State v. Hoffman

383 S.E.2d 458 (1989)

STATE of North Carolina v. Ernest Ray HOFFMAN.

No. 8820SC1384.

Court of Appeals of North Carolina.

September 19, 1989.

*459 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Asst. Appellate Defender Mark D. Montgomery, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant assigns as prejudicial error the trial court's allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct. While testimony about prior acts of misconduct is not admissible to show defendant's propensity to commit the offense in question, Rule 404(b) of the North Carolina Rules of Evidence allows evidence of prior acts of misconduct if relevant for other purposes, including evidence of a common plan or scheme. In the present case, testimony regarding prior sexual misconduct by defendant with the eight-year-old victim is admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. Defendant's contention has no merit.

Defendant also contends that the trial judge erred by not allowing defendant's witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them. Such testimony was totally irrelevant. We have examined each exception upon which defendant's assignment of error is based and conclude that the trial court did not err in excluding the testimony.

Defendant's third argument, based on Assignments of Error 13 and 14, is set out in his brief as follows: "The trial court committed plain error in not instructing the jury on pertinent character traits of the defendant." Plain error arises only where error by the trial court is so fundamental as to deny a defendant a fair trial or result in a miscarriage of justice. State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). Defendant must show, absent the error complained of, the jury would *460 have reached a different result. State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986). The failure of the trial court to instruct the jury as contended by defendant does not rise to the level of plain error in this case.

Defendant also assigns error based on the denial of his request for a jury instruction on the lesser included offense of attempted first degree rape. Whether instruction on a lesser included offense is proper depends solely on whether there is evidence that would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater offense. State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). The evidence in the record only tends to establish that defendant raped his minor niece. The court did not err in denying defendant's requested instruction on attempted first degree rape.

In his final assignment of error, defendant contends that the trial court improperly admitted into evidence a pair of panties allegedly worn by defendant's eight-year-old niece and the results of lab tests performed on the panties. Upon consideration of defendant's argument, we find no conceivable prejudice by admission of the evidence in question.

Defendant had a fair trial free from prejudicial error.

No error.

ORR and LEWIS, JJ., concur.