STATE OF NORTH CAROLINA
v
.
Pitt County
Nos. 00 CRS 58227-29
FREDDY DARNELL PYLE
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.
Anne Bleyman for defendant appellant.
TIMMONS-GOODSON, Judge.
Freddy Darnell Pyle (“defendant”) appeals from his convictions
and resulting sentences entered upon jury verdicts finding
defendant guilty of three counts of taking indecent liberties with
a child. For the reasons stated herein, we find no error in the
judgment of the trial court.
At trial, the State presented evidence tending to show the
following: During the spring and summer of the year 2000, three
minor girls (collectively, “the victims”), ages five, six and
seven, often visited the home of defendant and his wife. Two of
the girls were related by marriage to defendant, and the third girl
lived near defendant's home. The three girls often played together
and spent the night at defendant's residence. All three victims testified at trial about inappropriate
sexual behavior by defendant that occurred during the girls' visits
to his home. Specifically, the victims testified that defendant:
touched their private parts with his hands; viewed pornographic
movies with them; displayed his private parts to them; and held one
of the victims while he was naked. The victims' testimony was
corroborated by family members and law enforcement officers.
Defendant testified and denied any inappropriate behavior.
The defendant's niece, as well as his daughter, testified on behalf
of defendant and stated that he was incapable of such acts.
Additional facts are set out in the opinion as necessary.
At the conclusion of the evidence, the jury found defendant
guilty of three counts of taking indecent liberties with children.
The trial court then sentenced defendant to a minimum term of
imprisonment of thirty-two months, with a maximum term of forty
months. From the judgments entered against him, defendant appeals.
____________________________________________________
Defendant presents seven assignments of error on appeal,
arguing that the trial court erred in (1) failing to place certain
discussions between the court and the jury on the record; (2)
overruling objections by defendant to leading questions by the
State; (3) admitting hearsay testimony; (4) overruling objections
by defendant to cross-examination by the State; (5) sustaining the
State's objection to character evidence by defendant; (6) denying
defendant's motion to dismiss; and (7) allowing certain statements
by the State during closing arguments. For the reasons statedherein, we find no error by the trial court.
By his first assignment of error, defendant argues that the
trial court committed plain error by failing to place certain
discussions with the jury on the record. Defendant asserts that,
as the record does not contain the substance of these discussions,
and does not affirmatively reflect his presence in the courtroom
during the discussions, defendant was denied his constitutional
right to be present at all stages of his trial. Defendant argues
that he is therefore entitled to a new trial. We disagree.
The record indicates that the jury twice communicated with the
trial court during its deliberations. In its first written message
to the trial court, the jury requested to view the transcript of
the testimony given by the victims and a detective, as well as the
cross-examination of defendant by the prosecution. According to
the transcript, the trial judge “discusse[d] [the] matter with
[the] jury, then sen[t] them back out.” The judge then “mark[ed]
[the] jury question as Court's Exhibit 1 and enter[ed] it as
evidence.” The transcript does not indicate whether or not
defendant was present in the courtroom at the time. In its second
message to the trial court, the jury requested reinstruction on the
definition of taking indecent liberties with a minor. The court
gave the requested instruction, which, contrary to defendant's
assertions, was recorded in the transcript of the proceedings.
The “trial court errs when it communicates with a juror in the
absence of the defendant.” State v. Williams, 343 N.C. 345, 361,
471 S.E.2d 379, 387 (1996), cert. denied, 519 U.S. 1061, 136 L. Ed.2d 618 (1997). Even where the defendant is not absent, his actual
presence in the courtroom can be “negated by the court's cloistered
conversations” with jurors. State v. Buchanan, 330 N.C. 202, 222,
410 S.E.2d 832, 844 (1991). Such actions may prevent the defendant
from participating in the proceeding, either personally or through
counsel; and they deprive the defendant of “any real knowledge of
what transpired.” Id. at 222-23, 410 S.E.2d at 844.
In the instant case, defendant argues that the trial court
erred in failing to place its discussion with the jury concerning
its first request on the record. We conclude that, assuming
arguendo that the trial court erred, such error could not have
prejudiced defendant. The record does not reflect that the trial
court's discussion with the jury was a private one, or that
defendant was absent during its duration. Rather, the record is
silent on the issue of defendant's presence. This Court will not
presume error where none appears on the record. See State v.
Blakeney, 352 N.C. 287, 303-04, 531 S.E.2d 799, 812 (2000), cert.
denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). There is moreover
no indication that the trial court's discussion with the jury
concerning its request for the transcripts had any impact on the
jury's decision, or could have had an impact, particularly given
the strong evidence presented against defendant at trial. We
therefore overrule this assignment of error.
