Opinion
No. COA09-855
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgments entered 6 March 2009 by Judge Lindsay R. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 19 November 2009.
Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for Defendant. Attorney General Roy Cooper, by Special Deputy Attorney General Dorothy Powers, for the State.
Forsyth County No. 07 CRS 62799 08 CRS 50513.
Defendant Larry Wayne Rominger, Jr., appeals from judgments entered 6 March 2009 sentencing him to a minimum of 204 months and a maximum of 254 months imprisonment in the custody of the North Carolina Department of Correction based upon a conviction for attempted first degree rape and a consecutive sentence of a minium of 204 months and a maximum of 254 months imprisonment in the custody of the North Carolina Department of Correction based upon consolidated convictions for first degree rape and taking indecent liberties with a minor. After careful consideration of the record in light of the applicable law, we conclude that Defendant has not shown that any error occurred during the course of his trial.
I. Factual Background A. Substantive Facts
The State presented evidence tending to show that, when Katrina was six years old, she slept in her mother's room in a "cubby" which contained her bed. Katrina's mother, Alice, and Alice's "[b]oyfriend[,]" Defendant, also slept in the same room, which contained a television that sat atop a dresser.
Katrina is a pseudonym that will be used throughout this opinion to protect the minor child's privacy and for ease of reading.
On 24 December 2007, Katrina's mother hosted a Christmas party, at which there was "drink and food." According to Katrina, her "family was there[,] and we were playing, having a good time, [and] just visiting." As the evening progressed, Alice eventually told the children that it was time for bed. Katrina went to bed in her "cubby" in her mother's bedroom. As usual, she turned the television on, since she "always [had] my TV on when I go to bed because I was . . . scared of the dark."
After Katrina had gone to sleep that night, she testified to the following events:
A: . . . I was asleep, and then — there's a sign I knew — well, I woke up, because I always wake up in the middle of the night. I just wake up like that. And then I felt something going like this (demonstrating).
Q: Going like how? Like that?
A: Yeah, because I was wearing a diaper because I always pee in the bed a lot.
Q: Okay.
A: And I didn't do nothing. I just stayed still. And then I looked at the TV, and it was off, because he always turns off the TV.
Q: Who always turns off the TV?
A: [Defendant]. . . .
Q: When you said you saw this — or you felt this, where did you feel this?
A: Like right where my diaper was, and I felt something try to go in it or do something. And I didn't do nothing. I was just going there like this (demonstrating).
Q: Okay. Then what happened?
A: He walked out the room[.] . . . I'm sitting there thinking on my blanket, because it was rolled up, going like this: Should I tell Mama or not? Because I . . . didn't know. And then finally I got down my ladder and went in there and . . . tried to wake up Mama. I was shaking her and shaking her, but she wouldn't wake up.
Katrina referred to her private parts as "number one," which was where she would "[p]ee-pee," and "number two," which was her "[b]utt." Katrina explained that Defendant touched her "number one" with his "hand," and he "rubbed" her "[n]umber one." Katrina continued, explaining:
Q: What did [Defendant] say?
A: "What's wrong?" . . . I said that "you did it." . . . [Then Defendant said][,] "You need to go lay down because Santa's getting ready to be here," because it was . . . late at night, like 11 something, . . . almost 12.
Q: And what did you do after he said that?
A: I just kept on saying, "You did it. You did it."
Q: And when you say, "You did it," what are you talking about? What did he do?
A: When I'm . . . saying, "You did it," by when he touched me.
Q: Okay. And he touched you where?
A: In one of my privates, the first one. . . . This is when — he touched me on December 24th, it was — he was trying to get in my first one.
Q: And what did he use to try to get in there?
A: His hand.
. . . .
Q: So when you felt [Defendant's] fingers on your body part, where exactly did you feel it?
A: Near my private but not really — not really close, but —
Q: When he touched you, was it skin to skin?
A: It was with his hand, but he really didn't get to my private.
Q: Okay. Did he get to your diaper?
A: Yes.
Q: Underneath the diaper or on top of it?
A: He was trying to get under it.
Q: How was he trying to?
