Opinion
No. COA10-134
Filed 5 April 2011 This case not for publication
Appeal by defendant from judgments entered 5 August 2009 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 1 September 2010.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State.
Ryan McKaig for defendant-appellant.
Davidson County Nos. 08 CRS 51433, 08 CRS 51434, 08 CRS 51435, 08 CRS 51436.
Defendant Jason Wayne Maynard appeals from his convictions of four counts of indecent liberties with a minor. While defendant argues the trial court erred in admitting evidence regarding behavior by defendant with the alleged victim that occurred before and after the incident for which defendant was charged, we hold that the testimony properly at issue on appeal was admissible under Rule 404(b) of the Rules of Evidence as it was necessary to complete the story of the crime.
Defendant also contends that the trial court erred in not granting a mistrial due to (1) the admission of the Rule 404(b) evidence and (2) the testimony of four witnesses who, he argues, improperly vouched for the credibility of the victim. At trial, however, defendant based his motion for a mistrial only on the Rule 404(b) evidence and the testimony of a single witness. As for the testimony of that lone witness, the trial court sustained defendant's objection and gave the jury a limiting instruction that defendant does not contend was in any way erroneous. Because we uphold the admission of the Rule 404(b) evidence and because we presume the jury followed the judge's limiting instruction, we find no abuse of discretion in the denial of the motion for a mistrial.
Facts
At trial, the State's evidence tended to show the following facts. "Jamie," defendant's daughter, had a history of psychological problems including attempted suicides, self-mutilation, and physical altercations. In 2000, after defendant asked Jamie to live with him instead of with her mother and stepfather, Jamie moved in with him. Jamie testified that around this time, defendant asked her if her stepfather had ever "spanked" her. Because she wanted to be on her "dad's side," she told him he had.
The pseudonym "Jamie" is used throughout this opinion to protect the minor's privacy and for ease of reading.
After moving in with defendant and her stepmother, Jamie sometimes used her stepmother's clothes and toiletries without permission. In order to punish her, defendant gave Jamie the option of either receiving a spanking or losing all of her possessions. Jamie chose to lose her possessions. It took Jamie two hours to carry all of her belongings to the attic while defendant watched her. During the entire time, defendant required Jamie to be completely naked so that she could not "conceal anything."
Over the course of two or three months, when Jamie was 14 years old, defendant sat in the bathroom while Jamie showered behind a clear shower curtain. He said he wanted to ensure she would not use her stepmother's toiletries. It was during this time that Jamie became more aggressive towards others and was "cutting" herself. Jamie was hospitalized for several weeks in May 2005 due to her self-mutilation.
Jamie was then transferred to Mills Home, a Baptist Children's Home for children five to 18 years of age. While there, defendant visited her and, several times, stayed overnight with her in a "visiting duplex." Almost every visit, defendant would purchase alcohol for Jamie.
On 18 March 2006, when Jamie was 15 years old, defendant again visited Jamie at Mills Home. Defendant knew that Jamie wanted to dye her hair and told her that he would let her do so if she played a game of "Truth or Dare" with him and won. The game resulted in her drinking alcohol (including "chugging" drinks), taking off all of her clothes, and being spanked about 10 times by defendant while she read from a phone book. Despite Jamie's repeated requests, defendant would not allow her to put her clothes back on. Defendant also dared Jamie to "suck on his nipples" and then asked if he could nurse on her breasts, which he did for a "ten count." After that, defendant said, "I shouldn't have done that."
Following the game, defendant and Jamie showered together. Defendant also asked to take a bath with Jamie, claiming that "it was a therapeutic technique that he had heard about that when you're naked, you feel more compelled to open up and share your feelings, and he just wanted to get closer to [her] and help [her] with [her] problems." Finally, Jamie sat on the edge of the tub, but defendant "got angry" and got out.
Afterwards, defendant asked Jamie if they could sit naked with a blanket over them. Ultimately, Jamie and defendant slept in the same bed. That night, defendant gave Jamie prescription sleeping medication and an over-the-counter sleep aid supposedly because he "didn't want [her] flipping around and kicking him." The next morning, defendant allowed Jamie to dye her hair because she had won the game.
