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STATE OF NORTH CAROLINA v. CLYDE EARNEST WILLIAMSON
No. COA00-982
(Filed 2 October 2001)
1. Appeal and Error--preservation of issues--failure to object--no plain error argument
Although defendant contends the trial court erred in an indecent liberties, crimes against
nature, and statutory sex offenses case by allowing into evidence testimony regarding defendant's
prior Florida conviction for lewd and lascivious behavior based on the fact that the testimony was
allegedly inadmissible as repressed memory testimony without accompanying expert testimony,
this argument was not preserved for review because: (1) defendant never objected to the
introduction of the testimony on grounds that it was improper repressed memory testimony
without the necessary accompanying expert testimony as required by N.C. R. App. P. 10(b)(1);
and (2) defendant has failed to assert plain error.
2. Evidence--prior crimes or acts--lewd and lascivious behavior--common plan or
scheme--remoteness
The trial court did not abuse its discretion in an indecent liberties, crimes against nature,
and statutory sex offenses case by allowing into evidence testimony regarding defendant's prior
Florida conviction for lewd and lascivious behavior, that occurred about ten years earlier, under
N.C.G.S. § 8C-1, Rule 404(b) because the similarities between the incidents establish
defendant's common plan or scheme when both acts involved: (1) defendant befriending
adolescent girls; (2) the girls spending significant amounts of time unsupervised with defendant
on a daily basis; (3) the girls periodically spending the night with defendant and sometimes in the
company of another adolescent girl; (4) the girls helping with chores around defendant's house
but defendant did not pay them for their work; (5) defendant buying the girls gifts including toys;
(6) defendant allowing the girls to drive his car and providing them with marijuana, alcohol and
cigarettes while in his company; (7) defendant showing affection to both girls in the form of
hugging and kissing them; (8) the sexual abuse occurring in defendant's home; (9) defendant
showing pornographic videos to both girls; and (10) defendant instructing the victims to take
showers before sexual activity, and defendant performing the same sexual acts on the victims.
3. Evidence--pornographic videotape--testimony regarding content
The trial court did not err in an indecent liberties, crimes against nature, and statutory sex
offenses case by admitting into evidence a pornographic videotape seized by a detective and his
accompanying testimony regarding the content of the video, because: (1) the detective's
testimony establishing that the videotape was the same videotape recovered from defendant's
bedroom laid the proper foundation for its admission, N.C.G.S. § 8C-1, Rule 901(a); (2) the jury
only viewed the video case making the victim's identification of the video as the one defendant
played for her, and the detective's identification as the one seized from defendant's trailer,
sufficient for its admission; and (3) there was no prejudicial error in light of previous testimony
that the videotape was a porno movie, as well as defendant's failure to object to such
characterizations.
4. Evidence--testimony regarding nude photograph of victim--photograph not offered
into evidence
The trial court did not err in an indecent liberties, crimes against nature, and statutory sex
offenses case by allowing the victim's friend to testify that she saw a nude photograph of the
victim in defendant's bedroom when the State did not offer the photograph into evidence,because: (1) although the photograph itself is the
best evidence of its contents, defendant failed to
show he was prejudiced by this testimony when the victim previously testified that defendant
took nude photographs of her and that she brought her friend into defendant's bedroom and
showed her some of the nude photographs that defendant kept in his bedroom; and (2) the fact
that the friend observed a nude photograph of the victim in defendant's bedroom was not a vital
part of the State's evidence.
5. Evidence--defendant hugged young sex victim excessively-corroboration
The trial court did not err in an indecent liberties, crimes against nature, and statutory sex
offenses case by admitting a detective's testimony that defendant hugged the victim excessively
to corroborate the testimony of the mother of the victim's friend stating that she observed
defendant hug the victim a couple of times, because: (1) the law does not require that the
detective's testimony about the mother's statements must be in the same words; (2) the
detective's testimony was corroborative of the mother's statements that she witnessed defendant
hugging the victim; and (3) the trial court gave a limiting instruction that the detective's
testimony was for the sole purpose of corroboration.
