Opinion
No. COA04-135
Filed 18 January 2005 This case not for publication
Appeal by defendant from judgment dated 11 July 2003 by Judge Christopher M. Collier in Superior Court, Davidson County. Heard in the Court of Appeals 19 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General Allison Smith Corum, for the State. James M. Bell for defendant-appellant.
Davidson County, Nos. 02 CRS 61852, 62106.
Tanya Williams (defendant) was indicted on two counts of indecent liberties with a child. The State's evidence at trial tended to show that defendant worked a live-in shift at Hasty House, a group home in Davidson County for girls who have been separated from their parents. Defendant began her employment at Hasty House in September 2002, when she was twenty-four years old.
A.W., a Hasty House resident, testified at trial. She stated that in October 2002, when A.W. was thirteen years old, defendant took A.W. on a "high point trip" to Wal-Mart. A.W. had earned the trip as a reward for having accumulated the most points for good behavior during the previous week. After leaving Wal-Mart, defendant drove A.W. to a church parking lot. Defendant asked A.W.if she wanted some "flash beads," or Mardi Gras beads, that were hanging from the car's rearview mirror. A.W. said "yes," and defendant gave A.W. the beads.
When A.W. and defendant returned to Hasty House, A.W. took a shower. After A.W. came out of the shower, defendant asked A.W. when A.W. was going to "earn" the beads. A.W. responded by exposing her breasts to defendant. A.W. then went to bed and turned out the lights. Shortly thereafter, defendant came into A.W.'s room and told A.W. that a coworker, Sharon Harris (Harris), was using the copy machine in the room where defendant slept. Defendant then made a pallet on the floor in A.W.'s room and told A.W. to lie on the pallet with her. A.W. got on the pallet with defendant. Defendant rubbed A.W.'s back, breasts, and thigh, and kissed A.W.
Harris testified that when she finished using the copy machine, she went to A.W.'s room to find defendant. Harris saw defendant and A.W. lying on the pallet. Harris told defendant that she had finished using the copy machine, and defendant left A.W.'s room.
A.W. testified that the following weekend, she stole all of the trazodone and a half-bottle of Tylenol from the Hasty House medicine closet. A.W. stated that she consumed all of the pills in an attempt to commit suicide. When defendant asked A.W. to do chores, A.W. responded that she had taken the pills. A.W. was then admitted to the hospital.
A.W. testified that defendant visited her in the hospital. Defendant told A.W. that she would be mad if A.W. told anyone what had happened between them. When A.W. was released from the hospital, A.W. told Dorothea Giles (Giles), a Hasty House employee, what had happened between A.W. and defendant. Giles reported the incident to the Hasty House program director, A.J. Shabazz (Shabazz). Shabazz suspended defendant.
Shabazz thereafter spoke with F.L., another Hasty House resident, to determine if defendant had had any inappropriate contact with F.L. According to Shabazz, F.L. said that nothing had happened, but F.L. acted nervous and scared. Sometime later, F.L. approached Shabazz and stated that in October 2002, when F.L. was fourteen years old, defendant felt F.L.'s breast while defendant and F.L. were in the car on the way home from school. At trial, F.L. testified that defendant had rubbed F.L.'s back and shoulders, kissed F.L.'s neck and cheek, and told F.L. that she loved her. F.L. testified that on one occasion, during "quiet time," defendant entered F.L.'s room and touched F.L.'s breast. F.L. testified that she initially denied any inappropriate contact with defendant because she was nervous and scared that she would get in trouble.
Defendant was convicted of two counts of taking indecent liberties with a child. Defendant appeals.
I.
Defendant assigns error to two of the trial court's rulings that excluded testimony. "[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and aspecific offer of proof is required unless the significance of the evidence is obvious from the record." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). This rule applies even when the excluded evidence is solicited on the cross-examination of a witness. State v. Ginyard, 122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996); see also State v. Braxton, 352 N.C. 158, 183-84, 531 S.E.2d 428, 443 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). The rationale for the rule is that "the essential content or substance of the witness' testimony must be shown before we can ascertain whether prejudicial error occurred." Simpson, 314 N.C. at 370, 334 S.E.2d at 60. Otherwise, this Court "can only speculate as to what the witness' answer would have been[.]" State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990).
