STATE OF NORTH CAROLINA
v
.
Caldwell County
No. 00 CRS 6135
00 CRS 5189
CARL DOUGLAS ST. JOHN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Celia Grasty Lata, for the State.
Leslie C. Rawls, for defendant-appellant.
HUDSON, Judge.
A jury found defendant guilty of three counts of first-degree
sex offense of a child and three counts of indecent liberties with
a child, and was sentenced to life imprisonment without parole.
Defendant appeals.
The State presented evidence indicating that these allegations
concerning defendant came to light after the fact when the victim,
JM, initiated contact with Steve Hamby, whose telephone number JM
found on the bathroom wall in a local retail store. JM met Hamby,
they engaged in oral sex, and both returned to their respective
homes. JM's mother later overheard her son discussing a
pornographic video on the phone, and later learned he was talking
with Hamby. She contacted Hamby and local law enforcement. Duringthe course of the investigation, Hamby revealed to police that JM
told him “that he had sex with his step father.” The police then
began an investigation into defendant's behavior.
At trial, the State presented the testimony of the victim, JM,
and numerous other witnesses. JM was twelve years old at the time
of the incidents in question and was living with his younger
brother, sister, mother and her boyfriend, the defendant. JM
testified that defendant played strip poker with him and that
defendant “said I had to suck him off. That who ever lost had to
suck the other one.” JM testified that while his mother was in the
hospital, defendant was responsible for caring for him and his two
younger siblings. JM indicated that defendant “put KY jelly on my
penis and masturbated me,” and that defendant showed JM his penis
“[a]lmost every day” and was “[k]ind of shaking it at me and my
brother.” JM testified that on another occasion “we were in the
bathroom and he was in there masturbating me.” On yet another
occasion, defendant was masturbating and JM testified that
defendant “ejaculated in my hand.” JM indicated that defendant
made him “suck him” “fifteen or twenty times.” JM explained that
he was scared of defendant because defendant “kicked us in the
butts” and defendant spanked him every time JM's mother told him to
do so.
Defendant denied any wrongdoing, but admitted that he exposed
himself to JM and his brother on one occasion, and dared JM to play
strip poker on another occasion. Defendant also admitted
physically disciplining JM and his brother, and admitted that heslapped JM's mother. But, he denied that slapping a woman
constituted a criminal offense and blamed the district attorney for
previous assault on a female charges. Defendant also testified
that he was consuming a large quantity of alcohol during the time
period that the alleged sexual abuse took place.
A jury convicted defendant of three counts of first-degree sex
offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1) (2001) and
three counts of indecent liberties with a child pursuant to N.C.
Gen. Stat. § 14-202.1 (2001). The trial court found that the
factors in aggravation outweighed any factors in mitigation and
sentenced defendant to life imprisonment without parole, as
required by N.C. Gen. Stat. § 15A-1340.16B (2001).
Defendant designated four assignments of error, but he brings
forward only three in his brief on appeal. The fourth (Assignment
of Error No. 2) is therefore abandoned. See N.C. R. App. P 28(a)
(2001). In his first argument, defendant contends that the trial
court committed plain error by admitting evidence concerning
defendant's physical discipline of JM. Defendant testified during
cross-examination that he “spanked [JM] with a belt” whenever JM's
mother told defendant to do so. He testified that on one occasion
he kicked JM's younger brother “in the butt,” but that he never did
that to JM. Defendant also testified that he grabbed JM by the
arm, and that he struck JM's mother in the face on more than one
occasion. Defendant did not object to this questioning at trial,
but now contends that the court committed plain error in allowing
this testimony, because it was not relevant and its prejudicialeffect outweighed any possible relevance.
Rule 10(b) of the North Carolina Rules of Appellate Procedure
requires that “[i]n order to preserve a question for appellate
review, 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 if the specific grounds
were not apparent from the context.” N.C. R. App. P. 10(b) (2001).
Part (c)(4) of the same rule allows questions not properly
preserved to “be made the basis of an assignment of error where the
judicial action questioned is specifically and distinctly contended
to amount to plain error.” N.C. R. App. P. 10(c)(4) (2001).
