              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-877

                                Filed: 15 November 2016

Rowan County, No. 12 CRS 50480

STATE OF NORTH CAROLINA

             v.

RONNIE PAUL GODBEY


      Appeal by defendant from judgment entered 8 December 2014 by Judge

Christopher W. Bragg in Rowan County Superior Court. Heard in the Court of

Appeals 9 February 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General Anita
      LeVeaux, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate Defender James R.
      Grant, for the defendant-appellant.


      BRYANT, Judge.


      Where N.C. Gen. Stat. § 8-57.1 is applicable in any judicial proceeding in which

the abuse of a child is in issue, the trial court did not err in applying section 8-57.1 to

defendant’s criminal prosecution for child sexual abuse. Further, because the

privileged material was evidence of defendant’s pattern or modus operandi and was

not outweighed by its prejudicial effect, it was not erroneously admitted under Rules

401, 403, or 404(b), and we find no error in the judgment of the trial court.
                                      STATE V. GODBEY

                                      Opinion of the Court



       Ronnie Paul Godbey, defendant, and Karen Godbey (“Karen”), were married in

1996. At the time, Karen had two children: a three-year-old son and a daughter,

Stephanie.1 Karen and defendant later had two children together in 2002 and 2008.

All four children lived with the couple.

       One day in May 2010, when Stephanie was nineteen years old, Karen asked

Stephanie to help care for her siblings. Stephanie, who was on the phone with her

boyfriend, said she already had plans. Karen asked Stephanie to get off the phone

and when Stephanie refused, Karen pulled the phone away and slapped her. When

Karen told Stephanie she had to stay home and babysit, Stephanie walked out, at

which point Karen said, “[I]f you leave, don’t come back.”

       After this argument, Stephanie stayed with a friend, Millie, for a few weeks.

At some point, Stephanie and Millie went to the home of Stephanie’s maternal

grandfather, Larry Gobble, where Millie told Gobble that her house was too small for

Stephanie to continue staying with her. Stephanie told Gobble that she could not go

back home and, Gobble, who testified for the State, said,

              well, here’s the deal, unless you got some specific reason,
              like, you’ve been physically abused or you’re in harms [sic]
              way of something being -- in some kind of danger, you’re
              not going to come to my house and live. You’re going to go
              home and work the problems out with your mother.




       1 Because the victim was a minor during the time the crimes were committed, a pseudonym is
used to protect her identity.

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At this point, Stephanie told Gobble that defendant had “abused” her at night while

Karen was sleeping, but did not go into further detail. Gobble asked Stephanie if she

had told Karen, and Stephanie said she had not because she thought Karen would

not believe her. Stephanie stayed with Millie for another week or so. Then, after

discussing the situation with his pastor, Gobble allowed Stephanie to move into his

home.

        At some point during the next day or two after Stephanie first told her

grandfather about the alleged abuse, Gobble arranged for Stephanie to speak with

Karen over the phone. Stephanie told Karen that defendant had been coming into her

room and “messing with” her and “bothering” her, which Stephanie later testified at

trial had been going on since she was about ten years old and continued until her

eighteenth birthday. Stephanie and Karen agreed to meet to talk further and

Stephanie told Karen that defendant “would do things to her” and “molest[ed]” her.

Karen was upset and in tears and suggested talking to a pastor. Stephanie agreed,

and the two met with a pastor that day.

        When Stephanie left the meeting with Karen and the pastor, Karen called

defendant and asked him to meet her at the pastor’s office. When he arrived, Karen

confronted him with Stephanie’s allegations. Defendant denied “messing with”

Stephanie and appeared very upset. Karen and defendant then went home. Karen




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later testified that she decided to stay with defendant because she did not believe

Stephanie’s accusations.

      In December 2011, Detective Sarah Benfield with the Rowan County Sheriff’s

Department spoke with Gobble’s pastor after the pastor reported a “past sex abuse.”

After speaking with the pastor, Detective Benfield interviewed Stephanie. Stephanie

alleged that defendant frequently came into her room over the years and (1) rubbed

her back, breasts, and vagina; (2) performed cunnilingus on her; (3) inserted his

fingers into her vagina; and (4) forced her to perform fellatio. She also claimed that

defendant would turn her over and “hump” her back until he ejaculated.

      Detective Benfield then talked with Karen and explained all of Stephanie’s

allegations, including the allegation that defendant would hump Stephanie’s back

until he ejaculated. About a week after Detective Benfield’s meeting with Karen,

Karen contacted the detective and said that when defendant engaged her in sexual

activity, he would do the same “back humping” that Stephanie alleged defendant

would do to her. Detective Benfield had Karen come in and read and sign a statement

to that effect, dated 12 January 2012. About a month after she signed the 12 January

2012 statement, Karen contacted Detective Benfield again and told her she wanted

to change her earlier statement. On 1 February 2012, Karen met with Detective

Benfield and initialed and signed an amended statement, through which she

explained that defendant’s



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             doing something on my back was my idea. We only did it a
             few times. He would hump me on my back until he
             ejaculated on my back. It was when I wasn’t able to have
             intercourse. It was consensual, and something we did
             together intimately, not against my will.

When Detective Benfield spoke with defendant, he denied having any sexual contact

with Stephanie, said that Stephanie was lying, and told her that “this all started

when she got kicked out of the house.”

