State v Compton, 148 NC App 716 (00-1283) 02/19/2002

Appeal by defendant from judgment announced in open court on 28 June 2000 by Judge A. Moses Massey in Rockingham County Superior Court. Heard in the Court of Appeals 10 October 2001.

Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State.

John W. Lunsford for defendant-appellant.

    BRYANT, Judge.

    Defendant Keith Marcell Compton is the stepfather of the child victim (TC) in this case. One day in the fall of 1998, TC's mother walked into the den area of her home unannounced and saw defendant with his hand on TC's genitalia with TC's panties pushed to the side. The mother thereafter initiated an investigation with the Rockingham County Department of Social Services (DSS) concerning defendant's possible sexual abuse of TC. Prior to DSS's interview with TC, the mother questioned TC, and TC responded that defendant kissed her on the mouth and touched her. The mother kept notes of her questions, and TC's responses. On 16 September 1999, mother spoke with a social worker at DSS, and gave a statement to adetective with the Rockingham County Sheriff's Department concerning defendant's possible sexual abuse of TC.
    On 24 September 1999, Kimberly Madden, an expert in forensic interviewing, talked to TC at the child evaluation clinic at the Moses Cone Health System. TC told Madden that beginning when she was in the third grade,   (See footnote 1) defendant would take her to the bedroom and close the bedroom door. Defendant would then rock her in his lap, kiss her on the mouth and face, and use his hand to touch her genitalia and buttocks. Defendant would rock her until he was tired and exhaled loudly when he finished. TC stated that defendant usually gave her candy when he finished rocking her, and that these encounters occurred when the mother was away from home.     Dr. Angela Stanley, an expert in pediatrics at the Moses Cone Health System, examined TC on 24 September 1999, but found no physical evidence of abnormalities with TC's genitalia. Dr. Stanley also interviewed the mother on the same date. The mother expressed concerns to Dr. Stanley about defendant's possible sexual abuse of TC on prior occasions in the past one to two years.
    The Rockingham County Sheriff's Department investigated defendant's alleged sexual abuse of TC. During the course of the investigation, defendant wrote the following statement:
    “I, . . . Keith Marcell Compton, admit to touching my stepdaughter, [TC], in an inappropriate place in the recent past. I admit doing this on two occasions that I can recall. The touching consisted of sitting beside [TC] with my arm around her shoulder,my hand was in her lap. May [sic] hand touched her clothing over her private areas. I never removed or had [TC] remove any of her clothing. On other occasions I touched her breast in an inappropriate manner. I did not gain any pleasure in taking these actions. My conscience was convicting me and I had no plans to do it again. I'm extremely sorry for my lack of responsibility to my - - to my stepdaughter and my family.”

Defendant was arrested and subsequently indicted on 6 December 1999 for taking indecent liberties with a child. Following a jury trial at the criminal session of Rockingham County Superior Court with the Honorable A. Moses Massey presiding, defendant was found guilty of taking indecent liberties with a child. Immediately upon entry of judgment and commitment, defendant gave notice of appeal in open court on 28 June 2000. He thereafter filed a written notice of appeal on 7 July 2000.

    On appeal, defendant first argues that the trial court committed error in admitting as substantive evidence State exhibits 4 and 5 that contained prior statements from TC and the mother respectively. We disagree.
    It is well settled in North Carolina that the prior consistent statements of a witness are admissible to corroborate the witness's sworn testimony. See State v. Beane, ___ N.C. App. ___, ___, 552 S.E.2d 193, 200 (2001). By definition, corroborative evidence tends to strengthen, confirm or make more certain the testimony of a witness. See Beane, ___ N.C. App. at ___, 552 S.E.2d at 200. Corroborative evidence does not need to mirror the testimony itseeks to corroborate in order to be admissible. See Beane, ___ N.C. App. at ___, 552 S.E.2d at 200. Rather, it may include new or additional information as long as the new information tends to strengthen or add credibility to the testimony it corroborates. See Beane, ___ N.C. App. at ___, 552 S.E.2d at 200.
    At trial, TC testified that when defendant held her on his lap and rocked her, he would touch her stomach. When questioned whether defendant touched her places other than her stomach, TC replied that she did not know. Thereafter, the State introduced notes from Madden's interview with TC (exhibit 4) where TC stated that defendant would touch her genitalia with his hand.
    Exhibit 4 was admissible as corroborative evidence. Nothing in the record indicates that it was offered as substantive evidence. Even if the information contained in exhibit 4 was admitted as substantive evidence, any error resulting from admission of that evidence was not prejudicial.
    In addition, the State introduced in evidence as exhibit 5, notes from Dr. Stanley's interview with the mother. Recorded in these notes were the mother's statements of how she learned that defendant was allegedly fondling TC in the parents' bedroom, and the mother's recollection of two other occasions that she suspected defendant was sexually abusing TC. The State offered exhibit 5 for the purposes of corroboration.
    At trial, the mother testified that she awoke from a nap, went into the den where she saw defendant with his hand on TC's genitalia. However, she did not testify as to other statementscontained in Dr. Stanley's notes.
    Prior to the introduction in evidence of exhibit 5, the trial court provided a limiting instruction stating that evidence of a prior statement that may be (in)consistent with testimony at trial was not evidence of the truth of the earlier statement, but may be considered in determining whether to (dis)believe the witness's testimony at trial. In addition, in its final jury instructions, the trial court provided the following limiting instruction:
As I stated to you earlier, when evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent with or may conflict with his or her testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that 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 with 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's truthfulness in deciding whether you will believe or disbelieve his or her testimony at this trial.

