STATE OF NORTH CAROLINA
v
.
Rutherford County
No. 99 CRS 007358
CLIFFORD HAROLD SISK
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Ann Lannom, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender, Charlesena Elliott Walker, for defendant-appellant.
CALABRIA, Judge.
Clifford Harold Sisk (“defendant”) appeals the 22 August 2000
judgment sentencing him to 17 to 21 months in the North Carolina
Department of Correction for violating N.C. Gen. Stat. § 14-202.1
taking indecent liberties with a child. Defendant asserts the
trial court erred in admitting improper evidence, instructing the
jury that no transcript of the testimony would be available, and in
sentencing defendant without evidence of his prior offenses. We
find no error.
The minor child (“S.P.”) testified that in June and July of
1999, when he was fourteen years old, he was befriended by
defendant. S.P. explained that defendant would give him rides and
“when I was in the car he would like pat me on the legs and rub mylegs and say, 'You're my boy. You love me.' And I'd say, 'No.'”
Moreover, defendant would purchase items for him and give him
money, generally “ten, fifteen dollars every time I'd go with him,
go places with him.” In July 1999, defendant purchased S.P. shorts
and a shirt, and then as they drove in the car “he started patting
me on the leg. . . he started to [go] up my pants and feel of my
private area.” S.P. testified that, defendant was driving with his
left hand and he put his right hand inside S.P.'s underwear and
felt his penis. S.P.'s friend J.L. was in the backseat at the
time, but S.P. didn't say anything because “I was afraid to.” S.P.
stated that defendant had never done this before, but approximately
two weeks prior to the driving incident he “asked [S.P.] if he
could feel of my private area.” After S.P. was dropped off at
home, and defendant had told him “not to tell anybody what we do,”
S.P. went to a neighbors' house and told them. His neighbors
called his parents, who came to the neighbors' house and S.P. told
his parents what defendant had done. S.P. later conveyed his story
to a Detective Cyndi Marie Anadell (“Detective Anadell”). On
cross-examination, S.P. testified he saw defendant grab J.L.'s
crotch once so hard that J.L. said “ouch.” S.P.'s mother and
Detective Anadell corroborated S.P.'s testimony.
S.P.'s friend J.L. testified on behalf of defendant. J.L.
stated that he, not S.P., sat in the front seat. He said defendant
never touched him inappropriately, but that defendant turned from
the front seat to the backseat and “touched [S.P.] on the knee,
that's about it.” J.L. testified that he neither had any personalknowledge of defendant touching S.P., nor had S.P. ever told him.
Detective Anadell testified on rebuttal for the State that J.L.
reported that defendant “did touch him in the leg and crotch area
and made him feel uncomfortable, and he told him to quit” and also
that “he knew about the incident [in the car with S.P.] because
[S.P.] told him.” On cross-examination, Detective Anadell
clarified that J.L. “came back at a later date and denied that any
of this ever took place. He said he didn't want to have anything
to do with this trial.”
The jury found defendant guilty of taking an indecent liberty
with a child. During the sentencing phase, the State asserted
defendant had six prior record level points. Defense counsel
disagreed with the State's calculation of defendant's points and
offender level since defendant had only five prior record level
points. The court found that “even as five points he would be a
Level III” and accordingly sentenced defendant in accordance with
having a prior record level of III. Defendant appeals.
(See footnote 1)
Defendant asserts the trial court erred by: (I) telling the
jury that it would not be possible to have a transcript of the
testimony prepared; (II) permitting Detective Anadell to testify
that (A) defendant offered S.P. money in exchange for sexual favorsand (B) J.L. told her defendant inappropriately touched him and
that he knew of the incident with S.P.; and (III) sentencing him
with six prior record level points despite the State presenting no
evidence of the prior offenses.
I. Transcript
Defendant appeals asserting the trial court erred in its
initial instruction to the jury by stating:
[c]ontrary to what you may read about or see
on T.V. or hear about on the radio, it is not
possible to have a transcript of the testimony
prepared for you, so it's going to be very
important that you pay attention to the
evidence as it's introduced during the trial
so that you can recall that when you go back
to the jury room.