      On 2 April 2012, defendant was indicted on two counts of first degree sex

offense with a child, one count of statutory sex offense with a 13-, 14-, or 15-year-old,

and three counts of indecent liberties with a child. All six indictments alleged an

offense date range of 30 March 2001 through 29 March 2007 (the day before

Stephanie’s sixteenth birthday). Two years later, superseding indictments issued for

the two charges of sex offense with a child. The case came on for trial at the 2

December 2014 Criminal Session of Rowan County Superior Court, the Honorable

Christopher W. Bragg, Judge presiding.

      Prior to trial, defendant moved to exclude any mention of sex acts between

Karen and defendant, including references to Karen’s statements to Detective

Benfield. Defendant argued that private sex acts between a husband and wife were

privileged marital communications under N.C. Gen. Stat. § 8-57(c). The trial court

reserved judgment on the matter until Karen testified.




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      At trial, Stephanie testified about the abuse, including the “back humping.”

During its case-in-chief, the State did not call Karen as a witness or elicit any

testimony from Detective Benfield, or any other witness, about defendant and Karen’s

sex life. At the close of the State’s evidence, defendant asked the trial court to revisit

the privilege issue before presentation of defense evidence. While the trial court

agreed that sex acts between Karen and defendant were privileged marital

communications, it held N.C. Gen. Stat. § 8-57.1 abrogated the privilege in this case.

      Prior to the relevant portions of Karen’s testimony, defendant renewed his

objection to the State’s cross-examination about her sex acts with defendant and also

objected to such questioning on relevance and Rule 404(b) grounds. The trial court

reiterated its prior ruling and overruled defendant’s additional objections, holding

that evidence of sex acts between Karen and defendant was admissible under Rule

404(b) “almost as a modus operandi . . . [to] show a pattern [of] conduct by

[defendant].” On direct, Karen, called as a defense witness, mentioned that she gave

statements on two occasions at the sheriff’s department regarding Stephanie’s

allegations and that she signed a statement every time. She did not refer to, and

defense counsel did not elicit, testimony regarding the substance of those statements.

      The State then cross-examined Karen, over contemporaneous objection, about

her statements to Detective Benfield. Karen testified that the sexual activity in

question did not begin until after the birth of her and defendant’s second child in 2008



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(thus, beginning after the date ranges alleged in the indictments). She explained that

it did not entail defendant “humping” her back, but rather involved defendant

rubbing his penis “between her butt.” On redirect, Karen further explained the sex

act she had described to Detective Benfield, stating that it involved defendant

rubbing his penis between her oiled butt cheeks until he ejaculated, but that he never

“humped” her back. Karen also explained that this was not something she enjoyed,

but that it was her idea as sexual intercourse had become painful for her as a result

of fibroids after her son’s birth in 2008.

      Defendant testified and denied abusing or inappropriately touching Stephanie.

He also testified on cross-examination as follows:

             Q. Did you ever hear about an allegation and you humping
             Stephanie’s back until you ejaculated?

             A. Did -- did I hear about it?

             Q. Yes.

             A. Yes, I heard about it. It’s in the papers.

             Q. All right. That’s something similar to what you and your
             wife do, correct?

             A. A little bit, but not -- not really.

             Q. Your wife’s testimony was that didn’t begin until 2008,
             after [your son] was born?

             A. That’s when she had her problems, yes.




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Defendant’s ex-wife, son, and sister also testified as character witnesses. After the

defense rested, the State re-called Detective Benfield, who testified about Karen’s

statements, noting that Karen never informed her that the activity she described

with defendant only began in 2008. Defendant objected to this line of questioning for

“reasons stated previously . . . including privilege.”

      In charging the jury, the trial court instructed, over defendant’s objection that

             [e]vidence has been received tending to show that the
             defendant and [Karen] engaged in a sexual act where the
             defendant would rub his penis between her butt cheeks
             until the defendant ejaculated. This evidence was received
             solely for the purpose of showing that the defendant had
             the intent, which is a necessary element of the crime
             charged in this case, and that there existed in the mind of
             the defendant a common plan or scheme 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 was received. You may
             not consider it for any other purpose.

      After about two-and-a-half hours of deliberation, the jury asked the trial court

whether it had to find defendant guilty of the sex offense charges in order to convict

him of the indecent liberties offenses. The jury also asked “how [to] determine which

act applies” to each indecent liberties charge, noting that all three indictments were

worded the same. The trial court responded by instructing the jury that each charged

offense was “separate and distinct” and by reiterating the pattern instruction on

indecent liberties.



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                                   Opinion of the Court



      After another two-and-a-half hours of deliberation, the jury submitted a note

to the trial court indicating it had reached a verdict in the sex offense cases, but was

“unable to agree on an [sic] unanimous decision” in the indecent liberties cases. In

response, the trial court dismissed the jury for the weekend and instructed it to

return on Monday for further deliberations.

      When the jury returned Monday morning, it asked to review defense exhibits

1–14, which included an illustrative diagram of the Godbey family home and pictures

of the family. At 2:42 p.m., the jury indicated it had reached a unanimous verdict in

one of the indecent liberties cases, but, with regard to the remaining charges, the jury

foreman told the court that he “believe[d] that [the jury] could spend days discussing

[the] two remaining charges without reaching an [sic] unanimous decision.”

