Appeal by defendant from judgment dated 25 April 1997 by Judge
Henry V. Barnette, Jr. in Halifax County Superior Court, and from
an order filed 3 January 2000 by Judge Thomas D. Haigwood. Heard
in the Court of Appeals 14 March 2000.
Attorney General Michael F. Easley, by Assistant Attorneys
General Julia R. Hoke and Amy C. Kunstling, for the State.
Ronnie C. Reaves, P.A., by Lynn Pierce; and Rudolf Maher
Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
defendant-appellant.
GREENE, Judge.
Robert Stevenson Doisey (Defendant) appeals from a jury
verdict finding him guilty of two counts of first-degree statutory
sex offense and also seeks review of an order filed 3 January 2000
denying his motion for appropriate relief.
Trial
At trial, D.H., the victim, testified that during the first
week of December in 1995 she was living with her mother Nannie B.
Gauldin (Gauldin), her siblings, and Defendant, Gauldin's live-in
boyfriend. On an afternoon during that week when Gauldin was not
at home, Defendant told D.H. to go into her bedroom and take off
her clothes. D.H., who was twelve years old at the time, did so,
and Defendant then came into her bedroom and stuck his finger into
her vagina. He also stuck his penis into her mouth, vagina, and
"butt." Defendant then told D.H. to put her clothes back on and
threatened to punish her if she told anyone what had happened.
During the night of 10 January 1996, Defendant again entered
D.H.'s bedroom and told her to take off her clothes. After she
removed her clothing, Defendant stuck his finger into her vagina
and "butt." He also stuck his penis into her mouth, vagina, and
"butt." Defendant then heard Gauldin walking in the hallway, and
he told D.H. to go into the bathroom. When Gauldin entered D.H.'s
bedroom, Defendant told her D.H. had seen someone outside of the
window. While Defendant was outside looking around, D.H. told
Gauldin Defendant had "messed" with her. The next morning Gauldinwent into D.H.'s room and asked her what had happened. After D
.H.
related what had happened, Gauldin called the police and Defendant
was arrested later that morning.
Gauldin testified she found Defendant in D.H.'s room on the
evening of 10 January 1996, and D.H. told her Defendant had
"messed" with her. D.H. later described Defendant's conduct to
Gauldin, and D.H.'s statements to Gauldin were consistent with
D.H.'s testimony at trial. Gauldin testified that on the day
following Defendant's arrest, law enforcement officers returned to
D.H.'s home and Gauldin turned over several items to them,
including two videotapes. Gauldin testified, without objection,
the officers found a camcorder "[i]n the bathroom[,] in a tablebeside the toilet." She stated Defendant had the camcorder "
hooked
up somehow or other so he could record people that come in and out
of the bathroom, and [her] kids, when they would take baths at
nighttime." She testified she did not know what was on the
videotapes she had turned over to the officers.
During cross-examination, Defendant's counsel questioned
Gauldin regarding how the camcorder came to be in the bathroom, and
she stated she did not know. Defendant's counsel asked Gauldin if
she had asked Defendant to set up the camcorder in the bathroom,
and Gauldin responded that she had not.
William Otis Wheeler (Wheeler), an investigator with the
Halifax County Sheriff's Department, testified he was assigned to
investigate D.H.'s case. He stated D.H. made a statement to him
regarding Defendant's actions which was consistent with D.H.'s
testimony at trial. On the morning Defendant was arrested, Wheeler
went to D.H.'s home and took possession of several items, including
two videotapes. Wheeler testified, over Defendant's objection, he
had viewed the videotapes and they contained video of children and
adults, including Defendant and Gauldin, coming into a bathroom and
using the facilities. Wheeler stated that after he viewed the
videotapes he contacted Gauldin and received permission to search
her bathroom for a VCR or camcorder. Officers discovered a
camcorder inside a table positioned next to the toilet in the
bathroom. Wheeler described, without objection, how the camcorder
was hooked up inside the table. Photographs of the camcorder and
table were also admitted into evidence without objection. On cross-examination, Defendant's counsel questioned Wheel
er
regarding these photographs and the method used to hook up the
camcorder inside the table. Defendant's counsel also questioned
Wheeler regarding the contents of both videotapes.
At the close of the State's evidence, Defendant testified and
denied D.H.'s allegations of sexual abuse. He stated he had
punished D.H. beginning in late November for misbehavior at school.
He also stated he had been fighting with Gauldin, and had informed
her on the evening prior to his arrest that he was moving out of
her home. He testified Gauldin wanted him to place the camcorder
in the bathroom, and she was aware the camcorder was in the
bathroom. Defendant then described in detail the method he used to
hook up the camcorder.
Motion for Appropriate Relief
While Defendant's appeal was pending before this Court,
Defendant filed a motion for appropriate relief in this court,
pursuant to N.C. Gen. Stat. § 15A-1415, requesting a new trial on
the ground D.H. had recanted her testimony. In an order dated 9
February 1998, we remanded this case to the Superior Court of
Halifax County for a determination of the matters alleged in the
motion for appropriate relief. The trial court held hearings on
the motion on 1 July 1998 and 13 December 1999.
