Opinion
No. COA15–390.
01-19-2016
STATE of North Carolina v. Gary Roger THOMSON, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Anita LeVeaux, for the State. Glover & Petersen, P.A., by James R. Glover, for Defendant–Appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Anita LeVeaux, for the State.
Glover & Petersen, P.A., by James R. Glover, for Defendant–Appellant.
Opinion
Appeal by Defendant from judgments entered 15 July 2014 by Judge William H. Coward in Haywood County Superior Court. Heard in the Court of Appeals 7 October 2015. Haywood County, Nos. 13 CRS 502–07.
HUNTER, JR., Robert N., Judge.
Gary Thomson (“Defendant”) appeals following jury verdicts convicting him of two counts of first degree sexual offense, two counts of sexual activity by a substitute parent, and two counts of indecent liberties with a child. The court consolidated the charges into two judgments, imposing concurrent sentences of 300 to 372 months imprisonment. Defendant contends the trial court erred by disallowing cross-examination of the victim concerning two instances of specific conduct of untruthfulness under N.C. Gen.Stat. § 8C–1, Rule 608(b) (“Rule 608(b)”). We hold the trial court was within the bounds of its discretion and committed no error.
I. Factual and Procedural History
On 1 July 2013, a Haywood County grand jury returned six indictments alleging Defendant committed sexual offenses against “Mary,” a minor child. Three indictments alleged on 28 May 2013 Defendant engaged in a statutory sexual offense, sexual activity by a substitute parent, and indecent liberties with Mary. Three more indictments alleged Defendant committed the same offenses against Mary on 30 May 2013. The case was called for trial 7 July 2014. The State's evidence tended to show the following in relevant part.
The minor victim is referred to as “Mary.” Mary turned twelve years old one month before the offenses, and turned thirteen years old prior to trial.
In May 2013, Mary lived in a one bedroom, one bathroom, Haywood County apartment with her mother (“Bea”), younger sister, and Defendant. At the time, Defendant was 67 years old and Mary was 12 years old. Defendant is not Mary's biological father, but he dated Bea for six years and Mary considered him to be a father.
Consistent with Defendant's and State's briefs, Mary's mother is referred to as “Bea.”
On 31 May 2013, during the last week of seventh grade, Mary began acting “weird.” Mary told her close friend that Defendant sexually touched her on two occasions Mary begged her friend not to say anything, and the friend told her to tell a teacher, but Mary was “too scared.” The friend took Mary to a teacher and Mary told the teacher about Defendant's actions. Then, the teacher told Mary she needed to talk to the school counselor. Mary told her friend, the teacher, and the counselor, the following consistent story: Around bedtime on 28 May 2013 and 30 May 2013, Defendant told Mary to come sit on his lap, he fondled her breasts, put his hand down her pants, and stuck his finger into her vagina. After talking to the school counselor, Mary was allowed to leave school early and encouraged to tell Bea about Defendant's actions. Although she was afraid Bea would not believe her, Mary told Bea about the offenses. That afternoon Mary, her sister, and Bea went to the library. Mary met a police officer and social worker at the library and told them about Defendant's actions. Afterwards, Mary was moved to a new home.
At trial, defense counsel cross-examined Mary about getting in trouble at school. The state objected and asked to be heard on voir dire. Outside the presence of the jury, defense counsel attempted to lay “a foundation for known specific instances involving moral turpitude” under Rule 608(b) of the North Carolina Rules of Evidence. The court heard evidence about two instances when Mary was “nine or ten” years old.
In the first instance, Mary took a classmate's calculator from school and told Defendant and Bea somebody gave it to her. In the second instance, Mary took money from her sister's piggy bank, and told Defendant and Bea she did not take it. Mary eventually told the truth in both instances, and corrected her misstatements to Defendant and Bea.
Defense counsel argued the incidents of “theft” were in “the relative, recent past,” although “a year seems like an eternity [at Mary's age].” The trial court reviewed Rules 608(b) and 403 of the North Carolina Rules of Evidence, and found the following:
[T]he relevancy of the[ ] acts to truthfulness is tenuous .... the acts were remote with respect to th[e] trial date.... [T]he inquiry will lead to time consuming and distracting explanations on redirect or recross ... [which] could lead to unfair humiliation of [Mary].... [T]he questions will create undue prejudice to the State. Therefore, in my discretion, I'm going to rule that these matters will not be inquired about any further, and sustain the [State's] objection.
Trial continued and Defendant elected to testify in his own defense. Defendant testified about his prior written admission and claimed he authored it falsely because he “wanted ... to protect Bea, [Mary, and Mary's sister].” He admitted Mary sat on his lap, and he hugged and kissed her on the nights in question, but denied touching her inappropriately. He testified he “may've [sic] had my hand on her breast, but she had a ... top on.”
After deliberating fifty minutes, the jury returned unanimous guilty verdicts on all six charges. The court consolidated the charges into two judgments, and imposed two concurrent sentences of 300 to 372 months imprisonment. Defendant timely entered his notice of appeal.
