State v Jackson, (02-1240) 07/15/2003

Appeal by defendant from judgments entered 28 March 2002 and 5 April 2002 by Judge Quentin T. Sumner in Pasquotank County Superior Court. Heard in the Court of Appeals 10 June 2003.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Sallenger & Brown, L.L.P., by Thomas R. Sallenger, for defendant-appellant.

    CALABRIA, Judge.

    Jackson Love Jackson (“defendant”) was convicted by a jury and sentenced for the following offenses: one count of first-degree statutory rape for which defendant received a sentence of 420 to 513 months' imprisonment; one count of attempted second-degree sexual offense for which defendant received a sentence of 129 to 164 months' imprisonment; and five counts of taking indecent liberties with a child for which defendant received a sentence of 21 to 26 months' imprisonment for each count. The sentences imposed would run consecutively. We find no error.
         Defendant lived with his girlfriend, Jennette Armstrong (“Armstrong”), her three children, and Armstrong's niece, Shawndrey Harvey (“Harvey”), who was fourteen years old. Harvey lived with her aunt while Social Services facilitated a reunification plan between her and her mother.
    At trial, Harvey testified that approximately one month after she moved in defendant began coming “into the room like at night and touching me inappropriately like between my legs and under my pants.” Harvey clarified that defendant touched her under her clothes and on her vagina. He also kissed her by putting his tongue in her mouth and chased her with a knife. Harvey did not reveal the abuse until after defendant threatened “he was going to chop [her] up and put [her] in a box[,]” if she told anyone what he had done.
    Harvey discussed these incidents with Ida Rogers (“Rogers”), her therapist at Kids First, a child advocacy center. Rogers reported the problem to Social Services. An alternate plan was arranged, and Harvey was returned to her mother's home. Defendant continued to call her at her mother's and go to her mother's house. One time, defendant called her to ask her when she was going to have sex with him, and, on another occasion, Harvey was forced to hide as defendant banged on the door of her mother's house.
    Armstrong's daughter, Sabrina Armstrong (“Sabrina”) had two friends, Nicole Hampton (“Hampton”) and Natasha Joyner (“Joyner”), who spent the night at Sabrina's house while defendant resided there and who reported similar encounters with defendant. Hamptontestified that when she was eleven years old defendant touched her inappropriately when she stayed over at Sabrina's house. She testified that he would come in while Sabrina was sleeping and would “feel on me, feel on my breast and feel on my private and I would turn different ways so he wouldn't feel on me.” He touched her under her bra and panties. At the end of December 2000, her best friend, Joyner, who was also eleven years old, went with defendant to his trailer where he had sexual relations with Hampton on the floor. Hampton cried while defendant had sex with her because she “didn't want to do it.” Defendant then paid Hampton ten dollars because she had sex with him. At one point, defendant slapped Hampton because she would not perform oral sex on him.
    Joyner testified that defendant kissed her when she was spending the night at Armstrong's house. Defendant also came into the room while she slept and laid down on top of her and tried to touch her “chest” and “behind,” over her clothes. Joyner also testified that she was present at the trailer when defendant had sex with Hampton.
    When the Pasquotank County Department of Social Services (“DSS”) learned of defendant's inappropriate behavior, they were given custody of Hampton and Joyner. Midge Hudyma (“Hudyma”), a social worker for DSS, contacted Detective Randy Smithson (“Detective Smithson”) from the Pasquotank County Sheriff's Department. Hudyma interviewed victims Joyner and Hampton while Detective Smithson observed them through a two-way mirror. Defendant was taken into custody and confessed to having sex withHampton in his trailer. Detective Smithson thereafter pursued an investigation.
    Defendant testified on his own behalf and denied ever inappropriately touching the victims. Defendant admitted to kissing Harvey on the mouth, but he explained it was “just a peck, one peck good-night. . . .” Defendant also explained that Hampton and Joyner had come to his trailer, but that the girls told him they were going to have sex with him, and he said “[n]o, no you ain't.” The jury concluded defendant was guilty of sexual offenses against the children, and defendant appeals.
I. Hearsay Testimony
    Defendant asserts the trial court erred in allowing testimony by Rogers and Hudyma concerning prior out-of-court statements made by the three victims. Defendant contends the statements were prior inconsistent statements which failed to corroborate the trial testimony of the three victims, constituted impermissible new and additional evidence, and were grossly prejudicial. The State argues the challenged statements were admissible as corroborative evidence because they were not contradictory to the victims' in- court testimony and the statements added weight and credibility to the trial testimony of the three victims.