Although Rule 10 does not limit plain error review to specific
kinds of errors, that review has been limited by our Courts to jury
instructions and evidentiary rulings. See State v. Wilson, 354
N.C. 493, 504, 556 S.E.2d 272, 280 (2001). A plain error is one
that “'is a fundamental error, something so basic, so prejudicial,
so lacking in its elements that justice cannot have been done,' or
'where [the error] is grave error which amounts to a denial of a
fundamental right of the accused.'” State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983) (quoting Unites States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459
U.S. 1018, 74 L.Ed.2d 513 (1982)). “To prevail on plain error
review, defendant must show that (i) a different result probably
would have been reached but for the error or (ii) the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial.” State v. Braxton, 352 N.C. 158, 197, 531 S.E.2d428, 451 (2000), cert. denied 531 U.S. 1130, 148 L.Ed.2d 797
(2001).
Here, defendant contends that the testimony at issue was
irrelevant and any relevance was outweighed by its prejudicial
effect. Pursuant to Rule 402 of the North Carolina Rules of
Evidence, “[a]ll relevant evidence is admissible.” N.C. R. Evid.
402 (2001). Relevant evidence includes “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
then it would be without the evidence.” N.C. R. Evid. 401 (2001).
Defendant contends that evidence of defendant physically
disciplining JM was irrelevant to the crimes charged and tended
only to prejudice the jury. Defendant also contends that the
evidence should have been found inadmissible in accordance with
Rule 404(b), which prohibits admitting “[e]vidence of other crimes,
wrongs, or acts . . . to prove the character of a person in order
to show that he acted in conformity therewith.” N.C. R. Evid.
404(b) (2001). The State responds that the testimony concerning
physical discipline of JM and his brother was elicited to
corroborate the boys' testimony that defendant physically
disciplined them.
In cases with similar fact patterns, testimony of physical
abuse by the defendant upon either the prosecuting witness or his
or her siblings has been held admissible pursuant to Rule 404(b) to
illustrate the victim's state of mind or to explain why the victim
failed to come forward earlier. See State v. Thompson, 139 N.C.App. 299, 533 S.E.2d 834 (2000) (holding that evidence of
defendant's physical abuse of sexual abuse victim's siblings and
family cat in victim's presence was admissible under Rule 404(b));
State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778 (1993), disc.
review denied, 335 N.C. 239, 439 S.E.2d 778 (1993) (holding that
evidence of defendant threatening to kill victim was admissible to
explain why victim failed to come forward earlier with allegations
of sexual abuse). Here, in response to a question concerning what
defendant would do if JM did not comply with his instructions, JM
testified that he was scared of the defendant and “[s]cared he
would hurt me.” He also testified that defendant spanked him
“[e]very time mom told him to.” Defendant's testimony corroborates
JM's testimony about the physical discipline that JM experienced
and supports JM's contention that he was afraid of defendant. We
do not believe that any possible prejudicial effects outweigh the
relevance of this evidence. As it was not error to admit this
testimony, it could not amount to plain error.
In his second argument, defendant contends that the trial
court erred by sustaining the State's objection to introducing Herb
Pearce, a practicing attorney, to testify as to the effect of the
habitual felon law on Glenn Abernathy, one of the State's
witnesses. Abernathy testified that defendant confessed to the
crime while they were both being held in the same cell at the
Caldwell County Detention Center. Abernathy also testified to the
crimes he had been convicted of in the past, and the current
charges he was released on bond for at the time of defendant'strial. Abernathy testified that he was neither receiving any
special consideration in exchange for his testimony, nor was he
expecting any benefit from his testimony. He explained that his
motivation in coming forward was “I don't like such things being
done to kids. That is why I am here and I told what he told me.