      The trial court then gave the jury an Allen charge, typically given to encourage

a deadlocked jury to try and reach a verdict, and allowed another hour and a half of

deliberations. After the hour and a half of deliberations, the trial court declared a

mistrial on the two remaining indecent liberties charges. In the other cases, the jury

acquitted defendant of the three sex offense charges, but convicted him of one count

of indecent liberties. Defendant was sentenced to sixteen to twenty months’

imprisonment for the indecent liberties conviction and ordered to register as a sex

offender for thirty years. Defendant entered oral notice of appeal.

            ________________________________________________________



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                                  Opinion of the Court



      On appeal, defendant argues that the trial court erred (I) by admitting

privileged evidence over objection about consensual sexual activity between

defendant and his wife pursuant to N.C. Gen. Stat. § 8-57.1; and (II) abused its

discretion by overruling defendant’s Rule 401 and 404(b) objections to evidence about

consensual sexual activity between defendant and his wife.

                                           I

      Defendant first argues that the trial court erred by admitting, over objection,

privileged evidence about consensual sexual activity between defendant and his wife

and that this error entitles him to a new trial. Specifically, defendant contends the

trial court erroneously concluded that the marital communications privilege did not

apply to the evidence about spousal sexual activity as N.C. Gen. Stat. § 8-57.1 waives

that privilege. Defendant argues that N.C.G.S. § 8-57.1 does not completely abrogate

the privilege, but rather is limited to “judicial proceeding[s] related to a report

pursuant to the Child Abuse Reporting Law,” and therefore the trial court

erroneously concluded that N.C.G.S. § 8-57.1 creates a broad exception to the marital

communications privilege in all cases. We disagree.

      Whether a communication is privileged is a question of law reviewed de novo

by this Court. See Nicholson v. Thom, 236 N.C. App. 308, 318, 763 S.E.2d 772, 779

(2014). “ ‘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



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N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of the Greens of

Pine Glen Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

      “[T]he marital communications privilege is premised upon the belief that the

marital union is sacred and that its intimacy and confidences deserve[] legal

protection.” State v. Rollins, 363 N.C. 232, 236, 675 S.E.2d 334, 337 (2009) (citing

Hicks v. Hicks, 271 N.C. 204, 205, 155 S.E.2d 799, 800 (1967)). “[W]hatever is known

by reason of that intimacy should be regarded as knowledge confidentially acquired,

and . . . neither [spouse] should be allowed to divulge it to the danger or disgrace of

the other.” Hicks, 271 at 205, 155 S.E.2d at 800 (citation omitted). In addition to

protecting verbal expression, the marital communications privilege also protects

actions which are “intended to be . . . communication[s] and [are] the type of act[s]

induced by the marital relationship.” State v. Hammonds, 141 N.C. App. 152, 171,

541 S.E.2d 166, 180 (2000) (citations omitted).

      In assessing whether an act or expression is confidential such that it is afforded

the protection of the marital privilege, a court must ask whether it was “prompted by

the affection, confidence, and loyalty engendered by” the marriage. Rollins, 363 N.C.

at 237, 675 S.E.2d at 337 (citations omitted); see also State v. Freeman, 302 N.C. 591,

596, 276 S.E.2d 450, 453 (1981) (modifying the common law rule to hold that “spouses

shall be incompetent to testify against one another in a criminal proceeding only if

the substance of the testimony concerns a ‘confidential communication’ between the



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marriage partners made during the duration of their marriage”). A court must also

consider “[t]he circumstances in which the communication takes place, including the

physical location and presence of other individuals . . . .” Rollins, 363 N.C. at 237, 675

S.E.2d at 337. There “must be a reasonable expectation of privacy on the part of the

holder and the intent that the communication be kept secret.” Id. at 238, 675 S.E.2d

at 338.

      The North Carolina Supreme Court has specifically held that sex between

spouses is subject to the marital communications privilege. Wright v. Wright, 281

N.C. 159, 166–67, 188 S.E.2d 317, 322 (1972); see Biggs v. Biggs, 253 N.C. 10, 16, 116

S.E.2d 178, 183 (1960) (“[A]n act of intercourse between husband and wife is a

confidential communication.”), overruled in part by Hicks, 271 N.C. at 207, 155 S.E.2d

at 802 (declining to follow Biggs “where there [was] a completely different factual

situation”).

      While North Caroline General Statutes section 8-57 provides “[n]o husband or

wife shall be compellable in any event to disclose any confidential communication

made by one to the other during their marriage[,]” N.C. Gen. Stat. § 8-57(c) (2015)

(emphasis added), there are exceptions:

               (b) The spouse of the defendant shall be competent but not
               compellable to testify for the State against the defendant
               in any criminal action or grand jury proceedings, except
               that the spouse of the defendant shall be both competent
               and compellable to so testify:



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                                   Opinion of the Court



             ...

                    (5) In a prosecution of one spouse for any other
                    criminal offense against the minor child of either
                    spouse, including any child of either spouse who is
                    born out of wedlock or adopted or a foster child.

Id. § 8-57(b)(5); see also Biggs, 253 N.C. at 16–17, 116 S.E.2d at 183 (“It is true that

an act of intercourse between husband and wife is a confidential communication. But

the statute merely provides that ‘no husband or wife shall be compellable to disclose

any confidential communication.’ [The husband’s] testimony (and that of his wife)

was voluntarily given; there was no effort to compel such testimony.” (emphasis

added)). In other words, sections 8-57(b)(5) and (c) together provide that a witness-

spouse may voluntarily testify about the abuse of a child, even over the objection of

the defendant-spouse, but may not be compelled to do so. N.C.G.S. § 8-57(b)(5), (c).

