State v Blakeley, (03-106) 05/18/2004

Appeal by defendant from judgments entered 19 July 2002 by Judge John O. Craig, III in the Superior Court in Guilford County. Heard in the Court of Appeals 13 November 2003.

Attorney General Roy Cooper, by Assistant Attorney General Celia Grasty Lata, for the State.

Nora Henry Hargrove, for defendant-appellant.

    HUDSON, Judge.

    On 1 October 2001, the Guilford County Grand Jury indicted defendant San Junior Blakeley on five counts of first-degree sex offense with a child under the age of thirteen and five counts of taking indecent liberties with a child. At the 15 July 2002 Criminal Session of Superior Court in Guilford County, a jury convicted defendant on all counts. The trial court consolidated the sex offense convictions and consolidated the indecent liberties convictions, and sentenced defendant to consecutive terms of 276 to 341 months and 18 to 24 months respectively. Defendant appeals. For the reasons discussed below, we find no error.
    The State's evidence tended to show that at the time of trial the victim, M.C. was fourteen years old. She had known defendant,her stepfather, since 1997, when he began dating her mother, Shannon. At that time, M.C. was living in High Point with her grandmother. In July 1999, when M.C. was eleven years old, she began living with Shannon and defendant, who had married. Her brother Jeremy was already living there. M.C. did not like defendant and was not happy about the marriage, and she saw defendant as a strict disciplinarian.
    Approximately four or five months after M.C. moved in with Shannon and defendant, defendant came into her bedroom one evening at about 9:30 p.m., put his hands down her pants, pulled her underwear aside and performed oral sex on her. M.C. did not scream for help because she was afraid. Defendant stopped when he heard Shannon walking down the hall.
    Shannon came into M.C.'s bedroom, and defendant left. M.C. began crying, and at first would not tell Shannon why, but eventually told her that defendant had put his hands in her pants. She did not describe the incident in more detail because she did not want to hurt Shannon. Shannon brought defendant back into M.C.'s bedroom, whereupon defendant promised he would never do it again.
    However, about five or six months later, defendant again began touching M.C. daily or every other day. The incidents continued throughout the rest of the year 2000. Defendant regularly returned home from work at 3:00 or 4:00 p.m., an hour or more before Shannon did, and the incidents described by M.C. took place when Shannon was away from the house.    M.C. testified that defendant would grab her butt or breasts, or grab her by the waist and pull her down on his lap. He would put her on her knees facing a chair and rub the front of his body behind her, so that she could feel his penis. When she was in bed, and at other times in the living room, he would place his hands inside and outside of her vagina, her butt, and sometimes perform oral sex on her. Other times he would take her hand and make her squeeze his penis, and occasionally defendant would masturbate in front of her. M.C. testified that this behavior was unwelcome, and that when she resisted, defendant told her he needed it for a magic spell.
    M.C. did not tell Shannon about the incidents that occurred after the first one in 1999 because she was scared and knew that Shannon loved defendant. M.C. did tell her friend, Peaches, that defendant was touching her inappropriately, but asked Peaches not to tell anyone, including Shannon.
    Peaches and M.C. had known each other since kindergarten, and Peaches was a neighbor and close friend of M.C.'s during the time span of these incidents. Peaches testified that near the end of the school year in 2001, M.C. told her that defendant would come into her bedroom at night and masturbate and try to get into her pants. Peaches did not tell anyone about this until several months later, when she spoke to Detective Charlene Dix of the High Point Police Department.
    M.C. testified that she tried, unsuccessfully, to persuade Shannon to move out or to make defendant leave. Eventually, M.C.told Shannon that either defendant must leave or she would leave. In July 2001, M.C. left and moved in with her father, Chris Bowman, who lived in Trinity with his wife Delana. At that time, M.C. told Delana that she hated living with Shannon and defendant, and eventually disclosed to Delana that defendant had been sexually abusing her and described the abuse.
    Delana Bowman testified that in July 2001, M.C. came to visit her and Chris Bowman. M.C. was upset and anxious, talking about how unhappy she was at home. M.C. told Delana that about a week after she moved in with Shannon and defendant, defendant began touching her inappropriately. Delana told her husband, M.C.'s father, what M.C. had told her. The Bowmans then called the Randolph County Department of Social Services.
    Shortly thereafter, Child Protective Services sent social workers Betsy Bent and Leonard Cranford to interview M.C.. Ms. Bent led the interview, and M.C.'s parents were in another room.
    M.C. reported to Ms. Bent that the earliest sexual contact by defendant occurred when she was eleven years old while she was in her bedroom watching television late in the evening. Defendant made her turn over on her back, pulled her shorts and panties aside, touched her vaginal area with his fingers, then performed oral sex on her. Using an anatomically correct drawing of a female child, M.C. indicated with marks the parts of her body that were touched. She told Ms. Bent that defendant stopped when Shannon came down the hall towards the bedroom. She told Shannon that defendant had touched her “down there,” but revealed nothing else. Shannon then talked to defendant outside of M.C.'s presence, then they both returned to M.C.'s room. Defendant was crying and told her he didn't mean anything by it and didn't realize it was wrong. M.C. said that Shannon told her that if anything similar happened again, M.C. was to tell her about it.