Defendant first assigns error to the sustaining of an objection to defendant's cross-examination of A.W. Defendant asked A.W. why she had been kicked out of foster homes:
Q You said you first got [to Hasty House] in July [2002]?
A Yes.
Q Okay. And earlier when you said that you went there because you were being kicked out of other foster homes; is that right?
A Yes.
Q Why were you being kicked out of those foster homes?
[ATTORNEY FOR THE STATE]: Object to that. It is not relevant.
THE COURT: Sustained.
Defendant argues that the trial court erred by excluding thistestimony because it could have indicated that A.W. was being kicked out of foster homes for dishonesty. Thus, defendant argues, this testimony would have had bearing on A.W.'s credibility and would have been crucial for the defense since A.W.'s testimony was a large part of the State's evidence.
It is not obvious from the record what A.W.'s answer would have been, since she could have been removed from foster homes for any number of reasons. In addition, defendant failed to make an offer of proof as to what A.W.'s answer would have been. As a result, defendant has not preserved this issue for appellate review and we overrule this assignment of error.
Defendant next assigns error to the sustaining of an objection to defendant's direct examination of witness Ollie Williams (Williams). Williams worked at Hasty House and her duties included counseling A.W. and other Hasty House residents when they had problems. During direct examination, the following colloquy occurred:
Q. . . . [H]ow well would you say that you knew [A.W.]?
A Well, at first she was more distant and then . . . she just warmed up to me[.] I would ask her her problem and it was like, well, it was just ["]certain staff I can talk to about my problems.["] I said, well, that's fine. Then as I say, she just started talking and warming up to me, so —
. . . .
Q Was [A.W.] prone to exaggerate?
[ATTORNEY FOR THE STATE]: Objection. THE COURT: Sustained.
Defendant argues that the trial court's exclusion of this evidence deprived the jury of hearing whether A.W. had a propensity to exaggerate, thus depriving defendant of a fair trial.
Again, defendant has failed to preserve this issue for appellate review. It is not obvious from the record what Williams's answer would have been, and defendant did not make an offer of proof as to what Williams's answer would have been. Furthermore, shortly after the trial court sustained the State's objection, defendant was permitted to elicit the following testimony from Williams:
Q And do you know whether [A.W.] has a reputation in . . . Hasty House as far as being truthful or untruthful?
[ATTORNEY FOR THE STATE]: Objection.
THE COURT: Overruled.
A Yes, sir.
Q And what is that reputation?
A She's — when things don't usually go her way she's very traumatic to a point she gets to acting out, screaming, I'm going to runaway [sic], I'm going to kill myself. You all don't love me. We try to calm her down. That's not the case. Why are you acting like this? Well, I don't want to be here no more. I hate it here. You know, if things don't go her way she don't get what she wants, she tends to act out.
This testimony essentially allowed defendant to establish that A.W. was prone to exaggerate. Defendant did not suffer any prejudice by the trial court's exclusion of the earlier testimony.
II.
Defendant's next assignment of error concerns the testimony of James Greer (Greer). Greer was area director of six group homes in the Davidson County area, including Hasty House. On cross-examination, Greer gave the following testimony:
Q And earlier you stated something about . . . kids being reluctant to talk about things. In your experience isn't it true that most . . . children, especially a troubled teen, [are] reluctant to talk about things that are causing them great depression or causing them some trauma in their life; isn't that true?
[ATTORNEY FOR DEFENDANT]: Objection.
THE COURT: Overruled.
A Yeah. I mean, a lot of times they pick and choose who they want to talk to. They —
Q They sort of disclose when it is their proper time. They are not going to tell anybody before they are ready to; isn't that true?
A Sometimes that's correct.
Defendant argues that this testimony was improper because no foundation was established to qualify Greer as an expert in adolescent behavior.
