An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-366


Filed: 17 February 2004


v .                         Yadkin County
                            Nos. 01 CRS 050848 -
JERRY WAYNE SHARPE                     01 CRS 050867

    Appeal by defendant from judgments entered 31 October 2002 by Judge Michael E. Helms in Yadkin County Superior Court. Heard in the Court of Appeals 27 January 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Allison S. Corum, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    TYSON, Judge.

    Jerry Wayne Sharpe (“defendant”) appeals from a jury's verdicts finding him guilty of seventeen counts of first-degree statutory sexual offense and twelve counts of taking indecent liberties with a child. We find no error.

I. Background
    Defendant owned and operated a large motorcycle racetrack in Yadkin County. The victim (“J.J.”) and his family were regular patrons and visitors at the track and became friends with defendant. J.J.'s father worked as a “flagger” at the racetrack and operated the concession stand. When J.J. turned thirteen years old, he began racing motorcycles at defendant's track.
    J.J. testified that during the Spring of 2001, he beganspending weekend nights at defendant's home and that defendant began molesting him at this time. J.J. stated the molestation continued every weekend during March and May of 2001. Defendant would perform oral sex on J.J. and would force him to perform oral sex on defendant. Defendant possessed two different vibrators that he would use on J.J.'s genitalia.
    The State presented testimony from several men who had raced at defendant's track several years ago when they were teenagers. All testified that defendant had molested them and that defendant provided motorcycles for them to ride in exchange for sexual favors that included oral sex and defendant's use of vibrators.
    Defendant testified in his own defense and denied molesting anyone. Defendant testified that J.J.'s allegations stemmed from J.J. wanting a new motorcycle and defendant refusing to purchase it for him. Defendant also felt that J.J.'s allegations arose from defendant's firing of J.J.'s father. Defendant presented several witnesses who had also raced at the track. All testified that defendant had never molested them.
    The jury returned verdicts finding defendant guilty of seventeen counts of first-degree statutory sexual offense and twelve counts of taking indecent liberties with a child. The jury acquitted defendant of first-degree kidnapping. Defendant appeals.
II. Issues
    Defendant asserts the trial court erred in: (1) failing to dismiss three indecent liberties charges due to insufficient evidence and (2) excluding the public from the courtroom when J.J.testified, in violation of defendant's right to a public trial.
III. Indecent Liberties
    Defendant failed to preserve the issue of whether the trial court erred in failing to dismiss three indecent liberties charges for insufficient evidence for appellate review.
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a defendant to present an issue to the trial court and to obtain a ruling from the trial court in order to preserve that issue for appellate review. N.C.R. App. P. 10(b)(1) (2004). Defendant waived appellate review after he failed to object to testimony at trial and fails to specifically allege plain error on appeal. State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616-617 (1996).
    Defendant failed to object to the testimony of Detective Dawn Pardue (“Detective Pardue”) recounting J.J.'s statements that served as the basis for the three indecent liberties charges that defendant now contends should have been dismissed. Detective Pardue was allowed to testify, without objection from defense counsel, concerning the molestation that allegedly took place on 5 May, 1 June, and 30 June 2001. Defendant has waived his right to appellate review of this issue. Id.
    Defendant has also waived his right to a plain error review by not assigning and arguing these issues as plain error. When a defendant fails to specifically and distinctly allege that the trial court's ruling constitutes plain error, defendant waives his right to have the issues reviewed under plain error. State v.Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994). A defendant also waives plain error review by failing to allege plain error in his assignments of error. State v. Flippen, 349 N.C. 264, 274-275, 506 S.E.2d 702, 710 (1998).
    Defendant failed to object to Detective Pardue's testimony at trial or to assign plain error to this issue. His right to appellate review of this issue is waived and his assignment of error is dismissed.
IV. Right to a Public Trial
    Defendant contends that the trial court violated his right to a public trial by excluding the public during J.J.'s testimony. Defendant concedes his trial counsel failed to object to the State's request to have the courtroom closed to the public and asserts plain error.
A. Plain Error
    “The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Defendant has the burden of showing plain error. Id. Our Supreme Court has defined plain error as
        a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). “Before deciding that an error . . . amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” Walker, 316 N.C. at 39, 340 S.E.2d at 83.
B. Exclusion of Public From Trial
    Our North Carolina Statutes provide that:
        [i]n the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.

N.C. Gen. Stat. § 15-166 (2003). Our Supreme Court stated,
        [i]n clearing the courtroom, the trial court must determine if the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.

State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625 (1994) (quoting Waller v. Georgia, 467 U.S. 39, 48, 81 L. Ed. 2d 31, 39 (1984)).
    Here, the State showed a compelling interest in moving to have the courtroom closed to nonessential spectators in protecting the privacy of a minor child during his testimony. Protection of the personal dignity of a child sexual abuse victim is a compelling interest justifying closure of the courtroom during the child'stestimony. Bell v. Jarvis, 236 F.3d 149, 167 (4th Cir. 2000). The trial court ordered closure no broader than that necessary. Defendant's close family members remained in the courtroom and the trial court granted defendant's request and allowed the State's witnesses to remain.
    Although the trial court failed to enter specific findings of fact, the trial court's knowledge of the case, its careful and narrow tailoring of the closure order, and the compelling interest for closing the courtroom to protect J.J. show that the trial court carefully exercised its discretion in making its decision. Defendant has failed to show that the trial court's decision to close the courtroom to nonessential spectators constitutes plain error. Defendant's assignment of error is overruled.
V. Conclusion
    Defendant waived his right to appellate review by failing to object to Detective Pardue's testimony concerning three of seventeen indecent liberties charges and by failing to assign plain error to this issue. Defendant also failed to show that the trial court's decision to close the courtroom to nonessential spectators constitutes plain error.
    No error.
    Judges WYNN and MCGEE concur.
    Report per Rule 30(e).

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