Opinion
No. COA10-717
Filed 5 July 2011 This case not for publication
Appeal by defendant from judgment entered 20 November 2009 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State. Mark Montgomery for defendant.
Buncombe County No. 09 CRS 53794-53805.
Jeffrey Embler (defendant) appeals his conviction on six counts of taking indecent liberties with a child, arguing that the trial court erred in admitting evidence of his previous indecent liberties conviction and in allowing testimony that he allegedly raped the victim. Further, defendant argues that the trial court erred in excluding evidence that a 2007 investigation by the Department of Social Services failed to substantiate allegations of sexual abuse involving the victim and defendant. We find no error.
I. Procedural Background
Defendant was indicted on 6 April 2009 for six counts of taking indecent liberties with a child, two counts of first degree statutory rape, and four counts of first degree statutory sexual offense. Following a jury trial, defendant was found guilty of six counts of taking indecent liberties with a child for conduct occurring on or about 1 January 2001 through 24 November 2005. Defendant did not testify at trial. As to each of the six convictions, the jury found the aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense. The jury deadlocked as to the remaining charges and the trial court declared a mistrial as to those charges. Defendant was sentenced to six terms of twenty-six to thirty-two months' imprisonment, to be served consecutively. Defendant gave notice of appeal as to his convictions in open court on 20 November 2009.
II. Facts
Defendant married and moved in with Amanda Dyson, the victim's mother, in 1997. The evidence presented at trial tended to show that defendant began touching E.P.'s vagina in June 1999 while giving her baths and on other occasions in the family living room and bedrooms. At that time, E.P. was approximately five-and-one-half years old.
When E.P. told Amanda that defendant was touching her inappropriately, Amanda confronted him; defendant confessed that he had touched E.P. and had E.P. touch him. Defendant pled guilty to taking indecent liberties with a child in August 1999 and was placed on probation from August 1999 to August 2004.
Detective Benjamin of the Buncombe County Sheriff's Department testified at trial that, during an interview in 2009, defendant estimated that he had sexually abused E.P. fifteen times in 1999. At trial, defendant made a motion in limine to exclude his 1999 conviction for taking indecent liberties with a child. After arguments from counsel and voir dire of Detective Benjamin, defendant's motion was denied.
A condition of defendant's probation was that he not have contact with E.P. Nevertheless, defendant continued to visit Amanda's home and stay overnight while E.P. was there. Defendant moved back into the home after his probation expired in August 2004. E.P. testified at trial that defendant continued to touch her inappropriately soon after being convicted, and that the abuse progressed from putting his finger in her vagina to putting it in her rectum, then to having both vaginal and anal intercourse with her. At that time, E.P. did not tell her mother that defendant raped her.
Around Thanksgiving 2005, Amanda and defendant separated; a custody dispute ensued in November 2007. E.P. expressed concern about defendant potentially having contact with Amanda's other children. On or about November 2007, E.P. told Georgia Pressman, a clinical social worker who began counseling E.P. in relation to the 1999 sexual abuse, that defendant tried to touch her about three to four years earlier. E.P. did not tell Pressman that defendant had ever raped her. As a result of E.P.'s statements to Pressman, the Department of Social Services became involved and conducted an investigation into the allegations of abuse. In January 2008, DSS closed the investigation. Amanda testified at trial that she probably did receive a letter from DSS stating that the allegations of abuse were unsubstantiated by DSS. At trial, defendant attempted to elicit testimony from DSS social worker Melissa Blake that the 2007 allegations of abuse were unsubstantiated. The trial court sustained the State's objection to this testimony and Blake was not permitted to testify about the results of the investigation.
On or about February 2009, Amanda asked the pastors of her church to perform a "healing session" for E.P. believing it would help her with health problems she had been experiencing. Amanda had previously informed her pastors about the sexual abuse committed by defendant in 1999 . During the healing session, E.P. told her pastors that defendant raped her, but did not go into detail. At trial, E.P. testified that she revealed this to her pastors during the healing session because she thought it would help her health problems get better. She also indicated that she never told anyone defendant raped her because her previous statements of sexual abuse did not prevent defendant from continuing to abuse her. E.P. gave a detailed account of the sexual abuse, including vaginal and anal rape, to Detective Benjamin in February 2009. At trial, defendant moved to suppress the allegations of rape. Defendant's motion was denied, and the State offered evidence of E.P.'s allegations of rape through several witnesses, including E.P.; Dr. Cindy Brown, a doctor who performed a medical examination of E.P. in March 2009; and Detective Benjamin.