      N.C. General Statutes, section 8-57.1, however, abrogates the marital

communications privilege even further with regard to cases of child abuse:

             Notwithstanding the provisions of G.S. 8-56 and G.S. 8-57,
             the husband-wife privilege shall not be ground for
             excluding evidence regarding the abuse or neglect of a child
             under the age of 16 years or regarding an illness of or
             injuries to such child or the cause thereof in any judicial
             proceeding related to a report pursuant to the Child Abuse
             Reporting Law, Article 3 of Chapter 7B of the General
             Statutes of North Carolina.

N.C.G.S. § 8-57.1 (2015).




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      “Questions of statutory interpretation are questions of law[.] . . .” First Bank v.

S & R Grandview, L.L.C., 232 N.C. App. 544, 546, 755 S.E.2d 393, 394 (2014). “The

primary objective of statutory interpretation is to give effect to the intent of the

legislature.” Id. (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284,

290 (1998)). “The plain language of a statute is the primary indicator of legislative

intent.” Id. (citation omitted). “If the statutory language is clear and unambiguous,

the court eschews statutory construction in favor of giving the words their plain and

definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)

(citation omitted). However, “statutory provisions must be read in context: ‘Statutes

dealing with the same subject matter must be construed in pari materia, as together

constituting one law, and harmonized to give effect to each.’ ” First Bank, 232 N.C.

App. at 546, 755 S.E.2d at 395 (quoting Williams v. Williams, 299 N.C. 174, 180–81,

261 S.E.2d 849, 854 (1980)); see Abernethy v. Bd. of Commr’s of Pitt Cnty., 169 N.C.

631, 636, 86 S.E. 577, 580 (1915) (noting that in construing statutes, the court “may

call to [its] aid . . . other laws or statutes related to the particular subject or to the

one under construction, so that [it] may know what the mischief was which the

Legislature intended to remove or remedy”).

      General Statutes, section 8-57 is titled “Husband and wife as witnesses in

criminal actions,” and subsection (c) states as follows: “No husband or wife shall be

compellable in any event to disclose any confidential communication made by one to



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the other during their marriage.” N.C.G.S. § 8-57(c) (emphasis added). Section 8-57(c)

provides that confidential communications between a husband and wife shall not be

admitted into evidence at the objection of either the husband or the wife. State v.

Holmes, 330 N.C. 826, 827, 829, 412 S.E.2d 660, 661, 662 (1992); cf. Biggs, 253 N.C.

at 16–17, 116 S.E.2d at 183. Section 8-57.1, titled “Husband-wife privilege waived in

child abuse,” states in pertinent part as follows: “Notwithstanding the provisions of

G.S. 8-56 and G.S. 8-57, the husband-wife privilege shall not be ground for excluding

evidence regarding the abuse or neglect of a child under the age of 16 years . . . .”

N.C.G.S. § 8-57.1 (emphasis added).

      The only North Carolina case which cites to this statutory provision quotes the

statute as follows: “Section 8-57.1 provides that notwithstanding the provisions of

sections 8-56 and 8-57, ‘the husband-wife privilege shall not be ground for excluding

evidence [under certain circumstances relating to the abuse or neglect of a child under

the age of sixteen years].’ ” Holmes, 330 N.C. at 834, 412 S.E.2d at 664–65 (alteration

in original) (quoting N.C.G.S. § 8-57.1).

      In Holmes, two codefendants were found guilty of second-degree murder, and

at issue on appeal was “whether a witness spouse may testify at trial as to

confidential communications made to her by defendant spouse over defendant

spouse’s objection and assertion of privilege.” Id. at 827, 412 S.E.2d at 661. In holding

that “she may not,” the N.C. Supreme Court cited to N.C.G.S. § 8-57.1 for the purpose



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of negating the State’s argument that N.C.G.S. § 8-57 “abolishe[d] the common law

rule against the disclosure of confidential marital communications, leaving only a

rule against being compelled to disclose a confidential marital communication . . .

argu[ing] that section 8-57(b) makes the spouse competent to testify, and section 8-

57(c) gives the privilege of not being compelled to the witness spouse . . . .” Id. at 827,

829, 412 S.E.2d 661, 662 (emphasis added).

      In negating the State’s argument outlined above, the N.C. Supreme Court

reasoned that, “[i]f, as the State suggests, section 8-57 abolished the husband-wife

privilege against disclosure of confidential communications made by one to the other

during their marriage, section 8-57.1 would seem to be unnecessary.” Id. at 834, 412

S.E.2d at 665; see also Note, Douglas P. Arthurs, Spousal Testimony in Criminal

Proceedings—State v. Freeman, 17 Wake Forest L. Rev. 990, 995 (1981) (noting that

“G.S. 8-57 was adopted to eliminate the incongruous result that a defendant could

testify in his own behalf, but his spouse could not testify for or against him”). In other

words, because N.C.G.S. § 8-57.1 abrogates the marital communications privilege

“under certain circumstances” (not those present in Holmes), N.C.G.S. § 8-57.1 would

be redundant if section 8-57 functioned to abolish the privilege in its entirety. See

Holmes, 330 N.C. at 833–34, 412 S.E.2d at 664–65; see also State v. Williams, 286

N.C. 422, 431, 212 S.E.2d 113, 119 (1975) (“[A] statute must be construed, if possible,

so as to give effect to every part of it, it being presumed that the Legislature did not



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intend any of its provisions to be surplusage.” (citation omitted)); In re Hickerson, 235

N.C. 716, 721, 71 S.E.2d 129, 132 (1952) (“[P]arts of the same statute, and dealing

with the same subject, are to be considered and interpreted as a whole, and in such

case it is the accepted principle of statutory construction that every part of the law

shall be given effect if this can be done by any fair and reasonable intendment . . . .”