In October 2006, Jamie moved back into defendant's house after being discharged from Mills Home. While she lived with defendant, he regularly gave her sleeping aids, and, on one occasion, what she believed to be marijuana, after which they slept in the same bed. About a month after Jamie returned, however, defendant forced her to leave because Jamie had, without his knowledge, gone and stayed with a friend while defendant was out of town. Jamie "wandered around Durham until a family found [her] in their backyard." They called the Department of Social Services ("DSS"), and Jamie was first taken to a hospital and then placed into foster care.
Jamie subsequently lived by herself for a short time, but she quickly ran out of money for food and other expenses. During this time, Geneva Hussong, Jamie's former case manager at Mills Home, asked Jamie to talk with Morgan Sawyer at DSS. After Ms. Sawyer recommended that Jamie move back in with defendant, Jamie told Ms. Sawyer about the night of "Truth or Dare" at Mills Home in March 2006. On 29 November 2007, after a DSS investigation, Jamie was again placed at Mills Home.
On 12 May 2008, defendant was indicted for four counts of indecent liberties with a child. At trial, evidence was presented that Jamie had initially denied that any abuse occurred when asked by her mother and her counselor. Jamie testified that she first denied the sexual abuse because she "was scared, and [she] didn't think anybody would believe [her]." The State presented several witnesses who testified that after the initial disclosure, Jamie had given consistent statements from that point through the beginning of the trial. In addition, the State offered evidence that, after disclosing her abuse, Jamie had received treatment, and her behavior has improved.
Defendant admitted in his trial testimony that he had punished Jamie by requiring her to take her possessions to the attic while completely naked, that he sat in the bathroom with Jamie while she showered, and that it was his idea to play "Truth or Dare," although he denied that anything of a sexual nature occurred. Further, defendant acknowledged that he had slept with Jamie in the same bed on several occasions. Finally, defendant testified that while he had told Jamie that he was giving her marijuana, it was actually a "Turkish cigarette."
On 5 August 2009, defendant was found guilty of all four counts of indecent liberties with a child. The trial court sentenced him to three consecutive, presumptive-range terms of 16 to 20 months each. Defendant timely appealed to this Court.
I
Defendant contends that the trial court improperly admitted, under Rule 404(b), evidence of uncharged incidents occurring before and after the "Truth or Dare" game. These incidents included having Jamie move her belongings to the attic while naked, defendant's watching her in the shower, his sleeping in the same bed as her, and his spanking her repeatedly. Although defendant filed a motion in limine to exclude this evidence, the trial court reserved ruling on that motion until Jamie testified. At trial, defendant only objected to Jamie's testimony regarding moving her belongings to the attic. He did not object to the questions regarding spankings, his watching Jamie shower, or the later incident in which they slept in the same bed after he gave her marijuana.
"A motion in limine will not preserve for appeal the issue of `the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. A criminal defendant is required to interpose at least a general objection to the evidence at the time it is offered.'" State v. McClary, 157 N.C. App. 70, 74, 577 S.E.2d 690, 692-93 (quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153, 116 S. Ct. 223 (1995)), appeal dismissed and disc. review denied, 357 N.C. 466, 586 S.E.2d 466 (2003); State v. Crandell, ___ N.C. App. ___, ___, 702 S.E.2d 352, 358 (2010) (holding that "[a] motion in limine does not preserve a question for appellate review in the absence of the renewal of the objection at trial").
Defendant, therefore, only preserved for review his objection to the testimony regarding Jamie moving her belongings to the attic while naked. In addition, since defendant has not, on appeal, argued that the remaining testimony constitutes plain error, any issue regarding that testimony is not properly before the Court. See State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004) ("Defendant has neither assigned nor argued plain error as to the admission of this evidence [that was the subject of a motion to suppress, but not objected to at trial]. Hence, this issue is not properly before the Court."). We, therefore, limit our discussion to the attic testimony.
Under Rule 404(b), relevant evidence of prior acts or wrongdoings is generally admissible "subject to but one exception requiring its exclusion 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. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990). Although not specifically set out in the statute as one of the proper purposes, the following is well settled:
Evidence of other crimes committed by a defendant may be admissible under Rule 404(b) if it establishes the chain of circumstances or context of the charged crime. Such evidence is admissible if the evidence of other crimes serves to enhance the natural development of the facts or is necessary to complete the story of the charged crime for the jury.
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 853 (internal citation omitted), cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995). See also State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) ("`Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.'" (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985))).
