An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-742


Filed: 20 May 2003


v .                                     Rowan County
                                        No. 99CRS4511 TOMMY LUCKEY GOBBLE

    Appeal by defendant from judgment entered 19 May 2000 by Judge Thomas W. Seay, Jr. in Rowan County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Elizabeth Guzman, for the State.

    Law Office of Michael S. Adkins, by Michael S. Adkins, for defendant-appellant.

    HUNTER, Judge.

    Fifty-eight-year-old Tommy Luckey Gobble (“defendant”) was indicted on 3 May 1999 for taking indecent liberties with a child. On 22 June 1999, defendant waived arraignment and entered a plea of not guilty. The matter was tried before a jury on 18-19 May 2000. Defendant was subsequently found guilty and sentenced to a term of thirteen to sixteen months in the North Carolina Department of Correction. Defendant appeals his conviction and sentencing. We conclude the trial court did not err for the reasons stated herein.
    At trial, the State introduced evidence which tended to show that defendant gave his fifteen-year-old neighbor, Melinda Marie Frye (“Melinda”), a ride to school from her bus stop on the morning of 30 March 1999. During that ride, defendant began rubbingMelinda's legs. He told her that “he wished . . . his wife was as pretty as [she] was” and that a “man of his age could really get in trouble for talking to [her] . . . and for saying . . . that girls [her] age were much prettier than older women.” When Melinda told him to stop, defendant offered her a $100.00 bill and said that “'[m]ost girls [her] age would do anything for a hundred dollars.'” Melinda rejected defendant's offer. Thereafter, defendant began rubbing her legs again (with more force) and attempted to put his hand in the leg of her shorts and in her shirt. Melinda pushed defendant away and, since they were nearing her school, started to exit the truck. However, before exiting, defendant told Melinda “he knew where [she] lived[] . . . [and n]ot to tell anybody what happened because he could get into a lot of trouble for what he said and what he did.” Melinda got out of the truck and ran towards the school. Melinda subsequently told a friend, school officials, and a school resource officer about the incident with defendant. Melinda was visibly very upset by the incident and eventually broke out in hives later that day.
    The State's evidence also consisted of testimony from Melinda's mother, Gayla McDaniel (“McDaniel”). McDaniel testified that she saw red whelps on Melinda's legs on the afternoon following the incident. She further testified, over defendant's objection, that the day after the incident:
        [Melinda] could not attend school. We had to put her on Homebound. She had to go on an antidepressant. She withdrawed [sic] from everybody. It was like having a -- I can't -- it was like she was a little girl again, like a 5-year-old. She would not leave the housewithout me. She still doesn't. We go to a psychiatrist every month. We have therapy. She's changed completely.

    At the close of the State's evidence, defendant made a motion to dismiss the charge against him. Following the denial of that motion, defendant testified on his own behalf. He admitted to complimenting Melinda on her legs and placing his hand on her knee. However, defendant testified that he moved his hand when Melinda asked him to stop, and defendant apologized to her. Defendant also testified that when they arrived at the school, Melinda exited the truck and entered the school building in no apparent distress.


    Initially, we note that defendant argues in his second assigned error that the trial court erred in denying his motion to dismiss the charge against him due to insufficiency of the evidence. However, by introducing evidence at trial on his own behalf following the denial and by not renewing his motion to dismiss at the close of all the evidence, defendant waived his right to raise this argument on appeal. N.C. Gen. Stat. § 15-173 (2001); State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). Thus, only defendant's remaining assignments of error are properly before this Court.

