STATE OF NORTH CAROLINA
v
.
Halifax County
Nos. 98 CRS 11261, 11262, 11263
ROGER LEE MALONE,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-
appellant.
EAGLES, Chief Judge.
Roger Lee Malone (“defendant”) appeals from judgment entered
on jury verdicts finding him guilty of two counts of first degree
sexual offense and one count of first degree statutory rape. After
careful consideration of the briefs and record, we find no
prejudicial error.
At trial, the evidence tended to show that D (“victim”), was
born on 19 December 1985 and is the daughter of Marjorie Weaver
(“Weaver”) and William Phillips (“Phillips”). Weaver and defendant
began a dating relationship in 1993. Defendant moved to North
Carolina in 1996. In September 1996, defendant, Weaver, the
victim, and the victim's younger siblings lived with Weaver'ssister at a house on Vance Street in Roanoke Rapids. There,
defendant allegedly had vaginal intercourse with the victim who was
ten years old at the time. The victim told a school guidance
counselor and the matter was investigated. The victim moved in
with her maternal grandmother but no criminal charges were brought
at that time against defendant.
After defendant, Weaver, and the victim's siblings moved to a
house on Hamilton Street in Roanoke Rapids, the victim returned to
live with them. In May 1997 at the house on Hamilton Street,
defendant touched the victim with his private parts and committed
two separate acts of anal intercourse with the victim. One
incident occurred in the victim's bedroom upstairs while the other
incident took place in Weaver's bedroom downstairs.
On 21 May 1997, the Department of Social Services (“DSS”) were
investigating alleged sexual abuse of the victim's brother, T,
after he was found infected with gonorrhea. The victim and her
siblings were subsequently tested for gonorrhea. The victim's
siblings tested negative while the victim tested positive for oral,
anal, and vaginal gonorrhea. After this report, the victim and her
siblings were removed from the home on Hamilton Street and placed
in foster care. The victim and one of her siblings were then
placed in the home of their biological father, Phillips, and their
stepmother.
Defendant was indicted for two counts of first degree
statutory sexual offense and one count of first degree statutory
rape. The matter came to trial at the 25 September 2000 CriminalSession of Halifax County Superior Court. The jury returned
verdicts of guilty for all three charges. For each charge,
defendant was sentenced to a minimum term of imprisonment of 240
months and a maximum of 297 months. Each sentence is to be served
consecutively. Defendant appeals.
Defendant contends that the trial court erred in: (1) denying
defendant's motion to dismiss the charge in 98 CRS 11261 due to
insufficient evidence; (2) failing to disclose the contents of
juror notes and the trial court's responses to the notes; (3)
instructing the jury that certain drawings and photographs could be
considered as substantive evidence; and (4) refusing to conduct an
in camera inspection of the State and DSS files for evidence
favorable to the defendant and material to his guilt or punishment.
After careful review, we find no prejudicial error.
Defendant first contends that the trial court erred in denying
defendant's motion to dismiss 98 CRS 11261, the alleged first
degree sexual offense upstairs at Hamilton Street, based on the
insufficiency of the evidence. We do not agree.
Defendant moved to dismiss 98 CRS 11261 at the close of the
State's evidence and again at the close of all the evidence. The
trial court denied defendant's motions. Defendant argues that
there was insufficient evidence for a reasonable juror to find
beyond a reasonable doubt that defendant committed anal intercourse
as alleged in 98 CRS 11261. Defendant contends that the State's
evidence was sufficient to prove only a touching of the victim's
rectum by defendant's penis. Defendant argues that the State'sevidence is insufficient to prove the act of anal intercourse and
support the verdict of guilty of first degree sexual offense. We
do not agree.
In reviewing the denial of a motion to dismiss
for insufficient evidence, the trial court
must “. . . 'consider the evidence in the
light most favorable to the State and give the
State every reasonable inference to be drawn
therefrom.'” A trial court must deny a motion
to dismiss where there exists “substantial
evidence - whether direct, circumstantial, or
both - to support a finding that the offense
charged has been committed and that the
defendant committed it.”
State v. Santiago, __ N.C. App. __, __, 557 S.E.2d 601, 606 (2001),
disc. review denied, 355 N.C. 291, __ S.E.2d __ (2002) (citations
omitted). “'Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'
When reviewing the evidence, the trial court must consider even
incompetent evidence in the light most favorable to the
prosecution, granting the State the benefit of every reasonable
inference.” State v. Kraus, __ N.C. App. __, __, 557 S.E.2d 144,
147 (2001) (citations omitted). “[I]f the trial court determines
that a reasonable inference of the defendant's guilt may be drawn
from the evidence, it must deny the defendant's motion [to dismiss]
even though the evidence may also support reasonable inferences of
the defendant's innocence.” State v. Clark, 138 N.C. App. 392,
402-03, 531 S.E.2d 482, 489 (2000), cert. denied, 353 N.C. 730, 551
S.E.2d 108 (2001). “Any contradictions or discrepancies in the
evidence should be resolved by the jury.” Kraus, __ N.C. App. at
__, 557 S.E.2d at 147. Specifically, “[f]or a charge of sexual offense to withstand
a motion to dismiss for insufficient evidence, there must be
evidence of anal or genital penetration by any object.” State v.
Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91, disc. review
denied, 346 N.C. 551, 488 S.E.2d 813 (1997). Here, the alleged
offense was anal intercourse. This act “requires penetration of
the anal opening of the victim by the penis of the male.” State v.
DeLeonardo, 315 N.C. 762, 764, 340 S.E.2d 350, 353 (1986).
Here, defendant was charged with two sexual offenses in May
1997. The first is 98 CRS 11261 which occurred upstairs at the
house on Hamilton Street and the second is 98 CRS 11263 which
occurred downstairs at the house on Hamilton Street. Regarding the
incident that was alleged in 98 CRS 11261, the sexual offense
committed upstairs, the victim testified that:
Q. Did [defendant] touch your private parts
in the back?
A. Yes.
. . . .
Q. What, if anything, did [defendant] touch
your private parts in the back with?
A. With his private parts.
. . . .
Q. Did that happen again in May of 1997?
A. Yes.
Then, regarding the sexual offense that occurred downstairs at
Hamilton Street which is the basis for 98 CRS 11263, the victim
testified that: Q. What happened next?
A. And then [defendant] got on top of me.
Q. Did [defendant] put his private parts in
your private parts?
MR. LIVERMON: Object.
A. Yes.
THE COURT: Overruled.
Q. In the front or the back?
A. Both.
During re-direct examination, the victim testified further:
Q. When you say touching, does it mean going
inside or staying outside?
MR. LIVERMON: Object.
THE COURT: Overruled.
A. Inside.
. . . .
Q. Did the defendant's private parts go
inside your private parts or stay outside
your private parts?
MR. LIVERMON: Object.
THE COURT: Overruled.
A. Went inside.
Examining the entire testimony of the victim, the State
presented sufficient evidence of penetration to deny defendant's
motion to dismiss. Defendant cites State v. Hicks, 319 N.C. 84,
352 S.E.2d 424 (1987) for support that the victim's testimony is
insufficient to support the verdict of guilty. Hicks reversed the
defendant's conviction on the charge of first degree sexual offensebecause the only evidence offered to show anal intercourse was the
victim's statement that “defendant 'put his penis in the back of
me.'” Id. at 90, 352 S.E.2d at 427. Here, the victim testified
that “touching” meant going “inside” and that defendant's private
parts “went inside” her private parts. Also, Dr. Pamela Larsen
(“Dr. Larsen”), a nurse practitioner, performed a medical
examination of the victim in June 1997. Dr. Larsen testified that
the fact that the victim's rectum was torn was a factor in her
opinion that the victim was sexually abused. We discern no error
in the trial court's denial of defendant's motion to dismiss.
Defendant next contends that the trial court erred by failing
to disclose to defendant the contents of two notes the jury
submitted to the trial court during deliberations and that the
trial court's responses to those two questions were coercive. We
are not persuaded.
During deliberations, the jury sent two notes to the trial
court. The jury sent the first note after deliberating for
approximately one hour and ten minutes. The note stated: “What do
we do when we have all 12 votes for guilty of having anal
intercourse upstairs, and 11 votes guilty for anal intercourse
downstairs and 1 not guilty. We also have 11 guilty for statutory
rape and 1 not guilty.” The trial court responded to the jury as
follows:
THE COURT: You've indicated that you have
reached -- well, you think you can reach a
verdict as to one charge but you're split as
to the other two?
[FOREPERSON]: We did.
THE COURT: Well, do you feel like as to the
two that you're split on that if you
deliberate further that you can break the
deadlock and come to a unanimous verdict as to
those?
[FOREPERSON]: It would be hard but . . . .
THE COURT: Well, I would like for you to try
to do that, okay? Okay.
Approximately forty-five minutes later, the jury submitted
another note to the trial court. This note stated: “We have all
12 votes on statutory rape and also 1st degree sexual offense
upstairs. We have 11 to 1 on the sexual offense downstairs.” In
response, the trial court stated to the jury that:
THE COURT: Okay, [Foreperson], your latest
note indicates that you have a unanimous
verdict as to two of the counts?
[FOREPERSON]: Yes.
THE COURT: But as to the third count, you are
deadlocked. Do you feel like that you are
hopelessly deadlocked on that count?
