Opinion
No. COA 12–711.
2013-01-15
STATE of North Carolina v. Gary Thomas WHEELER.
Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State. Paul F. Herzog, for defendant-appellant.
Appeal by defendant from judgments entered 4 November 2011 by Judge R. Stuart Albright in Rockingham County Superior Court. Heard in the Court of Appeals 13 November 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State. Paul F. Herzog, for defendant-appellant.
ERVIN, Judge.
Defendant Gary Thomas Wheeler appeals from judgments sentencing him to a term of 240 to 297 months imprisonment based upon his conviction for statutory sexual offense; a consecutive term of 25 to 39 months imprisonment based upon his conviction for the commission of a sex act by a person in a parental role; and to two consecutive terms of 16 to 20 months imprisonment based upon his conviction for two counts of taking indecent liberties with a child. On appeal, Defendant contends that Judge William Z. Wood, Jr., erred by failing to require the State to file a bill of particulars setting forth a definite date, time, and location at which the offenses charged in the indictments returned against Defendant allegedly occurred and that the trial court erred by sustaining the State's objection to testimony by Paula “Missy” Goins concerning statements made by Juanita Wheeler about the credibility of her daughter, the victim. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that the trial court's judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State's Evidence
In 2009, Defendant was married to Ms. Wheeler, who had two daughters from a previous marriage. Defendant and Ms. Wheeler had met when Ms. Wheeler began attending the church at which Defendant served as pastor. Defendant was involved in the lives of Ms. Wheeler and her daughters for an extended period of time, with Defendant having baptized B.W., Ms. Wheeler's oldest daughter, and having visited Ms. Wheeler in the hospital when A.W., Ms. Wheeler's youngest daughter and the alleged victim in this case, was born.
B.W. will be referred to throughout the remainder of this opinion as Belinda, a pseudonym used for ease of reading and to protect B.W.'s privacy.
A.W. will be referred to throughout the remainder of this opinion as Allison, a pseudonym used for ease of reading and to protect the alleged victim's privacy.
After separating from her first husband in 2002, Ms. Wheeler and Defendant, who was sixteen years older than Ms. Wheeler, became involved in a romantic relationship. After Ms. Wheeler's divorce from her first husband, she and Defendant got married on 21 April 2004. Shortly before she married him, Ms. Wheeler and her daughters moved into Defendant's home in Reidsville. At that time, Allison was about ten years old and Belinda was approximately twelve years old.
At trial, Allison testified that, even though she had known Defendant for her whole life, she had struggled to adapt to Defendant's relationship with her mother and that it took some time for her to get used to the fact that she did not live with her mother and father. Eventually, Allison adjusted to the nature of her relationship with Defendant and indicated that Defendant was like a father to her, so that she loved and trusted him. After Allison neared the age of fifteen, however, her relationship with Defendant became uncomfortable.
When Allison was young, she had enjoyed being tickled by Defendant. At some point, however, Defendant began touching the area near Allison's breasts and vagina. On at least a dozen occasions, Defendant placed his fingers in her vagina, causing her to bleed at least once. On another occasion, Defendant fondled Allison's breasts and then moved her from her bedroom to the kitchen. In the kitchen, Defendant stood behind her and pulled her waist towards him until the back of her body was touching his erect penis. On yet another occasion, Defendant pulled down his pants, revealed his penis, and asked Allison to touch it. Allison, however, turned away.
According to Allison, Defendant's abusive behavior continued for almost a year before she told anyone. Allison did not report Defendant's conduct at an earlier time because Defendant had warned her that bad things happened to people who crossed him. Allison eventually told two of her friends about Defendant's activities, who recommended that Allison tell Ms. Wheeler what was going on before things got worse.
On 4 April 2009, Allison told Ms. Wheeler what Defendant had been doing. As Allison had been getting ready for school on the preceding day, Defendant screamed at her to “get out the door” and threatened to smack her because she was running late. In response, Allison became angry and retorted, “You'll never touch me again. You'll never touch me again.” After becoming concerned about what Allison had meant by this statement, Belinda repeatedly asked Allison what had been going on. However, Allison merely answered, “If only mom knew and you knew what he was doing to me, you would never talk to him again.”