III. Prior Conviction
On appeal defendant argues that the trial court committed reversible error when it allowed testimony that defendant was convicted for taking indecent liberties with the victim in 1999. Defendant made a motion in limine to exclude this evidence, which was denied. Since defendant failed to object at the time the State introduced this evidence, defendant may now argue only that the trial court committed plain error. See State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) ("[A] trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial."); State v. Waring, ___ N.C. App. ___, ___, 701 S.E.2d 615, 631-32 (2010) ("A pretrial ruling on a motion to suppress evidence is preliminary. Because the evidence may be different when offered at trial, a party has the responsibility of making a contemporaneous objection. . . . [T]o the extent defendant failed to preserve issues relating to the motion to suppress, we review for plain error.") (internal citations omitted). "Plain error is error so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Leyva, 181 N.C. App. 491, 499, 640 S.E.2d 394, 399 (2007) (internal quotations and citation omitted). We conclude that the trial court did not commit plain error.
"It is well established in North Carolina that when the defendant in a criminal trial does not testify, evidence of other offenses is inadmissible if its only relevance is to show the character of the accused or his disposition to commit the offense charged." State v. Armistead, 54 N.C. App. 358, 359, 283 S.E.2d 162, 163 (1981) (citing State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954)). However, Rule 404(b) holds admissible evidence of prior acts to show a defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009). As this Court has noted before,
Rule 404(b) is a rule of inclusion. Indeed we have stated that Rule 404(b) is "subject to but one exception requiring [the] exclusion [of evidence] if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged."
State v. Lyons, 340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995) (quoting State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990)). "[E]vidence admitted under Rule 404(b) is still subject to the balancing test of Rule 403." State v. Hargrave, 198 N.C. App. 579, 585, 680 S.E.2d 254, 259 (2009).
Here, defendant did not testify. Various witnesses testified to the underlying facts of the 1999 conviction for indecent liberties and that defendant pled guilty to that charge. Defendant does not argue that the underlying facts were inadmissible under Rule 404(b); rather, defendant strictly argues that the trial court erred in allowing testimony that defendant pled guilty to that charge. Defendant relies on State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002) where our Supreme Court adopted per curiam Judge Wynn's dissent in State v. Wilkerson, 148 N.C. App. 310, 559 S.E.2d 5 (2002). Judge Wynn determined, and the Supreme Court agreed that, "in a criminal prosecution, the State may not introduce prior crimes evidence under Rule 404(b) by introducing the bare fact that the defendant was previously convicted of a crime." Wilkerson, 148 N.C. App. at 327, 559 S.E.2d at 16. Defendant's reliance on Wilkerson is misplaced.
This Court has recently analyzed Wilkerson and held that there is a distinction between admission of a conviction based on a jury verdict and admission of evidence that the defendant pled guilty to a prior offense. State v. Brockett, 185 N.C. App. 18, 26, 647 S.E.2d 628, 635, disc. review denied, 361 N.C. 697, 654 S.E.2d 483 (2007). In holding that evidence of defendant's prior guilty plea was admissible under Rule 404(b), we reasoned that, "unlike Wilkerson . . . where the jury learned that a previous jury `branded' the defendant a criminal, in this case Defendant himself, having first-hand knowledge of his participation in the [crimes charged], admitted his guilt to those crimes." Id. In Brockett, as in the present case, the trial court gave a limiting instruction to the jury regarding proper consideration of the plea and the underlying facts. Id. The Brockett Court further noted that the trial court did not admit the "actual judgment" or the "conviction record." Id. The same is true in the case at bar.
Based on the reasoning set forth in Brockett, we hold that the evidence that defendant pled guilty to indecent liberties in 1999, and the circumstances underlying it, were properly admitted pursuant to Rule 404(b) and were not unduly prejudicial under Rule 403. We further hold that defendant's claim that he received ineffective assistance of counsel due to his trial counsel's failure to object to the challenged testimony is without merit.
IV. Previous Allegations of Abuse
Defendant next argues that the trial court committed reversible error by excluding testimony from Department of Social Services (DSS) social worker Melissa Blake that the investigation of the victim's 2007 allegations of abuse were unsubstantiated by DSS. Defendant argues that this evidence was relevant both to impeach E.P. and to contradict an impression allegedly made by Amanda Dyson that the investigation substantiated abuse.