    Defendant also argues the trial court erred in overruling his objection to the testimony of McDaniel regarding Melinda's emotional state the day after the incident with defendant because the testimony was not relevant, admissible evidence.    “Evidence is admissible at trial if it is relevant and its probative value is not substantially outweighed by, among other things, the danger of unfair prejudice.” State v. Wallace, 104 N.C. App. 498, 501-02, 410 S.E.2d 226, 228 (1991). “'Relevant evidence' means 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 than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2001). Here, since defendant and Melinda were the only two persons in the truck, evidence of how defendant's actions affected Melinda's emotional state was relevant to corroborate her account of the incident.
    Nevertheless, defendant further contends that even if the testimony was relevant, such relevance was outweighed by the danger of unfair prejudice and the danger of misleading the jury pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2001). “In North Carolina, whether or not to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court.” Wallace, 104 N.C. App. at 504, 410 S.E.2d at 229. The record in the present case shows no indication that the trial court abused its discretion by admitting McDaniel's testimony. McDaniel's testimony had probative value in establishing that something traumatic had happened to her daughter while in defendant's truck on the morning of 30 March 1999. Moreover, in light of other evidence regarding Melinda's behavior immediately after the incident (to which defendant offered no objection), it is unlikely that McDaniel's testimony regardingMelinda's emotional state had a tendency to improperly influence the jury.
    Accordingly, the trial court did not err in admitting McDaniel's testimony.

    Next, defendant argues the trial court erred by including a circumstantial evidence instruction in the jury charge. Defendant contends there is a substantial possibility that the jury would have reached a different outcome entirely had it not been given the instruction. However, this Court has held that a defendant's purpose in committing an act in indecent liberties cases “is seldom provable by direct evidence and must ordinarily be proven by inference.” State v. Campbell, 51 N.C. App. 418, 421, 276 S.E.2d 726, 729 (1981). See also State v. Connell, 127 N.C. App. 685, 689, 493 S.E.2d 292, 294 (1997). Defendant's touching of Melinda and his exculpatory statements to her provided circumstantial evidence establishing defendant's guilt. Therefore, the trial court did not err in including the circumstantial evidence instruction in the jury charge.

    By his fourth assignment of error, defendant argues the court's admission of certain testimony at his sentencing hearing was prejudicial and could have affected his sentence. We disagree.
    “'A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances whichmanifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.'” State v. Jackson, 302 N.C. 101, 111, 273 S.E.2d 666, 673 (1981) (quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)). Here, the court bailiff and an attorney present in the courtroom testified about defendant's inappropriate conduct during the trial. The court bailiff testified that defendant snickered and winked at her while Melinda was testifying. The attorney testified that he saw defendant “cup his private parts” during Melinda's testimony. The prosecutor sought to admit their testimony during sentencing as being relevant “to show the defendant's lack or [sic] remorse and conduct in reference to possible continued sexual offenses.” While it is likely their testimony would have been inadmissible during the trial, “formal rules of evidence do not apply at a sentencing hearing.” Id. Further, the court gave no indication that the testimony of these witnesses was considered in its sentencing of defendant. Thus, we cannot conclude the admission of testimony from the bailiff and the attorney was error, much less prejudicial error.

    Finally, defendant assigns error to being sentenced to an active term of imprisonment within the presumptive range for the offense of which he was convicted.
    N.C. Gen. Stat. § 15A-1340.13(f) (2001) of our statutes provides, inter alia, that “[t]he court may suspend the sentence of imprisonment if the class of offense and prior record levelauthorize, but do not require, active punishment as a sentence disposition.” The propriety of whether or not to suspend a sentence rests in the sound discretion of the trial judge. State v. Stallings, 234 N.C. 265, 66 S.E.2d 822 (1951).
    In the case sub judice, defendant was sentenced as a Class F felon with a prior record level of one. Although this class of offense and prior record level could have resulted in a suspended sentence, defendant was sentenced to an active term of thirteen to sixteen months imprisonment. This sentence was within the presumptive range and, as such, is generally presumed to be valid unless “the record discloses that the court considered irrelevant and improper matter in determining the severity of the sentence[.]” State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977). Defendant has failed to overcome this presumption. Therefore, while defendant could have received a lighter sentence because he was a first time offender, the trial court did not err in sentencing defendant as it did.
    No error.
    Chief Judge EAGLES and Judge CALABRIA concur.
    Report per Rule 30(e).

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