The statements contained in exhibit 5 were admissible for the purposes of corroboration. We conclude that the trial court did not commit error in admitting into evidence exhibits 4 and 5.

    As this Court can best ascertain, defendant next argues that the trial court committed error: 1) in allowing the State to question Madden and Dr. Stanley as to whether they believed TC's allegations against defendant; and 2) in not allowing defendant to question a third witness as to his experience in child abusematters.   (See footnote 2) We disagree.
    Our courts have consistently interpreted the North Carolina Rules of Evidence as to prohibit an expert witness from commenting on the credibility of another witness. See State v. Marine, 135 N.C. App. 279, 281, 520 S.E.2d 65, 66 (1999); State v. Stanfield, 134 N.C. App. 685, 688, 518 S.E.2d 541, 543 (1999); State v. Hannon, 118 N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995); State v. Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 843 (1994), reconsideration denied by 339 N.C. 618, 453 S.E.2d 188, cert. denied by Jones v. North Carolina, 515 U.S. 1169, 132 L. Ed. 2d 873, reh'g denied by Jones v. North Carolina, 515 U.S. 1183, 132 L. Ed. 2d 913 (1995); State v. Wise, 326 N.C. 421, 426, 390 S.E.2d 142, 145, and cert. denied by Wise v. North Carolina, 498 U.S. 853, 112 L. Ed. 2d 113 (1990). A witness who renders an expert opinion, however, may testify as to the reliability of the information upon which she bases her opinion pursuant to Rules 702 and 703 of theNorth Carolina Rules of Evidence. See State v. Youngs, 141 N.C. App. 220, 226, 540 S.E.2d 794, 798 (2000); appeal dismissed, rev. denied by ___ N.C. ___, 547 S.E.2d 430 (2001); Marine, 135 N.C. App. at 281, 520 S.E.2d at 66-67. The line between properly explaining the basis of an expert's opinion and improperly commenting on a witness's credibility can be very narrow, especially in the context of a case involving sexual assault. Marine, 135 N.C. App. at 283, 520 S.E.2d at 68.
    As relates to Madden's testimony, the transcript reveals in pertinent part:
Q.    And, Ms. Madden, in your expert opinion, based on your interview with the child, do you have an opinion -- in your expert opinion, do you have any reason to disbelieve the child based on your interview with her?

MR. LUNSFORD: I object.

THE COURT: Objection overruled as the question was put.

A. I did not disbelieve her. I did not disbelieve what she was saying.

    Defendant presented a timely objection which was overruled by the trial court. Defendant however did not make a motion to strike the answer. Therefore, the only issue before this Court is whether the trial court erred in overruling defendant's objection to the question presented.
    Upon further review of the transcript, it appears that at an earlier point in the proceedings, the same evidence elicited by this question was allowed in evidence over the objection of defense counsel. Specifically, Madden read into evidence State's exhibit4 which contained Madden's impression of the reliability of TC's information. The transcript reveals in pertinent part:
    “[TC] described how her father would give her candy after he was finished rocking and touching her. [TC] stated that her brother noticed that [TC] got candy and questioned her mother about it. The information that [TC] gave during her interview appeared to be consistent with previously obtained information.