Appeal by defendant from judgments entered 24 February 2000 by
Judge J. Marlene Hyatt in Jackson County Superior Court. Heard in
the Court of Appeals 15 August 2001.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Anne M. Middleton, for the State.
Carolyn Clark for defendant-appellant.
HUNTER, Judge.
Clyde Earnest Williamson (defendant) appeals judgments and
sentencing upon convictions of taking indecent liberties with a
child, crimes against nature, and statutory sex offenses. We find
no prejudicial error in the proceedings below.
The evidence presented at trial tended to establish that the
victim, Joannie, was fifteen years old in 1998 when she began
spending time with defendant. Joannie, along with her father and
sister, were assisting defendant with the building of a new house.
Joannie helped defendant with such chores as mending walls, hanging
sheetrock, and painting. Joannie testified that she spentvirtually every day helping defendant around his house. During
construction on his house, defendant resided in a nearby trailer.
Joannie testified that during this time she became friends
with a fourteen-year-old girl named Jeannie who was also helping
defendant with his house. Joannie testified that defendant would
usually take everyone home for the night after work on his house
was completed for the day. Within a couple of weeks of working for
defendant, Joannie and Jeannie began returning to defendant's
trailer after defendant took the others home. The three would
listen to music and spend time outside. Sometimes defendant would
take the girls home, and sometimes the girls would spend the night
with defendant in his trailer. Joannie testified that she and
Jeannie spent about two nights a week at defendant's trailer.
Joannie testified that within a few weeks of her spending
nights with defendant, he began to act in a sexual manner towards
her. Joannie testified that in the first incident with her,
defendant instructed her to take a shower, which she did.
Defendant then placed a towel on his bed and told Joannie to lay on
the towel so that he could check [her] for a yeast infection.
Joannie testified that defendant then had his tongue down near
[her] private area and that he also inserted his finger into her
vagina a couple of times.
Joannie testified regarding four separate occasions on which
the same sequence of events occurred, although she could not
remember if defendant had inserted his fingers into her vagina each
time. Joannie stated that after each incident, defendant would get
one of his wipes which he kept in his night stand and wipe heroff. She further testified that about the same time that her fir
st
sexual incident with defendant occurred, she observed defendant
engaging in the same conduct with Jeannie, instructing her to take
a shower, stating that he must check her for a yeast infection,
and then performing oral sex on her. Defendant threatened that if
Joannie ever disclosed the abuse, he would put Joannie's father in
jail or send her back to Washington State from where she had moved.
Joannie testified that defendant took polaroid photographs of
her about every time [she and Jeannie] stayed the night. Joannie
stated that in some of the photographs she was nude or partially
clothed. She also testified that defendant kissed her a couple of
times, took a video of her while she was taking a bath, and played
a pornographic video entitled With Love, Loni for her and
Jeannie.
During the times Joannie and Jeannie were with defendant, he
provided the girls with wine coolers and cigarettes. Defendant
also had the girls smoke marijuana almost every time [they] stayed
the night. Although defendant did not pay the girls for any work
performed on his house, defendant allowed the girls to drive his
car, and he would take them to Wal-Mart and buy them jewelry,
clothes, toys, underwear and bras. The girls were allowed to wear
the underwear and bras when with defendant, but they were not
permitted to take them home.
Joannie's friend, Alisha Wallace (Alisha), testified that
she went to defendant's trailer with Joannie on various occasions.
Alisha testified that on one occasion, she saw a nude photograph of
Joannie on defendant's desk in his bedroom. Alisha also testifiedthat defendant had hugged her and rubbed up against [her] and
remarked that her breasts were bigger than Joannie's. Alisha
witnessed defendant hugging Joannie and saw him grab her behind.
Alisha testified that Joannie told her defendant took nude pictures
of her and had a video of her. Joannie later told Alisha and her
mother, Jackie Wallace, of the events which had transpired with
defendant. Jackie Wallace notified the Department of Social
Services.