On the following day, Belinda expressed concern about Allison's comment to Ms. Wheeler. After Ms. Wheeler and Belinda sat down with Allison for the purpose of finding out what had been happening, Allison reluctantly told her mother and her sister about what Defendant had been doing to her. Ms. Wheeler immediately confronted Defendant, who denied having molested Allison. However, Ms. Wheeler, Belinda, and Allison each testified that Defendant did admit that he might have “slightly” touched Allison's vagina. Later that evening, Ms. Wheeler and her daughters left the residence and spent the night in a hotel room in Greensboro. After the three of them returned the following day, Ms. Wheeler told Defendant to move out. Although Defendant initially refused to comply with Ms. Wheeler's demand, he did begin staying in the pool house, which was located outside of the main residence, a few days later. Ms. Wheeler and her daughters eventually left Defendant's house several weeks later after Defendant's conduct had been reported to the proper authorities.
2. Defendant's Evidence
Defendant testified that, from the beginning of his marriage to Ms. Wheeler, he had a good relationship with Belinda. However, the same was not true of Allison, who “never really got over” her parents' divorce. In the winter of 2008–2009, Defendant and Ms. Wheeler began to have trouble with Allison. After Allison received a gift bag from a boy on Valentine's Day that contained a stuffed bear and “thong” underwear, Defendant confronted her. In addition to the difficulties that resulted from Allison's behavior, the family was under significant financial pressure, with Defendant working fewer hours and having more difficulty making necessary bill payments than had previously been the case.
According to Defendant, he and Allison had a “little confrontation” on 3 April 2009. Defendant testified that he had to get “a little loud with her to get her ready to go to school.” At dinner that evening, Allison became disgruntled and began complaining, causing Defendant to rebuke her. On the following day, Ms. Wheeler demanded that Defendant talk with her in the pool house and accused him of “feeling” Allison's breasts and trying to “stick [his] hand in her blue jeans.” Defendant denied Ms. Wheeler's accusation. After Ms. Wheeler and Defendant returned to the house, Allison yelled at Defendant in an accusatory fashion, causing him to deny having molested her. After his arrest, Defendant told an investigating officer that he had never touched Allison inappropriately, that he and Ms. Wheeler had been having ongoing problems with Allison, and that Allison had been against his marriage to Ms. Wheeler from the start.
In addition to his own testimony, Defendant presented considerable character evidence, including testimony from his four step-daughters from his first marriage, to the effect that he was honest, hardworking, and law-abiding. John James Lawson, a former co-worker of Ms. Wheeler's, testified that, in late March 2009, he had heard Ms. Wheeler talking about the marital and financial problems that she and Defendant were experiencing and that Ms. Wheeler had stated that “she needed to find a way to get away from” Defendant. In addition, Mr. Lawson testified that he had observed Allison around the company office and that Allison seemed basically happy. Moreover, Mr. Lawson testified that he had overheard a phone conversation between Ms. Wheeler and Allison during which Allison said that “I can't say those things against” Defendant. Finally, after Defendant's arrest, Ms. Wheeler asked Mr. Lawson to help her move and recalled hearing Ms. Wheeler say that “she would do whatever she had to do to get away from” Defendant. On cross-examination, Mr. Lawson admitted that he felt that Ms. Wheeler might have caused him to lose his job.