By his second assignment of error, defendant argues that the
trial court erred in overruling his objections to the State's
direct examination of one of the victims. When direct examinationof one six-year-old victim began, the victim was initially somewhat
reticent and non-responsive. The prosecutor apparently attempted
to encourage the witness in her responses by nodding or shaking her
head. Counsel for defendant objected, stating that, “I would just
ask that [the prosecutor] not lead them by shaking [her] head to
get [the victim] to give a yes response.” The prosecutor responded
that she was “just trying to get an answer out of her.” The trial
court overruled this objection, noting that “the jury is wise
enough to see what's going on and sort this out.” Defendant now
contends that the State was impermissibly leading the witness,
resulting in prejudice to defendant. We are not so persuaded.
Defendant recognizes that “[i]t is within the sound discretion
of the trial judge to allow leading questions on direct
examination, and in cases involving children or an inquiry into
delicate subjects such as sexual matters, the judge is accorded
wide latitude to exercise that discretion.” State v. Chandler, 324
N.C. 172, 190, 376 S.E.2d 728, 739 (1989); State v. Murphy, 100
N.C. App. 33, 40, 394 S.E.2d 300, 304 (1990). The victim here was
only six years old, and predictably, somewhat reluctant in her
initial responses to questioning by the prosecutor. We detect no
abuse of discretion by the trial court in overruling defendant's
objection. See Murphy, 100 N.C. App. at 40, 394 S.E.2d at 304.
Further, the actions by the prosecutor to which defendant objects
occurred early in the victim's testimony, well before any
elicitation by the State concerning the actual acts for which
defendant was tried. Later in her testimony, the victim describedinappropriate behavior by defendant in her own words. Thus, the
jury learned of the evidence against defendant from the testimony
of the victim, and not, as defendant asserts, from testimony by the
State. We overrule this assignment of error.
Defendant next argues that the trial court erred in allowing
certain testimony by a witness for the State. At trial, Detective
Paula Dance (“Detective Dance”) of the Pitt County Sheriff's Office
testified concerning statements one of the victims made to her as
follows:
I asked her if [defendant] had ever touched
her before that time, and she said yes, he
touches me a lot. And I asked her if she
could tell me about any other times
[defendant] touched you, and she said one time
he made me watch a nasty movie. And I said
where were you at when this happened? She
said at [defendant's] house in the living
room. He touched me down here -- and again,
the child pointed between her legs. Are there
any other times that [defendant] has touched
you is another question I asked her. And she
told me, he told me to rub his hot dog.
The trial court overruled defendant's objection to this testimony.
Defendant now asserts that, as the victim never testified that
defendant asked her to touch him or used the term “hot dog” in her
testimony, Detective Dance's testimony was not corroborative and
was therefore improperly admitted. We do not agree.
Prior consistent statements are admissible even where they
contain new or additional information as long as the narration of
events is substantially similar to the witness' in-court testimony.
See State v. Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770
(1992); State v. Harrison, 328 N.C. 678, 681-82, 403 S.E.2d 301,303-04 (1991). Furthermore, “[i]n a noncapital case, where
portions of a statement corroborate and other portions are
incompetent because they do not corroborate, the defendant must
specifically object to the incompetent portions.” Harrison, 328
N.C. at 682, 403 S.E.2d at 304.
Here, defendant did not specifically object to Detective
Dance's testimony regarding the term “hot dog” and defendant's
alleged request that the victim touch his “hot dog.” The remainder
of the statement by Detective Dance corroborated the victim's
testimony in court. After the court overruled defendant's
objection, Detective Dance further testified that the victim
informed her that she did not comply with defendant's alleged
request. We note, too, that the trial court properly gave a
limiting instruction on corroborative testimony. We conclude that
the trial court did not err in overruling defendant's objection,
and we overrule this assignment of error.
By his fourth assignment of error, defendant contends the
trial court erred in overruling his objection to the following
cross-examination of defendant by the State:
[The State]: And so do you think that [the
victim] is not being truthful?
[Defendant]: [The victim] told you exactly the
way it went down.
Q: So [the victim] is being truthful when she
says you showed her porno movies and had your
hands down her two friends' pants while you
watched them; is that right?
A: No, ma'am. That's not true.
Q: So she's truthful about one particularthing, but not truthful about another; is that
right?
[Counsel for defendant]: Objection.
Misstatement of the evidence that's been
presented before.
The Court: Overruled. This is cross-
examination.
Defendant now contends this cross-examination was improper on the
grounds that “the State was stating its personal opinion as to the
veracity of Defendant's testimony.” This argument is without
merit.
Defendant concedes that “the 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, (1997). There is no indication that the trial
court abused its discretion in overruling defendant's objection,
and we overrule this assignment of error.
In his fifth assignment of error, defendant argues that the
trial court committed prejudicial error when it sustained the
State's objection to the following testimony by a witness for
defendant:
[Counsel for defendant]: You know [defendant]?
[Witness]: Yes, I do.
Q: You've known him for a number of years?