(citations omitted)). This line of reasoning provides guidance to this Court in deciding

the ultimate breadth of this statute’s reach and whether or not N.C.G.S. § 8-57.1 is

applicable in this case.

      Although not binding on this Court, a Kentucky Supreme Court opinion has

addressed this precise issue: whether a child abuse reporting statute which abrogates

the marital privilege in child abuse cases may be applied to a criminal prosecution of

a defendant for the sexual abuse of a child. Mullins v. Commonwealth, 956 S.W.2d

210, 210–11 (Ky. 1997). In Mullins, the defendant’s wife “found him engaged in acts

of sodomy with a 14-year-old babysitter.” Id. at 211. The wife called the police and

later testified against her husband to the grand jury. Id. However, by the time of trial,

both the defendant and his wife claimed the marital privilege. Id. The Kentucky

Court of Appeals affirmed the defendant’s conviction for third-degree sodomy, stating

that the trial court did not err in applying KRS 620.050(2) (Kentucky’s statute

abrogating both the professional-client/patient privilege and the marital privilege in

cases of dependent, neglected, or abused children) in a criminal prosecution, stating



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the statute “declares that the husband and wife privilege is inapplicable in a criminal

proceeding regarding a dependent, neglected or abused child.” Id. (emphasis added).

      In affirming the Court of Appeals’ and the judgment of the trial court, the

Kentucky Supreme Court reasoned as follows:

             The General Assembly may legislate in order to protect
             children, and it may determine that children’s rights are
             paramount when there is a conflict with the privilege of an
             adult to exclude evidence regarding the abuse, dependency
             or neglect of a child. KRS Chapter 620 meets the legislative
             purpose of safeguarding the interests of children. The
             statute does not interfere with any judicial function, but
             rather it enhances it by refusing to allow a shield to a child
             abuser in the form of the husband-wife privilege and
             thereby improves the truth-finding function of the judicial
             process.

                    The exceptions provided in KRE 504(c)(2) reflect the
             fact that the marital privilege is considered by many to be
             in disfavor as a result of abuses which prevent ascertaining
             the truth. The privilege exists only to protect marital
             harmony. . . .

                    The courts have approached the privilege by
             narrowly and strictly construing it because it has the
             potential for shielding the truth from the court system.
             Many courts have determined that when the reason
             supporting the privilege, marital harmony, no longer
             exists, then the privilege should not apply to hide the truth
             from the trier of fact.

             ....

                    Marital harmony can hardly be a valid legal
             principle when the wife in question calls the police to report
             the alleged sexual misdeeds of her husband with a child.
             The marital privilege is subordinate or inferior to the right


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             of a child to be free from sexual abuses.

Id. at 212 (internal citations omitted); see Kays v. Commonwealth, ___ S.W.3d ___,

___, NO. 2014-CA-001924-MR, 2016 WL 5956995, at *8 (Ky. Oct. 14, 2016) (citing

Mullins, 956 S.W.2d at 211) (involving third-degree rape and sodomy of a fifteen-

year-old-girl where the defendant confided in his then-wife “[w]hen details of how he

preyed upon his former student began unraveling” and the defendant sought to

invoke spousal privilege) (“Mullins remains the law in Kentucky.”).

      Furthermore, the North Carolina Juvenile Code: Practice and Procedure’s

interpretation of North Carolina’s statute abrogating the marital privilege in cases of

child abuse, N.C.G.S. § 8-57.1, seems to support a similar policy to the one enunciated

in Mullins, namely that “[t]he marital privilege is subordinate or inferior to the right

of a child to be free from sexual abuses.” 956 S.W.2d at 212. Practice and Procedure

states that “with respect to certain privileges, the privilege does not extend to

circumstances where the information requires a mandatory report of child neglect or

abuse or where the information otherwise pertains to and is being sought in a

proceeding concerning the abuse and neglect of a child.” Thomas R. Young, N.C.

Juvenile Code: Prac. & Proc. § 5:2 (May 2016) (emphasis added).

      Even if N.C.G.S. § 8-57.1 is not a model of clarity, N.C. Gen. Stat. § 7B-310

contains similar language, and reading N.C.G.S. § 8-57.1 as applicable to “any judicial




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proceeding” is supported by the express limitations placed upon all privileges as

enunciated in N.C.G.S. § 7B-310:

                No privilege, except the attorney-client privilege, shall be
                grounds for excluding evidence of abuse, neglect, or
                dependency in any judicial proceeding (civil, criminal, or
                juvenile) in which a juvenile’s abuse, neglect, or
                dependency is in issue nor in any judicial proceeding
                resulting from a report submitted under this Article, both
                as this privilege relates to the competency of the witness
                and to the exclusion of confidential communications.

N.C.G.S. § 7B-310 (2015) (emphasis added).

      In State v. Byler, this Court examined and compared the language of N.C. Gen.