A: Like trying to get — well, like trying to go like this (demonstrating), wiggle his fingers and get them in there.
Q: Did he get them in there?
A: No.
The following morning, Katrina explained that "Mama . . . said she kicked [Defendant] out about 6 o-clock." Katrina said that "Mama was deciding, `Should I take you to the hospital or not?'" Before Katrina could open all of her Christmas gifts, her mother took her to the hospital.
According to Katrina, the 24 December 2007 episode did not represent the first occasion on which Defendant had touched her. Katrina could not identify the exact dates upon which the previous episodes occurred or describe these episodes in chronological order. However, she knew that these other instances of touching had occurred prior to 24 December 2007 because Defendant was arrested after that date. More specifically, Katrina referred to one previous occasion of "private-touching" and several other occasions on which Defendant put his "private . . . in my mouth."
In explaining the incident of "private-touching," Katrina said that Defendant "[tried] to put [his private] in me." Katrina described the incident involving oral sex by testifying that, "one time [Defendant] took me . . . to go see the airplanes, and . . . when we got there, the airplanes weren't even flying." At that point, Defendant told her, "`Oh, I guess the airplanes aren't flying today.'" Then, Defendant put his "private . . . in my mouth."
On a different occasion, Katrina was "on the floor in my room and [Defendant] was in there too." This time, Defendant put his "private" in Katrina's "mouth."
Another time, Defendant "rubbed" Katrina's "private" when she was in her mother's room in her bed. Defendant lay "in the bed" with her and "started rubbing" Katrina's "private," which she referred to as number one. When asked whether this was "skin to skin," Katrina responded, "[y]es, ma'am." After this contact, Katrina stated that Defendant rubbed "his private in [her] private." Katrina was not wearing any clothing at this time. Katrina testified concerning this episode that:
Q: . . . when you said his privates [were] in your private, what did that feel like?
A: It hurt.
Q: What part was hurting?
A: My front and my back.
Q: The front what?
A: Pee-pee and butt.
Q: Why was your butt hurting?
A: He would sometimes try to do it back there, like put his privates in my privates.
Q: So in your butt private?
A: Yes.
Q: How many times did that happen?
A: Just that time. . . .
Q: So in your mom's bed, you're saying he put his private in your private?
A: Yes, ma'am.
Q: Private number one or private number two?
A: Both.
Q: And when you had his private in your mouth, what did that feel like?
A: Well . . . I didn't really felt (sic) nothing. It just . . . tasted yucky.
Q: What did it taste like?
A: Felt like I was getting ready to throw up.
Q: What happened the most, [Katrina?] Out of all the things that [Defendant] did, what happened the most?
A: Well, there's two things . . . rubbing-private and private-mouth.
During the episode of touching that occurred on Katrina's mother's bed, Katrina stated that she and Defendant watched a "bad movie" involving "girls and boys" in which "[t]hey would bounce each other."
Katrina further explained that when Defendant rubbed her "private," "he would use all the fingers and sometimes maybe one finger." When asked, "[w]ould it go inside your private part or stay outside," Katrina responded, "go inside and sometimes outside."
Several times, Katrina told her mother that "my private hurt . . . [and] she would always look at it, and it would be red." Katrina continued, "finally, one day she looked down there and she said, `Has anybody been touching you?'" Katrina responded, "Yes." When Katrina's mother asked who had been touching her, Katrina named Defendant.
Johnathan, Katrina's older brother, testified that he attended the Christmas party hosted by his and Katrina's mother on 24 December 2007. After the younger children had gone to bed, Johnathan left the party for ten to fifteen minutes to retrieve the children's gifts from Santa Claus. When Johnathan returned, he "walked in the door with the gifts in [his] hand, and the first thing that made [him] wonder was why the lights were out." Johnathan turned the lights on and began wrapping gifts. Meanwhile Defendant sat "there, passing out in the chair." Johnathan eventually convinced Defendant to go to bed. Immediately after Defendant went to bed, Johnathan heard Katrina start to "cry." Johnathan "walked . . . [to] Mom and [Defendant's] door, and [] asked her what was wrong." Katrina told Johnathan, "I need to talk to Mommy[;] I want to talk to Mommy." Johnathan replied, "Okay, Katrina Baby. What's wrong? You know you can tell me. What's wrong?" Katrina then told Johnathan, "[Defendant] touched me."