A: Yes, I have.
Q: And you live in the same community as him
[sic]?
A: Pretty much.
Q: Do you know other people that know him in
the community?
A: Yes.
Q: Do you know whether or not he has the
reputation in the community for being a normal
person?
[The State]: Objection.
The Court: Sustained.
Q: Do you know whether or not he has . . . a
reputation in the community for being a
nonviolent, nonsex-molester type person?
[The State]: Objection.
The Court: Sustained.
Defendant argues that the trial court erroneously excluded
pertinent character evidence, and that such exclusion prejudiced
defendant. Defendant's argument fails on several grounds.
First, defendant neglected to make an offer of proof
concerning what the response would have been had the question been
allowed. See N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2001); State
v. Najewicz, 112 N.C. App. 280, 292, 436 S.E.2d 132, 139 (1993),
disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). “It is
well established that an exception to the exclusion of evidence
cannot be sustained where the record fails to show what the
witness' testimony would have been had he been permitted to
testify.” State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60
(1985). Further, “while opinion testimony may embrace an ultimate
issue, the opinion may not be phrased using a legal term of art
carrying a specific legal meaning not readily apparent to thewitness.” Najewicz, 112 N.C. App. at 293, 436 S.E.2d at 140
(concluding that the trial court properly sustained the State's
objection to a question to a defense witness regarding whether or
not the defendant was capable of raping someone). “Sexual
molestation” is a legal term of art, and defendant's question
regarding whether or not he was a “nonsex-molester type person” was
properly excluded. We overrule this assignment of error.
Defendant further argues that the trial court erred in denying
his motion to dismiss and his motion for judgment notwithstanding
the verdict. Defendant contends that the State presented
insufficient evidence that defendant committed the acts for the
purpose of arousing or gratifying sexual desire. We disagree.
Upon a motion to dismiss in a criminal action, the trial court
must view all of the evidence in the light most favorable to the
State. See State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 588
(1997). Contradictions or discrepancies in the evidence must be
resolved by the jury, and the State should be given the benefit of
any reasonable inference. See State v. Brown, 310 N.C. 563, 566,
313 S.E.2d 585, 587 (1984). The trial court must then decide
whether there is substantial evidence of each element of the
offense charged. See State v. Smith, 300 N.C. 71, 78, 265 S.E.2d
164, 169 (1980). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 78-79, 265 S.E.2d at 169.
A person is guilty of taking indecent liberties with children
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. Gen. Stat. § 14-202.1 (2001). The jury may infer from the
evidence of the defendant's actions that such actions were taken
with the purpose of arousing or gratifying sexual desire. See
State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993); State v.
Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, 580 (1987).
In the instant case, the three minor victims testified that
defendant touched their private parts with his hands, viewed
pornographic movies with them, displayed his private parts to them,
and held one of the girls while he was naked. We conclude that the
State presented substantial evidence from which a reasonable jury
could infer that defendant acted with the purpose of arousing or
gratifying sexual desire. The trial court therefore did not err in
denying defendant's motion to dismiss and his motion for judgment
notwithstanding the verdict, and we overrule this assignment of
error.
In his final assignment of error, defendant argues that the
trial court committed plain error in allowing the State to refer to
the crime of statutory rape during its closing argument to the
jury. Defendant concedes that he did not object to the State's
statement at trial, but nevertheless contends that the State'sremarks constitute fundamental error that impacted the jury's
verdict. Defendant's argument is without merit.
In its closing argument, the State made the following
statement to the jury:
There are a couple of things that I want to
talk about, and I'll almost be done. . . . We
have laws in the State and in this nation that
make it the adult's fault. The adult is given
the responsibility of getting out of the
situation. It is not the child's fault. . . .
Now you look and you listen to the Judge, and
you see if he tells you unless the child
started it, and then it's not an indecent
liberty. Huh-uh. Children do not have adult
judgment. That's why we have laws like this.
That's why we have laws like statutory rape.
Adults are charged with the responsibility of
acting appropriately, not putting themselves
in positions where they might do immoral,
improper things.
Defendant contends that the State's reference to the crime of
statutory rape “improperly confused the jury,” in that defendant
was charged with taking indecent liberties with children, and not
with statutory rape. We disagree. From the context of the closing
argument, it is clear that the State's purpose was to clarify to
the jury that the victim's consent, or lack thereof, was not an
element of the crime of indecent liberties. The State referred to
the crime of statutory rape only as an example of another crime for
which adults are held responsible for actions taken with minors,
irrespective of consent. Contrary to defendant's argument, we do
not conclude that the State's argument implied that defendant was
charged with statutory rape, nor do we agree with defendant that
the reference affected the jury's verdict. We therefore overrule
this final assignment of error. In conclusion, we hold that defendant received a trial free
from prejudicial error. In the judgment of the trial court, we
find
No error.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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