State v Jones, (02-1274) 08/05/2003

Appeal by defendant from judgments entered 25 April 2002 by Judge Charles Lamm in Superior Court, Davidson County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State.

Mary March Exum for defendant-appellant.

McGEE, Judge.

    Dwain Ervin Jones (defendant) was charged with first degree statutory sexual offense of Bo. G.; first degree statutory rape and first degree statutory sexual offense of Ba. G.; first degree statutory rape and first degree statutory sexual offense of Br. G., and first degree statutory rape of T.J. The State's evidence tended to show that between 1 August 1999 and 17 March 2000, Bo. G., Ba. G., and Br. G., who were triplets, lived in the home of their mother with defendant and his natural daughter, T.J. The triplets were eight years of age and T.J. was ten years old.
    Bo. G. testified that while he was in the bathroom taking a bath, defendant "put his private part in his butt"; thatdefendant's private part was "long and straight." Defendant told Bo. G. that if he told anyone about the incident, defendant would "whoop" him. Bo. G. further testified that he told his teacher, Ms. Moore, what had happened.
    Ba. G. testified that defendant told her and her two sisters to go into her mother's bedroom, where defendant took off Ba. G.'s clothes and told her to lie on the bed. Defendant put his "wiener" and his fingers in her "coochie." Ba. G. testified that her mother came into the room but left. She further testified that she also told her teacher about the incident.
    Br. G. testified that defendant told her to go into the bedroom with her sisters and that defendant made her take her clothes off and lie on the bed. Br. G. testified that defendant "put his weiner [sic] in my coochie" and touched her "coochie" with his fingers. She further testified that when the incident happened, her sisters were watching tv. Br. G. testified that her mother came into the room, told defendant to stop, but went back out when defendant did not stop. She also told her teacher, Ms. Moore, about what had happened.
    T.J. testified that defendant told her to go into the bedroom, that he took off her clothes and put her on the bed. She further testified that defendant opened her legs and put his penis in her "private part." Defendant also touched her breasts. T. J. stated that she told defendant to stop and that her mother was in the room but did not do anything to stop defendant. She also testified that she saw defendant stick his penis into both of her sisters' privateparts. She further stated that defendant told her and her sisters that if they told anyone he would do it again.
    Deborah Moore testified that the triplets started attending her self-contained classroom for students with mild mental retardation in August 1999. During the school year, she observed the triplets exhibiting unusual behavior. She and the guidance counselor asked the children very direct questions. Bo. G. revealed that defendant had put his penis in Bo. G.'s anus. Br. G. did not answer the questions, but Ba. G. eventually indicated that defendant had touched her in the vagina area. Ms. Moore contacted the county Department of Social Services.
    Defendant testified that when he moved into the home with the triplets, he found some discipline problems with the children and he often saw the children touch themselves in a sexual manner. Defendant testified that he did not in any way sexually touch or assault the children.
    A jury found defendant guilty of all charges. The trial court sentenced defendant to three consecutive terms of 192 to 240 months imprisonment. Defendant appeals.
    Defendant assigns error to the trial court's overruling of his objection to the State's question to Deborah Moore, as to whether the children had ever mentioned the name of their mother's boyfriend to her. After Ms. Moore testified during direct examination that she noticed the triplets exhibit unusual behavior, the following questioning occurred:
        Q. And as you noticed this behavior, did you begin to question the students about anyspecific problems they might have?

        A. We began to question them, especially when they started talking about mom's boyfriend.

        Q. And did they ever name mom's boyfriend to you?

        [DEFENSE COUNSEL]: Objection.

        A. Yes.

        THE COURT: Overruled.

        Q. What did they say his name was?

        A. Dwain E. Jones.

    Defendant argues the testimony was hearsay and does not fall within any statutorily defined exceptions in N.C.R. Evid. 803 and 804. However, Moore's response was not hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2001). The official commentary to Rule 801 points out that "[i]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay." N.C.R. Evid. 801, Official Commentary.
     Contrary to defendant's argument, the trial court did not "permit[] the teacher of the alleged child victims in this case to testify as if it were a foregone conclusion that defendant was the perpetrator of sex crimes against the children." Rather, the State merely elicited whether the victims knew the name of their mother's boyfriend. Such a response is not hearsay in that it is offeredonly to show that the statement was made and not to show the truth of matter asserted in the statement. Furthermore, the triplets had already testified that defendant was their mother's boyfriend. Accordingly, defendant was not prejudiced by Moore's testimony and this assignment of error is without merit.
    Defendant did not argue his remaining assignments of error and they are therefore deemed abandoned. See N.C.R. App. P. 28(b)(6).
    This Court notes that at sentencing, the trial court stated that defendant's sentence in file number 02 CRS 546 would "begin at the expiration of the previous two sentences announced this day by the Court." Although the written judgment and commitment form entered in file number 02 CRS 546 reflects that the sentence is to be served consecutive, i.e., "The sentence imposed above shall begin at the expiration of the sentence imposed in the case referenced below", it does not list the specific file number in the box provided below. This case is therefore remanded to correct a clerical error in the written judgment and commitment in file number 02 CRS 546.
    No error in trial. Remand for correction of clerical error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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