Unsure of exactly what to do, Johnathan first tucked Katrina into his own bed so that Katrina would not have to reenter the room in which Defendant and their mother were sleeping. After attempting to calm Katrina, Johnathan woke up their mother and said, "Mom, there's a problem. There's something wrong with Katrina." Johnathan then asked his mother to come out of the bedroom where Defendant remained asleep so that they could talk. Johnathan told his mother that "Katrina said that [Defendant] touched her." At that point, Johnathan and his mother adopted a plan "to get [Defendant] out of the house." When Katrina's mother woke Defendant, Johnathan overheard Defendant say, "I didn't do it." Even so, Katrina's mother demanded that Defendant "get out."
Katrina's mother testified that, after being awakened by Johnathan, she tried to wake Defendant, but he was unresponsive. The mother explained, "I finally said, `Get up and get out of my house, and do it quietly. Do not wake up any of these children[,] [a]nd I will not call the cops right yet.'" The mother was concerned about "ruining Christmas for all these children." As soon as the mother mentioned "cops" to Defendant, "he [sat] straight up and said, `What? I didn't touch her.'" Defendant said this without any "accusation" by the mother that Defendant touched anyone.
Elizabeth Goodman, a sexual-assault nurse examiner at Wake Forest University Baptist Medical Center, testified that she examined Katrina and that, "[u]pon my visual examination, I saw a dark red color to [the victim's] hymen . . . on the edge of the tissue" and "redness between the introitus and the urethral meatus, and on the internal aspect of the labia minora." Ms. Goodman also noted two "little red irregular circular areas. . . . inside [the victim's vagina] on the posterior wall." Cynthia Stewart, a social worker at North Carolina Baptist Hospital, also stated that Katrina showed "characteristics" that were "consistent with sexual abuse."
Dr. Sara Hendricks Sinal, a physician employed by the Wake Forest University School of Medicine and Brenner Children's Hospital, reviewed photographs taken at the time of Katrina's initial visit to the emergency room and stated that "[t]here was an irritated area of her hymen on the right side, and contiguous to that the area in the . . . floor of the vagina[] was irritated." However, Dr. Sinal did not examine Katrina until 4 January 2008, ten days after the alleged sexual abuse. By that time, the irritation and redness had "disappeared." According to Dr. Sinal, "abrasions and redness will often disappear even within 24 hours;" however, a "tear to the hymen" would "take longer to heal."
Defendant testified that, on 24 December 2007, he started drinking at 6:30 p.m. and consumed beer, vodka, and Crown Royal over the course of the evening. Katrina's mother went to bed at about midnight. After Johnathan went to get the children's presents, Defendant remained at the kitchen table, drinking and smoking a cigarette. He was returning from the bathroom when Johnathan came back with the presents. After drinking for a while longer, Defendant eventually passed out on the bed.
According to Defendant, Katrina had gotten up to go to the bathroom while he and Johnathan were sitting in the kitchen and did not seem upset. As he was getting ready to go to bed later that evening, Defendant saw Katrina crying beside her mother. When he asked her what was wrong, she mumbled something, so he told her to get in bed with her mother and he returned to the kitchen. A few minutes later, he went to bed. Although he thought that Katrina was still in bed with her mother, he did not go over to that side of the bed and did not look at her.
Defendant first learned that Katrina claimed that he had touched her when Katrina's mother woke him the following morning and accused him of molesting her. He immediately denied the accusation and told Katrina's mother that he would "fight this."
Defendant denied having ever touched Katrina inappropriately. He testified that he had taken Katrina and the other children to the airport, but said that nothing inappropriate had happened while they were there. He admitted that Katrina had caught him masturbating while watching a pornographic video on one occasion and that she had seen Defendant and her mother having sex, including oral sex, a couple of times. On each occasion, the activity had stopped as soon as Defendant became aware of Katrina's presence.
