Opinion
No. COA10-808
Filed 15 February 2011 This case not for publication
Appeal by defendant from judgments entered 10 and 12 March 2010 by Judge Eric L. Levinson in Gaston County Superior Court. Heard in the Court of Appeals 15 December 2010.
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State. Ferguson Stein Chambers Gresham Sumter, by Jacob H. Sussman, for defendant-appellant.
Gaston County Nos. 09 CRS 054606-07.
William Howard Ward ("defendant") appeals judgments entered upon jury verdicts finding him guilty of two counts of indecent liberties with a child. We find no error.
I. BACKGROUND
On 28 March 2009, "Alice" was visiting her grandparents, "the Smiths," in Gaston County, North Carolina. Mr. Smith and defendant were brothers, and defendant lived across the street from the Smiths. At the time, defendant was 56 years old and Alice was less than 16 years old.
We use pseudonyms to protect the identity of the victim and for ease of reading.
Since the parties do not dispute that Alice was less than sixteen years of age at the time of the alleged offenses, we will not identify her age in this opinion in order to further protect her identity.
Defendant lived with his mother, who had recently died, and was disposing of many of his mother's items. On 28 March 2009, defendant invited Alice to come to his residence to see if she wanted any of the items. Although Mrs. Smith lived across the street, she drove Alice in a truck. Alice selected crafts and dolls, Mrs. Smith and Alice loaded the items into the truck, unloaded them at the Smiths' home, then returned to defendant's residence to retrieve more items. After Mrs. Smith and Alice loaded the truck the second time, Mrs. Smith told Alice to wait on defendant's porch while Mrs. Smith drove home to unload the items.
As Alice waited on defendant's porch, defendant asked her if she wanted to go inside the house to view more items. Alice agreed, entered the house, and defendant pushed her on the bed. When Alice asked defendant what he was doing, he told her they were wrestling, but Alice did not believe him. When defendant got on top of Alice, she attempted "to push him with all [her] might and it didn't work."
Defendant started "going up and down" on Alice's body and made "a huffing sound." Alice then kicked defendant. He stopped when he thought Mrs. Smith returned, but started again since she did not return. When defendant placed his hand inside Alice's shirt and rubbed her chest, she asked him what he was doing. He replied, "Oh, I'm sorry," but did not stop. Defendant then took Alice's hand and made her touch him by placing it on his pants below his belt, at "the private area." Mrs. Smith subsequently returned and took Alice back to the Smiths' home but left the truck at defendant's residence.
Within an hour after Mrs. Smith and Alice left defendant's mother's home, defendant brought a little red wooden box containing crafts to the Smiths' home because he thought Alice might like to have it. At that time, Mrs. Smith told defendant that Mr. Smith would finish getting the other items and the truck.
Later that evening, while Mrs. Smith fixed supper, Alice told the Smiths what happened between defendant and her. Mrs. Smith then went to Alice's home and asked her parents ("the Does") to come over to the Smiths' home. Ten minutes later, the Does arrived at the Smiths' home, and Alice told them what defendant had done.
Alice also told her parents about another incident. Several months prior to the 28 March 2009 incident, she and her sister, "Mary," were playing baseball in the Smiths' front yard when defendant came over from across the street. As Mary waited outside, Alice went inside the house to the basement to retrieve some baseball equipment when she encountered defendant. Defendant unzipped his pants, took Alice's hand, and rubbed it against his "private area." When Mary heard Alice call her name, Mary entered the basement and saw that defendant held Alice with his hands around her waist. She also saw defendant moving "the bottom half of his body" against Alice as she called for help. Mary then threw a baseball bat at defendant and said, "get away from her, you old man." After Alice told her parents about these incidents, Mr. Doe immediately contacted law enforcement.
Three law enforcement officers arrived at the Smiths' home to investigate the incidents and talked with Alice, Mary, and the Does. The officers asked Alice and Mrs. Smith to write separate reports of the incidents. Defendant was aware of the officers' visit to the Smiths' home because he could see them from the porch of his residence, which was located across the street from the Smiths' home.