B. Procedural History
On 22 May 2009, a warrant for arrest charging Defendant with second degree sexual offense and the commission of a sex act by a person occupying a parental role was issued. On 6 July 2009, the Rockingham County grand jury returned bills of indictment charging Defendant with statutory sex offense, the commission of a sex act by a person occupying a parental role, and two counts of taking indecent liberties with a child. The charges against Defendant came on for trial before the trial court and a jury during the 31 October 2011 criminal session of the Rockingham County Superior Court. On 4 November 2011, the jury returned verdicts convicting Defendant as charged. Based upon the jury's verdicts, the trial court sentenced Defendant to a term of 240 to 297 months imprisonment based upon his conviction for statutory sexual offense; a term of 25 to 39 months imprisonment based upon his conviction for committing a sex act while occupying a parental role; and to two terms of 16 to 20 months imprisonment based upon his conviction for two count of taking indecent liberties with a child, with all sentences to be served consecutively. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Motion for a More Specific Bill of Particulars
In his first challenge to the trial court's judgments, Defendant contends that the trial court erred by denying his second motion for a bill of particulars. More specifically, Defendant argues that his ability to mount an adequate defense was impaired by the trial court's refusal to require the State to specify the exact dates, times, and locations at which Defendant's mistreatment of Allison allegedly occurred. We do not find Defendant's argument persuasive.
As we have already noted, the Rockingham County grand jury returned several bills of indictment against Defendant. The first indictment charged Defendant with one count of statutory sexual offense and one count of committing a sex act by a person occupying a parental role, with both crimes alleged to have been committed between December 2008 and January 2009. The second indictment charged Defendant with having taken indecent liberties with Allison between 1 December 2008 and 28 February 2009. The third indictment charged Defendant with having taken indecent liberties with Allison on or about 1 March 2009. As a result, the first two of these three indictments set out a range within which Defendant's conduct allegedly occurred.
On 8 October 2009, Defendant's trial counsel filed a motion seeking a bill of particulars which specified the exact dates, times, and locations at which the crimes charged in the indictments returned against Defendant were alleged to have occurred. In support of this request, Defendant contended that the alleged victim was fifteen years old, that she could read and write, and that there was “no indication that the alleged victim suffer[ed] from any disability that would prevent her from accurately establishing the date and time that this offense occurred.” After a hearing held on 21 January 2010, Judge Dennis J. Winner ordered the State to file a bill of particulars specifying, to the best of Allison's ability, the date, time, and place at which each offense with which Defendant had been charged allegedly occurred.
On 17 November 2010, the State filed a bill of particulars stating that:
In file number 09CRS1621, the Defendant is charged with Indecent Liberties with a child, the child being [Allison], the daughter of his wife. That this act occurred in the home of the defendant and his wife ... after January 5, 2009 but during the month of January, between the end of school hours and 6 p.m., during a weekday, and the act alleged is fondling of the breast.
In file number 09CRS1622, the Defendant is charged with Indecent Liberties with a child, the child being [Allison], the daughter of his wife. This act occurred in the home of the defendant and his wife ... during February of 2009, between the end of school hours and 6 p.m., during a weekday, and the act alleged is fondling of the breast and pubic area.
In file number 09CRS52142, the Defendant is charged with Statutory Sexual Offense with [Allison], the daughter of his wife. This act occurred in the home of the defendant and his wife ... during mid January of 2009, between the end of school hours and 6 p.m., during a weekday, and the act alleged is digital penetration.
In file number 09CRS52142, the Defendant is charged with Sexual Offense while in a parental role with [Allison], the daughter of his wife. This act occurred in the home of the defendant and his wife ... around the middle of January of 2009, between the end of school hours and 6 p.m., during a weekday, and the act alleged is digital penetration.
On 21 December 2010, Defendant filed a second motion for a bill of particulars in which he alleged that the State's filing did not comply with Judge Winner's order on the grounds that the State had failed to specify “the date, time and location of each of these alleged offenses.” After another hearing held on 20 January 2011, Judge Wood found that the State had “made a good-faith effort to comply” with Judge Winner's decision and denied Defendant's motion. In Defendant's opinion, Judge Wood erred by refusing to grant his second motion for a bill of particulars.
