An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-495

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

STATE OF NORTH CAROLINA

v .                         Pitt County
                            Nos. 00 CRS 58227-29
FREDDY DARNELL PYLE

    Appeal by defendant from judgments entered 18 July 2001 by Judge William C. Griffin, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 12 February 2003.

    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.
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    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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