Defendant was arrested and indicted on two counts of taking indecent liberties with a child. Defendant's case was heard before the 9 March 2010 Criminal Session of Gaston County Superior Court. On 10 March 2010, the jury returned verdicts finding defendant guilty on both counts. On the first count, the trial court sentenced defendant to a minimum term of 15 months to a maximum term of 18 months in the custody of the North Carolina Department of Correction ("DOC"). On the second count, the trial court sentenced defendant to a minimum term of 15 months to a maximum term of 18 months in the custody of the DOC, suspended the sentence, placed defendant on supervised probation, and ordered defendant to serve probation at the expiration of his active sentence. Defendant appeals.
II. MOTION TO DISMISS
Defendant argues that the trial court erred in denying his motion to dismiss. We disagree.
"We review the trial court's denial of a motion to dismiss de novo." State v. Sanders, ___ N.C. App. ___, ___, 701 S.E.2d 380, 382 (2010). "A defendant's motion to dismiss should be denied if `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.'" Id. at ___, 701 S.E.2d at 382-83 (quoting State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)). "Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion." State v. Hargrave, ___ N.C. App. ___, ___, 680 S.E.2d 254, 261 (2009). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom[.]" State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The elements of indecent liberties with a child are:
(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. Thaggard, 168 N.C. App. 263, 282, 608 S.E.2d 774, 786-87 (2005); N.C. Gen. Stat. § 14-202.1 (2009). "[S]exual gratification may be inferred from the evidence relating to the defendant's actions." State v. Ainsworth, 109 N.C. App. 136, 146, 426 S.E.2d 410, 416 (1993).
In the instant case, it is undisputed that at the time of the offenses, Alice was less than 16 years of age and defendant was 56 years of age, which is more than five years older than Alice. Viewed in the light most favorable to the State, the evidence tends to show that on 28 March 2009, defendant pushed Alice onto a bed, started "going up and down" on her body while making a "huffing" sound, and placed his hand inside her shirt and rubbed her chest while they were alone in defendant's house. Furthermore, defendant took Alice's hand and made her touch him by placing it on his pants below his belt, at "the private area."
On another occasion, in 2008, defendant hugged Alice, turned her around and pushed her against him while they were alone in the Smiths' basement. When Mary entered the basement, she saw that defendant held Alice with his hands around her waist and moved the bottom half of his body against her. When Alice called for help, Mary threw a baseball bat at defendant, saying, "Get away from her, you old man." The evidence, viewed in the light most favorable to the State, shows that defendant willfully took indecent liberties with Alice, and that sexual gratification may be inferred from the evidence of defendant's actions with Alice based on her testimony and the eyewitness testimony of Mary. Therefore, the State presented substantial evidence of each essential element of the offenses charged and that defendant was the perpetrator. The trial court properly denied defendant's motion to dismiss. Defendant's issue on appeal is overruled.
III. POLYGRAPH EVIDENCE
Defendant argues that the trial court erred by allowing the State to question him about his decision not to take a polygraph test both prior to and after his representation by counsel. We disagree.
Since defendant did not object to the testimony at issue, this Court reviews for plain error. State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983); see also N.C.R. App. P. 10(b)(2), 10(c)(4) (2009). Plain error applies only to jury instructions and evidentiary matters in criminal cases. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004). Plain error is "` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . grave error which amounts to a denial of a fundamental right . . . a miscarriage of justice or . . . the denial to appellant of a fair trial[.]'" Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis in original). "It is axiomatic that `[a] prerequisite to . . . engaging in a "plain error" analysis is the determination that the [action] complained of constitutes "error" at all.'" State v. Parks, 96 N.C. App. 589, 593, 386 S.E.2d 748, 751 (1989) (quoting State v. Johnson, 320 N.C. 746, 360 S.E.2d 676 (1987)).
Our Supreme Court has held that polygraph results are inadmissible in criminal trials. State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). However, "[i]t is clear that the law of this state does not mandate reversal upon the mere mention of a polygraph." State v. Moose, 115 N.C. App. 707, 709, 446 S.E.2d 112, 113 (1994) (citing State v. Willis, 109 N.C. App. 184, 426 S.E.2d 471, disc. review denied, 333 N.C. 795, 431 S.E.2d 29 (1993)).