First, as to defendant's claim that the evidence was relevant to impeach E.P., "the proper standard of review for reviewing a trial court's decision to admit or exclude evidence is abuse of discretion." State v. Early, 194 N.C. App. 594, 599, 670 S.E.2d 594, 599 (2009). With respect to child abuse investigations by DSS, this Court recently held in State v. Giddens, 199 N.C. App. 115, 123, 681 S.E.2d 504, 509 (2009), aff'd per curiam, 363 N.C. 826, 689 S.E.2d 858 (2010), that it is error for a DSS child protective services investigator to testify that the department had substantiated allegations of abuse against the defendant in a previous case. In that case, the defendant was charged with first-degree sex offense, first-degree rape, and taking indecent liberties with a child. Id. at 116, 681 S.E.2d at 505. The State called a child protective services investigator, Kay Kent, to testify that DSS substantiated the claims that defendant was the perpetrator with regard to the two victims in that case. Id. at 117, 681 S.E.2d at 506. In support of our holding, we stated that
Kent's testimony that DSS had "substantiated" Defendant as the perpetrator, and that the evidence she gathered caused DSS personnel to believe that the abuse alleged by the children did occur, amounted to a statement that a State agency had concluded Defendant was guilty. DSS is charged with the responsibility of conducting the investigation and gathering evidence to present the allegation of abuse to the court. Although Kent was not qualified as an expert witness, Kent is a child protective services investigator for DSS, and the jury most likely gave her opinion more weight than a lay opinion. Thus, it was error to admit Kent's testimony regarding the conclusion reached by DSS.
Id. at 121-22, 681 S.E.2d at 508. Our holding in Giddens was not expressly limited to proffers of evidence by the State. Rather, our holding was based upon the understanding that, considering a DSS investigator's training and relationship to a state agency, a jury might impermissibly give more weight to a DSS investigator's lay opinion than it would give to the lay opinion of a witness unassociated with child protective services. Id.
In the case sub judice, defendant called Melissa Blake, a social worker and investigator from Buncombe County DSS, to testify that she conducted an investigation of the 2007 allegations of abuse. Blake testified that she received training for interviewing children for possible sexual abuse and that she interviewed the victim. Blake also interviewed the victim's mother, defendant, defendant's probation officer, and the victim's counselor. Blake, like the social worker in Giddens, was charged with the responsibility of gathering evidence of possible abuse and making a final report summarizing whether abuse was substantiated. Between Blake's status as a DSS investigator, her training for handling child interviews about sexual abuse, and the extent of her investigation, the jury would have most likely given her testimony more weight than a lay opinion. Accordingly, we find no error in the trial court's ruling excluding evidence that the investigation concerning the allegations of abuse were unsubstantiated by DSS.
Even assuming, arguendo, that the trial court erred in excluding evidence of investigation findings, it was not prejudicial in light of the evidence properly admitted at trial from which the jury could have easily inferred that the allegations were in fact not substantiated by DSS. See State v. Patterson, 103 N.C. App. 195, 205-06, 405 S.E.2d 200, 207 (1991) ("Under N.C.G.S. § 15A-1443(a) a defendant must demonstrate that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.") (internal quotations and citation omitted). Amanda Dyson testified that she probably did receive a letter from DSS stating that the 2007 allegations of abuse were unsubstantiated and that DSS was closing the file. The jury heard testimony from Blake that DSS closed its investigation into the allegations of abuse on 24 January 2008. Finally, Detective Benjamin testified that defendant told her that DSS investigated allegations of abuse, but nothing came of the investigation. From the evidence properly admitted at trial, the jury could have reasonably concluded that DSS did not substantiate the 2007 allegations of abuse.
Second, defendant argues that the State violated due process for failing to correct false evidence when the victim's mother gave a false impression to the jury that the DSS investigation substantiated the child's claims. Defendant did not object to Amanda Dyson's testimony and did not raise a constitutional argument when seeking admission of the outcome of the DSS investigation. Consequently, this argument is not properly before us. State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) ("[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal."). Nevertheless, as stated supra, assuming, arguendo, that the evidence should have been admitted to correct any "false evidence," there was no prejudice to defendant since there was ample evidence from which the jury could infer that the claim of abuse was unsubstantiated by DSS. In sum, we find no error in the trial court's decision to exclude the results of the DSS investigation.
V. Motion to Suppress Testimony
Defendant's third argument on appeal is that the trial court erred in denying his motion to suppress testimony that defendant raped the victim, and in not making findings of fact and conclusions of law with respect to the denied motion. Defendant advances several arguments for why this testimony should have been excluded. We consider each in turn.
A.
First, defendant argues that the victim's testimony was the product of repressed memory elicited through the "healing session" conducted by the victim's pastors. As such, defendant argues, the evidence was inadmissible unless accompanied by expert testimony on the subject of memory repression pursuant to Barrett v. Hyldburg, 127 N.C. App. 95, 487 S.E.2d 803 (1997).
The scope of appellate review of a trial court's denial of a motion to suppress is "limited to determining whether the trial judge's underlying findings of facts are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Where there is no dispute of material fact at the suppression hearing and the trial court provides a rationale from the bench for the ruling, the trial court is not required to make formal findings of fact and conclusions of law. See State v. Baker, ___ N.C. App. ___, ___, 702 S.E.2d 825, 829 (2010).
In this case, defendant argued that the victim's allegations that defendant raped her were the product of repressed memory and, pursuant to Barrett were admissible only if the State produced an expert witness to explain the phenomena of memory repression. The State argued that the victim simply chose not to disclose this incident of sexual abuse prior to the "healing session" and such evidence was not the product of repressed memory under Barrett.