Defendant asserts by so instructing the jury, the court “failed to
exercise its discretion,” under N.C. Gen. Stat. § 15A-1233(a),
which provides that if, after a jury has retired for deliberation,
the jury “requests a review of certain testimony or other evidence.
. . [t]he judge in his discretion. . . may direct that requested
parts of the testimony be read to the jury.” N.C. Gen. Stat. §
15A-1233(a) (2003).
Since defendant did not object, this Court's review of
defendant's assertion is limited to plain error. N.C.R. App. P.
10(c)(4) (2003). “'In order to rise to the level of plain error,
the error in the trial court's instructions must be so fundamental
that (i) absent the error, the jury probably would have reached a
different verdict; or (ii) the error would constitute a miscarriage
of justice if not corrected.'” State v. Berry, 356 N.C. 490, 523,
573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404,435, 488 S.E.2d 514, 531 (1997)). Applying this standard to the
case at bar, we cannot say that absent the court's instruction that
it could not have a transcript of testimony provided that the jury
would probably have reached a different verdict or the error
results in a miscarriage of justice. We note that the proceedings
in this case were not lengthy and took place over a single day.
Moreover, the witnesses were not numerous as only four witnesses
were examined. Finally, the essence of the case did not require
complex consideration of specific language, where a transcript
would be most beneficial, but rather the issue for the jury was one
of credibility. Accordingly, we find no plain error.
II. Testimony
A. Corroboration of monetary gifts
Defendant next asserts the trial court erred in admitting
testimony of Detective Anadell which did not corroborate S.P.'s
testimony. S.P. testified:
Q. Tell the jury what happened during these
[car] rides.
A. Well, when I was in the car he would like
pat me on the legs and rub my legs and say,
'You're my boy. You love me.' And I'd say,
'No'. He'd like take me places and buy stuff
for me and give me like ten, fifteen dollars
every time I'd go with him.
Q: He would do what?
A: Give me ten, fifteen dollars every time I'd
go with him, go places with him.
. . .
Q: Had you ever had anything like [the car
incident] happen before?
A: Well, behind the church one time he had _
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
Q: Go ahead.
A: Behind the church one time he had asked me
to feel my private area, and I said no.
As corroboration of S.P.'s testimony, Detective Anadell testified:
Q: Can you tell the jury what the young man
[S.P.] told you happened in relation to the
defendant?
A: He first told me. . . that he was in the
parking lot behind the church. . . and
[defendant] was there too. [Defendant] asked
him a couple of times if he could touch
[S.P.'s]
(See footnote 2)
crotch area, and [S.P.] repeated “No”
several times.
And [defendant] even offered him some money, I
think it was $20.
DEFENSE COUNSEL: Objection, [S.P.] did not
testify to that.
THE COURT: Members of the jury, you may
consider the testimony of this witness only
insofar as you find it corroborates the
earlier testimony of [S.P.], the first witness
for the State in this matter.
Defendant asserts the court improperly overruled defendant's
objection, and the evidence prejudiced defendant.
Generally, “[p]rior consistent statements of a witness are
admissible as corroborative evidence . . . .” State v. Riddle, 316
N.C. 152, 157, 340 S.E.2d 75, 78 (1986). Moreover, although “the
prior statement must in fact corroborate the witness' testimony .
. . [s]light variations between the corroborating statement and the
witness' testimony will not render the statement inadmissible.”
Id. (internal citations omitted). In the present case, although
S.P. testified separately about the monetary gifts and the incident
where defendant asked to touch S.P.'s private parts, Detective
Anadell blended these incidents, potentially implying to the jury
that defendant offered S.P. money in exchange for a sexual favor. The court properly and immediately clarified that Detective
Anadell's testimony was only admissible to the extent the jury
found it corroborated S.P.'s testimony. Considering the slight
difference in the testimony and the court's prompt action limiting
the testimony to corroboration, we cannot find any error here was
prejudicial. See State v. Williams, 355 N.C. 501, 567, 565 S.E.2d
609, 647 (2002), cert. denied, 537 U.S. 1125, 154 L.Ed. 2d 808
(2003) (requiring defendant demonstrate prejudicial error if the
trial court improperly admitted evidence under the guise of
corroboration).
