STATE OF NORTH CAROLINA
v
.
BILLY RAY MANEY
Roy Cooper, Attorney General, by Margaret A. Force, Assistant
Attorney General, for the State.
Siemens Law Office, P.A., by Jim Siemens, for defendant-
appellant.
THOMAS, Judge.
Defendant, Billy Ray Maney, appeals a judgment finding him
guilty of first-degree statutory sexual offense. He makes three
assignments of error, contending the trial court erred by: (1)
denying his motion to suppress statements he made to a
psychologist; (2) granting the State's motion in limine forbidding
defendant to admit evidence of a prior judgment acquitting him on
the charge of first-degree statutory rape of the same victim; and
(3) improperly instructing the jury on failure to reach a verdict
and failing to grant a mistrial. For the reasons herein, we findno error.
Defendant was married to the victim's mother in 1992. The
victim, “K”, born in 1983, and her sister, “J”, who is three years
older, approached their mother in July 1999 and explained that
their stepfather, defendant, had been inappropriately touching them
for some time. The family was then living in Jackson County. K
and J were interviewed by representatives of the Jackson County
Department of Social Services and the Jackson County Sheriff's
Department. Subsequently, defendant was charged with taking
indecent liberties in Jackson County and entered into a plea
arrangement.
As a condition of the plea arrangement, defendant went to
Smokey Mountain Mental Health Center for a sex offender specific
evaluation. During an evaluation by Arthur Dosch, a licensed
psychological associate, defendant admitted to two counts of
indecent liberties. In February 2000, defendant tendered his
guilty plea and was sentenced in accordance with the plea
arrangement.
However, unknown to defendant and his Jackson County counsel
at the time of the plea, charges of first-degree statutory sexual
offense and first-degree statutory rape involving K were pending
against defendant in Buncombe County, relating to an incident
occurring while K and defendant were visiting her great-grandmotherin Asheville in 1998. The two warrants were served on defendant
four days after he entered the plea in Jackson County. Defendant's
counsel in Jackson County moved to have defendant's plea set aside.
The request was granted.
Defendant was subsequently found not guilty of the first-
degree statutory rape charge in Buncombe County, but the jury was
deadlocked as to the first-degree statutory sexual offense charge.
The trial court declared a mistrial on the charge of first-degree
statutory sexual offense. Defendant was re-tried in the instant
case and the jury returned a guilty verdict. He was sentenced to
a minimum term of 250 months and a maximum term of 309 months in
prison. Defendant now appeals.
The State's evidence tends to show the following: Defendant
began to sexually touch K in 1992, when she was eight years old.
On occasion, as she went to kiss him goodnight, he would grab her
face and stick his tongue into her mouth. He sometimes touched her
buttocks when he hugged her. Frequently, defendant would put his
fingers into her vagina when she was on the couch at night after
her mother went to bed. He would also force K to put her hand down
his pants to touch his penis.
In October 1993, late at night, the family was returning from
Tennessee. Defendant was driving the van, K was in the front
passenger seat, and her mother, sister, and brothers were in theback seats. Defendant reached over and tried to touch K's vaginal
area after touching one of her breasts. She then turned away so he
could not reach her.
The statutory sexual offense charge in the present case
relates to an incident in Buncombe County during the summer of
1998. K was fourteen years old when she went with defendant to her
great-grandmother's home in Asheville. Her great-grandmother had
been placed in a nursing home, so defendant and K mowed the lawn
and did other work in her yard. Afterwards, K went into the house
and sat on one of the beds. Defendant went into the house, took a
shower and, wrapped in a towel, sat behind her on the bed. He
reached around her, moved her shorts aside, and put his finger into
her vagina while touching her breast. K got up, but defendant
restrained her by hugging her and then stuck his tongue into her
mouth. K pushed away and they eventually went home.
K told several people, including friends at school and her
sister, J, that defendant was inappropriately touching her. J told
K that defendant had also been touching her in the same manner.
Together, they told their mother. They then informed the
authorities, but K did not tell them about every incident she could
remember.
Defendant presented no evidence.
After being found guilty of first-degree statutory sexualoffense, defendant was sentenced to a minimum term of 250 and a
maximum term of 309 months. He appeals.
By defendant's first assignment of error, he argues the trial
court committed reversible error by denying his motion to suppress
his statements to Dosch, in violation of the Sixth Amendment to the
Constitution of the United States and Rule 403 of the North
Carolina Rules of Evidence. We disagree.
“The Sixth Amendment recognizes the right to counsel because
effective counsel plays a role that is critical to the ability of
the adversarial system to produce just results.” State v.
Davidson, 77 N.C. App. 540, 546, 335 S.E.2d 518, 522 (1985)
(quoting Golden v. Newsome, 755 F.2d 1478, 1484 (11th Cir. 1985)).
Defendant first contends he was denied effective assistance of
counsel under the Sixth Amendment because his attorney in the
Jackson County cases, Reid Brown, convinced him to go to the Smokey
Mountain Mental Health Center to have a sex offender specific
evaluation done. Defendant maintains this advice constituted
ineffective assistance of counsel since Brown knew of the
possibility that defendant may be charged in Buncombe County and
that the statements made to Dosch could be used as an admission in
a later case.