Stat. § 8-53.1 (regarding the physician-patient privilege) and N.C.G.S. § 7B-310,

ultimately concluding that “these two sections are to be read together[,]” as “the

doctor-patient privilege cannot serve to shield information from the jury when a

defendant is on trial for child abuse.” No. COA03-453, 2004 WL 2584962, at *3 (N.C.

Ct. App. Nov. 16, 2004) (unpublished) (citation omitted) (affirming the trial court’s

admission of statements made by a psychologist who was hired by defense counsel to

evaluate the defendant in the defendant’s prosecution for the statutory rape of his

own daughter). Because the language in N.C.G.S. § 8-53.1 almost exactly mirrors the

language of N.C.G.S. § 8-57.1,2 with the exception that section 8-53.1 deals with


      2   N.C.G.S. § 8-53.1 reads as follows:

                (a) Notwithstanding the provisions of G.S. 8-53 and G.S. 8-53.13, the
                physician-patient or nurse privilege shall not be a ground for excluding



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physician-patient privilege and section 8-57.1 with the marital privilege, this Court’s

analysis in Byler is highly instructive:

               [T]he plain language of section 7B-310 seems to create dual
               applicability by using the word “nor” and admonishing the
               use of the privilege in a “judicial proceeding” where abuse
               is at issue, independent of whether the proceeding resulted
               from a report. This interpretation is bolstered by the fact
               that section 8-53.1 uses “related to” instead of “resulting
               from,” as in 7B-310 and these two sections are to be read
               together. See State v. Etheridge, 319 N.C. 34, 39–41, 352
               S.E.2d 673, 677–78 (1987) (supporting this interpretation
               and applying these statutes to a criminal trial based on
               rape and other sexual offenses).

Id.; see N.C.G.S. § 8-57.1 (“[T]he husband-wife privilege shall not be ground for

excluding evidence regarding the abuse . . . of a child . . . in any judicial proceeding

related to a report pursuant to the Child Abuse Reporting Law . . . .”); see also Young,

N.C. Juvenile Code: Prac. & Proc. § 5:2 n.14 (“N.C. Gen. Stat. § 8-53.1 (physician and

nurse privilege not ground for excluding evidence regarding abuse or neglect of a child

under the age of 16 years in Chapter 7B proceeding); N.C. Gen. Stat. § 8-57.1

(husband and wife privilege same as physician and nurse)[.]” (emphasis added)).




               evidence regarding the abuse or neglect of a child under the age of 16
               years or regarding an illness of or injuries to such child or the cause
               thereof in any judicial proceeding related to a report pursuant to the
               North Carolina Juvenile Code, Chapter 7B of the General Statutes of
               North Carolina.

N.C.G.S. § 8-53.1(a) (2015).

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      Thus, in the instant case, independent of whether defendant’s prosecution for,

inter alia, taking indecent liberties with a child resulted from a report made pursuant

to the Child Abuse Reporting Law, it is sufficient that defendant’s criminal

prosecution for child sexual abuse was a “judicial proceeding related to a report

pursuant to” the same. See N.C.G.S. § 8-57.1; Byler, 2004 WL 2584962, at *3. As such,

sections 8-57.1 and 7B-310 “are to be read together[,]” Byler, 2004 WL 2584962, at

*3, and, in a criminal proceeding regarding allegations of the sexual abuse of a

juvenile, like the instant case, with the exception of the attorney-client privilege, “[n]o

privilege,” including the marital communications privilege, can be exercised to

exclude evidence of such abuse. See N.C.G.S. § 7B-310; see also N.C.G.S. § 8-57.1.

      “We believe the legislature, in balancing the [long-standing policy “to protect

the intimacy of the marital union[,]” Rollins, 363 N.C. at 235, 675 S.E.2d at 336,]

against the need to protect child victims, opted to provide the broadest possible

exceptions to the [marital communications] privilege.” See State v. Etheridge, 319

N.C. 34, 41, 352 S.E.2d 673, 677 (1987) (“We believe the legislature, in balancing the

need for confidential medical treatment against the need to protect child victims,

opted to provide the broadest possible exceptions to the physician-patient privilege.”).

Accordingly, the trial court did not err in applying N.C.G.S. § 8-57.1 to defendant’s

prosecution for child sexual abuse offenses, and defendant’s argument is overruled.




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                                          II

      Defendant next argues the trial court abused its discretion by overruling

defendant’s Rule 401 and 404(b) objections to the admission of the same evidence

described above—the consensual sexual activity between defendant and his wife.

Specifically, defendant argues Karen’s testimony regarding the sexual act was

irrelevant as it was neither temporally proximate nor similar enough to Stephanie’s

allegations to warrant admission under Rule 404(b) and, further, that even if Karen’s

testimony had some minimal probative value, that value was substantially

outweighed by the danger of unfair prejudice. Defendant contends that because there

is a reasonable possibility that the trial court’s errors contributed to defendant’s

conviction, he should be granted a new trial. We disagree.

      “Evidentiary errors are harmless unless a defendant proves that absent the

error a different result would have been reached at trial.” State v. Ferguson, 145 N.C.

App. 302, 307, 549 S.E.2d 889, 893 (2001) (citation omitted).