According to N.C. Gen.Stat. § 15A–925(b), “[a] motion for a bill of particulars must request and specify items of factual information desired by the defendant which pertain to the charge and which are not recited in the pleading, and must allege that the defendant cannot adequately prepare or conduct his defense without such information.” “An appellate court should reverse the denial of a motion for a bill of particulars only if it clearly appears that the ‘lack of timely access to the requested information significantly impaired defendant's preparation and conduct of his case.’ “ State v. Youngs, 141 N.C.App. 220, 231–32, 540 S.E.2d 794, 801–02 (2000) (internal quotation marks omitted) (quoting State v. Hines, 122 N.C.App. 545, 551, 471 S.E.2d 109, 113,disc. review improvidently allowed,345 N.C. 627, 481 S.E.2d 85 (1997)), disc. review denied, 353 N.C. 397, 547 S.E.2d 430 (2001). Put another way, “[t]he granting or denial of a motion for a bill of particulars is a matter soundly within the discretion of the trial court and is not subject to review except in cases of palpable and gross abuse of discretion.” State v. Garcia, 358 N .C. 382, 390, 597 S.E.2d 724, 733 (2004), cert. denied,543 U.S. 1156, 125 S.Ct. 1301, 161 L.Ed.2d 122 (2005). An abuse of discretion occurs when “the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citing State v. Parker, 315 N.C. 249, 258–59, 337 S.E.2d 497, 503 (1985)).
The ultimate concern underlying this aspect of Defendant's challenge to the trial court's judgments arises from a belief that Defendant was entitled to receive specific information concerning the date, time, and location at which the charged offenses allegedly occurred. As the Supreme Court has consistently noted, however, “[i]n cases of sexual assaults on children, temporal specificity requisites diminish.” State v. Everett, 328 N.C. 72, 75, 399 S . E.2d 305, 306 (1991). The original bill of particulars filed in response to Judge Winner's order specified date ranges within which the offenses with which Defendant was charged allegedly occurred and pinpointed the specific hours of the day during which Defendant allegedly abused Allison. The record contains no indication that a greater degree of precision than is reflected in the bill of particulars that the State filed in response to Judge Winner's order was actually achievable. As a result, in spite of Defendant's contention that Judge Wood's failure to require the provision of specific information concerning the date, time, and place at which the charged offense allegedly occurred deprived him of the ability to mount an effective alibi defense, we are unable to conclude that Judge Wood erred by denying Defendant's second motion for a bill of particulars.
We considered a claim similar to the one that Defendant has advanced here in State v. Whitman, 179 N.C.App. 657, 635 S.E.2d 906 (2006), in which defendant, who had been convicted of statutory rape, statutory sex offense, incest, and taking indecent liberties with a child arising from a series of incidents involving his fifteen year old foster child, claimed that the trial court had erred by denying his request for a bill of particulars relating to the specific dates and times at which the offenses with which he had been charged allegedly occurred. Whitman, 179 N.C.App. at 663–64, 635 S.E.2d at 910–11. In rejecting the defendant's claim, this Court held that, because the defendant had been provided with open-file discovery and because the evidence adduced at trial did not differ from the information that had been provided in discovery, the trial court did not abuse its discretion by denying a motion for a bill of particulars. Id. at 664, 635 S.E.2d at 911. As a result of the fact that the information provided to Defendant in this case was actually more detailed than that provided to the defendant in Whitman and the total absence of any indication that Defendant was surprised by anything that occurred at trial, we conclude that Whitman and similar cases are controlling and support our refusal to conclude that Judge Wood erroneously denied Defendant's second motion for a bill of particulars.
