Opinion
No. COA15–138.
11-17-2015
STATE of North Carolina v. John Thomas PATTERSON, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Mark Montgomery for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.
Mark Montgomery for defendant.
Opinion
Appeal by John Thomas Patterson, Jr. from Judgments entered 11 July 2014 by Judge Richard D. Boner in Iredell County Superior Court. Heard in the Court of Appeals 24 August 2015.
ELMORE, Judge.
A jury found John Thomas Patterson, Jr. (defendant) guilty of 172 counts of taking indecent liberties with a child and one count of first-degree statutory sexual offense. On appeal, defendant argues that the trial court committed reversible error in its Rule 404(b) limiting instructions to the jury, and that the trial court erred in denying his motion to dismiss at the close of the evidence. We conclude that defendant received a trial free from error.
I. Background
Defendant is a former fourth grade teacher at Mount Moure Elementary School in Iredell County. During the 1986–87 school year, a parent reported to Don Williams, then superintendent of Iredell County Schools, that defendant had been fondling students in his classroom. Williams met with defendant to discuss the accusations against him, to which defendant responded that it was just “horse play.” Williams informed defendant that he was going to recommend to the Board of Education that defendant be terminated. Defendant resigned later that day.
Fifteen years later, Matt Ray confessed to his mother, Karen Ray, that defendant had touched him inappropriately when he was in defendant's fourth grade class. Karen contacted Julie Gibson at the Iredell County Sheriff's Department, who told Karen that another boy, Terry Sloop, had made similar allegations against defendant in 1987. A subsequent investigation resulted in charges against defendant, at which point the Iredell County Sheriff's Office began receiving phone calls from other potential witnesses.
On 11 March 2013, defendant was indicted on 172 counts of indecent liberties with a child and one count of first-degree statutory sexual offense involving thirteen of his former students. All thirteen witnesses, who were adults at the time of trial, testified that defendant had fondled them during the 1970s and 1980s. Two additional witnesses, Jason Young and Brad Newton, also testified that defendant had fondled them in the fourth grade. Defendant was not charged with taking indecent liberties with Newton or Young. However, their testimony was admitted pursuant to Rule 404(b) of the North Carolina Rules of Evidence for the purpose of showing “that there existed in the mind of the defendant a plan or scheme to commit the crimes charged in this case.”
At the close of the evidence, defendant moved to dismiss the charges against him. The trial court denied defendant's motion. The jury found defendant guilty on all charges, and defendant was sentenced to life in prison. Defendant gave notice of appeal in open court.
II. Analysis
First, we address defendant's argument regarding the trial court's Rule 404(b) limiting instructions to the jury. The trial court purported to limit the jury's consideration of Brad Newton and Jason Young's testimony to show a “plan” or “scheme” in defendant's mind to commit the crimes for which he was charged. Defendant argues that he was prejudiced by the limiting instructions at trial because “the court omitted a crucial portion of [N.C.P.I.—Crim. 104.15], that it was for the jury to determine (1) if the evidence was true, and (2) if so, whether it showed that [defendant] had a plan or scheme to commit crimes.” The North Carolina pattern jury instruction for evidence of similar acts or crimes, N.C. Gen.Stat. § 8C–1, Rule 404(b), provides, in pertinent part, as follows:
Evidence has been received tending to show that (state specific evidence). This evidence was received solely for the purpose of showing
....
[that there existed in the mind of the defendant a plan, scheme, system or design involving the crime charged in this case]
....
If you believe this evidence you may consider it, but only for the limited purpose for which it was received. You may not consider it for any other purpose.
N.C.P.I.—Crim. 104.15 (2011) (emphasis added) (footnotes omitted). Failing to include the phrase “if you believe this evidence ” in the limiting instructions, defendant claims, amounted to an impermissible expression of judicial opinion because the court conveyed to the jury that the veracity of the witnesses and the relevance of their testimony had been established.
Defendant never requested Pattern Jury Instruction 104.15 and never objected to the limiting instruction given. Generally, “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2009). However, “[w]henever a defendant alleges a trial court made an improper statement by expressing an opinion on the evidence in violation of N.C.G.S. §§ 15A–122 and 15A–1232, the error is preserved for review without objection due to the mandatory nature of these statutory provisions.” State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005); see also State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (“A defendant's failure to object to alleged expressions of opinion by the trial court in violation of those statutes does not preclude his raising the issue on appeal.”).
“On appeal, the burden is on the defendant to show that he was prejudiced by the allegedly improper remarks.” State v. Berry, ––– N.C.App. ––––, ––––, 761 S.E.2d 700, 708 (Aug. 5, 2014) (No. COA13–953) (Hunter, Robert C., J. dissenting in part) (citation omitted), rev'd per curiam for the reasons stated in the dissent, ––– N.C. ––––, ––––, 773 S.E.2d 54, 55 (June 11, 2015) (No. 315A14); see also State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985) (“[I]n a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results.”) (citing State v. Yellorday, 297 N.C. 574, 256 S.E.2d 205 (1979)). “That is, he must show that ‘there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached’ by the jury.” Berry, ––– N.C.App. at ––––, 761 S .E.2d at 708 (quoting State v. McNeil, 209 N.C.App. 654, 666, 707 S.E.2d 674, 683 (2011)).