“Furthermore, this child did not present with any suggestion that she was fabricating any allegations. Specifically, [TC] exhibited anxious affect at times and seemed quite hesitant when asked about the alleged sexual abuse. [TC] reported she feared her father would punish her 'because I told on him.'

“Furthermore, to describe this knowledge, there were no factors and/or individuals that would have influenced [TC] to fabricate these allegations.

Any error that resulted from allowing the State to question Madden regarding whether she had any reason to disbelieve TC was harmless in light of the fact that essentially the same information had previously been received in evidence. Therefore, we find there was no prejudicial error in allowing the State to ask the above referenced question.
Regarding Dr. Stanley's testimony, the transcript reveals in pertinent part:
Q. [Dr. Stanley,] Do I understand you have an opinion as to whether the parents who would bring the child in have a belief one way or the other whether the child is telling the truth?

MR. LUNSFORD: I object.

THE COURT: Objection overruled.
A. Parents generally state one way or the other how they feel about a child's statements.

Q. And did [mother] state to you her belief in [TC's] statements to her and to you?

A. [Mother] did not state that “yes” or “no.” She conducted herself in a matter [sic] by answering a question and giving statements that led me to believe that she was supportive of her child's statements.

MR. LUNSFORD: Well, I move to strike, Your Honor.

THE COURT: Motion denied.

. . .

Q. Did she ever say to you that “my daughter may not be telling the truth”?

MR. LUNSFORD: I object.

THE COURT: Objection overruled.

A. No, sir.

    We find that the series of questions properly elicited information that is admissible pursuant to Rules 702 and 703. See Youngs, 141 N.C. App. at 226, 540 S.E.2d at 798; Marine, 135 N.C. App. at 281, 520 S.E.2d at 66-67. Specifically, the information was elicited from an expert qualified in the area of child abuse. Moreover, the information concerned specialized knowledge which would assist the trier of fact to understand the evidence. Eliciting such information is proper because a lay jury could be expected to be unfamiliar with parental beliefs concerning whether a child is fabricating the alleged abuse. Cf. State v. Speller, 102 N.C. App. 697, 702, 404 S.E.2d 15, 18 (1991) (finding testimonythat mothers of abused children usually do not believe the child was admissible pursuant to Rule 702 because “a lay jury could be expected to be unfamiliar with parental responses to allegations of abuse”). In addition, Dr. Stanley's responses to questions concerning mother's beliefs served as a basis for Dr. Stanley's expert opinion. Therefore, we find no error in the trial court's overruling of defendant's objections.
    In addition, defendant assigns as error that the trial court committed error in denying him the opportunity to question State witness Detective Dean Venable of the Rockingham County Sheriff's Department concerning the detective's experience in child abuse matters. Defendant however does not make this argument to the Court. From a review of defendant's assignment of error and portions of the transcript he references in his brief, it appears defendant attempted to question Detective Venable regarding his experience in child abuse matters as a preface to further inquiry regarding DSS's failure to initiate a parallel abuse or neglect proceeding.
    The transcript reveals in pertinent part:
    THE COURT:    Mr. Lunsford, I'll hear you as to the relevance of how many child abuse cases the witness has investigated since the date 1998 . . . .

. . .

MR. LUNSFORD: Okay. . . . My purpose in asking about any other abuse situation was to see if those abuse situations resulted in -- in his testimony in juvenile court. I am astounded that there was no juvenile proceeding in this matter alleging abuse or neglect. And I'm not -- I am totally unawareof any situation like this that has not resulted in DSS going through an abuse/neglect situation. I think that's entirely relevant, because it goes to whether these events that the State is attempting to prove actually happened. . . .

. . .

THE COURT: I think it is highly prejudicial to the State -- we're trying to conduct a fair and impartial trial here to both sides. I think it's highly prejudicial to the State to have this jury led to believe that because the Department -- there could be infinite reasons that the Department of Social Services took or did not take action. I just think that what the Department of Social Services has done or not done is irrelevant to this jury's search for truth based on the facts presented in this courtroom from the witness stand.

MR. LUNSFORD: All right.

