Opinion
No. 05-1229.
Filed April 4, 2006.
Durham County No. 04 CRS 43059.
Appeal by defendant from judgment entered 19 April 2005 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 9 March 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Elizabeth N. Strickland, for the State. Peter Wood for defendant.
Defendant (Kenneth Lamont Taylor) appeals from a judgment entered upon his conviction for taking indecent liberties with a child. We find no error.
The State's evidence at trial tended to show the following: L.D., the child and complaining witness, testified that some time in February 2004, when she was 14 years old, the defendant entered the Taylor family kitchen and touched her breasts and rubbed her vaginal area. Shortly thereafter, the defendant gave L.D. a hand-written letter. The letter described explicit references of sexual feelings that defendant had for L.D. In particular, the letter acknowledged that the defendant had dreams about L.D. and referenced a time when the defendant was "feeling all over her."
On cross-examination, L.D. acknowledged making pre-trial statements that were, in part, inconsistent with her trial testimony. For example, during a 1 March 2004 taped interview at the Public Defenders office, L.D. stated that she had told a sheriff's deputy and a social services employee that defendant only touched her once on her buttocks over her clothes in the family kitchen. In addition, during a later visit to the Public Defenders' office on 21 May 2004, L.D. told an assistant public defender that the defendant never touched her inappropriately and that she did not want him to go to prison.
The testimony of two Durham County Sheriff's deputies largely corroborated L.D.'s trial testimony. Deputy Gary Smith testified that L.D. told him that defendant had given her the letter. Sergeant William Oakley testified that L.D. told him that defendant rubbed her vaginal area and breasts in the kitchen. Sergeant Oakley also testified that when he showed the letter to defendant, defendant admitted that he wrote the letter and did some "inappropriate stuff."
Defendant was convicted of taking indecent liberties with a child and was sentenced to a prison term of 24-29 months. From this conviction and judgment defendant appeals, contending that the trial court erred by (1) granting the State's motion to prevent the defendant from cross-examining L.D. concerning inconsistent statements about an alleged pregnancy, and by (2) failing to grant the defendant's motion to dismiss the charge based upon insufficiency of the evidence.
In his first argument on appeal, defendant contends the trial court should have permitted his counsel to cross-examine L.D. concerning prior sexual activity that may have resulted in a pregnancy. In particular, defendant argues that L.D.'s inconsistent statements in this regard would have helped demonstrate that L.D. was not credible.
Here, defense counsel sought to question L.D. concerning an alleged pregnancy by an unidentified third party male. In regards to the alleged pregnancy, L.D. told the public defender's office that she was pregnant, but denied the pregnancy to the State prosecutor. Pursuant to Rule 412, the trial court granted the State's pre-trial motion in limine to prevent the defense from cross-examining L.D. concerning her prior sexual history and questions concerning whether she had changed her representations concerning the pregnancy.
It is a well-established principle that an accused is assured of the right to cross-examine adverse witnesses. State v. Newman, 308 N.C. 231, 254, 302 S.E.2d 174, 187 (1983). However, cross-examination concerning a victim's sexual history is limited by the Rape Shield Statute. See N.C. Gen. Stat. § 8C-1, Rule 412 (2005). Ultimately, the scope of cross-examination is within the sound discretion of the trial court, and its rulings thereon will not be disturbed absent a showing of abuse of discretion. State v. Hinson, 310 N.C. 245, 254, 311 S.E.2d 256, 263 (1984). An "[a]buse of discretion results where the [trial] court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). The defendant does not contend that any of the exceptions set forth in Rule 412 apply here. Rather, defendant argues generally that the cross-examination of L.D. concerning her inconsistent statements regarding her alleged pregnancy was necessary to impeach L.D.'s credibility.
In the instant case, L.D.'s inconsistent claims regarding an alleged pregnancy by an unidentified male announced fourteen months after defendant's alleged touching of L.D. was not closely related to L.D.'s account of the conduct for which defendant stood accused. In addition, defendant's own admissions mirrored L.D.'s testimony in many ways. We are unpersuaded that L.D.'s inconsistent statements related to her alleged pregnancy would have cast meaningful doubt on the credibility of L.D.'s testimony concerning the conduct for which defendant was tried, and we therefore conclude the trial court did not abuse its discretion in limiting the scope of defense counsel's cross-examination. This assignment of error is overruled.
In his second assignment of error, defendant contends the trial court erred by failing to dismiss the indecent liberties charge because no evidence of the his age was offered. We disagree. When ruling on a motion to dismiss, "the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E. 2d 920, 925 (1996).
Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002) (internal citations and quotation marks omitted). "[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both." State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (2005)
(quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981)).
N.C. Gen. Stat. § 14-202.1 (2005) provides in pertinent part:
(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.
Thus, the statute requires that an accused be at least 16 years of age and at least five years older than the child. In the instant case, Sergeant Oakley testified that the defendant was 26 years of age and was born on 20 March 1977. Consequently, we conclude that the evidence was sufficient to withstand defendant's motion to dismiss. This assignment of error is overruled.
We have evaluated defendant's remaining assignment of error and conclude it is without merit.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).