist because any person might possess one under those specific circumstances. The tendency to have such a motive is simply human; it does not derive from a trait of character specific to the person involved in the trial. Leonard, supra, § 8.3, at 494-96 (footnotes omitted). Thus, “[a]ll character evidence offered to show action in conformity with character is propensity evidence, but not all propensity evidence is character evidence.” Richard B. Kuhns, The Propensity to Misunderstand the Character of Specific Acts Evidence, 66 Iowa L. Rev. 777 , 794 (1981). And a propensity inference is also a character inference if it involves a moral judgment about the defendant. Monetary gain as motive to commit a violent crime does not require a moral judgment about the defendant. Rather, it can rely on the assumption that human beings are more likely than not to engage in conduct that will improve their financial circumstances. The defendant therefore has a motive to commit the crime, and no character inference is required to reach this conclusion. The existence of the motive makes it more likely than not that the defendant committed the crime. 13 See Leonard, supra, § 8.5.1, at 514-18 (explaining why evidence of uncharged misconduct suggesting motives of greed, a need for money, or the like do not run afoul of the character evidence rule). The majority’s analogy to monetary-gain-motive cases fails because the reasoning in those cases does not apply to a propensity to engage in depraved sexual misconduct. The Family Letters publication cannot be relevant to Brown’s propensity to commit a sex offense without inferring he has a depraved sexual interest in incest. This is a moral judgment specific to Brown in contrast to the general, non-moral inference in monetary gain cases. As the majority explains, “[w]here 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 encounters.” Sometimes it can be very difficult to ascertain the *449 difference between permissible propensity evidence and impermissible character evidence — but not in this case. The publication is quintessential character evidence. See, e.g., United States v. Curtin, 489 F.3d 935, 963 (2007) (Kleinfeld, J., concurring) (“Using a person’s perverse sexual fantasies to prove action in conformity therewith is exactly what subsection (a) of Rule 404 prohibits.”). The majority also maintains that, even if the Family Letters publication was inadmissible to establish Brown’s motive and intent to commit first-degree sexual offense, it was admissible to establish the “purpose” element of the indecent liberties offense. To be guilty of the crime of taking indecent liberties, the defendant must engage in the prohibited conduct “for the purpose of arousing or gratifying sexual desire.” N.C. Gen. Stat. § 14-202.1 (a)(l) (2009). Establishing this purpose element is a “proper purpose” for offering evidence under Rule 404(b). State v. Beckham, 145 N.C. App. 119, 122 , 550 S.E.2d 231, 234 (2001). However, the trial court instructed the jurors to consider the Family Letters publication only if it bore on Brown’s “motive or intent to commit the crime charged.” There is no mention of considering the publication for the purpose of determining whether Brown possessed the requisite mental state for the purpose of indecent liberties. Based on this instruction, it is unlikely the jury would have used the publication to determine Brown’s “purpose” within the meaning of the statute. Moreover, this theory of logical relevancy still requires acharacter inference: (1) Brown was in possession of a publication containing descriptions of incestuous encounters in graphic detail; (2) Brown is the type of person who desires to engage in incest because he fantasizes about incest; and therefore, (3) his purpose in engaging in sexual activity with a family member was to gratify this sexual desire. Brown’s theory of the case was not that he engaged in sexual conduct with his daughters without the purpose of arousing or gratifying sexual desire. Rather, it was his contention at trial that the alleged conduct did not occur. Thus, the publication was not offered to explain why potentially innocent conduct was actually committed with the requisite mental state. Furthermore, under the majority’s approach, the State would be able to evade the character evidence rule for general intent crimes, including most sexual offenses, by tacking on a specific intent offense, such as indecent liberties. Even assuming there is some relevancy that does not require a character inference, the legitimate probative value of the publication *450 would be so minor that, when compared with the greater danger of unfair prejudice, admitting the evidence clearly fails the Rule 403 balancing test. When conducting this test, we consider two things to evaluate probative value: (1) the degree of similarity between the extrinsic conduct and the charged conduct and (2) the time elapsed between the incidents. See State v. Frazier, 344 N.C. 611, 615 , 476 S.E.2d 297, 299 (1996); State v. Boyd, 321 N.C. 574, 577 , 364 S.E.2d 118, 119 (1988) (“Nevertheless, the ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403.”); Jeff Welty, UNC School of Government, Special Evidentiary Issues in Sexual Assault Cases: The Rape Shield Law and Evidence of Prior Sexual Misconduct by the Defendant 14 (2009), available at http://www.sog.unc.edu/pubs/electronicversions/pdfs/aojb0904.pdf (“Cases sometimes suggest that this analysis is required by Rule 404(b), but it is better understood as an application of the balancing test of Rule 403.”). My review of the publication indicates the only similarity between the stories contained in the Family Letters publication and Brown’s alleged conduct is their incestuous nature. None of the stories describing sexual encounters between parents and their offspring appear to involve young children, and none of the stories state the characters are below the age of consent. Regardless of the familial relationship involved, none of the stories involve a forced sexual encounter. Thus, the only commonality is incest — the