The State also presented the testimony of Detective David
Grant of the Jackson County Sheriff's Department regarding his
interviews with Joannie and Alisha, as well as items he recovered
pursuant to a search of defendant's trailer. These items included
a box of Summer's Eve Feminine Cleansing Cloths recovered from
defendant's night stand, various articles of female
undergarments, a nude photograph of Joannie, and a video entitled
With Love, Loni. In addition, Christa Farash (Christa), the
victim in defendant's prior Florida conviction for lewd and
lascivious behavior with a minor, testified about the events
surrounding her sexual abuse.
Defendant testified on his own behalf, denying all
allegations. On 24 February 2000, the jury returned verdicts of
guilty on one count of taking indecent liberties with a child, four
counts of crimes against nature, and four counts of statutory sex
offense. Defendant appeals.
On appeal, defendant argues that the trial court erred in
admitting the following evidence: (1) testimony regarding
defendant's prior conviction for lewd and lascivious behavior witha minor; (2) the videotape With Love, Loni and accompanying
testimony regarding its contents; (3) testimony regarding the
contents of a photograph not entered into evidence; (4) Detective
Grant's testimony regarding statements made to him by Jackie
Wallace; (5) Alisha Wallace's testimony regarding defendant's
behavior towards her; and (6) a photograph of Joannie clothed in a
sports bra and shorts.
I.
[1]Defendant argues that the trial court erred in allowing
into evidence testimony regarding defendant's prior Florida
conviction for lewd and lascivious behavior involving witness
Christa Farash. For the first time on appeal, defendant argues
that the majority of Christa's testimony regarding defendant's
sexual conduct towards her is inadmissible as repressed memory
testimony without accompanying expert testimony. This Court has
held that repressed memory testimony must be accompanied by expert
testimony on the subject of memory repression so as to afford the
jury a basis upon which to understand the phenomenon and evaluate
the reliability of testimony derived from such memories.
Barrett
v. Hyldburg, 127 N.C. App. 95, 101, 487 S.E.2d 803, 806 (1997).
Christa stated on
voir dire that some of her memories
regarding her sexual abuse perpetrated by defendant were brought to
light through therapy aimed at helping her deal with the events.
Following
voir dire, defense counsel voiced his frustration with
having to contend with evidence not originally presented at the
prior Florida trial. However, counsel never objected to theintroduction of Christa's testimony on grounds that it was improper
repressed memory testimony without the necessary accompanying
expert testimony. Rather, defense counsel stated that he was
solely requesting the court exclude [the evidence] under 404(b) in
that the only thing it's going to do is attempt to set forth a
propensity and attack my client's character. There was no
discussion before the trial court of repressed memory testimony and
its requirements for admission.
Pursuant to Rule 10(b)(1) of the North
Carolina Rules of Appellate Procedure, . . .
a party must have presented to the trial
court a timely request, objection or motion,
stating the specific grounds for the ruling
the party desired the court to make in order
to preserve a question for appellate review.
State v. Call, 353 N.C. 400, 426, 545 S.E.2d 190, 206-07 (2001)
(quoting N.C.R. App. P. 10(b)(1)) (holding defendant abandoned
argument that testimony was inherently unreliable and violated
his constitutional rights where he failed to argue such grounds to
trial court). Appellate courts will not entertain an argument
where the issue was not 'raised and determined in the trial
court.'
Id. at 426, 545 S.E.2d at 207 (quoting
State v. Nobles,
350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999)).
Moreover, because defendant has failed to assert that the
introduction of Christa's testimony without accompanying expert
testimony was plain error, this argument is not preserved for our
review.
See id.; N.C.R. App. P. 10(c)(4) (appellate court may
review for plain error only where the judicial action questioned
is specifically and distinctly contended to amount to plainerror). We therefore only address defendant's argument that the
evidence was improperly admitted under Rule 404(b), as such was the
basis for defendant's objection at trial.
[2]The trial court in this case admitted Christa's testimony
under Rule 404(b) of the Rules of Evidence to show intent and that
there existed in the mind of the defendant a plan, scheme, system,
or design involving the crime charged. As a general rule, Rule
404(b) provides that [e]vidence 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. Gen. Stat. § 8C-
1, Rule 404(b) (1999). Such evidence 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.
Id.
[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. Frazier, 344 N.C. 611, 615, 476 S.E.2d 297, 299 (1996)
(emphasis omitted) (quoting
State v. Bagley, 321 N.C. 201, 206, 362
S.E.2d 244, 247 (1987)).