    M.C. told Ms. Bent that about three months after this first incident, similar incidents began happening almost daily over a period of several months, and then gradually tapered off to two or three times per week. The subsequent incidents M.C. described included defendant touching her breasts on top of her clothing and once underneath her clothing, defendant placing her hand on his penis and rubbing it up and down, and defendant walking around her room at night in a bathrobe using her lotion to masturbate. M.C. told Ms. Bent that the last incident occurred about six months before the interview.
    Shortly after Ms. Bent's initial interview, M.C.'s case was transferred to the Guilford County Department of Social Services because M.C. had moved to that county.
    On 22 July 2001, Lisa Powell, a social worker for Guilford County Child Protective Services, visited defendant's residence in High Point and informed them of the allegation of sex abuse. Ms. Powell interviewed defendant and Shannon separately. She spoke with defendant for approximately thirty minutes, and made “fairly verbatim” notes of that conversation. When Ms. Powell informed defendant of the allegations involving M.C., defendant appeared very surprised and said he could not believe it.    During the interview, defendant told Ms. Powell that about a year earlier, he was watching television in the living room with M.C. and “somehow they ended up on each other” in the same chair. The next thing defendant knew, his hand was on her leg and it had crept up to her panty line. Once defendant realized what he was doing, he pulled his hand away. According to defendant, this was the first and only time he had ever done anything to M.C. that would be “suspicious of him inappropriately touching her.” Defendant told Ms. Powell that M.C. then went to her bedroom.
    Later that night, Shannon went to M.C.'s bedroom to say goodnight and asked M.C. why she was upset. M.C. told Shannon that she was frightened because defendant's hand had gotten too close to her panty line. Defendant said that he and Shannon spoke about the incident, then they both went back into M.C.'s room and kissed her goodnight. Defendant also said that he cried because he felt so bad about what he had done to M.C., and reiterated that nothing like this had happened since then.
    Defendant denied to Ms. Powell that he was ever alone with M.C. for extended periods of time. He said that he told M.C. that if he ever did anything to her that made her feel uncomfortable, she needed to tell him. He also told Ms. Powell that he had kissed M.C. on her forehead, her cheek, and her hand, because he was trying to teach her how men should treat women.
    Defendant further told Ms. Powell that he believed the allegations were false because he and Shannon grounded M.C. right before she left to visit her father and that M.C. was upset withhim. He said that M.C. had a terrible attitude, talked back, refused to do household chores, and always had to have her way. Defendant also stated that he rarely had to raise his voice to M.C. and most of the time she was very cooperative with what he asked. Defendant felt that M.C. and Shannon had a very good relationship, and that if the allegations were true, Shannon would know about them. At Ms. Powell's request, defendant signed a protection plan requiring him to move out of the house.
    Detective Charlene Dix of the High Point Police Department was assigned to investigate M.C.'s allegations in late July 2001. She interviewed defendant and Shannon separately on 23 July 2001. Also present at the interviews was Karen McLeod, a social worker with Child Protective Services. Defendant told Ms. Dix and Ms. McLeod about an incident in November or December 1999, in which he was sitting with M.C. on her bed when his hand slipped and touched her shorts. He said he didn't realize that he had done anything wrong, or that he touched M.C., and asked M.C. if she wanted him to call social services. Defendant denied ever placing a finger in her vagina or having oral sex with her, and said that he only touched M.C.'s breasts when “she jumped at him.” During this interview, defendant never mentioned an incident with M.C. where both of them were sitting in a living room chair and his hand touched her leg at her panty line.
    On 25 July 2001, Detective Dix interviewed M.C., also with Ms. McLeod present. M.C.'s statement to Det. Dix, telling of incidents involving defendant, was consistent with her statements to Ms. Bentand her own testimony at trial.
    The defendant presented evidence at trial tending to show that in July 1999, M.C. wanted to come live with him and Shannon, and that her brother Jeremy had been living there since June 1998. He denied ever performing oral sex on M.C., putting his hand down her pants, touching her vagina, grabbing her breasts or buttocks, putting his finger in her anus, or having sexual contact of any kind with her. He first learned of M.C.'s allegations through Ms. Powell on 22 July 2001. On 23 July 2001, he signed a child protection plan requiring him to move out of the house, and had not returned since then.
    Defendant testified that in December 1999 he went into M.C.'s bedroom to say goodnight. M.C. was watching television on the bottom bunk bed. He sat on the bed at her feet, kissed her goodnight on the forehead, and left the room. Shannon then went into M.C.'s bedroom, and upon returning to her own bedroom she told defendant that M.C. was uncomfortable about what had happened. Defendant testified to this incident that, “Worst case scenario, I had touched her shorts.” Defendant and Shannon then returned to M.C.'s room and defendant apologized, and while doing so, he “might have shed a tear.” He asked M.C. if she wanted him to call the police or social services, but she said no.
    Defendant testified that the incident he described to Ms. Powell was the same incident he related to Det. Dix. He testified that there had been only one incident and denied ever telling Ms. Powell that the incident took place in the living while he and M.C.were watching television.
    Larry Shockley and Bernard Shea, both co-workers of defendant, testified that defendant had always been truthful with them. Both also acknowledged that they had never visited defendant at his home and were not present when the events were alleged to have occurred.