It appears defendant was attempting to elicit testimony from Detective Venable that DSS did not initiate an abuse or neglect proceeding as to TC and that failure to do so is evidence that the incidents testified to at trial did not occur. However, it is clear from the above referenced transcript excerpt that the trial court found that the evidence was irrelevant and that the introduction of the evidence sought by defendant would be so highly prejudicial as to mislead the jury. Rule 403 of the North Carolina Rules of Evidence allows the court to exclude otherwise relevant evidence when the probative value of that evidence is substantially outweighed by the prejudicial effects of admitting the evidence. See N.C.G.S. § 8C-1, Rule 403 (1999). The trial court's decision as to whether evidence should be excluded as so highly prejudicial will be not be disturbed on appeal absent evidence that thedecision amounts to an abuse of discretion. See State v. Hutchinson, 139 N.C. App. 132, 137, 532 S.E.2d 569, 573 (2000). Even assuming that the evidence was relevant, we find that the trial court's ruling did not amount to an abuse of discretion and therefore, this assignment of error is overruled.

    Third, defendant argues that the trial court committed error by denying defendant's motion to dismiss at the close of the State's evidence and at the close of all the evidence. We disagree.
    In reviewing a motion to dismiss, the trial court is to determine whether there is substantial evidence: (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant being the perpetrator of the offense. State v. Stancil, ___, N.C. App. ___, ___, 552 S.E.2d 212, 218 (2001). In reviewing challenges to the denial of a motion to dismiss based on the insufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455, cert. denied by Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
    The elements of taking indecent liberties with a child include:
(a) A person is guilty of taking indecent liberties with [a child] if, being 16 years of age or more and at least five years older than the child in question, he 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.G.S. § 14-202.1 (1999).
    The crime of taking indecent liberties with a child is a specific intent crime. State v. Creech, 128 N.C. App. 592, 598, 495 S.E.2d 752, 756 (1998). Defendant's purpose for committing the act of indecent liberties with a child is seldom proven by direct evidence, and often must be proven by inference. Id. A jury may infer from the defendant's actions that defendant committed the act for the purpose of sexual gratification. See generally State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410 (1993); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989); State v. Bruce, 90 N.C. App. 547, 369 S.E.2d 95 (1988); State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806 (1986).
    Viewing the evidence in the light most favorable to the State, there exists sufficient evidence to satisfy the elements of the crime charged and to show that defendant was the perpetrator of the crime. Specifically, the evidence shows that when the acts occurred, defendant was 36 years of age (older than 16 years of age and more than five years older than TC), and that TC was 7 or 8 years of age (under the age of 16). In addition, the evidence shows that defendant on many occasions would rock TC in his lap anduse his hand to touch her genitalia and buttocks. He would rock her until he was tired and exhale loudly when he finished. The evidence further shows that mother saw defendant touching TC's genitalia on one occasion. Moreover, defendant made a statement to a law enforcement officer that on several occasions he touched TC on her breast and her genital area in an inappropriate manner. The evidence is substantial as to each essential element of the crime and of defendant's identity as the perpetrator. The trial court did not commit error in denying defendant's motions to dismiss.

Fourth, defendant argues that the trial judge presided in a biased manner that prejudiced the jury against defendant. We disagree.
In State v. Carter, the Supreme Court of North Carolina articulated that “[e]very person charged with [a] crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.” 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951). The Carter Court further stated:
The bare possibility, however, that an accused may have suffered prejudice from the conduct or language of the judge is not sufficient to overthrow an adverse verdict. The criterion for determining whether or not the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made.

Carter, 233 N.C. at 583, 65 S.E.2d at 10-11 (citations omitted). The party alleging lack of a fair trial carries the burden to show prejudice. See State v. Faircloth, 297 N.C. 388, 392, 255 S.E.2d 366, 369 (1979).
Defendant contends that the trial judge told the defense attorney to keep objections to a minimum; was visibly upset with the defense attorney's focus on defendant's lack of gratification in touching TC's genitalia; and allowed the prosecution to ask compound and argumentative questions. The repetition of these occurrences, defendant alleges, combined to taint the proceeding such that defendant did not receive a fair trial. Defendant contends that the probable effect of the trial judge's comments and conduct is evidenced by the fact that the jury found defendant guilty although TC, TC's mother, TC's brother and defendant testified that the alleged acts did not occur.
We note that defendant has mischaracterized the evidence presented at trial. With the exception of the defendant none of the witnesses testified that the acts did not occur. On the contrary, there was sufficient evidence presented, including defendant's out-of-court statement of admission, to support the jury verdict of taking indecent liberties with a child. Based on the record, this Court cannot find that the trial judge's comments and conduct had the probable effect of prejudicially influencing the jury. We overrule this assignment of error.