B. Procedural History
On 28 December 2007, a Warrant for Arrest was issued charging Defendant with first degree sex offense and taking indecent liberties with a minor. On 15 January 2008, an additional Warrant for Arrest was issued charging Defendant with first degree rape and taking indecent liberties with a minor. On 14 April 2008, the Forsyth County grand jury returned bills of indictment charging Defendant with first degree sex offense, two counts of taking indecent liberties with a minor, and first degree rape. On 17 April 2008, the State notified Defendant of its intent to attempt to prove as an aggravating factor that Defendant "took advantage of a position of trust or confidence to commit the offense."
The cases against Defendant came on for trial before the trial court and a jury at the 2 March 2009 criminal session of the Forsyth County Superior Court. The trial court dismissed the charge of first degree sex offense for insufficiency of the evidence and submitted the lesser included offense of attempted first degree sex offense to the jury instead. On 6 March 2009, the jury convicted Defendant of attempted first degree sexual offense, first degree rape, and two counts of taking indecent liberties with a minor. The jury found as an aggravating factor that Defendant "took advantage of a position of trust or confidence, including a domestic relationship, to commit the offense," and the Court found as mitigating factors that Defendant "had a support system in the community" and that Defendant "had a positive employment history or is gainfully employed." The trial court found that the mitigating circumstances outweighed the aggravating circumstance, determined that Defendant had one prior record point and should be sentenced as a Level II offender, arrested judgment in connection with one of Defendant's two indecent liberties convictions, consolidated the remaining indecent liberties conviction with Defendant's first degree rape conviction for judgment, and sentenced Defendant to a minimum term of 204 months and a maximum term of 254 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for attempted first degree sex offense and to a consecutive minimum term of 204 months and a maximum term of 254 months imprisonment in the custody of the North Carolina Department of Correction based upon his convictions for first degree rape and taking indecent liberties with a minor. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis A. Witness Coaching and Confrontation Rights
On appeal, Defendant first contends that the trial court "prejudiced [his] confrontation rights" by not taking "remedial measures to address the impropriety" stemming from possible witness coaching of Katrina as she exited the courtroom on two different occasions during her testimony to use the restroom. We disagree.
According to Defendant, his confrontation rights were violated when the trial court suspended the proceedings on three different occasions during the course of Katrina's direct examination when she requested to go to the restroom. On the first such occasion, the following events occurred:
Q: And where were you when he touched your number one?
A: Either in — could I — could I tell you something? I've got to use the bathroom now.
Q: Your Honor, she needs to use the bathroom. May we take a brief recess?
The Court: All right. We'll take a short recess. . . .
Def. Counsel: May I — I'm just concerned. I don't think the witness is supposed to talk with anybody about her testimony in the midst of it.
The Court: Who was that that was with her?
Prosecutor:The aunt. The aunt that went out with her. . . . She's not a witness, Your Honor.
The Court: Well, we need to be sure that she's not coaching. There's a pending question, so she needs not to be coaching her. So how about going out there and making sure that's not happening. . . .
The Court: There's a pending question. You may ask it again.
Q: [Katrina], I asked you where were you when [Defendant] touched you.
A: Uh-huh.
Q: Where were you?
A: Either — either my cubby or — or I think in the second bathroom.
In the second instance, the following transpired:
Q: What did it feel like?
A: Like right here where he was trying to touch me, where my diaper was, it felt a little — a little smooth, but — because right there — I have a lot of soft skin right there.
Q: You have a lot of what?
A: Soft skin.
Q: Okay. It felt smooth?
A: I got to use the bathroom again. I think I drunk too much water.
The Court: All right. We'll take a 15-minute recess. . . . There'll be no discussion about testimony during the recess. . . . All right. Recess 15 minutes.
Def. Counsel: Excuse me, Your Honor. Could we just make sure that the lady does not speak to her or coach her?
Prosecutor: Your Honor, I told her just now
Def. Counsel: Okay. Okay.
Prosecutor: "When you take her outside, do not talk about the case." I don't know what else I can do. She's nine. She can't roam this courthouse by herself.