In State v. Cannada, the defendant argued on appeal "that he was denied a fair trial by the trial court's admission of evidence that [he] refused to take a polygraph test." 119 N.C. App. 311, 313, 458 S.E.2d 268, 269 (1995). This Court disagreed. In Cannada, a law enforcement officer testified at trial that while the defendant was being questioned by officers, he stated that he would be willing to take a polygraph test. Id. at 313, 458 S.E.2d at 269. On cross-examination, the defendant asked the officer a series of questions pertaining to the defendant's cooperation with the authorities. Id. In particular, the defendant elicited testimony from the officer that the defendant signed a form indicating that the defendant was willing to take a polygraph test. Id. at 313-14, 458 S.E.2d at 269. In overruling defendant's objection to the polygraph evidence, this Court stated, "where one party introduces evidence as to a particular fact . . . the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially." Id. at 314, 458 S.E.2d at 269 (internal quotations and citations omitted.
In the instant case, defendant testified on direct as follows:
Q [defendant's counsel]: You went back the next day but you didn't speak with [law enforcement], and why was that?
A [defendant]: I talked to Detective Abernathy there. That's when — there was something about a lie detector test. They asked me if I would take a lie detector test and first I told them yes and then I called there that morning and asked him if he could stop the people from coming because my nerves was [sic] in a total wreck and I said I don't know how the lie detector test works and stuff and I said my nerves just can't take it and I said once I get a lawyer if they want me to take it I said fine, I would be more than welcome to — you know, to do it.
During cross-examination, the following exchange occurred:
Q [the State]: You say that Detective Abernathy asked you if you would take the lie detector test, the polygraph test?
A [defendant]: Yes, sir.
Q: And eventually after the other things you said that you told him that you would not consider taking it until after you had an attorney and take that attorney's advice; is that correct?
A: I told Detective Abernathy — they asked me if I would take a lie detector test and I said, well, sure, I have nothing to hide. But my nerves was [sic] all tore up from being charged with this and my mom just passing away and then I called him up the next morning and told them that — I says [sic], look, if you can stop those people from coming there, I am not going to take the lie detector test. I don't know how they work and once I get a lawyer, if they let me take it, if they wanted me to take it, I would take it. I said but right now I am not going to do it. My nerves is [sic] tore up too bad.
Q: Okay. After all that process, then, that day, did you ever contact the police department about taking the polygraph test after you got an attorney?
A: No, I didn't.
Therefore, defendant introduced evidence showing that (1) law enforcement officers asked him if he would take a polygraph examination, and (2) defendant would take it if advised by his attorney. Since defendant was the one who introduced evidence of these facts on direct examination, the State was entitled to introduce evidence to explain or rebut this evidence, even though such evidence would be incompetent if initially offered by the State, i.e., evidence that defendant refused to take a polygraph examination administered by law enforcement. On cross-examination, defendant testified that once he retained counsel, he never contacted law enforcement officers about taking the polygraph. Therefore, it was not error, much less plain error, for the trial court to allow the State to elicit such testimony from defendant on cross-examination. Defendant's issue on appeal is overruled.
IV. EVIDENCE
Defendant argues that the trial court erred first, by allowing evidence at trial that was inadmissible as evidence of "other crimes" or "bad acts," and second, by allowing the State to present out-of-court statements as "advance corroboration" when the evidence did not corroborate any subsequently given in-court testimony. We disagree, and address both of defendant's arguments.
"The decision to admit or exclude evidence is in the sound discretion of the trial court and is reviewed under an abuse of discretion standard." State v. Pulley, 180 N.C. App. 54, 66, 636 S.E.2d 231, 240 (2006) (citing State v. Smith, 99 N.C. App. 67, 71, 392 S.E.2d 642, 645 (1990)). "It must be shown that the ruling was so arbitrary that it could not have been the result of a reasoned decision." Id. (internal quotations and citation omitted).
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
N.C. Gen. Stat. § 15A-1443(a) (2009).