[FOREPERSON]: Pretty much. We went over
everything.
THE COURT: Well, pretty much -- well, it's
like I said to you before, do you feel like
that if you're allowed to deliberate further
on that count you can reach a unanimous
verdict or do you feel like that you're locked
in?
[FOREPERSON]: (No response.)
THE COURT: I see the split is eleven to one.
[FOREPERSON]: Yes.
THE COURT: Do [you] all want to go back there
and talk about that particular matter and then
let me know after [you] all have talked about
it?
[FOREPERSON]: We'll try.
THE COURT: And then I'll bring you right back
out here. You let the bailiff know that
you're ready to come back out here but I'll
let you go back there and discuss what I just
asked you.
[FOREPERSON]: Okay.
Defendant argues that the trial court's responses were
coercive under the totality of the circumstances. Defendant
contends that it was coercive since the trial court was aware of
the majority position and the trial court gave no instruction for
the jurors to maintain their convictions. We do not agree.
In State v. Jones, 342 N.C. 457, 466 S.E.2d 696, cert. denied,
518 U.S. 1010, 135 L. Ed. 2d 1058 (1996), the jury notified the
trial court of the numerical split and the majority's position.
Id. at 467, 466 S.E.2d at 701. The trial court did not inform the
parties about the majority's position and instructed the jury to
return to deliberate to reach a verdict. Id. at 467-68, 466 S.E.2d
at 701. The defendant argued that “when the court and the jury
know the division is in favor of one result, any instruction on the
duty to reach a verdict will be understood by the jury as an
endorsement of the majority's position.” Id. at 468, 466 S.E.2d at
701. Our Supreme Court stated “[w]e do not believe this
instruction by the court is any more coercive because the court
knew the majority position. It should be equally coercive whether
or not the court knows the division of the vote.” Id. (emphasis
added). “In determining whether the trial court coerced a verdict by
the jury, this Court must consider the totality of the
circumstances.” State v. Nobles, 350 N.C. 483, 510, 515 S.E.2d
885, 901 (1999). Some factors that should be considered in
determining whether a jury's verdict was coerced include: “whether
the court conveyed an impression to the jury that it was irritated
with them for not reaching a verdict, whether the court intimated
to the jury that it would hold them until they reached a verdict,
and whether the court told the jury a retrial would burden the
court system if the jury did not reach a verdict.” State v.
Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988). “[T]he
Court has upheld decisions by trial courts to continue
deliberations despite jury indications that it was 'at a
standstill,' or 'hopelessly deadlocked.'” State v. Baldwin, 141
N.C. App. 596, 608, 540 S.E.2d 815, 824 (2000) (citations omitted).
The better practice would be for the trial court to instruct the
jury to include only the vote count and not include which way the
majority voted. However, the trial court's responses do not show
that the court was irritated with the jury, or that the trial court
told the jury that it would require them to deliberate until a
verdict was reached or that a retrial would burden the court
system. On the facts here, we cannot say that the court's language
was coercive.
Also, during the jury charge, the trial court gave
instructions in accordance with G.S. § 15A-1235(b). Included in
the charge was the following statement: “But none of you shouldsurrender your 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.” G.S. § 15A-1235(c)
provides: “If it appears to the judge that the jury has been unable
to agree, the judge may require the jury to continue its
deliberations and may give or repeat the instructions provided in
subsections (a) and (b). The judge may not require or threaten to
require the jury to deliberate for an unreasonable length of time
or for unreasonable intervals.” “However, '[i]t is clearly within
the sound discretion of the trial judge as to whether to give an
instruction pursuant to N.C.G.S. § 15A-1235(c).'” State v.
Fernandez, 346 N.C. 1, 22, 484 S.E.2d 350, 363 (1997) (quoting
State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986)).
Here, the trial court did not give an instruction pursuant to G.S.
§ 15A-1235(c) when responding to the jury regarding their notes.
There is no showing that the trial court abused its discretion in
failing to give the G.S. § 15A-1235(c) instruction. This
assignment of error is overruled.
Third, defendant contends that the trial court committed error
in instructing the jury that certain exhibits, admitted for
illustrative purposes, could be considered as substantive evidence.
We disagree.
Dr. Larsen took photographs of the victim's vagina and rectum
during a physical examination of the victim on 2 June 1997. SBI
Agent Cheryl McNeil (“Agent McNeil”) interviewed the victim on 21
January 1998. During the interview, Agent McNeil gave the victimanatomical drawings of a female and a male. Agent McNeil
instructed the victim to write with colored pens on the drawings of
the female indicating the places where defendant touched her and on
the drawings of the male the parts of defendant's body that he used
to touch her. The photographs and anatomical drawings were
admitted into evidence for illustrative purposes only.