I think it is very sick for a man to take advantage of a child like
that. I have a kid of my own.” The defendant sought to introduce
Mr. Pearce's testimony, “for the purpose of assist[ing] the jury in
understanding the requirements for a charge of habitual felony with
regard to Mr[.] Abernathy. I would like to ask Mr[.] Pearce to
review Mr[.] Abernathy's record or certain aspect[s] of his record,
and review the statute and I would like to ask him as an expert
whether or [] not Mr[.] Abernathy could be charged with the
[charge] of [habitual] felony.” The State objected to Mr. Pearce's
testimony as being irrelevant and the court sustained the State's
objection, but instructed defendant that he may read to the jury
the pertinent habitual felon law. See N.C. Gen. State. § 14-7.1 to
14-7.6 (2001). Defendant never read the statute into the record,
and withdrew his motion to do so.
We review the trial court's decision to sustain the State's
objection to the introduction of Mr. Pearce's testimony for abuse
of discretion. See State v. Parks, 96 N.C. App. 589, 592, 386
S.E.2d 748, 750 (1989). Here, there was no evidence of any
relationship between Mr. Abernathy's criminal charges or subsequent
sentencing and his testimony at defendant's trial. Thus, any
relevance was speculative. We find no abuse of discretion on thepart of the trial court in excluding this testimony.
In his final argument, defendant contends that the trial court
erred in (1) refusing to find defendant's alcohol dependency a
mitigating factor, (2) finding that an aggravated sentence was
appropriate, and (3) sentencing defendant to life imprisonment
without parole. Pursuant to N.C. Gen. Stat. § 15A-1340.16, “the
offender bears the burden of proving by a preponderance of the
evidence that a mitigating factor exists.” N.C. Gen. Stat. § 15A-
1340.16(a) (2001). A trial court must consider a mitigating factor
where the evidence is “uncontradicted, substantial, and there is no
reason to doubt its credibility.” State v. Sanford Video & News,
Inc., 146 N.C. App. 554, 560, 553 S.E.2d 217, 221 (2001), disc.
review denied, 355 N.C. 221, 560 S.E.2d 359 (2002) (quoting State
v. Lane, 77 N.C. App. 741, 745, 336 S.E.2d 410, 412 (1985)). Here,
defendant requested, almost as an afterthought, that the trial
court find one factor in mitigation.
COURT: What do you tender as a mitigating
factor or circumstances?
MR WHISNANT: The defense does not present
any mitigating circumstances your Honor or
argue any to the court.
COURT: All right.
MR WHISNANT: Other than the defendant had
some alcohol problem with regard to that which
impaired his judgment but no mitigating
factor. It is the one where is no excuse but
might tend to reduce his culpability [sic].
COURT: Very well.
From the defendant's description of the factor, we presume
that he is referring to factor 3(a), “[t]he defendant was sufferingfrom a mental condition that was insufficient to constitute a
defense but significantly reduced the defendant's culpability for
the offense.” AOC-CR-605, Felony Judgment Findings of Aggravating
and Mitigating Factors (Structured Sentencing), p2. On appeal,
defendant argues that the trial court should have found a “non-
statutory mitigating factor of chemical dependency, which may be a
mitigating factor if a link is shown between the condition and the
offense.” Defendant presented no evidence on this factor, however,
and failed to prove “by a preponderance of the evidence that a
mitigating factor exists.” N.C. Gen. Stat. § 15A-1340.16 (2001).
Defendant also contends that the trial court abused its
discretion by sentencing defendant in the aggravated range. “The
sentencing judge, even when required to find factors proved by
uncontradicted, credible evidence, may still attribute whatever
weight he deems appropriate to the individual factors found when
balancing them and arriving at a prison term.” State v. Jones, 309
N.C. 214, 219, 306 S.E.2d 451, 455 (1983). The trial court found
as an aggravating factor that the defendant “took advantage of a
position of trust or confidence to commit the offense.” AOC-CR-
605, factor 15. This factor was proved by “uncontradicted,
credible evidence.” The trial court found no factors in mitigation
and determined that the “factors in aggravation outweigh the
factors in mitigation and that an aggravated sentence is
justified.” We find no abuse of discretion in the court's
sentencing defendant in the aggravated range.
Defendant was convicted of three Class F felonies (takingindecent liberties with children) and three Class B1 felonies
(first-degree sexual offense). Pursuant to N.C.G.S. § 15A-
1340.16B, the court properly sentenced defendant to life
imprisonment without parole.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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