A. Rule 404(b)
N.C. Gen. Stat. § 8C-1, Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009) ("Rule 404(b)"). "[E]ven though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b) so long as it also `is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.'" State v. Bagley, 321 N.C. 201, 206, 362 S.E.2d 244, 247 (1987) (quoting State v. Morgan, 315 N.C. 626, 637, 340 S.E.2d 84, 91 (1986)), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
"In light of the perils inherent in introducing prior crimes under Rule 404(b), several constraints have been placed on the admission of such evidence. Our Rules of Evidence require that in order for the prior crime to be admissible, it must be relevant to the currently alleged crime." State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007) (citing N.C.G.S. § 8C-1, Rule 401 (2005)). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). "Evidence which is not relevant is not admissible." N.C. Gen. Stat. § 8C-1, Rule 402 (2009).
"The test for determining whether such [other crimes] evidence is admissible is whether the incidents establishing the common plan or scheme are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403." State v. Frasier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996) (citing State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988)). "Moreover, as to the `similarity' component, evidence of a prior bad act must constitute substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act." Carpenter, 361 N.C. at 388, 646 S.E.2d at 110 (internal quotations, citations, and brackets omitted). "Under Rule 404(b) a prior act or crime is `similar' if there are `some unusual facts present in both crimes. . . .'" State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 890 (1991) (citations omitted).
"Finally, if the propounder of the evidence is able to establish that a prior bad act is both relevant and meets the requirements of Rule 404(b), the trial court must balance the danger of undue prejudice against the probative value of the evidence, pursuant to Rule 403." Carpenter, 361 N.C. at 388-89, 646 S.E.2d at 110. N.C. Gen. Stat. § 8C-1, Rule 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009) ("Rule 403").
In the instant case, Alice testified that on 28 March 2009, defendant took her hand and made her touch him by placing it on his pants below his belt, at "the private area," while they were alone in his residence. Alice also testified, over defendant's objection, that on an occasion prior to 28 March 2009, defendant unzipped his pants and made Alice "rub against him" while they were alone in the Smiths' basement. On both occasions, defendant and Alice were alone when defendant placed Alice's hand near the zipper of his pants in an attempt to make Alice touch his private area. These acts are sufficiently similar because they involved "unusual facts" present in both crimes.
While Alice did not testify as to the time frame of these events, she and Mrs. Smith both testified that from the time Alice was born, she frequently stayed at the Smiths' house on the weekends. Furthermore, defendant testified that he had lived with his mother in Gaston County since 2002, that his mother passed away on 3 March 2009, and that she and defendant lived in the residence across the street from the Smiths for six years. Therefore, it is reasonable to infer that Alice's testimony about defendant unzipping his pants focused on events that occurred within seven years of the date of the offenses. Thus, the evidence of defendant's prior "bad act" was admissible under Rule 404(b).
"Whether to exclude relevant evidence as unfairly prejudicial under N.C.G.S. § 8C-1, Rule 403 is a matter left to the sound discretion of the trial court." State v. Gary, 348 N.C. 510, 521, 501 S.E.2d 57, 65 (1998). In the instant case, Alice's testimony about the incident with defendant in the basement tended to show defendant's plan, scheme, system or design of taking indecent liberties with Alice while they were alone. Furthermore, these events were sufficiently similar and not so remote in time as to be more probative than prejudicial under Rule 403. See State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996) (stating that a ten-year gap between instances of similar sexual misbehavior did not render them so remote in time as to negate the existence of a common plan or scheme). Therefore, the trial court properly exercised its discretion under Rule 403 by admitting this evidence. Defendant's issue on appeal is overruled.
B. "Advance Corroboration"
Corroboration is "the process of persuading the trier of the facts that a witness is credible." We have defined "corroborate" as "to strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence." Prior consistent statements of a witness are admissible as corroborative evidence when the witness has not been impeached. However, the prior statement must in fact corroborate the witness' testimony. Slight variations between the corroborating statement and the witness' testimony will not render the statement inadmissible.
State v. Riddle, 316 N.C. 152, 156-57, 340 S.E.2d 75, 77-78 (1986) (citations omitted). Such variations affect only the weight of the evidence and the credibility of the witness which are for the jury to determine. State v. Walker, 226 N.C. 458, 461, 38 S.E.2d 531, 533 (1946).
In the instant case, Mrs. Doe testified as follows:
Q [the State]: When you said "she said," are you talking about [Mrs. Smith]?
A [Mrs. Doe]: Yes.
