STATE OF NORTH CAROLINA
v
.
McDowell County
No. 01 CRS 2135
PAUL EDWARD TILLEY
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.
Hosford & Hosford, PLLC, by Sofie W. Hosford, for defendant-
appellant.
WALKER, Judge.
Defendant was convicted of committing a crime against nature
in violation of N.C. Gen. Stat. § 14-177 (2001). The evidence at
trial tended to show the following: Sergeant Scott Spratt, an
Investigative Sergeant with the Marion Police Department, responded
to defendant's report that two women had stolen a video camcorder
from his apartment. Defendant told Sergeant Spratt that he was an
anthropologist making a video documentary depicting two women
engaged in lesbian sexual acts. Based on probable cause that
defendant was in violation of several obscenity laws, Sergeant
Spratt obtained a search warrant for defendant's apartment and
executed it on 8 November 2000, whereby he seized several itemsincluding 75 videotapes. One of the videotapes seized was labeled
“Christina from 30 minutes, 4/21/00.” He viewed the videotape
which showed the defendant and a woman named Christine Sellers
engaging in various oral sex acts.
In an interview conducted by Sergeant Spratt, Ms. Sellers
stated that defendant took her to his apartment on or about 21
April 2000 where he performed various oral sex acts on her, paid
her $20 and bought her liquor. Although Sellers originally was
charged with one count of a crime against nature as a co-defendant,
she reached a plea agreement whereby she pled guilty to one count
of prostitution in exchange for her truthful testimony against
defendant.
At trial, Sergeant Spratt testified that among the items he
seized from defendant's apartment was a videotape labeled
“Christina from 30 minutes, 4/21/00.” Further, the videotape had
been in the custody of the Marion Police Department at all times
since it had been seized and had not been tampered with in any
manner. Sergeant Spratt also testified that he had viewed the
videotape which depicted defendant and Ms. Sellers engaging in
various oral sex acts and that he had interviewed her about her
relationship with defendant and the acts portrayed in the
videotape.
During Ms. Sellers' trial testimony, she was shown a portion
of the videotape, which she had viewed for the first time the day
before her testimony. Ms. Sellers testified that the videotape
depicted defendant and herself, that she recalled the various oralsex acts shown in the videotape as having occurred “approximately
around” 21 April 2000 and that she had not given defendant
permission to videotape these acts. On cross-examination, Ms.
Sellers testified that she could not be certain of the date on
which the videotape had been made.
During his cross-examination of Ms. Sellers, defendant made a
motion to suppress the videotape on the grounds that the State had
failed to lay a proper foundation for its admission to show the
acts charged occurred on 21 April 2000. The trial court heard
arguments from defendant and the State and denied the motion to
suppress, holding that the question of the exact date of the
videotape did not render it inadmissible but presented an issue for
the jury as to the proper weight to afford the evidence.
Defendant first contends that the trial court erred in denying
his motion to suppress the videotape because the State failed to
properly authenticate it and its prejudicial nature outweighed the
probative value. “Our review of a trial court's denial of a motion
to suppress is strictly limited to a determination of whether it's
[sic] findings are supported by competent evidence, and in turn,
whether the findings support the trial court's ultimate
conclusion.” State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d
828, 829-30 (2002) (citing State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982)). Prior to denying defendant's motion to
suppress, the trial court had before it the following evidence: (1)
the videotape was taken from defendant's apartment where he lived
alone; (2) Sergeant Spratt testified that the videotape had notbeen altered or changed in any way; (3) the videotape was labeled
“Christina from 30 minutes, 4/21/00;” (4) both Ms. Sellers and
Sergeant Spratt identified defendant in the videotape; (5) Ms.
Sellers testified that the various oral sex acts depicted in the
video occurred on or about 21 April 2000; and (6) defendant taped
Ms. Sellers without her knowledge. Based on these findings, the
trial court, in denying the motion to suppress, concluded that the
issue of the date of the videotape went to the weight the jury
should give the evidence, not its admissibility.