Def. Counsel: No. I just wanted to make sure somebody didn't —
. . . .
The Court: All right.
Q: [Katrina], I was asking what did it feel like when he touched you, in your room.
A: I told you that it felt a little bit soft.
Q: Okay. And where on your body did it feel soft?
A: Where? Where my diaper was. . . .
On the third occasion when Katrina was allowed to exit the courtroom to use the restroom, the following colloquy took place:
A: Can I have another bathroom break?
Q: See if you can hold it just a few more minutes.
The Court: About 10 minutes.
A: Yes, ma'am. . . .
Katrina continued to testify for approximately ten more minutes, at which point she said, "Miss Pansy, I can't hold it." At that point, the trial court recessed for the day.
On cross-examination, defendant's trial counsel asked Katrina a series of questions about the number of people that she had discussed the case with:
Q: You didn't remember all these things that happened to you long ago until after you have talked to a lot of different people did you?
A: Do what? I'm not understanding the question.
Q: Okay. It was kind of confusing. Let me ask it — you didn't tell anybody about these earlier things that happened to you with [Defendant] until after you had talked to a lot of counselors and nurses and people, did you?
A: I only talked to one counselor.
. . . .
Q: You talked to a nurse, Ms. Goodman at the hospital?
A: I don't remember.
Q: You talked to Ms. Stewart, Miss Cindy?
A: Yeah, I remember her.
Q: And you liked her.
A: Uh-huh.
Q: You talked to her several times, didn't you?
A: Uh-huh.
Q: And you talked to Dr. Sinal? Did you talk to Dr. Sara Sinal?
A: I don't know.
Q: And you talked to Detective Kelly Wilkinson right here? Did you talk to him?
A: Kelly — Oh.
Q: This man sitting right beside Ms. Glanton, you talked to him?
A: Uh-huh.
Q: And you talked to Ms. Glanton? A: Uh-huh.
Q: You talked to your aunt?
A: Uh-huh.
Although Defendant's trial counsel established that Katrina had talked to her aunt about her accusations against Defendant at some point, he never asked Katrina whether she talked to her aunt about the substance of her testimony during her visits to the bathroom during her direct examination. Defendant's trial counsel did, however, attempt to question Katrina about the extent to which her trial testimony was affected by signs of approval from those involved in the investigation of the allegations that she had made against Defendant:
Q: And when you talked and told your story to them, they smiled and said, "That's good." Did they say that?
A: They looked upset.
Q: They were upset?
A: Uh-huh because they didn't like what happened.
Q: Did they show that they were happy that you were talking about it?
A: Not really understanding.
The trial court never precluded Defendant's trial counsel from questioning Defendant about any issue related to any coaching which Katrina may have received from anyone.
According to Defendant, the trial court should have "directed a female bailiff to accompany [Katrina] and her aunt to the bathroom and back to the courtroom" and that the trial court's "failure to take such a simple action to safeguard against even the appearance of the possibility that [Katrina] could have been coached" impaired his confrontation rights under U.S. Const., amend. VI and XIV and N.C. Const., art. I, § 23. Given the trial court's failure to adopt this expedient, Defendant contends that there is no assurance that improper communications did not occur. For that reason, Defendant contends that he is entitled to a new trial.
The Sixth Amendment to the United States Constitution provides, in pertinent part, that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . [t]o be confronted with the witnesses against him. . . ." See also N.C. Const., art. I, § 23 (stating that "[i]n all criminal prosecutions, every person charged with crime has the right . . . to confront the accusers and witnesses with other testimony. . . ."). In arguing that the Confrontation Clause has some bearing on the issue of witness coaching, Defendant cites United States v. Hamilton, 107 F.3d 499, 503, cert. denied, 521 U.S. 1127, 138 L. Ed. 2d 1028 (7th Cir. 1997), in which the United States Court of Appeals for the Seventh Circuit stated that:
The Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, an accused has the right to be "confronted with the witnesses against him." The Supreme Court has interpreted the clause to guarantee a defendant a face-to-face meeting with witnesses appearing before the trier of fact. Several purposes are served by requiring face-to-face, in-court testimony. For one thing, face-to-face confrontation ensures the reliability of the evidence by allowing the trier of fact to observe the demeanor, nervousness, expressions, and other body language of the witness. In-court testimony also impresses upon the witness the seriousness of the matter and ensures that statements are given under oath. Personal appearance also helps assure the identity of the witness, that the witness is not being coached or influenced during testimony, and that the witness is not improperly referring to documents.
