A couple of weeks ago, the court of appeals decided State v. Davis, __ N.C. App. __ (2012). For prosecutors, defense lawyers, and judges handling sex crime cases, it’s a significant opinion concerning Rule 404(b).
The defendant in Davis was charged with indecent liberties and first-degree sexual offenses based primarily on his young son’s reports that the defendant had anal and oral sex with him. Medical examinations of the child found nothing abnormal, but the defendant’s sperm were found in one pair of the child’s underwear.
The case went to trial, and the child testified about his father’s actions. The defendant also testified, denying the charges and asserting that the child’s mother had encouraged the child to fabricate the allegations as a way of gaining leverage in the couple’s divorce and custody battle. The state cross-examined the defendant about a composition book in which he wrote short stories and other material. The book included an entry in the form of a letter to a woman the defendant had known; the letter, which was admitted into evidence, described the defendant forcing the woman to have anal intercourse with him. The defendant was convicted of sexually assaulting his son.
He appealed, arguing, inter alia, that the cross-examination regarding the letter should have been excluded under Rule 404(b). The state contended that the letter was not fictional, but rather described an assault that had actually occurred, and that it was admissible under Rule 404(b) to show a common plan or scheme to obtain sexual gratification through forcible anal sex. The court of appeals disagreed, ruling that forcible anal sex with an adult woman is far removed from anal sex with a young boy by constructive force, and noting the lack of any other similarity between the incidents, such as a similar location, setting, or method of approaching the victims. In short, the court held that in order to establish a common scheme or plan under Rule 404(b), the evidence in question must be similar to the charged offense, and the mere fact that both the charged offense and the conduct described in the letter involved nonconsensual anal sex was not enough to establish similarity. The court also found fault with another aspect of the state’s cross-examination of the defendant, which I won’t get into here, and ruled that the combined effect of the two errors was prejudicial and required a new trial.
As support for its conclusion that the common thread of forcible anal sex was insufficient to show substantial similarity, the court cited State v. Dunston, 161 N.C. App. 468 (2003) (“We conclude that the fact defendant engaged in and liked consensual anal sex with an adult, whom he married, is 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, to be admissible under Rule 404(b).”). The court’s conclusion finds at least some support in out-of-state cases like State v. Williams, 874 P.2d 12 (N.M. 1994) (the defendant’s enjoyment of anal sex was not so distinctive as to constitute a “signature” for purposes of Rule 404(b)). It seems to me that the extent to which the involvement of anal sex in both the charged offenses and the letter tends to show that the two incidents are substantially similar depends in part on the prevalence of anal sex. For example, I don’t think anyone would contend that two sexual assaults could be deemed substantially similar based solely on the fact that both involved vaginal intercourse, because that’s a very common sexual practice. On the other hand, if two incidents both involved truly unusual sexual activity — fill in your own example — the extremely atypical sexual conduct might alone tend to show similarity. Wikipedia cites data from the CDC suggesting that 40% of men and 35% of women between 25 and 44 have engaged in anal sex. That’s a fairly high percentage, though of course, most of that sexual activity is presumably consensual, while in Davis, both the charged conduct and the conduct described in the letter were nonconsensual, though involving somewhat different types of force.
Finally, note that Davis does not hold that the common thread of anal sex is irrelevant under Rule 404(b). It can help show similarity, as it did in State v. Barkley, 144 N.C.App. 514 (2001) (sufficient similarity where “[b]oth victims were young black females accosted in Charlotte in the early morning hours. In both cases, the victims were grabbed from behind by the mouth and the assailant held a sharp object to their throats while directing them to a dark secluded area. In addition defendant disrobed both victims and forced them to have vaginal and anal sex.”). Under Davis, though, it is not sufficient by itself.