Q: And, of course, [Mrs. Smith] is going to testify?
A: Yes.
Q: And if it corroborates what [Mrs. Smith] is going to testify about, go ahead and tell what [Mrs. Smith] told you.
A: She had — [Mrs. Smith] said that she had told [defendant] that [Mr. Smith] when he got home would come and get the last load which was just a couple of things and after they got — after they went back across the street he came over about twenty minutes later with an empty wooden box that was my grandmother's and said "I thought [Alice] might like to have this, too," and [Mrs. Smith] said it didn't make any sense at the time why he would bring that over —
[defendant's counsel]: Objection.
THE COURT: Ladies and gentlemen, I am going to allow this witness to testify to what she says [Mrs. Smith] said to her on that day and you may consider this for corroborative purposes to the extent that you find that [Mrs. Smith] actually testifies to these things during the course of this trial. All right. So let's move forward.
A: And [Mrs. Smith] had said she didn't at the time understand why [defendant] brought that box over when she had said [Mr. Smith] was coming over to pick up the rest of the things and just within the hour, and after [Alice] told her this [Mrs. Smith] said she thought maybe [defendant] had come over to find out if [Alice] had said anything.
Subsequently, Mrs. Smith testified:
Q [the State]: Do you remember a little wooden box that was left over in [defendant's] house?
[defendant's counsel]: Objection
THE COURT: Overruled.
A [Mrs. Smith]: About an hour after we had come, right before [defendant] was getting ready to leave when it was going to storm, he brought a little red wooden box that had some more crafts in it. It wasn't a lot. It was just like a cheese box and he said that he thought — saw this box and he thought [Alice] might like it and want it and of course she did. She liked it and he said okay and then I said [Mr. Smith] will be over to get the rest of the stuff later when he gets home and [defendant] went back across the street and —
Q: Now let me stop you a minute. You mean [defendant] came over to the house with that little box?
A: Yes, and brought it, yes, for [Alice].
Q: He brought it there and left it there and then went back to the house?
A: Right.
We first note that there are variations between Mrs. Doe's corroborative testimony and Mrs. Smith's substantive testimony. Mrs. Doe testified that Mrs. Smith described the box as "an empty wooden box" whereas Mrs. Smith testified that it was "a little red wooden box that had some more crafts in it." Next, Mrs. Doe testified that Mrs. Smith told her that defendant brought the box over approximately twenty minutes after Mrs. Smith and Alice left defendant's mother's house. However, Mrs. Smith testified that defendant brought the box over "about an hour" after she and Alice left the house.
The variations between Mrs. Doe's corroborative testimony and Mrs. Smith's substantive testimony were slight. Therefore, these variations did not render Mrs. Doe's corroborative testimony inadmissible. These variations affected only the weight accorded to the witnesses' testimony, which was for the jury to determine.
Furthermore, Mrs. Doe's statements strengthened and added credibility to Mrs. Smith's testimony because they confirmed her testimony on the issue of the delivery of the box. Mrs. Smith was not asked, and did not offer, why she thought defendant delivered the box. The fact that Mrs. Smith did not testify to any speculations or suspicions about why defendant delivered the box weighed in favor of defendant. Additionally, defendant testified that while Mrs. Smith was at his home earlier in the day on 28 March 2009, defendant stated he had another wooden craft box that Alice would like, and that Mrs. Smith agreed that defendant should deliver it to her house if he found it.
Assuming arguendo that Mrs. Doe's testimony was not corroborative, as long as the trial court gives a curative instruction to the jury, then the error can be cured. State v. Hardy, 104 N.C. App. 226, 237, 409 S.E.2d 96, 101 (1991).
In the instant case, we note that in its instructions to the jury, the trial court instructed as follows:
Now when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent or may conflict with his testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at the earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made and that it is consistent or does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness' truthfulness in deciding whether you will believe or disbelieve the witness' testimony at this trial.
Since the trial court gave a curative instruction to the jury to cure any possible error, defendant's issue on appeal is overruled.
V. CONCLUSION
Proposed issues on appeal not argued in defendant's brief are abandoned. N.C.R. App. P. 28(b)(6) (2009). Defendant received a fair trial, free from error.
No error.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).