(internal citations omitted). The North Carolina courts have not, however, taken a confrontation-based approach to witness coaching concerns.
"In child sexual abuse cases . . . the victim's credibility is critical." State v. Baymon, 336 N.C. 748, 757, 446 S.E.2d 1, 5 (1994) (holding that the defendant's cross-examination of doctor, which suggested that the sexual assault victim had been coached in her testimony by social workers and family, rendered testimony on redirect examination to the effect that doctor did not believe victim had been coached as to what to say admissible).
When a witness' testimony appears to have been memorized or rehearsed or it appears that the witness has testified using the attorney's words rather than his own or has been improperly coached, then these are matters to be explored on cross-examination, and the weight to be given the witness' testimony is for the jury.
State v. McCormick, 298 N.C. 788, 792, 259 S.E.2d 880, 882-83 (1979). The Court explained, "[t]he sanctions of the Code of Professional Responsibility are there for the attorney who goes beyond preparing a witness to testify to that about which the witness has knowledge and instead procures false or perjured testimony." Id. at 792, 259 S.E.2d at 883. "Additionally, the presiding judge is given large discretionary power as to the conduct of a trial." State v. Waddell, 351 N.C. 413, 423, 527 S.E.2d at 651 (2000) (citing State v. Young, 312 N.C. 669, 678, 325 S.E.2d 181, 187 (1985); State v. Rhodes, 290 N.C. 16, 23, 224 S.E.2d 631, 635 (1976)). "Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within the trial court's discretion. . . ." Waddell, 351 N.C. at 423, 527 S.E.2d at 651 (citing Young, 312 N.C. at 678, 325 S.E.2d at 187). As a result, the prevailing North Carolina approach to witness coaching issues has been to leave responsibility for addressing such concerns to the sound discretion of the trial court.
According to well-established principles of North Carolina criminal jurisprudence, when a defendant fails to object to the alleged infringement of his confrontation rights at trial, our review on appeal is limited to a consideration of whether the trial court committed plain error. State v. Raines, 362 N.C. 1, 16, 653 S.E.2d 126, 136 (2007), cert. denied, ___ U.S. ___, 174 L. Ed. 2d 601 (2009) (stating that "[b]ecause defendant failed to object on these grounds at trial, we consider only whether the trial court committed plain error") (citing N.C. R. App. P. 10(c)(4)). In this instance, Defendant did not object to Katrina's bathroom visits at trial on the grounds that they violated his right to confrontation. As a result, our review of Defendant's contention is limited to whether the trial court's handling of Katrina's bathroom visits constituted plain error.
The most serious problem with Defendant's challenge to the trial court's handling of the issues arising from Katrina's bathroom visits is that there is no evidence that any impermissible coaching occurred. Simply put, Defendant's contention appears to rest upon the mere fact that Katrina went to the restroom with her aunt two times during her examination and asked to go a third time. This set of facts, without more, does not suffice to establish that Katrina's aunt engaged in impermissible coaching.
On the other hand, there is considerable circumstantial evidence that Katrina was not coached during her visits to the restroom. After both restroom visits, Katrina either began to answer or answered in full the question posed to her before her restroom break using the same basic response that she had used before leaving the courtroom.
Before her first visit to the restroom, when asked, "where were you when he touched your number one," Katrina responded, "[e]ither in — could I — could I tell you something? I've got to use the bathroom now." After she returned to the witness stand and had been asked the same question that had been posed to her before the bathroom break, Katrina responded, "[e]ither — either my cubby or — or I think in the second bathroom." Thus, both before and after her visit to the restroom, Katrina began her answer with the word, "either," which tends to show that Katrina was uncertain about the place in the house at which she was located when Defendant touched her, a fact which suggests that no coaching occurred while Katrina was outside the courtroom. Had Katrina suddenly become certain of her location when Defendant touched her as the result of a conversation with her aunt, we might have reason to suspect that something untoward occurred. However, the fact that Katrina was uncertain about the location at which Defendant touched her both before and after her visit to the restroom suggests that nothing of the sort happened in this instance.