II. Standard of Review
“Rule 608(b) addresses the admissibility of specific instances of conduct (as opposed to opinion or reputation evidence) only in the very narrow instance where (1) the purpose of producing the evidence is to impeach or enhance credibility by proving that the witness' conduct indicates his character for truthfulness or untruthfulness; and (2) the conduct in question is in fact probative of truthfulness or untruthfulness and is not too remote in time; and (3) the conduct in question did not result in a conviction; and (4) the inquiry into the conduct takes place during cross-examination. If the proffered evidence meets these four enumerated prerequisites, before admitting the evidence the trial judge must determine, in his discretion, pursuant to Rule 403, that the probative value of the evidence is not outweighed by the risk of unfair prejudice, confusion of issues, or misleading the jury, and that the questioning will not harass or unduly embarrass the witness. Even if the trial judge allows the inquiry on cross-examination, extrinsic evidence of the conduct is not admissible.” State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89–90 (1986) (emphasis in original).
“We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion. An abuse of discretion results when ‘the 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. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008) (citations omitted).
III. Analysis
Defendant contends “[t]he trial court erred by barring ... cross-examination of the alleged victim about two prior incidents when she falsely denied acts of larceny,” which deprived Defendant “of his basic state and federal constitutional rights to due process and a fair trial.” We disagree.
The Sixth Amendment of the United States Constitution, made applicable to state criminal proceedings by Pointer v. Texas, 380 U.S. 400 (1965), guarantees the right of the accused to be confronted with the witnesses against him. In re Oliver, 159 N.C.App. 451, 454, 584 S.E.2d 86, 87 (2003) (citation and quotation marks omitted). Similarly, N.C. Const. art. I, § 23 protects a defendant's right to confront his accusers and witnesses with other testimony. “However, a defendant's right to cross-examination is subject to the sound discretion of the court and is therefore not absolute.” In re Oliver, 159 N.C.App. at 454, 584 S.E.2d at 87 (citations omitted). In some instances, the right to cross-examination must “bow to accommodate other legitimate interests in the criminal trial process ... such as the rules of evidence.” Id. (citations and quotation marks omitted).
Rule 608(b) provides the following in relevant part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
N.C. Gen.Stat. § 8C–1, Rule 608(b). “[T]he only purpose for which this evidence is sought to be admitted is to impeach or to bolster the credibility of a witness, the only character trait relevant to the issue of credibility is veracity or the lack of it.” Morgan, 315 N.C. at 634, 340 S.E.2d at 90. The prior conduct asked about must be indicative of the witness's character for truthfulness or untruthfulness. Id. at 634–35, 340 S.E.2d at 90. “Among the types of conduct most widely accepted as falling into this category are use of false identity, making false statements on affidavits, applications or government forms), giving false testimony, attempting to corrupt or cheat others, and attempting to deceive or defraud others.” Id. at 635, 340 S.E.2d at 90 (citation omitted). The trial court is granted broad discretion in supervising the examination of minors. Not all minor misconduct is evidence of untruthfulness. Here, the court individually did not conclude the gravity of the theft of coin from a piggy bank and a calculator would assist the jury in evaluating the truthfulness of the witness. This assessment is the product of a reasoned decision.
We have reviewed similarly sensitive testimony in In re Oliver. In In re Oliver, the fifteen year old defendant was adjudicated for forcibly sticking his penis in his classmate's mouth, a thirteen year old girl who rode home on the school bus with him. In re Oliver, 159 N.C.App. at 452–53, 584 S.E.2d at 86. During trial the victim said the defendant only “tried” to violate her. Id. Another student testified she witnessed more than an attempt on the bus, and the defendant sought to cross-examine her about her school disciplinary record. Id. at 453, 584 S.E.2d at 86–87. We affirmed the trial court's decision disallowing the cross-examination, noting “defendant failed to overcome the confidentiality concerns raised ... with respect to [the witness's] official student records.” Id. at 455, 584 S.E.2d at 88. We reviewed the disciplinary record ourselves and concluded it was “devoid of any relevant information that would weigh on” the witness' credibility. Id. at 456, 584 S.E.2d at 88.
“While it is axiomatic that the cross-examiner should be allowed wide latitude, the trial judge has discretion to ban ... inquiry into matters of tenuous relevance.” State v. Hatcher, 136 N.C.App. 524, 526, 524 S.E.2d 815, 816 (2000) (citation omitted). In the case sub judice, we agree with the trial court that the calculator and piggy bank testimony contain “tenuous” relevance, if any. In both instances, Mary told Bea and Defendant the truth, albeit after some misstatements. Further, “instances of alleged prior [larceny] and unrelated acts of larceny ... without more, are not necessarily probative” of a witness' “propensity for truthfulness or untruthfulness under the standard imposed by Rule 608(b).” State v. Bell, 338 N.C. 363, 382–83, 450 S.E.2d 710, 721 (1994). The trial court properly considered the remoteness of the acts in time, whether the cross-examination would lead to time-consuming and distracting explanations, whether Mary would be unfairly humiliated, and whether the State would be unduly prejudiced as the party who called Mary as a witness. N.C. Gen.Stat. § 8C–1, Rule 403; see also State v. Mangum, –––N.C.App. ––––, ––––, 773 S.E.2d 555, 562 (2015). Therefore, we hold the trial court did not commit error.
IV. Conclusion
For the foregoing reasons we hold the trial court did not commit error.
NO ERROR.
Judges GEER and DILLON concur.
Report per Rule 30(e).