To substantiate a claim for ineffective assistance of counsel,
a defendant must show that his counsel's representation wasdeficient and there is a reasonable possibility that, but for the
inadequate representation, there would have been a different
result. State v. Frazier, 142 N.C. App. 361, 367, 542 S.E.2d 682,
687 (2001). Reid's representation of defendant was limited to the
charges brought in Jackson County. At no time did he represent
defendant in the present case. Further, after a careful review of
the record and trial transcript, we hold that there is ample and
substantial evidence against defendant for the State to have still
obtained a guilty verdict even without the testimony of Dosch. We
therefore reject this argument.
Defendant contends the admission also violated Rule 403 of the
North Carolina Rules of Evidence. Rule 403 provides, in pertinent
part, that: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice[.]” N.C.R. Evid. 403. Under the balancing test required
by the Rule, evidence must be “sufficiently similar and not so
remote in time as to be more probative than prejudicial.” State v.
Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). Whether or
not to exclude evidence under Rule 403 is a matter left to the
sound discretion of the trial judge. State v. Mason, 315 N.C. 724,
731, 340 S.E.2d 430, 435 (1986). This Court will not intervene
where the trial court has properly weighed both the probative and
prejudicial value of the evidence and made its ruling accordingly.Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of
God, 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000).
Here, defendant did not contend that the incidents he admitted
to in Jackson County were dissimilar, or lacked sufficient temporal
proximity, to those in Buncombe County. Rather, he maintained that
Rule 403 was violated because, given the circumstances, allowing
Dosch's testimony was unfair and gave the appearance of
prosecutorial treachery. The trial court heard defendant's
arguments to exclude Dosch's testimony on Rule 403 grounds,
questioned defense counsel, and only then found that the value of
the statements outweighed any prejudicial effect. Its ruling was
the result of the exercise of sound discretion and we therefore
reject this argument.
By defendant's second assignment of error, he argues the trial
court committed reversible error by granting the State's motion in
limine forbidding defendant to address his prior acquittal on the
charge of first-degree rape brought by K. We disagree.
A motion in limine seeks “'pretrial determination of the
admissibility of evidence proposed to be introduced at trial,' and
is recognized in both civil and criminal trials.” Nunnery v.
Baucom, 135 N.C. App. 556, 566, 521 S.E.2d 479, 486 (1999) (quoting
State v. Tate, 44 N.C. App. 567, 569, 261 S.E.2d 506, 508, rev'd on
other grounds, 300 N.C. 180, 265 S.E.2d 223 (1980)). The trialcourt has wide discretion in ruling on motions in limine and will
not be reversed absent an abuse of discretion. Id. “An abuse of
discretion occurs when the trial court's ruling 'is so arbitrary
that it could not have been the result of a reasoned decision.'”
Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
109, 493 S.E.2d 797, 802 (1997) (quoting White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985), disc. review denied, 347 N.C.
670, 500 S.E.2d 84 (1998).
Here, the trial court heard arguments from both sides before
reaching a decision. The State argued that evidence of a prior
acquittal was not relevant to defendant's guilt or innocence in the
instant case and that any probative value would be substantially
outweighed by the danger of prejudice to the State. The defense
argued that the acquittal indicated that the earlier jury did not
believe the victim. The State then pointed out that an acquittal
can also indicate that the State simply did not satisfy its burden
of proof as to one or more of the elements of first-degree
statutory rape.
Defendant has not shown that the trial court's ruling could
not have been the result of a reasoned decision. He has thus
failed to demonstrate an abuse of discretion. Consequently, we
reject his argument.
By defendant's final assignment of error, he argues the trialcourt committed reversible error by failing to instruct the jury as
requested pertaining to its failure to reach a verdict and by
failing to declare a mistrial.
Here, the jury requested to “see the state statutes or the
instructions” given by the judge and deliberated for a total of
almost twelve hours. During the deliberations, the trial court
denied defendant's request that the trial court instruct the jury
that its “failure to reach a verdict need not be their concern, but
they need to report that to [the court].”
After the first full day of deliberation, the jury gave a note
to the trial court stating that two separate votes had yielded the
same tally, and that “[i]t appears we are firm in this decision and
cannot meet a unanimous vote.” This note was not shown to counsel
for either party and the trial court responded with the following
instruction, taken from the North Carolina Pattern Jury
Instructions:
You should reason the matter over together as
reasonable men and women and to reconcile your
differences, if you can, without surrender of
conscientious convictions. No juror should
surrender his or her honest conviction as to
the weight or effect of the evidence solely
because of the opinion of your fellow jurors
or for the mere purpose of returning a
verdict.
See N.C.P.I.--Crim. 101.40. Defendant contends the trial court
gave an incomplete instruction because N.C.P.I.--Crim. 101.40prefaces the second sentence with the word “But” and the trial
court failed to do so. Given the totality of the circumstances,
he claims, the denial of his motion for a mistrial constituted
error.
However, defendant fails to cite any legal authority in
support of his arguments. This assignment of error is therefore
deemed abandoned. N.C.R. App. P. 28(b)(5).
NO ERROR.
Judges WYNN and HUNTER concur.
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