Here, the uncharged conduct between defendant and Jamie — requiring her, as he watched for two hours, to move her belongings into the attic while completely naked — when combined with the evidence that defendant watched Jamie shower through a clear shower curtain establishes the chain of circumstances leading up to the "Truth or Dare" incident. These were the events that precipitated Jamie's hospitalization and subsequent transfer to Mills Home, where the "Truth or Dare" incident occurred. At trial, Dr. Kim Dansie, a clinician who treated Jamie, gave expert testimony that these earlier incidents requiring Jamie to be naked were "grooming behaviors." She explained that "[a]busers often do things like that to prepare someone to sexually abuse them. . . . Those [behaviors] would be huge red flags for me." When viewed in this context, the events become an essential part of the story leading up to the "Truth or Dare" incident.
In addition, the attic incident together with the other conduct helped to explain Jamie's psychological and behavioral problems. Ms. Hussong, Jamie's former case manager at Mills Home, testified that "there was a strong correlation . . . of [Jamie's] outbursts and home visits [with defendant]." She explained that the day after the "Truth or Dare" incident took place, Jamie had a violent outburst during which she attacked someone without provocation. The connection between the incidents and Jamie's outbursts was relevant to rebut defendant's suggestion that Jamie was not a reliable witness because of her psychological and behavioral problems. See State v. Thompson, 139 N.C. App. 299, 305, 533 S.E.2d 834, 839 (2000) ("In sex abuse cases, the victim's state of mind can be relevant. When it is relevant, any evidence tending to show the victim is afraid of her abuser, or evidence explaining why the victim never reported the sexual incidents to anyone, is admissible." (internal citations omitted)).
This conduct by defendant was thus part of the natural development of the facts and was necessary in order to provide the jury with the complete story of what occurred between defendant and Jamie. It was, therefore, admissible. See id. at 304, 533 S.E.2d at 838 (upholding admission of prior instances of sexual abuse of prosecuting witness by defendant as "reflect[ing] a continuous pattern of sexual abuse, beginning when [victim] was five years old and continuing until the date of the alleged offenses").
Defendant, however, focuses his arguments on whether the evidence was admissible as part of the res gestae, as argued by the State at trial. Since we have concluded that the evidence was admissible on other grounds, we need not specifically address that issue. See State v. Harris, 140 N.C. App. 208, 212, 535 S.E.2d 614, 617 ("[B]ecause the evidence was admissible for a proper purpose (to show a common plan or scheme), the trial court's error in admitting that same evidence for an improper purpose (lack of consent) is rendered non-prejudicial."), appeal dismissed and disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000); State v. Haskins, 104 N.C. App. 675, 683, 411 S.E.2d 376, 382 (1991) (stating "there was no prejudicial error where at least one of the two purposes for which the prior act evidence was admitted was correct"), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992).
II
Defendant next argues that he was entitled to a mistrial due to the improper admission of the Rule 404(b) evidence and testimony of four witnesses who vouched for Jamie's credibility, including Detective Les Rickard, Ms. Hussong, Ms. Sawyer, and Dee Case. Defendant acknowledges, in his brief, that "[s]ome of these exchanges were followed by objections from [defendant] and some were not. When counsel for [defendant] did object, the trial court sustained the objection. However, the damage was already done, resulting in irreversible prejudice."
Defendant objected at trial to the question eliciting Detective Rickard's testimony, which was overruled, but he made no objection in connection with the testimony of Ms. Hussong and Ms. Sawyer. Defendant also points to expert testimony given by Dee Case when she testified that she believed Jamie. The trial court sustained defendant's objection and gave a limiting instruction to the jury regarding Ms. Case's testimony. Defendant limits his argument to his contention that the trial court should have granted a mistrial based on the testimony of the four witnesses. He does not separately argue that the trial court committed prejudicial or plain error by admitting the testimony.
At trial, the following exchange occurred with respect to the motion for mistrial:
[DEFENSE COUNSEL]: Your Honor, my next motion would be a motion for a mistrial based on two things: That is, the evidence that was allowed presumably under 404(b) concerning the incident that took place when she was 14 years of age. There is no evidence by the State, or argument by the State, that that occurrence was similar in any way to the events that took place at the later time on March the 18th. It should not have been allowed under 404(b) for the reason that it does not fit the category of a similar act or activity.