    Defendant first argues that the trial court erred by denying his motion for a mistrial based upon two portions of Ms. Bent's testimony that exceeded the scope of corroborating M.C.'s testimony. For the following reasons, we find no abuse of discretion.
    During Ms. Bent's direct testimony, defense counsel requested and obtained an instruction limiting the use of her testimony to corroboration only. Ms. Bent testified that M.C. responded to her questions “openly” and “was embarrassed at the appropriate moments” and that “[s]he seemed sincere.” Defense counsel objected and moved to strike this testimony. The trial court sustained the objection and granted the motion to strike, and instructed the jury that they were to “disregard that portion of [Ms. Bent's] testimony entirely.”
    Later, Ms. Bent testified that M.C. told her that the last incident of sexual contact occurred on 18 July 2001. Defense counsel objected and moved to strike this testimony as non- corroborative. A bench conference ensued, during which defense counsel moved for a mistrial based upon this testimony as well as Ms. Bent's earlier testimony referred to above. The trial courtagreed that neither of these pieces of testimony corroborated M.C.'s testimony, but the court denied the motion for a mistrial. The court noted that any prejudice had been cured by sustaining the objection, striking the testimony and instructing the jury to disregard it.
    A motion for a mistrial is addressed to the sound discretion of the trial judge and is only appropriate when there are such serious improprieties as would make it impossible for the defendant to have a fair trial and impartial verdict under the law. State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 403 (1991). “[A]bsent a showing of gross abuse of that discretion, the trial court's ruling will not be disturbed on appeal.” State v. Roland, 88 N.C. App. 19, 26, 362 S.E.2d 800, 805 (1987), affirmed, 322 N.C. 469, 368 S.E.2d 385 (1988). “It is well-settled that where the trial court withdraws incompetent evidence and instructs the jury not to consider that evidence, any prejudice is ordinarily cured.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). Additionally, “our legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficient intelligence to comply with the court's instructions and they are presumed to have done so.” State v. Glover, 77 N.C. App. 418, 421, 335 S.E.2d 86, 88 (1985). On appeal, an appellate court presumes that the jury followed the trial court's instructions. State v. Richardson, 346 N.C. 520, 534, 488 S.E.2d 148, 156 (1997), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998).
    Here, we see no abuse of the trial court's discretion indenying defendant's motion for a mistrial. Immediately after Ms. Bent testified that M.C. answered her questions “openly” and that she “seemed sincere,” the trial court ordered the testimony stricken and promptly instructed the jury to disregard the testimony entirely. Later, after Ms. Bent testified as to the date of the last incident, the trial court again ordered the testimony stricken, and after hearing arguments from counsel outside the presence of the jury, instructed the jury to disregard the testimony. Given the trial court's prompt instructions to disregard Ms. Bent's statements, as well as the presumption that the jury has complied with the court's instructions, we conclude that the trial court did not abuse its discretion by denying defendant's motion for a mistrial. This assignment of error is overruled.