B. Prior Inconsistent Statement
Defendant argues the trial court erred in overruling his
objection and permitting the State to impeach J.L.'s testimony with
Detective Anadell's testimony. Defendant asserts this was
“extrinsic evidence of a collateral matter” and as such was
inadmissible hearsay. The State asserts the issue was not
collateral, but rather was relevant and material.
On direct examination, J.L. testified that he never saw
defendant touch S.P. inappropriately, S.P. never told J.L. that
defendant touched him and, contrary to S.P.'s testimony, J.L.
claimed defendant never touched him inappropriately either. On
cross-examination, J.L. reiterated that defendant never touched
him, explaining that “if anybody ever touched me down there I'd
kill them.” J.L. further testified that he never reported to
Detective Anadell that defendant touched him inappropriately. As
rebuttal evidence, the State offered Detective Anadell, whotestified that “[J.L.] told me that one time when he was riding in
the car with [defendant] that [defendant] did touch him in the leg
and crotch area [and] that made him feel uncomfortable, and he told
him to quit.” She further testified that J.L. reported that “he
knew about the incident that happened with [S.P.] because [S.P.]
told him.” On cross-examination, Detective Anadell clarified that
after this initial statement, “[J.L.] came back at a later date and
denied that any of this ever took place. He said he didn't want to
have anything to do with this trial.”
“The laws of our State make it clear that '[t]he credibility
of a witness may be attacked by any party, including the party
calling him.'” State v. Jerrells, 98 N.C. App. 318, 320, 390 S.E.2d
722, 723 (1990) (quoting N.C. Gen. Stat. § 8C-1, Rule 607 (1988)).
Moreover, our Supreme Court has explained,
'[a] witness may be cross-examined by
confronting him with prior statements
inconsistent with any part of his testimony,
but where such questions concern matters
collateral to the issues, the witness'[]
answers on cross-examination are conclusive,
and the party who draws out such answers will
not be permitted to contradict them by other
testimony.'
State v. Williams, 322 N.C. 452, 455, 368 S.E.2d 624, 626
(1988)(quoting State v. Green, 296 N.C. 183, 192, 250 S.E.2d 197,
203 (1978)). “Under Williams, it is clear a prior inconsistent
statement may not be used to impeach a witness if the questions
concern matters which are only collateral to the central issues.”
State v. Najewicz, 112 N.C. App. 280, 288, 436 S.E.2d 132, 137
(1993). Accordingly, “once a witness denies having made a priorinconsistent statement, the State may not introduce the prior
statement in an attempt to discredit the witness; the prior
statement concerns only a collateral matter, i.e., whether the
statement was ever made.” Id., 112 N.C. App. at 289, 436 S.E.2d at
138 (citing State v. Minter, 111 N.C. App. 40, 48, 432 S.E.2d 146,
151 (1993)). However, where the witness testifies and “denies
having made certain parts of a prior statement. . . our courts have
allowed the witness to be impeached with the prior inconsistent
statement.” State v. Riccard, 142 N.C. App. 298, 303, 542 S.E.2d
320, 323, cert. denied, 353 N.C. 530, 549 S.E.2d 864 (2001)
(emphasis added); accord State v. Wilson, 135 N.C. App. 504, 506-7
521 S.E.2d 263, 264-65 (1999) (holding that since the witnesses
admitted making statements to the police but denied portions of the
statements, the trial court properly permitted the State to call
the officer as a rebuttal witness regarding the substance of the
statements).
In the case at bar, J.L. did not deny making a statement to
Detective Anadell. In fact, J.L. testified he spoke with her “two
or three times.” J.L. then denied having made certain statements.
Accordingly, under recent case law from this Court, Detective
Anadell's rebuttal testimony as to the substance of those
statements was properly admitted by the trial court.
III. Sentencing
Finally, defendant asserts the trial court erred during the
sentencing phase in finding defendant's prior record level as a
level III because the State failed to present evidence to supportthe court's finding that he had the requisite prior record level
points. The transcript reveals defense counsel stipulated to the
level III range based on defendant's five prior record level
points. Under North Carolina statutory law, five points computes
to a level III prior record level. N.C. Gen. Stat. § 15A-
1340.14(c)(3)(2001). Since the statute allows prior convictions to
be proven by stipulation of the parties, we find no error. N.C.
Gen. Stat. § 15A-1340.14(f)(1) (2001).
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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