In addition, immediately prior to Katrina's second restroom break, the prosecutor asked, "What did it feel like?" Katrina responded, "a little smooth," explaining that she made this statement because "I have a lot of soft skin right there." After Katrina returned from the restroom, she stated, in response to the same question, that "I told you that it felt a little bit soft." Once again, we might have become suspicious that Katrina had been coached if she had changed her answer after the restroom break. The fact that Katrina gave the same answer to the same question both before leaving the courtroom to visit the restroom and after returning to the courtroom suggests, although it certainly does not establish, that Katrina was not subject to impermissible coaching by her aunt during this break in the proceedings. As a result, once again, the cold record tends to show the absence, not the presence, of impermissible coaching.
Furthermore, the record does not contain any evidence that Katrina's testimony was rehearsed or that the testimony that she gave after returning from the restroom consisted of hearsay statements. See N.C. Gen. Stat. § 8C-1, Rule 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"). The Supreme Court has held that, "[w]hen a witness' testimony appears to have been memorized or rehearsed or it appears that the witness has testified using the attorney's words rather than his own or has been improperly coached, then these are matters to be explored on cross-examination, and the weight to be given the witness' testimony is for the jury." McCormick, 298 N.C. at 792, 259 S.E.2d at 882-83. In addition, "the admission of nonhearsay raises no Confrontation Clause concerns." State v. Alexander, 177 N.C. App. 281, 285, 628 S.E.2d 434, 436 (2006), disc. review denied and appeal dismissed, 361 N.C. 358, 644 S.E.2d 357-58 (2007). As a result, although we acknowledge the critical nature of the victim's credibility in child sexual abuse cases, Baymon, 336 N.C. at 757, 446 S.E.2d at 5 (1994), the fact that the testimony that Katrina gave after returning from her restroom breaks did not appear to have been rehearsed or memorized and did not consist of hearsay statements provides further indication that the events of which Defendant complains did not rise to the level of a Confrontation Clause violation.
Finally, Defendant has not shown that the steps that were taken by the trial court were inadequate to address any risk of impropriety that may have existed. As soon as Defendant's trial counsel raised concerns about the possibility that Katrina's aunt might coach her during the first restroom break, the trial court instructed the prosecutor to inform the aunt not to discuss the case with Katrina. At the time of the second restroom break, the prosecutor indicated that she had taken the necessary steps to prevent impermissible coaching as soon as Defendant's trial counsel raised the issue with the trial court. The trial court did not limit the ability of Defendant's trial counsel to cross-examine any of the State's witnesses about the issue of impermissible coaching in any way. Defendant's trial counsel never contended that the steps taken by the trial court to address the issue of impermissible coaching were inadequate or asked the trial court to take the additional steps that his appellate counsel contends were necessary to avoid a violation of the Confrontation Clause. As a result, we are unable to say that the trial court abused its discretion by taking the measures that it actually took to address Defendant's concerns about impermissible coaching.
Thus, for the reasons set forth above, Defendant has not demonstrated that anything that implicated the concerns addressed by the Confrontation Clause occurred during Katrina's visits to the bathroom with her aunt. Since the trial court took action to address the possibility that Katrina's aunt might engage in impermissible coaching and since Defendant had ample opportunity to cross-examine Katrina regarding the possibility that her testimony had been affected by such conduct on the part of her aunt, we conclude that no violation of Defendant's confrontation rights occurred and that the trial court did not commit error, plain or otherwise, by the manner in which it supervised the restroom breaks which Katrina took during her direct examination. As a result, Defendant is not entitled to appellate relief as a result of the events that occurred at the time of Katrina's restroom breaks.
B. Motion for Mistrial
Secondly, Defendant contends that the trial court erred by denying his motion for a mistrial stemming from several instances of allegedly noncorroborative testimony by Officer S.W. Tollie of the Winston-Salem Police Department. Once again, we disagree.