In seeking to persuade us to reach a different result, Defendant argues that, because Allison was fifteen years old at the time at which the alleged offenses occurred and seventeen years old at the time of trial, she should be able to provide information concerning the exact dates, times, and locations at which the crimes with which Defendant was charged allegedly occurred. In addition, Defendant argues that a person of Allison's age would be unlikely to forget the date upon which he or she was sexually abused. In essence, Defendant appears to be arguing that the trial court should have declined to apply the principle that “temporal specificity requisites diminish” in cases involving the sexual abuse of children in this case given the information contained in the present record concerning Allison's capabilities. On the contrary, however, this Court has applied the well-established policy of not requiring the State to specify the exact date and time at which a child was allegedly subject to sexual abuse in cases involving older children. See State v. Ware, 188 N.C.App. 790, 795, 656 S.E.2d 662, 665,disc. review denied,362 N.C. 480, 667 S.E.2d 278 (2008) (applying the principle discussed above in a case involving a fifteen year old victim); State v. McGriff, 151 N.C.App. 631, 635, 566 S.E.2d 776, 779 (2002) (applying the principle discussed above in a case involving a fourteen year old victim); State v. Hardy, 104 N.C.App. 226, 233–34, 409 S.E.2d 96, 99–100 (1991) (applying the principle discussed above in a case involving a fifteen year old victim). Aside from the evidence relating to Allison's age, the record contains evidence provided by Ms. Wheeler and a social worker tending to show that Allison suffered from learning disabilities that affected her ability to describe various subjects in temporal terms. As a result, although Judge Wood was certainly entitled to take the types of considerations upon which Defendant relies into account in ruling upon Defendant's second motion for a bill of particulars, we are unable to say that these considerations compelled him to reach a different result than the one that he reached in this case.
In addition, Defendant argues that, given the nature of the records typically kept by members of the clergy, Defendant would, in all probability, have been able to establish an alibi had he known the exact dates upon which Allison claimed that he had sexually abused her. As an initial matter, we note that the original bill of particulars filed in response to Judge Winner's order specified date ranges within which the offenses with which Defendant was charged allegedly occurred and pinpointed the specific hours during which Defendant allegedly abused Allison. Moreover, Defendant was clearly able to mount a substantial defense in which he denied having mistreated Allison and presented the testimony of a number of other witnesses who attested to his good character and explained why Allison might have falsely accused him. As a result, although the considerations upon which Defendant relies were, once again, clearly relevant to the decision that Judge Wood was required to make in resolving the issues raised by Defendant's second motion for a bill of particulars, the arguments upon which Defendant relies do not establish that Judge Wood abused his discretion by denying Defendant's second motion for a bill of particulars. Thus, for all of these reasons, Defendant is not entitled to relief on the basis of this contention.
B. Admissibility of Ms. Goins' Testimony
Secondly, Defendant contends that the trial court erred by sustaining the State's objection to testimony by Ms. Goins concerning an extrajudicial statement made by Ms. Wheeler about Allison's credibility. According to Defendant, the excluded evidence should have been admitted pursuant to the applicable principles of evidence law and Defendant's federal and state constitutional right to present a defense because (1) it was relevant to Defendant's contention that Allison was not telling the truth; (2) its probative value was not substantially outweighed by its tendency to confuse or mislead the jury; (3) it tended to show that Allison had an untruthful character; (4) it tended to show Ms. Wheeler's state of mind; and (5) it served to impeach Ms. Wheeler's testimony to the effect that she believed Allison's accusations. Defendant's contentions lack merit.
As a result of the fact that Defendant does not appear to have advanced his constitutional argument before the trial court, he has not adequately preserved this aspect of his challenge to the trial court's decision to sustain the State's objection to the relevant portion of Ms. Goins' testimony for appellate review. State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001) (stating that “ ‘[c]onstitutional questions not raised and passed upon at trial will not be considered for the first time on appeal” (quoting State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001))), cert. denied, 536 U.S. 930, 122 S.Ct. 2605, 153 L.Ed.2d 791 (2002).
During Defendant's case-in-chief, Ms. Goins testified that Defendant was both her employee at the sign company that she owned and her pastor. She also testified that she knew Ms. Wheeler, Belinda, and Allison through her involvement with the women's group at the church. On direct examination, Defendant's trial counsel asked Ms. Goins about whether Allison's truthfulness had ever been a topic of conversation at the church. Although Ms. Goins answered in the affirmative, the trial court sustained the State's objection. In addition, Ms. Goins described the behavior of Ms. Wheeler and her daughters when she joined the family for lunch following Defendant's arrest. According to Ms. Goins, the occasion was an uncomfortable one, during which Ms. Wheeler indicated that she and the children “were just fine” and that “[s]he was enjoying the single life.” Subsequently, Ms. Goins testified on voir dire that:
Q. Ms. Goins, I had asked you about whether you had overheard conversations in the church about [Allison's] truthfulness. Did you?
