Opinion
No. COA09-1163
Filed 18 May 2010 This case not for publication
Appeal by Defendant from judgments entered 7 April 2009 by Judge Russell J. Lanier in Carteret County Superior Court. Heard in the Court of Appeals 17 May 2010.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State. Mills Economos, L.L.P., by Larry C. Economos, for Defendant.
Carteret County Nos. 08 CRS 349, 354-57, 50452.
On 3 March 2008, Defendant Jimmy Allen Brown was indicted on five counts of indecent liberties with a child and one count each of breaking or entering a motor vehicle and misdemeanor larceny. Defendant appeals the trial court's denial of the jury's request to review the transcript of Defendant's testimony. We find no error.
Shari Morris lived in a house with her son and daughter in an area of Carteret County known as Mill Creek. Morris testified that, in August 2007, Defendant began living in a trailer "behind the little woods there in my backyard." Morris stated that she became aware of Defendant when he appeared in her driveway wearing "a shiny pair of green boxers" that did not cover "his genitalia or part of his behind." At the time, Morris had her son and daughter with her, as well as her sister-in-law's four children. Morris took the children into the house and shut the door. Later that day, Defendant returned and started "beating" on the door. Morris described Defendant as "very intoxicated and very talkative." Morris stated that Defendant was again wearing green boxers and his genitalia were exposed. Morris stated that, over the next month or so, Defendant frequently came to her house maybe twelve to twenty times. Morris testified that each time Defendant came over he would be wearing boxer shorts or cut-off jeans and his genitalia would be exposed. When Defendant would come over, he would call to her children. Morris asked Defendant not to return or call out to her children, but he ignored her.
Morris testified that, around the first of November, Defendant "came through the woods and told the children that he had some pizza and that he wanted them to come over to his house and eat pizza with him." The children told Defendant they did not want any pizza and ran to Morris. Defendant followed, continuing to plead with them to come eat pizza with him. Morris told Defendant she was "going to call the authorities," and Defendant became "very angry, very belligerent." A few days later, the children were playing outside on a trampoline when Morris heard the children "holler." Morris went outside and found Defendant dressed in boxer shorts with his genitalia exposed. A few days later, the children were again playing outside when Morris heard Defendant asking the children if Morris was home. Morris stated that she immediately responded to Defendant that she was home and told the children to come back into the house. Morris testified that Defendant was again "exposed."
Morris testified that, the next week in November, "the girls" were playing outside, near her door, when she heard them scream. Morris went outside and found Defendant "laying in the road, that pathway there that goes around our home, and where he was laying down out there in the road he was exposed and he was asking the girls to come over and see him." Morris testified that Defendant returned the next day, again dressed in boxer shorts. Morris stated that she was under the "car shelter" and Defendant could not see her. Defendant asked the children to go to his house with him, and Morris approached and told the children to go inside her home. Morris stated that, while Defendant was talking to the children, he was fondling his genitalia. Morris stated that Defendant told her he "just wanted to make [the children] comfy and that he was just lonely."
Morris testified that Defendant came to her house one night in December and was "beating" on her door. Defendant wanted cigarettes and had five dollars. Morris stated that her kids were screaming, and her son had picked up a pellet gun because he was afraid Defendant was going to break down the door. Morris called the police and Defendant was arrested. However, Defendant came back the next day at around 11 p.m. Defendant "was saying that he knew [Morris] had sent him to jail and [Morris] was going to pay for it[.]" Morris described Defendant as being dressed in boxers with his "genitalia very visible." Morris again called the police.
In January 2008, Defendant came to Morris' house "three nights in a row," around the hours of 3 or 4 a.m. Defendant was angry and threw beer bottles at the side of her house while shouting obscenities. Morris called the police. Morris stated that, on one occasion, Defendant "vandalized my car, tore up the driver's side door, tore off the windshield wiper." Morris testified that she saw Defendant enter her car. Morris further testified that she kept her wallet under the seat in the car, and after Defendant vandalized her car, the wallet was gone. Again, Morris called the police.
At trial, Morris' daughter testified that Defendant would show up at her house and "would wear boxers with his privates hanging out[.]" Morris additionally testified that Defendant "would usually rub his stuff and pull his stuff" in front of her. Morris also testified that, on one occasion, Defendant picked up her brother's dog, put the dog's head near his privates, and told it to "lick" Defendant's privates.
Defendant testified in his own defense. Defendant claimed the State had "no evidence," only "hearsay." Defendant further claimed that the children would not be able to testify regarding whether he had been circumcised. Defendant also testified that he was working for his cousin "every weekend in November."
During jury deliberations, the jury requested to see a transcript of the Defendant's testimony. The trial judge informed the parties that it intended to tell the jury "that there is no such document." The jury was called back to the courtroom, and the trial court addressed the jury as follows:
[Y]ou have asked for the transcript of Mr. Brown's testimony. We do not have a transcript. This is not realtime reporting so you folks are going to have to remember his testimony.
Defendant was convicted on all counts. The trial court sentenced Defendant to four consecutive terms of 21 to 26 months imprisonment and a consecutive term of eight to ten months imprisonment. Defendant appeals.
Defendant argues that the trial court abused its discretion by refusing to allow the jury to review his testimony. Defendant contends that the trial court's response to the jury illustrates that it did not exercise discretion, but denied the request because it believed it could not grant it. Defendant claims the error was prejudicial because his testimony was directly contradictory to much of the State's evidence.
After careful review of the record, briefs and contentions of the parties, we find no error
Pursuant to N.C. Gen. Stat. § 15A-1233(a),
[i]f the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.
N.C. Gen. Stat. § 15A-1233(a)(2009). Our Supreme Court has stated that:
This statute imposes two duties upon the trial court when it receives a request from the jury to review evidence. First, the court must conduct all jurors to the courtroom. Second, the trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue.
State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985).
There is no dispute that the trial court conducted the jury to the courtroom. Defendant argues, however, that the trial court failed to properly exercise its discretion by refusing to allow the jury to review the Defendant's testimony. We disagree. The trial court informed the parties that it would instruct the jury that there was no transcript to review. The trial court then instructed the jury that there was no transcript and that it would have to remember the Defendant's testimony. The trial court did not indicate that it could not provide the jury with a transcript of the Defendant's testimony, or that it lacked the discretion to do so. Cf. State v. Barrow, 350 N.C. 640, 517 S.E.2d 374 (1999); State v. Johnson, 346 N.C. 119, 124-26, 484 S.E.2d 372, 376 (1997); State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980) (emphasis added).
In State v. Maness, 363 N.C. 261, 677 S.E.2d 796 (2009), our Supreme Court stated:
A court does not exercise its discretion when it believes it has no discretion or acts as a matter of law. However, when a trial court assigns no reason for a ruling which is to be made as a matter of discretion, the reviewing court on appeal presumes that the trial court exercised its discretion.
Id. at 278, 677 S.E.2d at 807. Moreover, in State v. Ford, 314 N.C. 498, 508, 334 S.E.2d 765, 771 (2009), our Supreme Court stated that when a trial judge does not explain his ruling, a "determination" that the trial judge refused to grant the jury's request on the mistaken belief that he had no discretion to do so was "merely speculative." We conclude that, in the present case, the trial court in its discretion instructed the jury that it would not provide a transcript for them to review. Accordingly, we find no error.
No Error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).