Rule 702 of the North Carolina Rules of Evidence states: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702 (2003). Whenevaluating the admissibility of expert testimony, the test is "whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact." State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978). The witness's qualifications as an expert must be established, because "[w]ithout a foundation showing the witness to have sufficient skill, knowledge or experience . . . it [is] impossible to determine whether [the witness's] opinion would aid the trier of fact in the search for truth." State v. Goodwin, 320 N.C. 147, 151, 357 S.E.2d 639, 641 (1987).
We find that Greer was not qualified to testify as an expert in this case. Neither defendant nor the State ever tendered Greer as an expert and there was no evidence presented as to Greer's education or training. The evidence does not show that Greer was better qualified, or in a better position, than the jury to form an opinion on the behavior of adolescents.
We also find that Greer's testimony was not proper lay opinion testimony. Lay opinion testimony is governed by Rule 701 of the North Carolina Rules of Evidence:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2003) (emphasis added). In this case, there was no evidence that Greer's testimony that children are reluctant to speak about troublesome events was rationally based on his perception. Although Greer indicated that he based his testimony on his experience, there was no evidence as to what his experience was. Therefore, Greer's testimony was inadmissible as a lay opinion.
Even though we have determined that Greer's testimony was not proper expert or lay opinion testimony, we find that his testimony was not prejudicial to defendant. In order to prove prejudice, a defendant must show "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]" N.C. Gen. Stat. § 15A-1443(a) (2003). However, "[a] defendant is not prejudiced by . . . error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2003).
In this case, defendant had previously elicited similar testimony on his direct examination of Greer:
Q Okay. Did you ever have an occasion to speak with [A.W.]?
A Yes, I did.
Q Okay. What did you discuss with her?
A. . . . I asked [A.W.] the specific questions, did [defendant] touch [you], did [defendant] threaten you, did . . . anything inappropriate happen and [A.W.] told me, she told me, "No. No, nothing happened." I, you know, sometimes kids, you know are a little reluctant to say things. Anyway, I also drew up a safety plan that if —
Q Let's just stick to my question. What did [A.W.] say to you, what did [A.W.] say to you?(emphasis added). After eliciting this testimony from Greer, defendant did not object to Greer's statement about children's reluctance to talk, nor did defendant move to strike. Since this testimony is essentially the same as the testimony to which defendant assigns error, defendant cannot now argue prejudice from Greer's testimony on cross-examination. See State v. Jennings, 333 N.C. 579, 604, 430 S.E.2d 188, 200, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993) (holding that the defendant could not argue prejudice when the challenged testimony was elicited by defense counsel and the defendant did not object to the testimony or move to strike); see also State v. Batchelor, 157 N.C. App. 421, 429, 579 S.E.2d 422, 428, disc. review denied, 357 N.C. 462, 586 S.E.2d 101 (2003).
III.
Defendant's final assignment of error contends that the trial court erred by denying defendant's request for a jury instruction regarding simple assault. Defendant argues that simple assault is a lesser included offense of taking indecent liberties with a child.
To qualify as a lesser included offense, "all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense." State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982), overruled on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193(1993). A defendant is guilty of taking indecent liberties with a child when the defendant is at least sixteen years old and five years older than the victim, and the defendant 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) (2003). In contrast, a defendant commits assault when the defendant accomplishes
an overt act . . . evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by the "show of violence" on the part of the [defendant] sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed.
State v. O'Briant, 43 N.C. App. 341, 344, 258 S.E.2d 839, 841-42 (1979) (citations omitted).
We have previously held that assault is not a lesser included offense of indecent liberties since "[n]either definition of assault constitutes an essential element of" indecent liberties. State v. Holman, 94 N.C. App. 361, 364, 380 S.E.2d 128, 130 (1989) (noting that in order to sustain a conviction for an indecent liberties charge, "[n]o touching is required" and "[a] defendant does not have to be in close proximity to the victim"). The trial court did not err in denying defendant's request to instruct onsimple assault.
Defendant elected to make no argument regarding his final assignment of error, and we therefore do not address it.
No error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).