(See footnote 1)
On 3 January2000, the trial court filed an order in the Superior Court of
Halifax County denying Defendant's motion for appropriate relief,
and the order was filed in this Court on 6 January 2000. Review of
this order is properly before this Court pursuant to N.C. Gen.
Stat. § 15A-1422(c)(2).
In its order filed 3 January 2000, the trial court made the
following pertinent findings of fact:
5. That the basis for the Motion for
Appropriate Relief was an affidavit
offered by [D.H.] which stated she
offered false testimony at the trial of
. . . [D]efendant.
. . . .
9. That on Monday, December 13, 1999, [D.H.]
testified . . . that she did sign an
affidavit alleging that she testified
falsely during the original trial of this
matter, but that her testimony at trial
was in fact correct. Further, that she
testified and the court finds that she
signed the affidavit after being
repeatedly questioned about the facts
leading to the conviction of . . .
[D]efendant by friends and family members
of . . . [D]efendant and also in an
effort to avoid having to again testify
in this matter.
. . . .
11. . . . [D.H.] testified again . . . that
her testimony at the trial of this matter
was correct, that both the affidavit and
testimony before Judge Meyer was false
and that she did that in an effort to
avoid having to come to court.
12. That [D.H.] further stated and the court
finds that the events about which she
testified during the trial were extremely
embarrassing to her and that she told her
friends and others that it did not happen
because she was embarrassed by . . .[D]efendant's actions.
. . . .
15. That the court reviewed the trial
transcript and the transcript of the July
1998 hearing and has had ample
opportunity to evaluate the demeanor of
the victim as well as other witnesses
called during this hearing.
The trial court then concluded as a matter of law that "the court
is not reasonably well satisfied that the testimony of [D.H.] given
at the original trial was false." Accordingly, the trial court
denied Defendant's motion for appropriate relief.
____________________________
The issues are whether: (I) Defendant waived his objection
to testimony regarding the videotapes and camcorder when he did not
initially object to admission of testimony regarding the videotapes
and later gave testimony regarding the videotapes and camcorder;
(II) admission of testimony regarding the videotapes and camcorder
was inadmissible pursuant to Rule 404(b) of the North Carolina
Rules of Evidence, and whether admission of this testimony was
plain error; and (III) the trial court abused its discretion when
ruling on Defendant's motion for appropriate relief by concluding
it "is not reasonably well satisfied that the testimony of [D.H.]
given at the original trial was false."
I
"[T]o preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion." N.C.R. App. P. 10(b)(1). Moreover, "the admission of
evidence without objection waives prior or subsequent objection tothe admission of evidence of a similar character."
State v.
Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979).
[1]In this case, Defendant assigns error to the admission of
testimony regarding the videotapes and camcorder. Defendant,
however, permitted admission of evidence regarding the videotapes
and camcorder without objection. Gauldin testified without
objection that Defendant placed the camcorder in the bathroom and
had taped people coming in and out of the bathroom. Although
Defendant did object to Wheeler's testimony about the contents of
the videotapes, he raised no objection to Wheeler's testimony
regarding his discovery of the camcorder. Moreover, Defendant
himself later testified in detail regarding his placement of the
camcorder in the bathroom. Defendant's objection to this evidence,
therefore, was waived by the prior and subsequent admission of
testimony about the camcorder and videotapes.
II
[2]Defendant argues testimony regarding the camcorder and
videotapes was inadmissible pursuant to Rules 403 and 404(b) of the
North Carolina Rules of Evidence, and admission of this evidence
was plain error.
The test for plain error places the burden on a defendant to
show that error occurred and the error "had a probable impact on
the jury's finding of guilt."
State v. Odom, 307 N.C. 655, 661,
300 S.E.2d 375, 379 (1983). The error must be a "'"
fundamental
error, something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done."'"
Id. at 660, 300S.E.2d 378 (quoting
United States v. McCaskill, 676
F.2d 995, 1002
(4th Cir.) (footnote omitted),
cert. denied, 459 U.S. 1018, 74 L.
Ed. 2d 513 (1982)).
Rule 404(b) states, in pertinent part: "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."
N.C.G.S. § 8C-1, Rule 404(b) (1999). Rule 404(b), however, is a
general rule of inclusion,
State v. Coffey, 326 N.C. 268, 278-79,
389 S.E.2d 48, 54 (1990), and evidence of conduct is admissible "so
long as the evidence 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. Morgan, 315 N.C. 626, 637, 340
S.E.2d 84, 91 (1986). Examples of such proper purposes include
"proof of motive, opportunity, intent, preparation, plan, [and]
knowledge." N.C.G.S. § 8C-1, Rule 404(b).
