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STATE OF NORTH CAROLINA v. PHILLIP ERVIN HIGGS,
COURT OF APPEALS OF NORTH CAROLINA 2006 N.C.
May 16, 2006, Filed

A Pitt County jury found Defendant Phillip Ervin Higgs guilty of indecent exposure and taking indecent liberties with a child. On 21 April 2005, the trial court entered judgments sentencing Defendant to sixty days imprisonment for the offense of indecent exposure and to a suspended sentence of nineteen to twenty-three months imprisonment for taking indecent liberties with a child.

Whether the trial court committed reversible error in allowing the testimony of Lauren-child witness pursuant to Rule 404(b) of the North Carolina Rules of Evidence?

Observation and Holding:

When evidence of a defendant’s other sex offenses is offered for a proper purpose, “the ultimate test for determining whether such evidence is admissible [under Rule 404(b)] 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.” State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). Here, the following similarities exist between the incidents: (1) young females were involved; (2) Defendant was more than thirty years older than each of the females; (3) Defendant offered both females rides in his vehicle; (4) Defendant was involved with each female’s family in that he provided a free home for Lauren’s family and provided assistance with basketball to the child’s brother; (5) Defendant exposed his erect penis to both females while they were in his vehicle; and (6) Defendant told each female not to tell anyone what he had done. Further, one of the incidents of indecent exposure involving Lauren occurred on the same day as the incident involving the child. The other incidents of indecent exposure involving Lauren occurred with within days of the incident with the child.

Defendant does not argue the incidents with Lauren were not sufficiently similar to the incident with the child, nor does he argue the incidents lacked the necessary temporal proximity. Rather, Defendant argues the admission of Lauren’s testimony unduly prejudiced him because Lauren’s direct testimony covered more pages in the transcript than the direct testimony of the child and the acts alleged by Lauren were more egregious than the act alleged by the child. The admission or exclusion of evidence under Rule 403 “is within the sound discretion of the trial court, and the trial court’s ruling should not be overturned on appeal unless the ruling was manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.” State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) Here, before allowing Lauren to testify, the trial court excused the jury, heard the voir dire testimony of Lauren to determine its substance, and then considered arguments of counsel before overruling Defendant’s objection to the admission of Lauren’s testimony. Further, the trial court gave a limiting instruction to the jury regarding Lauren’s testimony. Although the trial court did not make a specific finding that the probative value of the evidence outweighed its prejudicial effect, the procedure that was followed demonstrated the trial court conducted the balancing test under Rule 403 of the North Carolina Rules of Evidence. As such, we conclude the trial court did not abuse its discretion in allowing Lauren’s testimony.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

HELEN ELAINE MASON v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

49 Va. App. 39

November 7, 2006, Decided

Whether the evidence was insufficient to support her convictions of taking indecent liberties with a child?

Whether the trial court erred in appellant’s convictions on the child pornography charges were not multiplicitous?

Whether the trial court erred in denying appellant’s proposed instruction on “lascivious intent”?

1)      Whether the evidence was insufficient to support her convictions of taking indecent liberties with a child?

The Court held that “the evidence established that appellant’s actions satisfied all prongs of the McKeon test (McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)). At the insistence of Hugo Sandoval, appellant’s incarcerated husband, appellant requested L. M., a thirteen-year-old female, to participate in a scheme to provide sexually explicit photographs to Sandoval. The admitted telephone conversations between appellant and Sandoval plainly demonstrate that they shared an intent to incite sexual desire and appetite in each other by taking sexually explicit photographs of appellant and L.M. The tone of the discussions indicated the photographs were being made for Sandoval’s sexual enjoyment. Moreover, appellant admittedly became sexually aroused in the process. While obtaining the sexually explicit photographs of L. M., appellant had L.M. pose with a vibrator placed between the lips of L. M.’s genitalia like it was “just ready to go in.” Upon this evidence, the jury was entitled to conclude beyond a reasonable doubt that appellant possessed lascivious intent at the time the photographs were produced and that she was guilty of taking indecent liberties with a child.”

2)        Whether the trial court erred in appellant’s convictions on the child pornography charges were not multiplicitous?

By using the word “a” followed by a succession of singular nouns in the definition of “sexually explicit visual material” in Code § 18.2-374.1(A), the Virginia legislature has demonstrated its clear intent that possession of a single photograph could constitute an offense under Code § 18.2-374.1 and that multiple punishments would result from multiple violations of the statute. Accordingly, we conclude that the permissible unit of prosecution for possession of child pornography under Code § 18.2-374.1(B)(4) corresponds to the number of individual items of sexually explicit visual material.

3)         Whether the trial court erred in denying appellant’s proposed instruction on “lascivious intent”?

In McKeon, the Court made the following statement in determining that the evidence was insufficient to prove the defendant possessed lascivious intent: Accepting everything the victim said as true, the evidence does not warrant a finding that lascivious intent of the defendant has been shown beyond a reasonable doubt. From the victim’s description of what happened, there is no evidence that the defendant was sexually aroused; that he made any gestures toward himself or to her; that he made any improper remarks to her; or that he asked her to do anything wrong.

Subsequent to its decision in McKeon, the Court has stated that proof of any one of the McKeon factors can be sufficient to prove lascivious intent under Code § 18.2-370. However, the Court has not held that proof of one of the four factors is a prerequisite to a finding of lascivious intent.  Thus, we conclude that that the supplemental language contained in Instruction B was not required to guide the jury regarding the issue of lascivious intent.  Accordingly, the trial court did not err in denying appellant’s proposed instruction.

Conclusion

This court affirmed the trial court order.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.