Our Supreme Court has held that
the date given in a bill of indictment usually
is not an essential element of the crime
charged. The State may prove that the crime
was in fact committed on some other date. We
have held that this rule may not be used to
deprive a defendant of his defense, however.
State v. Sills, 311 N.C. 370, 376, 317 S.E.2d 379, 382 (1984)
(citations omitted). Here, defendant does not contend that he was
deprived of the ability to prepare his defense in any way.
Further, competent evidence exists to support the trial court's
findings and conclusions regarding the admissibility of the
videotape. Thus, we hold that the trial court did not err in
denying defendant's motion to suppress the videotape.
During Ms. Sellers' testimony, her attorney was present, and
he objected to certain questions put to her by the defendant.
Defendant now contends that the trial court erred in allowing and
sustaining objections made by Ms. Sellers' attorney at trial. To
support his contention, the defendant argues that the trial court's
sustaining such objections infringed on his constitutional right toconfront the witness which limited his cross-examination of Ms.
Sellers. “'[T]he right to confront and to cross-examine is not
absolute'” and may be limited in certain cases. State v.
McAllister, 132 N.C. App. 300, 302, 511 S.E.2d 660, 662 (quoting
State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110, 113 (1980),
aff'd, 351 N.C. 44, 519 S.E.2d 524 (1999)). “[T]he scope of cross-
examination rests largely within the trial court's discretion and
is not ground for reversal unless the cross-examination is shown to
have improperly influenced the verdict.” State v. Woods, 345 N.C.
294, 307, 480 S.E.2d 647, 653, cert. denied sub nom, Woods v. North
Carolina, 522 U.S. 875, 139 L. Ed. 2d 132 (1997); see also State v.
Barber, 317 N.C. 502, 346 S.E.2d 441 (1986), State v. Beane, 146
N.C. App. 220, 552 S.E.2d 193 (2001), appeal dismissed, 355 N.C.
350, 563 S.E.2d 562 (2002).
Here, Ms. Sellers testified on cross-examination that she
reached a plea agreement whereby she would plead guilty to one
count of prostitution and give truthful testimony to the events on
or about 21 April 2000 in exchange for the crime against nature
charge being dismissed. She further testified that she had been
convicted of prostitution and other criminal violations and had
been treated for alcohol abuse. Defendant has failed to show that
he would have elicited other favorable testimony on cross-
examination absent the trial court's rulings or that the jury's
verdict was improperly influenced by the rulings. Therefore, we
conclude that the trial court properly exercised its discretion tolimit further cross-examination and did not err in allowing and
sustaining the objections made by Ms. Sellers' attorney.
In his next assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss due to
insufficient evidence that defendant committed a crime against
nature on 21 April 2000. The standard of review for a motion to
dismiss is “whether there is substantial evidence of each essential
element of the offense charged ..., and of the defendant being the
one who committed the crime.” State v. Bullard, 312 N.C. 129, 160,
322 S.E.2d 370, 387 (1984) (citations omitted). “'Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'” Id. (citation
omitted). The trial court must consider all evidence in the light
most favorable to the State and draw all reasonable inferences in
the State's favor. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d
114, 117 (1980); State v. Jackson, 145 N.C. App. 86, 89, 550 S.E.2d
225, 229 (2001).
In this case, Ms. Sellers testified that she and defendant had
engaged in various oral sex acts on or about 21 April 2000.
Sergeant Spratt's interview with Ms. Sellers corroborated her in-
court testimony regarding the nature and timing of the acts with
defendant. Both Ms. Sellers and Sergeant Spratt testified that a
videotape taken from defendant's apartment and labeled “Christina
from 30 minutes, 4/21/00" depicted Ms. Sellers and defendant
engaging in various oral sex acts. Further, Sergeant Spratt
testified that the videotape had not been tampered with in anymanner since the time it was seized from defendant's apartment.
Viewing this evidence in the light most favorable to the State and
making necessary inferences in the State's favor, there is
substantial evidence to support the charge of a crime against
nature. Thus, we hold that the trial court properly denied
defendant's motion to dismiss.
We have carefully reviewed defendant's remaining assignments
of error and find them to be without merit.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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