             Because the trial court is better situated to evaluate
             whether a particular piece of evidence tends to make the
             existence of a fact of consequence more or less probable, the
             appropriate standard of review for a trial court’s ruling on
             relevancy pursuant to Rule 401 is not as deferential as the
             ‘abuse of discretion’ standard which applies to rulings
             made pursuant to Rule 403.

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citation omitted).

Pursuant to Rule 401, evidence is relevant if it has any tendency to make the



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existence of a fact of consequence more or less probable. N.C. Gen. Stat. § 8C-1, Rule

401 (2015). “We review de novo the legal conclusion that the evidence is, or is not,

within the coverage of Rule 404(b).” State v. Beckelheimer, 366 N.C. 127, 130, 726

S.E.2d 156, 159 (2012). Rule 404(b) is a

             general rule of inclusion of relevant evidence of other
             crimes, wrongs or acts by a defendant, subject to but one
             exception requiring its exclusion if its only probative value
             is to show that the defendant has the propensity or
             disposition to commit an offense of the nature of the crime
             charged.

State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). “[A]ll evidence

favorable to the [State] will be, by definition, prejudicial to defendants. The test . . .

is whether that prejudice to defendants is unfair.” Matthews v. James, 88 N.C. App.

32, 39, 362 S.E.2d 594, 599 (1987). “The term ‘unfair prejudice’ means ‘an undue

tendency to suggest decision on an improper basis[.]’ ” State v. Summers, 177 N.C.

App. 691, 697, 629 S.E.2d 902, 907 (2006) (alteration in original) (quoting State v.

DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)).

             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, Rule 404(b) (2015). “[P]rior acts are sufficiently similar if there

are some unusual facts present in both [act]s that would indicate that the same



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person committed them.” State v. Davis, 222 N.C. App. 562, 567, 731 S.E.2d 236, 240

(2012) (citation omitted). “Two constraints govern admission of evidence under Rule

404(b): similarity and temporal proximity.” Summers, 177 N.C. App. at 696, 629

S.E.2d at 906 (citation omitted).

      Here, Stephanie described to Karen the sexual act performed by defendant,

which description initially prompted Karen to sign a statement indicating she and

defendant engaged in the same act. Stephanie testified the sexual act was a follows:

“[Defendant] would turn [her] over on [her] stomach and he would hump [her] back

until he ejaculated all over [her] back.” Over defendant’s objections before and during

the following testimony, Karen testified on cross-examination as follows:

             Q. Was one of [Stephanie’s] allegations Detective Benfield
             told you about, where [defendant] would go into
             [Stephanie’s] room and hump her back until he ejaculated?

             A. Yes.

             Q. All right. Did that allegation surprise you?

             A. Every allegation surprised me.

             Q. Okay. Is that something that [defendant] and you did
             intimately together?

             ...

             A. It was. And when you -- when she said it, I - - I thought
             about it, and I called her, and I discussed it with her. And
             then later on, it -- it was an issue after I had [my son in
             2008]. I had problems, so it was -- it was something that I
             came up with because we couldn’t do anything, but it


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             wasn’t the exact act either.

             Q. All right. Well tell me about the act then, ma’am.

             ...

             A. I had -- after I had [my son] I had fibroids, so -- which is
             a female -- well, it was in your -- in your -- on your female
             organs. So it would be painful to have intercourse. So I
             suggested that defendant -- it -- it was -- see, when you --
             when you hear front and back on your -- you know, the -- I
             mean, this is your front and this is your back, so I
             automatically thought about my -- you know, it’s your
             backside. But it was in an area -- it was not on my back, it
             was between my butt and it was -- that he would -- we
             would just -- he would move around there until -- in the
             butt area.

             Q. Until he ejaculated?

             A. Yes.

      Here, Karen’s testimony was relevant to Stephanie’s allegations—the sexual

act Karen described was admissible as it showed a common scheme or plan, pattern,

and/or common modus operandi and sufficient similarity to Stephanie’s allegations

of sexual abuse. See N.C.G.S. § 8C-1, Rule 404(b). Both Stephanie and Karen testified

that defendant would engage in a sexual act whereby defendant would ejaculate on

them, respectively, from behind. Even if Karen later amended her statement to

differentiate the sexual act she and defendant engaged in from the sexual act

Stephanie alleged defendant perpetrated on her, Detective Benfield testified that in

her initial conversation with Karen, Karen “stated . . . that [defendant] did the same



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thing to her[,]” and Karen herself testified that the sexual act alleged by Stephanie

whereby defendant would “hump her back,” was one that she and defendant also

engaged in. Indeed, where Karen’s credibility as a witness is called into question,

particularly with regard to the differing statements she made to Detective Benfield,

credibility goes to the weight of the evidence, not its admissibility. See State v. Stager,

329 N.C. 278, 317, 406 S.E.2d 876, 898 (1991) (“The conflict in the evidence goes to

the weight and credibility of the evidence not its admissibility.”).

      Defendant argues that the instant case is similar to State v. Dunston, in which

the charges arose out of allegations that the defendant vaginally and anally raped his

foster daughter. 161 N.C. App. 468, 469, 588 S.E.2d 540, 542 (2003). In Dunston, the

State elicited testimony from the defendant’s wife that the defendant engaged in and

liked consensual anal sex. Id. at 469, 472–73, 588 S.E.2d at 542, 544–45. This Court

concluded that this fact, “[wa]s not by itself sufficiently similar to engaging in anal

sex with an underage victim beyond the characteristics inherent to both, i.e., they both

involve anal sex, [in order] to be admissible under Rule 404(b).” Id. at 473, 588 S.E.2d

at 544–45 (emphasis added). This Court held “this evidence was not relevant for any

purpose other than to prove [the] defendant’s propensity to engage in anal sex, and

thus, the trial court erred in admitting this evidence.” Id. at 473, 588 S.E.2d at 545.

