Opinion
No. COA07-172-2.
Filed June 2, 2009.
Cleveland County, Nos. 03CRS050708, 03CRS050709.
Appeal by defendant from judgment entered 27 July 2006 by Judge Linwood O. Foust in Cleveland County Superior Court. This case was originally heard in the Court of Appeals 18 October 2007. Upon remand by order from the North Carolina Supreme Court filed 12 December 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Sarah Y. Meacham, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, for defendant-appellant.
The Supreme Court of North Carolina remanded the case sub judice to this Court
for consideration of defendant's remaining assignments of error as they relate to the indecent liberties conviction. If, after reviewing defendant's remaining assignments of error the Court of Appeals finds no error, we instruct that the case be further remanded to the Superior Court for resentencing as to the indecent liberties conviction.
State v. Smith, 362 N.C. 583, 598_99, 669 S.E.2d 299, 309 (2008). Only one of defendant's remaining assignments of error relates to his conviction for indecent liberties. Because we find no error this case is remanded to the Superior Court for resentencing on the conviction for indecent liberties.
I. Background
The general factual background in this case was set forth by the Supreme Court so it will not be repeated in total here. See Smith, 362 N.C. at 585, 669 S.E.2d at 301. The particular facts relevant to consideration of defendant's remaining assignment of error are as follows: Karen, the minor victim, had an older sister named Amanda and an older brother named Jonathan. At the time of defendant's alleged criminal acts, Jonathan was involved in a sexual relationship with a young woman named Kassie. However, Kassie was the mother of defendant's three-month old child and was engaged to marry defendant. Kassie and defendant later married but were separated at the time of defendant's trial.
Karen is a pseudonym used to protect the identity of the victi.
This individual's name was spelled Cassie throughout the trial transcript and the previous opinion of this Court in this case. Her name appears as Kassie on the document relevant to this assignment of error.
Jonathan and Amanda both testified for the State; both were vigorously cross-examined by defendant. Kassie was an eyewitness to the events surrounding defendant's alleged criminal acts but not to the acts themselves. Kassie attended the entire trial but was not called to testify by either side.
After all the evidence had been presented, after closing arguments, and just before the jury was instructed, defendant'strial counsel presented a handwritten note from Kassie to the trial court. The note read:
Amanda . . . said she didn't want [defendant] to go to jail. She just wanted him to get probation have to register as a sex offender. Then she asked me if Jonathan really made [Karen] go w/[defendant] and I said yes Amanda he was being very mean making her go. She said damn Kassie I was raped when I was 13 yrs. old by 2 men my mother got a lot of money from it. She told me Jonathan said he was gonna lie on the stand.
Defendant's trial counsel moved to reopen the case on the grounds of "newly discovered evidence" for the purpose of calling Kassie to testify "to the substance of the conversation" she had with Amanda. The trial judge held a bench conference on the record outside of the presence of the jury. After hearing from both attorneys, the trial judge determined that the evidence would be unnecessarily cumulative and refused to reopen the case for presentation of more evidence. Defendant assigns error to the trial judge's refusal to reopen the case.
II. Law and Analysis
"The judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict." N.C. Gen. Stat. § 15A-1226 (b) (2005) (emphasis added). Therefore, a trial judge's refusal to reopen a case for presentation of additional evidence prior to the jury verdict is reviewed only for abuse of discretion. State v. Phillips, 171 N.C. App. 622, 630, 615 S.E.2d 382, 387, appeal dismissed and disc. review denied, 360 N.C. 74, 622 S.E.2d 628 (2005). Abuse of discretion means the trial court's decision "is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hutchinson, 139 N.C. App. 132, 137, 532 S.E.2d 569, 573 (2000) (citation and quotation marks omitted).
We find no abuse of discretion in the trial court's refusal to reopen defendant's trial for the presentation of evidence as to the contents of the note offered by defense counsel. Kassie, the author of the note, had an obvious interest in the outcome of the trial as the estranged wife of defendant and sometime girlfriend of a key prosecution witness. Kassie had been identified more than three years before defendant's trial as an eyewitness to the events surrounding the alleged criminal acts, but was never called as a witness by defense counsel even though she attended the entire trial. The note was based on compound hearsay. It purported to represent the observations of a witness, who had already testified and been vigorously cross-examined, as to the veracity of another witness who had also already testified and been vigorously cross-examined. The note further purported to address an event already testified to by the victim.
On this record, we conclude that any probative value of the note and testimony connected with it was "substantially outweighed by the danger of unfair prejudice . . . [and would have been] needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403. The trial court did not err in refusing to reopen the case on the basis of the note from Kassie. This assignment of error is without merit.
III. Conclusion
Having found no merit to defendant's remaining assignment of error related to the indecent liberties conviction, this case is remanded to the Superior Court for resentencing as to the indecent liberties conviction per the instructions of the Supreme Court.
No error.
Judges ROBERT N. HUNTER, JR. and ERVIN concur.