    Next, defendant argues that the trial court committed plain error in its instructions to the jury on the substantive offenses of first-degree sexual offense and taking indecent liberties with a child. For the following reasons, we find no error.
    The trial court charged the jury, in pertinent part, asfollows:
            Now, the defendant . . . has been charged with five counts of first degree sexual offense, with one count allegedly occurring during the fall of 1999, one count allegedly occurring during the winter of 2000, one count allegedly occurring during the spring of 2000, one count allegedly occurring during the summer of 2000, and one count allegedly occurring during the fall of 2000.

            For you to find the defendant guilty of these offenses, the State must prove three things beyond a reasonable doubt:

            First, that the defendant engaged in a sexual act with the victim. In this case, sexual act means the following: cunnilingus, which is any touching, however slight, by the lips or the tongue of one person to any part of the female sex organ of another; or, any penetration, however slight, by any object, such as a finger, into the genital or anal openings of a person's body.

        ***

            If you find from the evidence beyond a reasonable doubt that on or about the alleged dates the defendant engaged in a sexual act with the victim, and at that time the victim was a child under the age of thirteen years, and that the defendant was at least twelve years old and was at least four years older than the victim, it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

    The trial court then instructed the jury on the offense of taking indecent liberties in much the same manner as the above instructions on first-degree sexual offense. Defendant contends that the given instructions allowed the jury to find him guilty of a count of first-degree sexual offense or indecent liberties without being unanimous as to which particular sexual actconstituted the offense, or they could have been unanimous as to the particular sexual act but not unanimous as to the date the act occurred.
    In State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), our Supreme Court held that the threat of a non-unanimous verdict does not arise in the case of an indecent liberties charge because the statute for that offense does lists separate methods of committing the offense in the disjunctive. See G.S. . 14-202.1 (2001). In so doing, the Court noted that,
    [e]ven if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of “any immoral, improper, or indecent liberties.” Such a finding would be sufficient to establish the first element of the crime charged.
Id. at 565, 391 S.E.2d at 179. Similarly, our Supreme Court has held that a defendant may be convicted of first-degree sexual offense even if the trial court instructs the jury that more than one sexual act may comprise an element of the offense. State v. Foust, 311 N.C. 351, 317 S.E.2d 385 (1984) (holding that the trial court did not deny the defendant a unanimous verdict when it instructed the jury that either “oral or anal sex” would qualify as a sexual act to support a finding that the defendant was guilty of first-degree sexual offense), overruled by State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986), overruling abrogated by State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990).
    Here, the trial court properly instructed the jury on the elements of the two offenses. Thus, in accord with Hartness andFoust, we find no error in the jury instructions and consequently overrule this assignment of error.

    Defendant next contends that the trial court erred by denying his motion to dismiss based upon the sufficiency of the evidence. We disagree.
    When ruling on a motion to dismiss, the court must consider all the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn therefrom. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987). The central question is whether there is substantial evidence of each element of the charged offense, and that the defendant was the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Whether the evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). “If all the evidence, taken together and viewed in the light most favorable to the State, amounts to substantial evidence of each and every element of the offense and of defendant's being the perpetrator of such offense, a motion to dismiss is properly denied.” State v. Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892 (1986) (citations omitted).
    The elements of first-degree sex offense are (1) engaging in a sexual act (2) with a child under the age of thirteen (3) whenthe defendant is at least twelve years old and at least four years older than the victim. G.S. . 14-27.4(a) (2001). The elements of the crime of taking indecent liberties with a minor are (1) willfully taking or attempting to take any immoral, improper, or indecent liberties with, or committing or attempting to commit any lewd or lascivious act upon any part of the body of (2) a child under the age of sixteen (3) when the defendant is at least sixteen years old and at least five years older than the victim. G.S. . 14-202.1(a)(1) (2001).
    Here, the evidence of record establishes that the victim was eleven years old and defendant was twenty-seven years old when the first incident took place. Additionally, M.C. testified that defendant performed various sexual acts on her, including cunnilingus, placing his fingers in and around her vagina and anus, touching her breasts and buttocks, rubbing his penis on her body, and masturbating in her presence. These acts are well within the definitions of sexual acts as well as “immoral, improper, or indecent liberties.” Moreover, the State presented corroborating testimony of these acts through Delana Bowman, M.C.'s friend Peaches, Det. Dix, and Ms. Bent. Taken in the light most favorable to the State, the evidence was sufficient to go to the jury on these charges. Thus, the trial court did not err in denying defendant's motion to dismiss.