    “Corroboration is defined as the 'process of persuading the trier of facts that a witness is credible.'” State v. Burton, 322 N.C. 447, 449, 368 S.E.2d 630, 632 (1988) (quoting 1 Brandis on North Carolina Evidence § 49 (2d ed. 1982)). Our Supreme Court has defined “corroborate” as “[t]o strengthen; to add weight orcredibility to a thing by additional and confirming facts or evidence.” State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985). “In order to be admissible as corroborative evidence, a witness'[] prior consistent statements merely must tend to add weight or credibility to the witness'[] testimony.” State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993). This is true even where such evidence contains new or additional facts that were “contained in the witness' prior statement, but [was] not referred to in his trial testimony[.]” State v. Aguallo, 322 N.C. 818, 825, 370 S.E.2d 676, 679 (1988). Nonetheless, “'prior contradictory statements may not be admitted under the guise of corroborating . . . testimony.'” State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997) (quoting State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986)). With these familiar principles in mind, we address each of the challenged statements separately in order to determine whether the alleged additional facts “add weight or credibility” to the three victims' earlier testimony.
A. Rogers' testimony
    At trial, Rogers testified that Harvey told her defendant made sexual advances, asked for sex, and tried to put his hand down her pants in “her private.” Rogers further testified that Harvey felt threatened by defendant, he had chased her around the house with a knife, and had threatened to hurt her or her family if she talked to anyone. Defendant contends this testimony was new and additional information and was, therefore, inadmissible; however,Harvey had already testified at trial that defendant would touch her “inappropriately like between [her] legs and under [her] pants[,]” defendant had touched her “private areas” and her vagina, and defendant would call and ask her when she was “going to have sex with him.” Therefore, this portion of Rogers' testimony was neither new nor additional.
    Furthermore, some of Rogers' testimony was corroborative despite also containing new or additional information. The remaining statements concerning defendant's threat to hurt Harvey if she told anyone about the sexual activity between them and to hurt Harvey's family were closely related to the threats and intimidation to which Harvey had already testified. While it constituted new and additional evidence, it was admissible as corroborative because it added weight and credibility to Harvey's testimony concerning threats and intimidation by defendant towards her.
    Finally, we need not consider Harvey's statement concerning defendant having no fear of jail, because defendant failed to object to that testimony at trial and has not asserted plain error on appeal. N.C.R. App. P. 10(b)(1), 10(c)(4) (2003).
B. Hudyma's testimony concerning Hampton
    At trial, Hudyma testified that Hampton told her “[t]his man Jackson is a child molester and messes with little children.” Hampton did not testify as to these statements at trial. Although Hampton did not specifically testify to or repeat that statement at trial, she clearly testified regarding the sexual advances made bydefendant towards her and one instance of sexual intercourse initiated by Jackson with her when she was eleven years old. Accordingly, Hudyma's testimony as to Hampton's prior statements added weight and credibility to the acts to which Hampton testified.
    More accurately, defendant seeks to preclude the statements for the light in which defendant is cast as a result of the characterization of those statements. However, this Court has allowed characterizations of a defendant where the characterizations were “apparent from and consistent with the victim's trial testimony.” State v. Singleton, 85 N.C. App. 123, 127, 354 S.E.2d 259, 262 (1987) (allowing as corroborating testimony a victim's previous characterization of the defendant as a “sex maniac” where victim testified at trial that the defendant took the victim's clothes off, took nude pictures of the victim, and had sexual intercourse with the victim when she went to his house). In the case at bar, the testimony was admissible as corroboration of the acts described by Hampton because it was a correct characterization of Hampton's testimony.
C. Hudyma's testimony concerning Joyner
    At trial, Hudyma testified that Joyner told her Hampton stated defendant slapped Hampton when she would not “suck his penis” and also that Joyner stated defendant knew what he was doing because she had her period the night she spent at Sabrina's. Joyner did not testify as to these statements during trial.    Regarding Hampton's statement that defendant slapped her when she would not engage in oral sex with him, defendant failed to object to this testimony at trial and failed to assert that it was plain error to admit such evidence on appeal. Accordingly, defendant has failed to preserve this issue on appeal. N.C.R. App. P. 10(c)(4) (2003). Even if we undertook plain error analysis, defendant would be incapable of showing prejudice as Hampton testified at trial that defendant “slapped [her] because [she] wouldn't have oral sex with him.”
    Regarding Hudyma's testimony that Joyner stated defendant knew what he was doing because she had her period the night she spent at defendant's house, while this evidence fails to corroborate Joyner's in-court testimony, defendant cannot show prejudice resulting from the admission of this evidence. In light of the evidence already before the jury in the form of testimony received as well as other evidence adduced at trial, we conclude that defendant has failed to meet his burden of showing a reasonable possibility that a different result would have been reached at trial had the statement been excluded. N.C. Gen. Stat. § 15A- 1443(a) (2001).
II. Hudyma's testimony concerning substantiation by DSS of the case against defendant
    On appeal to this Court, defendant asserts the trial court erred in allowing Hudyma's testimony because it expressed an opinion as to whether the legal standard necessary to prove a crime had been shown by the State in violation of N.C. Gen. Stat. § 8C-1,Rules 702 and 704 (2001). We note defendant failed to assign error on these grounds at trial; however, out of an abundance of caution, we address defendant's argument. Hudyma's testimony concerned only whether DSS concluded there was evidence sufficient to substantiate sexual abuse and justify DSS' intervention. Nothing in Hudyma's testimony indicates whether the legal standard sufficient to support a criminal charge had been met by the State.
