An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-317


Filed: 20 January 2004


v .                         Rutherford County
                            No. 99 CRS 007358

    Appeal by defendant from judgment entered 22 August 2000 by Judge J. Marlene Hyatt in Rutherford County Superior Court. Heard in the Court of Appeals 3 December 2003.

    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).

Footnote: 1
    Defendant filed notice of appeal on 31 August 2000. Thereafter, the Appellate Defender declined appointment and defendant's trial counsel failed to perfect the appeal. Pursuant to a motion by defendant in April 2002, this Court ordered the superior court to hold a hearing on the matter. The court found that defendant did not wish to abandon his appeal and accordingly removed trial counsel as appellate counsel and appointed the Appellate Defender. Defendant's appeal has subsequently been perfected and is now properly before this Court.
Footnote: 2
    Although the transcript reports Detective Anadell refe rring to S.P. as “Daniel,” it is apparent from the record that although she referred to S.P. by the wrong name, she was in fact testifying about what S.P. told her.

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