Defendant argues that admission of the evidence under Rule
404(b) was improper because insufficient similarities exist between
the acts surrounding the prior conviction and the alleged acts
perpetrated here, that the acts are too remote in time, and that
the probative value of the evidence is substantially outweighed byits prejudice to defendant. We disagree.
In
Frazier, our Supreme Court addressed the issue of
admissibility of witness testimony offered to demonstrate the
existence of a common plan or scheme by the defendant to sexually
abuse adolescent female family members.
Frazier, 344 N.C. at 615,
476 S.E.2d at 299. The Court noted that [t]he test for
determining whether such 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.
Id. (citing
State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119
(1988));
see also State v. Harris,
140 N.C. App. 208, 212, 535
S.E.2d 614, 617 (test for admission of prior sex offenses to show
common plan, scheme, system or design is two-part: . . . 'whether
the incidents are sufficiently similar; and second, whether the
incidents are too remote in time' (citation omitted)),
disc.
review denied, 353 N.C. 271, 546 S.E.2d 122 (2000).
The testimony in
Frazier tended to prove that the defendant's
prior acts of sexual abuse occurred over a period of approximately
twenty-six years and in a similar pattern.
Frazier, 344 N.C. at
616, 476 S.E.2d at 300. The Supreme Court noted that all of the
victims were adolescents at the time defendant began his sexual
assaults; that in each instance defendant slowly began touching the
victim and gradually reached more serious abuse; that during the
period of the abuse, defendant bought his victims gifts and gave
them money; that he threatened each of them that if she revealed toanyone what he was doing, she would be sent away or suffer some
other severe sanction; and that all of the victims lived with or
near defendant during the course of the abuse.
Id. The Court
concluded that this evidence presents a classic example of a
common plan or scheme.
Id.; see also, Harris, 140 N.C. App. at
212, 535 S.E.2d at 617 (acts sufficiently similar where defendant
befriended the women, took them to a secluded place, pinned the
women down, became aggressive with them, sexually assaulted and
raped them and afterwards acted like nothing had happened).
In the present case, the similarities between the incidents
involving Christa and Joannie also establish defendant's common
plan or scheme. Both acts involved defendant befriending
adolescent girls. In each case, Christa and Joannie spent
significant amounts of time unsupervised with defendant on a daily
basis. Both Christa and Joannie periodically spent the night with
defendant, and sometimes in the company of another adolescent girl.
Both victims helped with chores around defendant's house, but
defendant did not pay them for their work. In both instances,
defendant bought the victims several gifts, including toys. In
each case, defendant allowed the victims to drive his car and he
provided them with marijuana, alcohol and cigarettes while in his
company. Defendant showed affection to both Christa and Joannie in
the form of hugging and kissing them. In both cases, the sexual
abuse occurred in defendant's home. Defendant showed pornographic
videos to both Christa and Joannie. In both instances, defendant
instructed the victims to take showers before sexual activity,
performed oral sex on the victims, and put his finger inside theirvaginas.
It is not necessary that the similarities between the two
situations rise to the level of the unique and bizarre.
State v.
Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635 (citing
State
v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991)),
disc.
review denied, 353 N.C. 382, 546 S.E.2d 114 (2000). Rather, the
similarities simply must tend to support a reasonable inference
that the same person committed both the earlier and later acts.
Id. As in
Frazier, we hold that the evidence presented in this
case presents a classic example of a common plan or scheme.
Frazier, 344 N.C. at 616, 476 S.E.2d at 300.
The
Frazier court also rejected the defendant's argument that
the testimony was too remote in time to be relevant or probative,
given that the prior acts occurred over a time period of seven to
twenty-seven years prior to the trial.
Id. at 615, 476 S.E.2d at
300. The Court noted:
This Court has been liberal in allowing
evidence of similar offenses in trials on
sexual crime charges. . . . Subsequent to
Jones, it has permitted testimony as to prior
acts of sexual misconduct which occurred more
than seven years earlier. In
State v.
Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842
(1989), a case tried prior to the effective
date of the Rules of Evidence, we held that it
was not error for the trial court to admit the
testimony of sisters of the victim that their
father had also sexually abused them. There,
the defendant's prior sexual misconduct with
the sisters occurred during a twenty-year
period. Likewise, we recently held 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 acommon plan or scheme.
Id. at 615-16, 476 S.E.2d at 300 (citations omitted).
Significantly, our Supreme Court has been 'markedly liberal
in admitting evidence of similar sex offenses by a defendant for
the purposes now enumerated in rule 404(b).'
State v. Blackwell,
133 N.C. App. 31, 35, 514 S.E.2d 116, 119 (quoting
State v. Cotton,
318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987)),
cert. denied, 350
N.C. 595, 537 S.E.2d 483 (1999). That Court has held that a ten-
year gap between incidents does not render evidence of the prior
bad act too remote in time to be admissible under 404(b).
See
State v. Penland, 343 N.C. 634, 654, 472 S.E.2d 734, 745 (1996)
([g]iven the commonality of the distinct and bizarre behaviors,
the ten-year gap between the incidents did not 'negate[] the
plausibility of the existence of an ongoing and continuous plan to
engage . . . in such . . . activities' (quoting
State v. Shane,
304 N.C. 643, 656, 285 S.E.2d 813, 821 (1982))),
cert. denied,
Penland v. North Carolina, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997);
see also,
Blackwell, 133 N.C. App. at 36, 514 S.E.2d at 120 (prior
acts occurring seven and ten years prior not too remote to be
considered relevant and admissible).
In the present case, defendant's trial for sexual crimes
perpetrated against Christa occurred in July 1988. The events
complained of in the instant case began occurring around June
1998, approximately ten years following defendant's prior
conviction. The record further indicates that defendant spent atleast one year in prison following his 1988 conviction. It is
proper to exclude time defendant spent in prison when determining
whether prior acts are too remote.
State v. Berry, 143 N.C. App.
187, 198, 546 S.E.2d 145, 154 (citing
Blackwell, 133 N.C. App. at
36, 514 S.E.2d at 120),
disc. review denied, 353 N.C. 729, __
S.E.2d __ (2001). We conclude the gap in time is not too remote to
warrant admission of the evidence under Rule 404(b), given our
Supreme Court's liberal treatment of admitting prior evidence of
similar sexual offenses, and its express holding that a ten-year
gap between incidents is not sufficiently remote in time to
preclude admission under 404(b).
Nor is there merit in defendant's argument that the trial
court should have excluded the evidence because its probative value
was outweighed by its prejudice to defendant. Under Rule 403,
evidence, although relevant, 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 (1999). The question of whether evidence is unfairly
prejudicial 'is a matter left to the sound discretion of the trial
court.'
State v. Chavis, 141 N.C. App. 553, 564, 540 S.E.2d 404,
413 (2000) (quoting
State v. Haskins, 104 N.C. App. 675, 680, 411
S.E.2d 376, 381 (1991),
disc. review denied, 331 N.C. 287, 417
S.E.2d 256 (1992)). Defendant has failed to show an abuse of
discretion. These assignments of error are overruled.
II.
[3]Defendant next argues that the trial court erred in
admitting into evidence a videotape seized by Detective Grant, and
his accompanying testimony regarding the content of the video.
Defendant argues (1) that the State failed to lay a proper
foundation for admission of the videotape because no
voir dire was
conducted prior to its admission, and (2) that Detective Grant's
characterization of the videotape as pornographic was
inadmissible.
The videotape was a pornographic video entitled With Love,
Loni. Joannie identified the videotape at trial as the same
videotape that defendant played for her and Jeannie. Joannie
stated twice, without objection, that the videotape was a porno
movie. The videotape was admitted into evidence following the
direct testimony of Detective Grant. Detective Grant identified
the videotape inside the cassette case as the same videotape he
recovered from defendant's bedroom pursuant to a search warrant.
The videotape exhibited the title With Love, Loni. Detective
Grant further testified that he viewed the videotape, that it was
pornographic in nature, and that it depicted various sex acts
between males and females.
Rule 901 provides that '[t]he requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.'