publication has no probative value for the pedophilic and force aspects of the crimes charged. Furthermore, there was no testimony that Brown actually read Family Letters, and there was conflicting testimony as to whether Brown had ever seen the publication prior to its discovery by the police. On the other hand, in admitting the evidence, there was a great danger of unfair prejudice. The publication contains numerous graphic descriptions of incestuous sexual activity between closely related family members. It describes encounters between parents and their children, between siblings, between grandparents and grandchildren, and so on. The stories are accompanied by graphic cartoon illustrations of the conduct described in the stories. The publication also contains advertisements for various sexual products, including a variety of “sex-toys” and numerous videos that purport to cater to what might be described by many as “bizarre” or “non-mainstream” sexual fetishes. Particularly in sex crime cases involving incest, this type of evidence is highly likely to inflame the passions of the jury *451 and cause jurors to assume the defendant committed the crime because he is a sexual deviant. The majority’s indecent-liberties-purpose theory not only suffers from low probative value, but using the publication to establish Brown’s purpose is superfluous in light of the unfair prejudice. There was direct testimony from Sally that Brown forced her to perform oral sex. Evidence of the act itself is sufficient to establish Brown 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,” State v. Riley, — N.C. App. —, —, 688 S.E.2d 477, 480 (2010), it cannot be presumed that a limiting instruction is automatically sufficient to negate highly inflammatory evidence. Otherwise, we could discard the unfair prejudice component of Rule 403. Limiting instructions are particularly ineffective in uncharged conduct cases, where the jury is highly likely to consider evidence for an impermissible purpose and conclude the defendant should be convicted based on his bad character. See, e.g., United States v. Daniels, 770 F.2d 1111, 1118 (D.C. Cir. 1985) (stating that, when prior convictions are admitted, “ ‘the naive assumption that prejudicial effects can be overcome by instructions to jury’ becomes more clearly than ever ‘unmitigated fiction.’ ” (quoting Krulewitch v. United States, 336 U.S. 440, 453 , 93 L. Ed. 790, 799 (1949) (Jackson, J., concurring))). Once prior bad acts of the accused are introduced in evidence and handed over to the jury for review, the realistic prosecutor, defense counsel, and trial judge know that the jury will use that bad character evidence to reason that the accused is a person of bad character or predisposition, and ought to be convicted of the present offense because of his prior history. The usual limiting instruction certainly makes the cold-type record look better to a reviewing court, but the efficacy of such an instruction has been questioned by professors and judges for decades. It is another example of repeating the same act and expecting different results. Thomas J. Reed, Admitting the Accused’s Criminal History: The Trouble With Rule 404(b), 78 Temp. L. Rev. 201 , 250 (2005) (footnote omitted). 14 While the publication should have been excluded on char *452 acter evidence/relevancy grounds, even if there was some modicum of legitimate probative value, it was substantially outweighed by the danger of unfair prejudice. In sum, the majority opinion contradicts our decisions in Smith and Bush and also fails to appreciate that uncharged conduct evidence cannot rely on a character inference to establish its logical relevancy. The trial court improperly admitted the Family Letters publication in violation of Rule 404. Furthermore, the danger of unfair prejudice posed by that evidence substantially outweighed its probative value inviolation of Rule 403. These errors constitute an abuse of discretion. Several decisions note that our courts have been “markedly liberal” in admitting uncharged conduct in sex crime cases. E.g., State v. Scott, 331 N.C. 39, 52 , 413 S.E.2d 787, 794 (1992). But a liberal trend of admissibility is not a rule of law. “Good prosecution proves that the defendant committed the crime. Bad prosecution proves that the defendant is so repulsive he ought to be convicted whether he committed it or not.” Curtin, 489 F.3d at 963 . I dissent. . Accord, e.g., United States v. Rubio-Estrada, 857 F.2d 845, 846 (1st Cir. 1988) (“The result is a compromise. Where the past bad act is relevant only because it shows bad character (i.e., the proposed logical inference includes character as a necessary link), Rule 404 automatically excludes the evidence.”); United States v. Desmarais, 938 F.2d 347, 350 (1st Cir. 1991); Masters v. People, 58 P.3d 979, 996 (Colo. 2002); State v. Hopson, 735 So. 2d 81, 87 (La. Ct. App. 5th Cir. 1999); People v. Crawford, 582 N.W.2d 785, 794 (Mich. 1998); State v. Fardan, 773 N.W.2d 303, 326 (Minn. 2009); State v. Clifford, 121 P.3d 489, 498 (Mont. 2005); State v. Bassett, 659 A.2d 891, 896 (N.H. 1995); State v. McGinnis, 455 S.E.2d 516, 523 (W. Va. 1994). . Whether this connection is probative enough in comparison to the suggestion that the defendant was motivated by greed because he is an evil person must be evaluated under the Rule 403 balancing test. . See also Sarah Tanford & Michele Cox, The Effects of Impeachment Evidence and Limiting Instructions on Individual and Group Decision Making, 12 Law & Hum. Behav. 477 , 494 (1988) (“[T]he legal assumption that instructions reduce juror *452 bias is false in many instances.”); Roselle L. Wissler & Michael J. Saks, On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt, 9 Law & Hum. Behav. 37 , 47 (1985) (concluding that “the presentation of the defendant’s criminal record does not affect the defendant’s credibility, but does increase the likelihood of conviction, and that a judge’s limiting instructions do not appear to correct that error”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781556. Public record. Not legal advice.