Upon request by defendant at the charge conference, the trial
court agreed to give an instruction that the photographs and
anatomical drawings were admitted for illustrative purposes.
However, during the jury charge, the trial court instructed the
jury that they could consider the photographs and anatomical
drawings as substantive evidence. The trial court overruled
defendant's objections to these instructions.
After accepting the photographs and drawings into evidence for
illustrative purposes and then agreeing to provide a limiting
instruction at the charge conference, it was error for the trial
court to disregard his own earlier rulings and instruct the jury
that these exhibits could be considered as substantive evidence.
“However, not all trial errors require reversal. The error
must be material and prejudicial. An error is not prejudicial
unless 'there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial[.]'” State v. Mason, 144 N.C. App. 20, 27-28,
550 S.E.2d 10, 16 (2001) (citations omitted). “An error is
harmless 'unless a different result would have been reached at the
trial if the error in question had not been committed.'” State v.Berry, 143 N.C. App. 187, 206, 546 S.E.2d 145, 158, disc. review
denied, 353 N.C. 729, 551 S.E.2d 439 (2001) (quoting State v.
Hardy, 104 N.C. App. 226, 238, 409 S.E.2d 96, 102 (1991) (citation
omitted)). The burden is on the defendant to show that he was
prejudiced by the error in question. Mason, 144 N.C. App. at 28,
550 S.E.2d at 16.
Here, defendant has not shown prejudice. Dr. Larsen examined
the victim and found signs of sexual abuse. Dr. Larsen testified
about these findings and used the photographs to illustrate her
testimony. Agent McNeil testified about her interview with the
victim and how she had the victim indicate on the drawings where
defendant touched her and with what body part defendant touched the
victim with. Agent McNeil testified as to the nature of the abuse
and used the drawings to illustrate her testimony. The victim
testified about what had been done to her and used the drawings to
illustrate her testimony. The consideration of the photographs and
drawings as substantive evidence added nothing since the content of
the photographs and drawings were already in evidence through the
witnesses' testimony. Due to the substantial evidence and the
testimony of the victim, Dr. Larsen, and Agent McNeil, the
instruction that the drawings and photographs could be considered
as substantive evidence is harmless error. This assignment of
error is overruled.
Defendant next contends that it was error for the trial court
to refuse to conduct an in camera inspection of the State and DSSfiles in search of evidence favorable to defendant and material to
his guilt or punishment. We do not agree.
Defendant filed a motion seeking “the District Attorney to
furnish counsel for the defense copies of all 'Brady' material
which he now has in his possession or knowledge” on 12 January
2000. The trial court heard this motion on 11 February 2000 and
denied it on 15 March 2000 “except as to those matters to which the
Defendant is entitled pursuant to the case of Brady v. Maryland .
. . .” Also on 11 February 2000, defendant filed further Brady
motions. These additional Brady motions along with defendant's
request for an in camera review of the State and DSS files were
denied by the trial court on the eve of the trial.
Defendant found a statement that he alleges to be exculpatory
in the court file of Ricky Staton (“Staton”). Staton was convicted
at an earlier trial for sexually abusing the victim. The statement
implicates Staton as the abuser of the victim. This alleged
exculpatory statement does not appear in the record. “[I]t is the
appellant who 'bears the burden of seeing that the record on appeal
is properly settled and filed with this Court.'” Groves v.
Community Hous. Corp., 144 N.C. App. 79, 82, 548 S.E.2d 535, 537
(2001) (citations omitted). Defendant obtained the alleged
exculpatory statement in February 2000, approximately seven months
prior to defendant's trial. Defendant was free to cross examine
the victim regarding her statement and had seven months before
trial to investigate the matter further. The prosecutor contended that the statement was not
exculpatory in that it provided that Staton was the only person who
abused both the victim and her brother. Here, it was alleged that
defendant sexually assaulted only the victim. The prosecutor
repeatedly stated that she had turned over all Brady material and
no Brady material remained in the State's file.
“[J]ust because defendant asks for an in camera inspection
does not automatically entitle him to one. Defendant still must
demonstrate that the evidence sought to be disclosed might be
material and favorable to his defense.” State v. Thompson, 139
N.C. App. 299, 307, 533 S.E.2d 834, 840 (2000). “'[S]uppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.'” Id. at 306, 533 S.E.2d at 839, (citing Brady v.
Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963)).
There is no evidence that the prosecutor suppressed evidence
favorable or material to defendant. While the better practice
would have been for the trial court to conduct an in camera review,
we cannot say that the denial of the request for an in camera
review on the day before the trial was prejudicial.
Accordingly, defendant received a fair trial free from
prejudicial error.
No prejudicial error.
Judges McCULLOUGH and BIGGS concur.
Report per Rule 30(e).
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