1. Sexual Offenses--crime against nature--instruction_penetration by object
The trial court did not err in a multiple second-degree rape and crime against nature case
by its instruction on crime against nature, because: (1) while no case in our State has specifically
included penetration of the genital opening by an object in its definition of crime against nature,
such an act is consistent with the language of State v. Joyner, 295 N.C. 55 (1978); and (2)
defendant failed to object to the instructions when given, and the instructions did not arise to the
level of plain error.
2. Appeal and Error--preservation of issues--failure to make offer of proof
Although defendant contends the trial court erred in a multiple second-degree rape and
crime against nature case by sustaining the State's objection to evidence of defendant's good
character, defendant failed to preserve this issue for appellate review because: (1) defendant
failed to make an offer of proof as to what the witness would have said; and (2) the content and
relevance of the excluded testimony are not evident from the context of the questioning.
Attorney General Roy Cooper, by Assistant Attorney General
Diane G. Miller, for the State.
Miles & Montgomery, by Mark Montgomery, for the defendant-
appellant.
HUDSON, Judge.
Defendant was charged with sexual misconduct with his son,
stepdaughter and niece, some twenty-five years before the trial.
A jury found defendant guilty of eight counts of second-degree rape
and eleven counts of crime against nature, and the court entered
judgment 9 May 2002. Defendant appeals, alleging the court erred
in the jury instructions on crime against nature and sustaining the
State's objections to evidence of defendant's good character. Forthe reasons discussed below, we find no prejudicial error.
The State's evidence tended to show that Anita Stiller
Blackwelder, defendant's estranged stepdaughter, after seeing him
with a little girl at a family funeral, recalled that defendant
molested her as a child and she went to the police. Ms.
Blackwelder testified that defendant had forced her to engage in
various sexual acts with himself and with her brother, Richard.
Defendant's niece, son, and two other women also testified that,
when they were children, defendant had sexually assaulted them or
forced them to engage in sexual activity with each other.
Defendant testified in his own behalf, denying the charges
against him. Patricia Simmons, defendant's former live-in
companion, testified for defendant. Ms. Simmons and her young
daughter, the child Ms. Blackwelder saw at the funeral with
defendant, lived with defendant for two years. After the
Department of Social Services contacted Ms. Simmons, she had her
daughter examined for sexual abuse, but no evidence of abuse was
found. Defendant's cousin and a family friend who spent time with
defendant as a child testified that defendant had never been
inappropriate with them. The jury convicted defendant of eight
counts of second-degree rape and eleven counts of crime against
nature, and defendant appeals.
[1] Defendant first argues that the jury instructions on crime
against nature were erroneous and allowed for his conviction on an
improper theory. In charging the jury, the court defined a crime
against nature as follows:
An unnatural sexual act would include
cunnilingus, which is any touching, howeverslight, by the lips or tongue of one person to
any part of the female sex organ of another;
fellatio which is any touching by the lips or
tongue of one person to the male sex organ of
another and any penetration, however slight,
by an object, such as a piece of candy, into
the genital opening of a person's body.
While this jury instruction is consistent with the pattern
instruction on crime against nature, defendant argues that this
offense is limited to oral and anal sex, and thus, the final part
of the instruction given, regarding penetration, was error. For
the reasons discussed below, we disagree.
Crime against nature is defined by the common law and
interpreted by our courts. At the time of these offenses in 1976
and 1977, crime against nature was defined to “include[] all
kindred acts of a bestial character whereby degraded and perverted
sexual desires are sought to be gratified.” State v. Harward, 264
N.C. 746, 746, 142 S.E.2d 691, 692 (1965). Our Supreme Court has
stated that “though penetration by or of a sexual organ is an
essential element of the crime, the crime against nature is not
limited to penetration by the male sexual organ.” State v. Joyner,
295 N.C. 55, 66, 243 S.E.2d 367, 374 (1978) (internal citations
omitted). Instead, the offense is broad enough to include all
forms of oral and anal sex, as well as unnatural acts with animals.
Id. While no case in our State has specifically included
penetration of the genital opening by an object in its definition
of crime against nature, such an act is entirely consistent with
the language of Joyner. Thus, we do not believe the court's
instruction was erroneous.
In addition, defendant failed to object to the instructionswhen given. Thus, even were the instruction in error, our review
would be limited to plain error. “[T]o reach the level of 'plain
error' . . ., the error in the trial court's jury instructions must
be so fundamental as to amount to a miscarriage of justice or which
probably resulted in the jury reaching a different verdict than it
otherwise would have reached.” State v. Collins, 334 N.C. 54, 62,
431 S.E.2d 188, 193 (1993) (internal quotation marks omitted). In
light of the entire record of consistent testimony from numerous
victims and witnesses, any possible error in the instructions
probably had no effect on the jury's finding of guilt. This
assignment of error is without merit.
[2] In his second argument, defendant argues it was error for
the court to sustain the State's objection to evidence of
defendant's good character. We disagree.
Defendant called Patricia Simmons, his former live-in
companion, to the stand and asked her the following questions:
Q. [BY DEFENSE COUNSEL] Do you still reside
in Mr. Stiller's home?
A. No.
Q. You decided about whether or not you would
if he got out?
[STATE'S OBJECTION SUSTAINED]
Q. You moved out from his residence.
A. Yes.
Q. Is that fair to say?
A. Yes.
Q. What would be your concerns about letting
Dominique [her daughter] be around Mr.
Stiller, if any, at this point following the
medical examination?
[STATE'S OBJECTION SUSTAINED]
Following the State's cross-examination of Ms. Simmons, defendant
on redirect asked, “Is [your moving out] because of anything that
you're aware or [sic] that you believe Mr. Stiller did that caused
you to move out?” The State's objection was again sustained.
Defendant contends that the court prevented him from putting
his character in issue, by offering evidence of good character from
Ms. Simmons. However, defendant failed to make an offer of proof
as to what Ms. Simmons would have said, and thus, has failed to
preserve this issue for appellate review. “To prevail on a
contention that evidence was improperly excluded, either a
defendant must make an offer of proof as to what the evidence would
have shown or the relevance and content of the answer must be
obvious from the context of the questioning.” State v. Geddie, 345
N.C. 73, 95, 478 S.E.2d 146, 157, cert. denied, 522 U.S. 825, 139
L. Ed. 2d 43 (1996).
Defendant contends that it is obvious from the context of the
questions that Ms. Simmons' excluded answers would have reflected
her lack of concern about her daughter living with defendant and
that she did not move out of his home because of such concerns. We
disagree, finding that the content and relevance of the excluded
testimony are not evident from the context of the questioning. See
State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d 625, 643 (1998),
cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999) (finding no
error where “[a]fter the objection was sustained, defendant's
counsel did not rephrase the question or make an offer of proof as
to how [the witness] would have answered. . . .”). No prejudicial error.
Judges TYSON and STEELMAN concur.
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