      Here, the evidence was not offered to prove defendant’s propensity to engage

in a categorically defined sexual act, but rather was offered to show the similarity



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between the unique sexual act alleged by Stephanie and that described by Karen.

Indeed, the sexual act alleged by Stephanie was so unique that Karen called Detective

Benfield back after they spoke the first time as soon as she realized that she and

defendant engaged in a sexual activity similar to the one Stephanie described:

             Q. . . . And when Detective Benfield told you [about
             Stephanie’s allegation that defendant would go into her
             room and hump her back until he ejaculated], what did you
             say to her?

             A. I didn’t say anything at the time until I went home and
             thought about everything.

             Q. All right. And then you called her back and told her that
             you had thought about that specific act, correct?

             A. Uh-huh, (affirmative.) Yes.

Karen described this particular sexual activity to Detective Benfield on two separate

occasions and signed a statement to that effect which she read and understood before

she signed it. Karen’s statement read as follows:

             [Defendant] doing something on my back was my idea. We
             only did this a few times. He would hump me on my back
             until he ejaculated on my back. It was when I wasn’t able
             to have intercourse. It was consensual, and something we
             did together intimately, not against my will.

      The instant case is distinguishable from Dunston in that it does not involve a

categorical or easily-defined sexual act, i.e., anal sex. Rather, the instant case

involves a more unique sexual act which both Stephanie and Karen described, at

some point, as defendant “hump[ing] on [the] back until he ejaculated on [the back].”


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Accordingly, the State was able to show sufficient similarity between the acts “beyond

those characteristics inherent to [the act].” See State v. Al-Bayyinah, 356 N.C. 150,

155, 567 S.E.2d 120, 123 (2002) (citation omitted).

      With regard to the “temporal proximity” prong of the Rule 404(b) analysis,

“remoteness in time generally affects only the weight to be given [404(b)] evidence,

not its admissibility.” State v. Maready, 362 N.C. 614, 624, 660 S.E.2d 564, 570 (2008)

(alteration in original) (quoting State v. Parker, 354 N.C. 268, 287, 553 S.E.2d 885,

899 (2001)). “Remoteness for purposes of 404(b) must be considered in light of the

specific facts of each case and the purposes for which the evidence is being offered.”

State v. Mobley, 200 N.C. App. 570, 577, 684 S.E.2d 508, 512 (2009) (quoting State v.

Hipps, 348 N.C. 377, 405, 501 S.E.2d 625, 642 (1998)).

      Here, Stephanie told Detective Benfield that the sexual abuse began in 2002,

when she was about ten or eleven years old, and persisted until approximately 2010,

when she was about eighteen years old. According to Karen, after the birth of her son

in 2008, she developed fibroids. As it was painful for Karen to have intercourse, she

suggested defendant have sex with her from the “backside,” “in the butt area,” until

defendant ejaculated. Karen also testified that at no time prior to 2008 did she and

defendant either “have sex by [defendant] inserting his penis between [her] butt

cheeks” or “have any sex . . . from the back end[.]” Furthermore, Karen did not, at any

point, indicate to Detective Benfield in her many statements that the sexual activity



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at issue occurred in any particular timeframe, nor did she tell Detective Benfield that

this activity only happened after her son was born.

      Defendant argues that as both defendant and Karen testified that they did not

engage in the sexual activity described above until after their son was born in 2008,

at which time Stephanie was seventeen years old, and none of the indictments alleged

that defendant abused Stephanie after she turned sixteen, the consensual sexual

activity at issue between defendant and Karen was too remote in time because it did

not begin until at least a year after the last alleged incident of abuse. However, where,

as here, that timeline is dependent on Karen and defendant’s testimony to that effect,

and as remoteness in time generally affects only the weight to be given Rule 404(b)

evidence and not its admissibility, the sexual act described by Karen is not too remote

in time from the acts Stephanie alleged for purposes of Rule 404(b).

      Finally, the probative value of this evidence was not outweighed by the danger

of undue prejudice. Whether the trial court should have excluded such evidence under

Rule 403 is reviewed by this Court for abuse of discretion. State v. Whaley, 362 N.C.

156, 160, 655 S.E.2d 388, 390 (2008) (citations omitted); State v. Boyd, 321 N.C. 574,

578, 364 S.E.2d 118, 120 (1988) (finding “no abuse of discretion by the trial court in

failing to exclude . . . testimony under the balancing test of Rule 403 since the alleged

incident was sufficiently similar to the act charged and not too remote in time”). Not

only was the evidence of great probative value, but it was also not so sensitive to be



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potentially inflammatory to the jury (the jury acquitted defendant of five of the six

charges). Thus, we conclude the probative value of this evidence as proof of

defendant’s pattern or modus operandi is not outweighed by its prejudicial effect.

Accordingly, we find no abuse of discretion by the trial court in admitting this

testimony under Rule 403, nor did the trial court err in its rulings pursuant to Rules

401 and 404(b).

      NO ERROR.

      Judges DILLON and ZACHARY concur.




                                         - 31 -