The plaintiff in Barrett, at age forty-five, filed a complaint against her father for assault and battery based on conduct the plaintiff alleged occurred when she was a minor. Id. at 97, 487 S.E.2d at 804. Plaintiff claimed that she spontaneously recovered specific memories of sexual abuse approximately forty years later. Id. The defendant filed a motion to exclude the evidence, arguing that such evidence required expert testimony to explain the phenomena of memory repression to the jury. Id. Affirming the trial court's decision to grant defendant's motion, this Court held that "such testimony must be accompanied by expert testimony on the subject of memory repression so as to afford the jury a basis upon which to understand the phenomenon and evaluate the reliability of testimony derived from such memories." Id. at 101, 487 S.E.2d at 806.
In the case sub judice, the State did not offer the victim's testimony as repressed memory and therefore Barrett does not apply. Since no facts were in dispute, the trial court was not required to make findings of fact or conclusions of law after denying defendant's motion to suppress. The court concluded that defendant would have the opportunity to cross-examine the witnesses concerning this testimony and ultimately it was for the jury to consider the weight and credibility of the testimony. We conclude that there was no error.
B.
Second, defendant argues that the trial court erred by denying defendant's motion to strike testimony that defendant raped the victim on the basis that such testimony was something akin to hypnotically refreshed memory, and thus was admitted in contravention to State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984).
At the close of evidence, defendant made a motion to strike the testimony that defendant raped the victim, arguing that this evidence, which arose during a "healing session" with the victim's pastor, was the result of hypnotically refreshed memory under Peoples. In Peoples, our Supreme Court held that hypnotically refreshed testimony is inadmissible in judicial proceedings. Id. at 532, 319 S.E.2d at 187. In that case, police arrested Miller, a man who participated in an armed robbery for which the defendant in that case was being tried. Id. at 516, 319 S.E.2d at 178. Pursuant to a plea agreement in an unrelated case, Miller testified against the defendant. Id. Prior to trial, a Fayetteville Police Department detective with special training in hypnosis hypnotized Miller for approximately one hour, the purpose of which was to elicit details about the robbery involving the defendant. Id. at 517-18, 319 S.E.2d at 179. At trial, the detective testified about the hypnotic session and played before the jury a videotape of the session. Id. at 535, 319 S.E.2d at 189. The Supreme Court reversed and remanded the case for a new trial. Id.
Here, unlike in Peoples, the State did not offer as the product of hypnosis E.P.'s testimony that defendant raped her. In an attempt to label this testimony as hypnotically refreshed, defendant points to three affidavits filed with defendant's motion to suppress E.P.'s testimony on the basis that it was the product of repressed memory pursuant to Barrett. The affiants included a licensed psychologist, a professor of psychiatry, and a professor in psychology specializing in false memory. These affiants concluded that E.P.'s accusation of rape was the product of false and/or repressed memory. None of these affiants claimed that E.P.'s testimony was the result of hypnosis or that the healing session constituted hypnosis. Furthermore, there were no facts in dispute concerning the healing session itself. Accordingly, the trial court's decision not to exclude the victim's testimony on the basis that it was hypnotically refreshed did not constitute error.
C.
Finally, citing case law from New Jersey, defendant argues that the victim's testimony was the result of suggestive pretrial interviews and therefore inherently unreliable. We note that defendant raises this argument for the first time in his brief, and thus it is not properly before this Court; even if it were, however, it would fail.
Specifically, defendant argues that the evidence should have been excluded because it was the product of suggestive pretrial interviews of a child witness. Under the North Carolina Rules of Evidence, there is a presumption that all persons, including children, are competent to be witnesses. N.C. Gen. Stat. § 8C-1, Rule 601 (2009). A person may be disqualified as a witness, however, if the trial court determines that he is "(1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth." Id. Furthermore, "[c]onflicts in the statements by a witness affect the credibility of the witness, but not the competency of the testimony." State v. Cooke, 278 N.C. 288, 291, 179 S.E.2d 365, 368 (1971) (internal citations omitted). Defendant's argument that another state has adopted a rule excluding the testimony of a child subject to pretrial interviews is unpersuasive. We conclude that the trial court did not commit error by admitting testimony concerning the victim's allegations that defendant raped her.
VI. Conclusion
The trial court did not err in admitting evidence of defendant's prior indecent liberties conviction pursuant to Rule 404(b). The trial court did not commit prejudicial error in excluding testimony of DSS investigator Melissa Blake that an investigation of the 2007 allegations of abuse involving defendant did not substantiate abuse. Finally, the trial court did not err in denying defendant's motion to suppress the victim's allegation of rape that arose during a healing session with the victim's pastors. Defendant received a trial free from prejudicial error.
No error.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).