The other argument is that evidence was introduced that as to the defendant — as to the victim's character, her believability. I think that that is probably reversible error that that comes in and is allowed, notwithstanding the fact that I objected to it, and notwithstanding the fact of the limiting instruction; it still stays in the jury's mind that they think that someone else has vouched for her character and has vouched for her honesty and truthfulness, and I think that that should grant us a mistrial.
THE COURT: I'm going to deny that at this time.
(Emphasis added.)
"`A mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.'" State v. Bethea, 173 N.C. App. 43, 49, 617 S.E.2d 687, 692 (2005) (quoting State v. Blackstock, 314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985)). We review a decision denying a motion for a mistrial for abuse of discretion. State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990).
We have already held that the Rule 404(b) evidence was properly admitted. Therefore, the trial court did not err in refusing to grant a mistrial based on that evidence. We turn next to the second argument for a mistrial based on testimony regarding Jamie's believability. Because of defense counsel's reference in his argument to an objection, defense counsel could not have been referring to the testimony of Ms. Hussong or Ms. Sawyer when moving for a mistrial. Further, the only testimony for which there was a limiting instruction was the testimony of Ms. Case. It is apparent, therefore, from the context that defense counsel was arguing only that Ms. Case's testimony warranted a mistrial.
Our Supreme Court "has long held that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount" on appeal. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (internal quotation marks omitted). We are, therefore, limited to considering whether Ms. Case's testimony warranted a mistrial notwithstanding the trial court's limiting instruction.
Ms. Case testified as an expert witness regarding her work with Jamie. Defendant objected to Ms. Case's statement, while describing her meetings with Jamie, that she "believed [Jamie] from the beginning." The trial court sustained defendant's objection and immediately instructed the jury to "disregard her opinion." At the completion of Ms. Case's testimony, the State referred to that testimony, agreed that the trial court "rightly sustained" the objection, and presented to the court a proposed limiting instruction addressing the testimony. Defense counsel responded that he was "going to try to get [the jurors] to understand that what they heard, and the bell they heard ring didn't ring." He added, however, that Ms. Case's testimony had opened the door to the question "of [Jamie's] character, as far as her truthfulness." He then concluded that he would leave it to the trial court's discretion whether to give a limiting instruction.
After a recess, the State reiterated its request for a limiting instruction. After the trial court indicated that it was inclined "to leave it where it is instead of bringing it more to their attention," defense counsel responded that "for the purpose of the record, I would request a limiting instruction." The court then gave the following instruction:
Ladies and gentlemen, you may have understood the previous witness to offer an opinion that the alleged victim, [Jamie], was telling the truth. I instruct you that it is your duty to determine the truth or the untruth of the allegations in this case. You should not substitute the opinion of any witness as to the truthfulness of another witness for your own evaluation of the credibility or believability of that witness.
Defendant does not argue on appeal that the limiting instruction was in any way defective. Instead, defendant argues only that the "damage was already done, resulting in irreversible prejudice" due to the testimony of all four witnesses. It is well settled, however, that "`[t]he law presumes that the jury heeds limiting instructions that the trial judge gives regarding the evidence.'" State v. Riley, ___ N.C. App. ___, ___, 688 S.E.2d 477, 480 (quoting State v. Shields, 61 N.C. App. 462, 464, 300 S.E.2d 884, 886 (1983)), cert. denied, 364 N.C. 246, 699 S.E.2d 644 (2010). "[W]hen incompetent evidence is withdrawn from the jury's consideration by appropriate instructions from the trial judge, any error in admission of the evidence is ordinarily cured; this rule of law is based on the assumption that jurors have sufficient intelligence and character to comply with the cautionary instructions." State v. Hawley, 54 N.C. App. 293, 298, 283 S.E.2d 387, 391 (1981), disc. review denied, 305 N.C. 305, 290 S.E.2d 704, disc. review denied, 305 N.C. 305, 291 S.E.2d 152 (1982).
In sum, the trial court sustained defendant's objection to Ms. Case's improper opinion, immediately directed the jury to disregard that opinion, and then gave a limiting instruction requested by both the State and defendant. Given that the trial court took these steps as to Ms. Case's testimony and properly admitted the Rule 404(b) evidence, we cannot conclude that the trial court's decision to deny the motion for a mistrial constituted an abuse of discretion, especially in light of the evidence presented by the State and the admissions defendant made during his testimony.
No error.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).