State v. Redd,
144 N.C. App. 248, 252, 549 S.E.2d 875, 878-79 (2001) (quoting
N.C.R. Evid. 901(a) (1999)). Upon a proper foundation,videotapes, like photographs, are admissible at trial for either
illustrative or substantive purposes.
State v. Mason, 144 N.C.
App. 20, 24, 550 S.E.2d 10, 14 (2001).
Moreover, the requirements for admission here differ from the
requirements of laying a foundation for a videotape that actually
depicts the actions of the victim or the defendant.
See,
e.g.,
State v. Mewborn, 131 N.C. App. 495, 498, 507 S.E.2d 906, 909
(1998). Rather, the videotape in this case is real evidence, or
an object 'offered as having played an actual, direct role in the
incident giving rise to the trial.'
State v. Bryant, 50 N.C. App.
139, 141, 272 S.E.2d 916, 918 (1980) (quoting
State v. Harbison,
293 N.C. 474, 483, 238 S.E.2d 449, 454 (1977)). When real
evidence is properly identified, it is, in general, freely
admissible.
Id. at 140-41, 272 S.E.2d at 918 (citations omitted).
It must simply 'be identified as the same object involved in the
incident in order to be admissible' and as not having undergone
any material change.
Id. at 141, 272 S.E.2d at 918 (citation
omitted). Authentification of real evidence 'can be done only by
calling a witness, presenting the exhibit to him and asking him if
he recognizes it and, if so, what it is.'
Id. (quoting 1
Stansbury's North Carolina Evidence § 26 (Brandis rev. 1973)).
Moreover, [a]s there are no specific rules for determining whether
an object has been sufficiently identified, the trial judge
possesses, and must exercise, sound discretion.
Id.
Defendant's assertion that the trial court was required toconduct
voir dire prior to admitting the vi
deotape is erroneous.
Detective Grant's testimony, establishing that the videotape was
the same videotape recovered from defendant's bedroom, laid the
proper foundation for its admission.
See State v. Rael, 321 N.C.
528, 533-34, 364 S.E.2d 125, 128-29 (1988) (detective's testimony
that 'playboy playmate workout' videotape seized from defendant's
home was same videotape being presented as State's exhibit
sufficient to admit videotape to corroborate victim's testimony
that defendant showed him videotape of people not wearing clothes).
We also reject defendant's argument that the videotape was not
properly introduced because both Joannie and Detective Grant only
identified a video case and not the actual contents of the
videotape. In the same argument, however, defendant states that
there is no indication in the record that the video was shown to
the jury in whole or in part. Taking defendant's statement as
true, the jury only viewed the video case, and therefore
Joannie's identification of the video as the one defendant played
for her, and Detective Grant's identification of the video as the
one seized from defendant's trailer was sufficient for its
admission.
Defendant also argues that Detective Grant's testimony
regarding the contents of the videotape violated the best evidence
rule. Rule 1002 of the North Carolina Rules of Evidence,
commonly known as the 'best evidence rule,' provides that, '[t]o
prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as
otherwise provided in these rules or by statute.'
State v. York,347 N.C. 79, 91, 489 S.E.2d 380, 387 (1997) (quoting N.C. Gen.
Stat. § 8C-1, Rule 1002 (1992)).
Even if Detective Grant's statements should not have been
admitted, we find no prejudicial error in light of previous
testimony that the videotape was a porno movie, as well as
defendant's failure to object to such characterizations.
See State
v. Campbell, 133 N.C. App. 531, 540, 515 S.E.2d 732, 738
(evidentiary errors are harmless unless [a] defendant proves that
absent the error, a different result would have been reached [at
trial])
, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999)
;
State v. Townsend, 99 N.C. App. 534, 537, 393 S.E.2d 551, 553
(1990) (quoting
State v. Brooks, 83 N.C. App. 179, 191, 349 S.E.2d
630, 637 (1986)) ([t]he settled law of this State, unchanged by
the adoption of the North Carolina Rules of Evidence, is that
'[w]here evidence is admitted over objection, and the same evidence
has been previously admitted or is later admitted without
objection, the benefit of the objection is lost'). These
assignments of error are overruled.
