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.
I.
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.
II.
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.
III.
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.
IV.
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.
V.
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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