“In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved....” N.C. Gen.Stat. § 15A–1232 (2013). “In determining whether the trial judge has expressed an impermissible opinion in its instructions to the jury, ‘[t]he charge of the court must be read as a whole, in the same connected way that the judge is supposed to have intended it and the jury to have considered it.’ “ State v. Smith, 160 N.C.App. 107, 120, 584 S.E.2d 830, 838 (2003) (quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)). “Where the charge, viewed contextually, ‘presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.’ “ Smith, 160 N.C.App. at 120, 584 S.E.2d at 839 (quoting Lee, 277 N.C. at 214, 176 S.E.2d at 770); see also State v. Reese, 31 N.C.App. 575, 577, 230 S.E.2d 213, 215 (1976) (“[S]egregated portions will not be held prejudicial error where the charge as a whole is free from objection.”). “Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record,....” Blackstock, 314 N.C. at 236, 333 S.E.2d at 248.
Our review of the whole record reveals no prejudicial error in the trial court's limiting instructions to the jury. Defendant first objected to Newton's testimony, and the trial court read to the jury the following limiting instruction:
Members of the jury, the testimony of this witness as to various acts that have [sic] alleged to have occurred is being admitted for the sole purpose of showing that there existed in the mind of the defendant, a plan or scheme to commit the crimes that are alleged to have been committed in the cases now on trial. You may not consider this evidence for any other purpose.
Later, the trial court read another limiting instruction to the jury with respect to Young's testimony:
Members of the jury, this testimony is admitted for the sole purpose of showing that there existed in the mind of the defendant a plan or scheme to commit the crimes charged in this case. You may not consider this evidence for any other purpose.
After the close of evidence and before jury deliberations, the trial court then instructed the jury as follows:
You are the sole judges of the credibility of the witnesses. You must decide for yourselves whether to believe the testimony of any witness. You can believe all or any part or none of what a witness has said on the stand. In deciding whether to believe a witness, you should use the same tests of truthfulness that you use in your everyday lives.
....
You are also the sole judges of the weight to be given to evidence. This means that if you decide that evidence is believable, you must then determine the importance of that evidence in light of all the other believable evidence in the case.
....
The law, indeed as it should, requires the court to be impartial and to express no opinions as to the facts. Therefore, you should not draw any inference from any ruling that I've made, any expression on my face, or anything I've said or done during the trial that I have an opinion or intimated an opinion as to whether any part of the evidence should be believed or disbelieved, as to whether any fact has or has not been proved, or as to what your findings ought to be. It is your solemn duty to find the truth of this case from the evidence presented.
As a whole, the trial court's instructions presented the law fairly and clearly to the jury. The court made clear to the jurors that they were the “sole judges of credibility” and could choose whether to believe the testimony of Young, Newton, and of any other witness. The record reveals no expression of judicial opinion on the evidence. Furthermore, assuming arguendo that the trial court's limiting instructions were erroneous, “[g]iven the overwhelming evidence against defendant, we conclude that there is no reasonable possibility that, had the [error not occurred], a different result would have been reached at trial.” State v. Young, 195 N.C.App. 107, 111, 671 S.E.2d 372, 375 (2009). Defendant has failed to show, therefore, that he was prejudiced by the trial court's 404(b) limiting instructions.
Next, defendant contends that the trial court erred in denying his motion to dismiss at the close of the evidence. While defendant argues that the evidence was insufficient to support all 172 counts of taking indecent liberties with a child, his argument is largely based on the trial court's final charge to the jury. We address each aspect of defendant's argument in turn.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).
The North Carolina indecent liberties statute provides, in pertinent part, as follows:
(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
N.C. Gen.Stat. § 14–202.1(a)(1)–(2) (2013). To obtain a conviction under the statute, the State must prove the following five elements:
(1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire.
State v. Rhodes, 321 N.C. 102, 104–05, 361 S.E.2d 578, 580 (1987) (citing State v. Hicks, 79 N.C.App. 599, 339 S.E.2d 806 (1986)). “The fifth element ... may be inferred from the evidence of the defendant's actions.” Id. at 105, 361 S.E.2d at 580. “The uncorroborated testimony of the victim is sufficient to convict under N.C.G.S. § 14–202.1 if the testimony establishes all of the elements of the offense.” State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (citing State v. Vehaun, 34 N.C.App. 700, 705, 239 S.E.2d 705, 709 (1977)).