III.
[4]Defendant argues that the trial court erred in allowing
Alisha Wallace to testify that she saw a nude photograph of Joannie
in defendant's bedroom where the State did not offer the photograph
into evidence. Defendant argues that Alisha's testimony violates
the best evidence rule. Although we agree with defendant that the
photograph itself is the best evidence of its contents, defendant
has failed to show that he was prejudiced by Alisha's testimonythat she observed the photograph in defendant's bedroom.
Joannie previously testified, without objection, that
defendant took nude photographs of her, and that she brought Alisha
into defendant's bedroom and showed her some of the nude
photographs that defendant kept in his bedroom. Joannie also
previously testified in detail regarding the contents of the
photographs that she showed Alisha, without objection. In light of
the fact that such evidence was already introduced, any error in
the admission of Alisha's testimony did not prejudice defendant.
See State v. Jones, 98 N.C. App. 342, 349, 391 S.E.2d 52, 57-58
(1990) (although note itself was best evidence of its contents,
testimony regarding what note said did not prejudice defendant).
Moreover, the fact that Alisha observed a nude photograph of
Joannie in defendant's bedroom was not a vital part of the State's
evidence.
See In re Potts, 14 N.C. App. 387, 390, 188 S.E.2d 643,
645 (best evidence rule not invoked where contents of evidence not
in question and not a vital part of the State's evidence),
cert.
denied, 281 N.C. 622, 190 S.E.2d 471 (1972).
IV.
[5]Defendant assigns error to the admission of Detective
Grant's testimony corroborating the testimony of Alisha's mother,
Jackie Wallace. Jackie testified that she observed defendant hug
Joannie a couple of times. Detective Grant testified regarding
statements Jackie made to him during his investigation and
interview of her, including a statement that defendant hugged
Joannie excessively. The trial court gave a limiting instructionthat Detective Grant's testimony was only for the purpose of
corroborating Jackie Wallace's prior testimony. Defendant argues
that Detective Grant's testimony that Jackie Wallace stated
defendant hugged Joannie excessively was not corroborative of her
prior testimony that defendant hugged Joannie a couple of times.
Evidence of an out-of-court statement of a witness, related
by the in-court testimony of another witness, may be offered as
substantive evidence or offered for the limited purpose of
corroborating the credibility of the witness making the
out-of-court statement.
State v. Ford, 136 N.C. App. 634, 640,
525 S.E.2d 218, 222 (2000) (footnotes omitted). This Court has
long held that 'corroborative' means '[t]o strengthen; to add
weight or credibility to a thing by additional and confirming facts
or evidence.'
State v. Brown, 350 N.C. 193, 204, 513 S.E.2d 57,
64 (1999) (citations omitted) (holding that contested witnesses'
testimony about prior conversations with other witnesses, although
not precisely identical to the original testimony, tended to
strengthen and confirm the testimony of the first witnesses. As
such, the secondary witnesses' statements constituted corroborating
evidence supplementing and confirming the first witnesses'
testimony). 'It is not necessary that evidence prove the precise
facts brought out in a witness's testimony before that evidence may
be deemed corroborative of such testimony and properly
admissible.'
Id. (quoting
State v. Higginbottom, 312 N.C. 760,
768, 324 S.E.2d 834, 840 (1985)).
The law does not require that Detective Grant's testimonyabout Jackie's statements be in the exact words used by Ja
ckie.
His testimony need only have tended to strengthen and confirm her
testimony that she witnessed defendant hugging the victim. We hold
that Detective Grant's testimony was indeed corroborative of
Jackie's statements that she witnessed defendant hugging Joannie.
In light of the trial court's limiting instruction that Detective
Grant's testimony was for the sole purpose of corroboration, we
find no error in the admission of the testimony.
We have carefully reviewed defendant's remaining arguments
regarding the admission of Alisha's testimony that defendant hugged
her and remarked that her breasts were bigger than Joannie's, and
of a photograph of Joannie wearing a sports bra that defendant
purchased for her. We conclude these arguments are without merit.
No error.
Judges WYNN and TYSON concur.
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