In Defendant's brief on appeal, Defendant references objections made to the testimony of Officers S.B. Everhart and S.W. Tollie on the grounds that the testimony was not corroborative. Because Defendant's mistrial motion was based only on two objections made to Officer Tollie's testimony, any objection to the testimony of Officer Everhart has not been properly preserved for purposes of appellate review.
N.C. Gen. Stat. § 15A-1061 provides that:
Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial may not be declared as to a defendant who does not make or join in the motion.
N.C. Gen. Stat. § 15A-1061(c). "It is well established that the decision as to whether substantial and irreparable prejudice has occurred lies within the sound discretion of the trial judge and that his decision will not be disturbed on appeal absent a showing of abuse of discretion." State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citing State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991) (holding that the trial court did not abuse its discretion in denying the defendant's motion for mistrial based on the admission of allegedly noncorroborative statements)). "The decision of the trial judge is entitled to great deference since he is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable." Williamson, 333 N.C. at 138, 423 S.E.2d at 772.
At trial, Officer Tollie testified, over Defendant's objection, that:
[Katrina's mother] advised me that she had brought her daughter, [Katrina], to the hospital after [Katrina] had come to her early in the morning hours and told her that she had been inappropriately touched in her private area. . . . While I was speaking with [Katrina], her mom was present. . . . [Katrina] told me that she had been touched in her private area[.]
After Officer Tollie's testimony, Defense counsel made a motion for a mistrial "based on the two objections I made with Officer Tollie's testimony." Defense counsel explained:
[Officer Tollie] testified at one point that [Katrina] said, "He touched me in my private parts." I objected. The court overruled. He also testified [Katrina's mother] said he inappropriately touched her in her private parts. I objected. That was overruled. My point is this: The testimony of the child was that he did not touch her in her private parts. He came within one inch of her private parts. This might not . . . sound like a big deal because it's close, but the fact is it's probably the difference between first-degree sex offense and indecent liberties. And I contend that to say in such a close situation that this is corroborative — when it could make the difference between first-degree and indecent liberties, I contend the court erred and that the jury is now permanently and irrevocably — has heard it from a police officer, that — which basically tends to change what [Katrina] actually testified to. I contend that the case is — we've been prejudiced at this point and the court should grant a mistrial.
The court denied Defendant's motion and stated that the jury would be instructed at the appropriate time that "they are not to consider that evidence as evidence of the truth of what was said at the earlier time, but only for the purpose of either impeaching or corroborating testimony."
Importantly, Officer Tollie testified that Katrina was touched "in her private area." Officer Tollie did not specify whether Katrina was touched in her vagina, her anus, or in the vicinity of one of those organs. Defendant misconstrues Officer Tollie's testimony on appeal, stating that "Sgt. Tollie reported . . . that he touched her `in' her private," which Defendant alleges is noncorroborative because Katrina testified that Defendant did not penetrate her vagina on 24 December 2007. Even though Katrina testified that Defendant did not penetrate her on 24 December 2007, Katrina testified that on occasions other than the night of 24 December 2007, Defendant did, in fact, touch her in her vagina and anus, once attempting to penetrate both her vagina and anus with his penis. In addition, Katrina certainly testified that Defendant touched the area around her vagina on 24 December 2007. Because Officer Tollie's testimony regarding where Defendant touched Katrina on 24 December 2007 was not specific — the phrase, touched "in her private area" is not completely inconsistent with, and may, in fact, be construed to be corroborative of, Katrina's testimony — and because the trial court gave the jury an instruction to consider Officer Tollie's testimony not "as evidence of the truth of what was said at the earlier time, but only for the purpose of either impeaching or corroborating testimony," we conclude that the trial court did not abuse its discretion in its determination that substantial and irreparable prejudice did not occur with the admission of Officer Tollie's testimony.
As a result, for the foregoing reasons, we find that Defendant had a fair trial that was free from prejudicial error. For that reason, we conclude that Defendant is not entitled to any relief on appeal.
NO ERROR.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).