In the present case, the trial court properly denied defendant's motion to dismiss because there was substantial evidence to support each charge of taking indecent liberties with a child. Twelve victims testified that defendant repeatedly fondled their penises or committed an otherwise lewd and lascivious act when defendant was their fourth grade teacher: Derwin Long testified that in 1975 and 1976, defendant rubbed Long's penis on the outside and inside of Long's pants and touched Long's penis at least a couple of times a week until the end of the school year; C.G. Campbell testified that in 1975 and 1976, defendant touched Campbell's penis, rubbed his penis, and twirled it around beginning around the fall or late summer for a couple of times per month until the end of the school year; Charles Miller testified that in 1975 and 1976, defendant touched Miller's penis underneath his pants and underwear every seven to ten days; Steve Readling testified that in 1975 and 1976, defendant held Steve Readling's penis between his thumb and fingers for about fifteen to twenty minutes, two or three times per week; Sean Parker testified that in 1975 and 1976, defendant touched Parker's penis with his hand and would move his hand up and down on Parker's penis once per week or every other week for approximately forty times; Steve Readling's brother, Jeff Readling, testified that defendant rubbed Jeff Readling's penis, touched him on the outside of his underwear in a bathroom, and touched his penis after school at least twice a week and continued to do so during the fifth grade; Chad Caldwell testified that in 1978 and 1979, defendant rubbed Caldwell's penis with his hand on the outside of his pants, asked Caldwell about a urination scene in a movie, and showed Caldwell a magazine with a naked male and female and asked Caldwell whether it turned him on; Chris Howard testified that in 1978 and 1979, defendant grabbed Howard's penis, used an index card to ask Howard about the size of his penis, and touched Howard from October until February or March; Mike Cotton testified that in 1980 and 1981, defendant put his hand on Cotton's upper legs and inner thigh, and that defendant gave Cotton a book about male genitalia and discussed his and Cotton's penis size; Matt Ray testified that in 1984 and 1985, defendant would “squeeze and play with” Ray's penis, gave Ray a homework assignment to grind his penis on his bed and tell him about it, and told Ray to kiss a female student; James Duckworth testified that in 1985 and 1986, defendant touched Duckworth's penis with his hand and with his mouth; Terry Sloop testified that in 1986 and 1987, defendant touched Sloop's penis in class and in the gym about two or three times per week and had Sloop rub defendant's penis. Accordingly, we find no error in the trial court's denial of defendant's motion to dismiss at the close of the evidence.
Nevertheless, defendant maintains that the trial court erred in denying his motion to dismiss based on the content of the court's final Rule 404(b) instruction to the jury. Before deliberations, the court charged the jury, in pertinent part, as follows:
During this trial, evidence was received tending to show that at an earlier time witnesses made statements which may conflict with or be consistent with their testimony at this trial. You must not consider these earlier statements as evidence of the truth of what was said at the earlier times because they were not made under oath at this trial. If you believe the witnesses' earlier statements were made and that they are consistent with or conflict with their testimony at this trial, you may consider this, together with all other facts and circumstances bearing on the witnesses' truthfulness in deciding whether you will believe or disbelieve their testimony.
You may find that a witness is interested in the outcome of this trial. You may take the witnesses' interest into account in deciding whether to believe the witness. If you believe the testimony of the witness in whole or in part, you should treat what you believe the same as any other believable evidence.
During this trial, evidence was received tending to show that at various times the defendant touched the groin area of 4th grade students. This evidence was received for the sole purpose of showing that there existed in the mind of the defendant a plan, scheme, system, or design involving the crimes charged in this case. If you believe this evidence you can consider it, but only for the limited purpose for which it was received. You cannot consider it for any other purpose.
(emphasis added). In addition to the Rule 404(b) witnesses, Brad Newton and Jason Young, the twelve other witnesses testified that defendant touched their groin area or had otherwise taken indecent liberties with them when they were fourth grade students. Newton and Young's testimony was the only testimonial evidence admitted pursuant to Rule 404(b). However, defendant argues that the final paragraph of the instructions above, taken literally, prohibited the jury from considering the testimony of any witness as substantive evidence of defendant's guilt, and therefore, “the only acts that could reasonably have formed the basis for these crimes were not before the jury.”
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
It does not follow that the trial court's final charge to the jury affected the court's earlier ruling on defendant's motion to dismiss. This Court has previously explained that “jury instructions have no logical relationship to dismissing a case at the close of the evidence. Jury instructions take place after the evidence is closed and in a separate phase of the trial.” State v. Dudley, 151 N.C.App. 711, 714, 566 S.E.2d 843, 846 (2002).
Moreover, we note that the trial court gave similar limiting instructions when Newton and Young testified, but never placed 404(b) limitations on the testimony of the twelve victims with whom defendant was accused of taking indecent liberties. See State v. McWilliams, 277 N.C. 680, 685, 178 S.E.2d 476, 479 (1971) (“The judge's words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred.”) (citing State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Jones, 67 N.C. 285 (1872)). We believe the jury clearly understood the scope of the evidence and the purpose for which it could be considered. Therefore, we conclude that the trial court did not err in denying defendant's motion to dismiss.
III. Conclusion
Based on the foregoing, we affirm the judgments entered against defendant. The trial court's limiting instructions were proper in context and defendant has otherwise failed to show prejudice from the alleged error. In addition, there was sufficient evidence to present charges of taking indecent liberties with a child to the jury.
NO ERROR.
Chief Judge McGEE and Judge DAVIS concur.
Report per Rule 30(e).