    The assignment of error that correlates most directly with defendant's argument raises the issue of whether the trial court erred in allowing Hudyma to testify as to substantiation of a case of child abuse because it amounted to an opinion as to the truthfulness of Hampton and Joyner in violation of defendant's constitutional rights. However, defendant has failed to bring forward an argument in support of his assignment of error, and it is deemed abandoned. N.C.R. App. P. 28(b)(6) (2003).
III. Evidence of negative results from the sexually transmitted disease tests
    Defendant asserts the trial court erred in prohibiting him from testifying concerning negative results from tests conducted by the State to determine whether defendant carried any sexually transmitted diseases. Defendant theorizes that evidence that Hampton contracted a sexually transmitted disease from an individual other than defendant would “tend to make the existence of the fact that the Defendant had not engaged in illicit sexual activity with her more probable than it would be without the evidence.” We disagree. The only relevant issue to the crimecharged is defendant's sexual activities with Hampton; Hampton's other sexual activities are simply irrelevant.
IV. Impeachment of Hampton and N.C. Gen. Stat. § 8C-1, Rule 412
    Defendant asserts the trial court erred in prohibiting him, on the basis of N.C. Gen. Stat. § 8C-1, Rule 412 (2001), from impeaching Hampton regarding statements she made concerning her prior sexual activity. Specifically, defendant asserts Hampton denied having sex with any other person than defendant; therefore, defendant should have been allowed to impeach Hampton concerning her prior sexual activity for the purpose of casting doubt on her credibility. Defendant bases this assertion on a search warrant application indicating Hampton represented defendant was the only person with whom she had engaged in sexual intercourse.
    The search warrant in question was prepared by Detective Smithson. Detective Smithson provided voir dire testimony that Hampton admitted she had engaged in sexual intercourse not only with defendant but also with her boyfriend. Detective Smithson further explained, although the statement of facts on the search warrant alleged that Hampton had sex only with defendant, Hampton had never misled him. In fact, Hampton responded honestly about having had another sexual partner when he asked her. Detective Smithson characterized the statement on the warrant as “a misprint, oversight on my part” and admitted he had “neglected to put the other person's name [provided by Hampton] on it.”
    After hearing this voir dire testimony, the trial court barred questions concerning Hampton's contracting sexually transmitteddiseases on the basis of Rule 412. Rule 412 provides that “the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior: . . . (2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant . . . .” N.C. Gen. Stat. § 8C-1, Rule 412.
    For reasons given in the preceding issue, Hampton's sexual activities with persons other than defendant have no bearing on whether defendant is guilty of the acts charged. Moreover, to the extent defendant asserts evidence of Hampton's sexually transmitted diseases are relevant to impeaching her credibility as her statements that she engaged in sexual intercourse with no person other than defendant, Detective Smithson's testimony clearly shows that Hampton never made that assertion and the basis for the statement in the search warrant was his mistake alone. The State introduced no evidence of Hampton having a sexually transmitted disease, Hampton never testified at trial or stated defendant was the only person with whom she had sex, and the search warrant was never introduced into evidence. Accordingly, nothing presented to the jury tended to show defendant was the only person with whom Hampton had sex, and defendant's assertion, that introduction of the evidence was necessary to impeach statements Hampton never made, is specious and without merit.
V. Jury instruction
    Finally, defendant asserts the trial court erred in its instruction to the jury regarding first-degree statutory rape.Defendant contends the court erred in instructing the jury as to the second element of the offense, the age of the child. Defendant argues the given instruction established a new and different offense from the statutory offense charged and, since the court offered no curative instruction, constituted reversible error.
    In the case at bar, the pattern jury instruction provides: “[T]hat at the time of the acts alleged, the victim was a child under the age of thirteen years.” N.C.P.I., Crim. 207.15.1 (2002). A footnote accompanying the model instruction provides “[a] child would be under the age of thirteen if she had not yet reached her thirteenth birthday.” N.C.P.I., Crim. 207.15.1 n.1 (2002). The court instructed the jury:
        [T]hat at the time of the acts alleged the victim was a child of the age of 13 years or less. A child would be 13 years of age if she had reached her thirteenth birthday. If she had passed her thirteenth birthday by even a moment she would be more than 13 years of age.

The instructions differ because the pattern instruction requires the age of the child to be less than thirteen while the court's instruction requires either age thirteen or less.
    Since defendant failed to object to the instruction, our review is limited to plain error. State v. McNair, 146 N.C. App. 674, 681, 554 S.E.2d 665, 670 (2001); N.C.R. App. 10(c)(4) (2003). “Under North Carolina law, '[i]n deciding whether a defect in the jury instruction constitutes [“]plain error,[”] the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.'” Id., 146 N.C. App. At 683, 554 S.E.2d at 671 (quoting State v. Odom, 307N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983)). Although the instruction given could be material if the child was age thirteen, the victim was eleven; therefore, any error is harmless.
    No error.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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