A. Yes.
Q. Would you put on the record what you overheard?
A. I overheard—Juanita had stated to me and other people in the church that [Allison] was exactly like her when she was a teenager, that she—they butted heads constantly, just like she did with her mother and that she couldn't believe a word [Allison] said most of the time.
Q. How many times did the subject of [Allison's] credibility come up?
A. Quite often. There was always times when—there were several times in the church she would be praising [Belinda] about how good [Belinda] did in school and this and then she would turn to [Allison] and say this is my problem child. She's a little me when I was younger. She's exactly like I am. And for her to say that in front of her child, both children, it would just—it just bothered me very much.
Q. And did Ms. Juanita Wheeler voice concerns about [Allison] lying?
A. Yes, she did. She said that she was just like her when she was a teenager and she could not believe a word she said to her.
At the conclusion of Ms. Goins' voir dire testimony, the trial judge sustained the State's objection to the presentation of this evidence before the jury, stating that “I find the general statements about [Allison], without time frame, without specific reference to what they were talking to, to be irrelevant in this case. Any probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.”
In his brief, Defendant argues that the trial court erred by excluding Ms. Goins' testimony concerning Ms. Wheeler's statements about Allison's truthfulness, or the lack thereof. According to N.C. Gen.Stat. § 8C–1, Rule 403, however, a trial court may exclude otherwise admissible evidence if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....“ A trial court's decision to exclude evidence pursuant to N.C. Gen.Stat. § 8C–1, Rule 403 is reviewed for abuse of discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). As we have already noted, an abuse of discretion occurs when “the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” Hennis, 323 N.C. at 285, 372 S.E.2d at 527.
In his brief, Defendant argues that the trial court erroneously excluded the challenged portion of Ms. Goins' testimony pursuant to N.C. Gen.Stat. § 8C–1, Rule 403, on the grounds that the trial court misunderstood the evidence in question. In essence, Defendant argues that Ms. Goins' testimony concerned statements that Ms. Wheeler made at the lunch that took place after Defendant's arrest with respect to Allison's credibility and were, for that reason, made at a highly relevant time. After carefully examining the record, however, we are unable to conclude that the statements in question were made at the post-arrest lunch. Instead, Ms. Goins merely stated that Ms. Wheeler had made comments to her and other women at the church to the effect that Allison was not truthful on numerous occasions; on the other hand, Ms. Goins never stated that these statements were made during the “uncomfortable” lunch. As a result, Defendant's principal challenge to the validity of the trial court's ruling lacks adequate evidentiary support.
After carefully reviewing the record, we believe that the trial court could reasonably conclude that, in the absence of some indication as to the time frame within which and the subjects about which Allison had allegedly lied, any probative value inherent in the statements described in Ms. Goins' testimony was “substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.” In other words, the trial court could have reasonably concluded that a generalized assertion that Ms. Goins had heard Ms. Wheeler state that Allison had a tendency, in some unspecified time frame, to lie about certain unspecified subjects would be of limited usefulness in determining whether Allison's claims about Defendant's conduct should be deemed credible. As a result, we conclude that the trial court did not abuse its discretion by sustaining the State's objection to the relevant portion of Ms. Goins' testimony pursuant to N.C. Gen.Stat. § 8C–1, Rule 403.
As the result of our determination that the trial court did not err by excluding the relevant portion of Ms. Goins' testimony pursuant to N.C. Gen.Stat. § 8C–1, Rule 403, we need not address Defendant's other challenges to the trial court's ruling.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant's challenges to the trial court's judgments lack merit. As a result, the trial court's judgments should, and hereby do, remain undisturbed.
NO ERROR. Judges McGEE and BRYANT concur.
Report per Rule 30(e).