In this case, the State contends in its brief to this Court
Defendant's use of a camcorder to record activities in the bathroom
is relevant to show Defendant's "design or scheme to take sexual
advantage of young children." The testimony concerning the
videotapes showed both children and adults, including Defendant and
Gauldin, in the bathroom, and there was some evidence the camcorder
was placed in the bathroom at Gauldin's request. Assuming,
however, Defendant placed the camcorder in the bathroom without
Gauldin's knowledge, the taping of activities in a bathroom, though
deviant behavior, is conduct dissimilar to the conduct with which
Defendant was charged. The evidence regarding the videotapes,therefore, did not tend to show Defendant's plan or scheme to
sexually assault D.H.
See State v. Maxwell, 96 N.C. App. 19, 24,
25, 384 S.E.2d 553, 556-57 (1989) (evidence the defendant
frequently appeared nude in front of his children and had fondled
himself in presence of daughter was not properly admitted to show
"plan or scheme to take advantage of his daughter"),
disc. review
denied, 326 N.C. 53, 389 S.E.2d 83 (1990). It was, therefore,
error under Rule 404(b) to admit this e
vidence.
(See footnote 2)
In order to show plain error, however, Defendant must also
demonstrate the admission of the evidence "had a probable impact on
the jury's finding of guilt."
Odum, 307 N.C. at 661, 300 S.E.2d at
379.
In this case, D.H. testified Defendant came into her room in
December of 1995 and inserted his finger into her vagina, and his
penis into her vagina, "butt," and mouth. D.H. also testified that
on 10 January 1996, Defendant again came into her bedroom and
inserted his finger into her vagina and "butt," and inserted his
penis into her vagina, "butt," and mouth. Gauldin testified
Defendant was in D.H.'s room on the night of 10 January 1996 and,
when she found Defendant in D.H.'s room, D.H. told her Defendant
had "messed" with her. Finally, Gauldin and Wheeler both testified
D.H. made statements to them consistent with her testimony
regarding what Defendant had done to her. Defendant has not shown,in view of all other evidence admitted in this case, that admission
of testimony regarding the videotapes and camcorder had a "probable
impact on the jury's finding of guilt." Admission of the
testimony, therefore, was not plain error.
III
[3]Defendant argues the trial court's findings of fact do not
support its conclusion that it "is not reasonably well satisfied
that the testimony of [D.H.] given at the original trial was
false."
(See footnote 3)
We disagree.
The test for determining whether a defendant may be granted a
new trial on the basis of recanted testimony is whether "1) the
court is reasonably well satisfied that the testimony given by a
material witness is false, and 2) there is a reasonable possibility
that, had the false testimony not been admitted, a different result
would have been reached at the trial."
State v. Britt, 320 N.C.
705, 715, 360 S.E.2d 660, 665 (1987). If an evidentiary hearing is
held on a defendant's motion for appropriate relief, the defendant
has the burden of proving by a preponderance of the evidence the
facts necessary to support the motion. N.C.G.S. § 15A-1420(c)(5)
(1999). When reviewing an order entered on a motion forappropriate relief, this Court is bound by the trial court's
findings of fact if they are supported by any competent evidence,
and "the trial court's ruling on the facts may be disturbed only
when there has been a manifest abuse of discretion, or when it is
based on an error of law."
State v. Harding, 110 N.C. App. 155,
165, 429 S.E.2d 416, 423 (1993).
In this case, the trial court found as fact D.H. signed an
affidavit stating her testimony at trial was false and testified at
the 1 July 1998 hearing on Defendant's motion for appropriate
relief that her testimony at trial was false. D.H. testified at
the 13 December 1999 hearing, however, that "she signed the
affidavit after being repeatedly questioned about the facts leading
to the conviction of . . . [D]efendant by friends and family
members of . . . [D]efendant and also in an effort to avoid having
to again testify in this matter." The trial court found as fact
D.H. reaffirmed at the 13 December 1999 hearing "that her testimony
at the trial of this matter was correct." The trial court also
found as fact that "the events about which [D.H.] testified during
the trial were extremely embarrassing to her and . . . she told her
friends and others that it did not happen because she was
embarrassed by . . . [D]efendant's actions." Based on these
findings of fact, the trial court did not abuse its discretion by
concluding "the court is not reasonably well satisfied that the
testimony of [D.H.] given at the original trial was false."
(See footnote 4)
SeeState v. Shelton, 21 N.C. App. 662, 665, 205 S.E.2d 316, 318
(noting a recantation is particularly unreliable when there has
been a repudiation of the recantation),
cert. denied, 285 N.C. 667,
207 S.E.2d 760 (1974). Accordingly, the trial court did not err by
denying Defendant's motion for appropriate relief.
(See footnote 5)
Defendant makes no argument in support of his four remaining
assignments of error and fails to cite any authority in support of
these issues; therefore, these assignments of error are deemed
abandoned. N.C.R. App. P. 28(b)(5).
No error.
Judges EDMUNDS and SMITH concur.
Footnote: 1