State v Ferebee, (03-449) 04/20/2004

Appeal by defendant from judgment entered 16 October 2002 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 18 March 2004.

Roy Cooper, Attorney General, by Jill B. Hickey, Special Deputy Attorney General, for the State.

William D. Spence for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Samuel William Ferebee, appeals his conviction of the misdemeanor of secretly peeping into a room occupied by a minor female. For the reasons discussed herein, we find no error.
    The evidence presented by the State, showed that on 1 May 2002, E.H. and her 11-year-old granddaughter, J.H. (the “victim”) were shopping at the Salvation Army Thrift Store in New Bern. The victim went into the dressing room to try on some clothing. As she went into the dressing room, she passed a man looking at some books beside the dressing room door. While the victim was changing clothes, she saw the same man looking at her through a broken louver in the dressing room door. The victim coughed to get her grandmother's attention. E.H. looked up and saw defendant with hisface pressed against the dressing room door. When the victim came out of the dressing room, she told her grandmother that a man was looking at her through the door. Ms. Taber, the assistant manager of the store, saw the victim, who was “very upset, shaking and crying.” The police were called and they arrested defendant.
    The dressing room door in question was “louvered” with slats. Ms. Taber examined the dressing room door after the incident. She testified that toward the top of the door, the louvers had been pushed down out of the tracks and there was a space about two fingers wide through which the inside of the dressing room was visible. At the back of the dressing room there was a mirror, which made the entire dressing room visible. Shortly after the incident, the Salvation Army replaced the door and discarded the old one. Neither the State nor defendant requested Ms. Taber retain the door pending the trial of defendant.
    Defendant presented no evidence.
    Defendant was tried before a jury at the 16 October 2002 session of superior court, and was found guilty as charged. He received an active sentence of 120 days. Defendant appeals.
    In his first assignment of error, defendant argues the trial court erred when it denied defendant's motion for a change in venue. We disagree.
    A motion for change of venue rests in the sound discretion of the trial judge and his ruling will not be overturned on appeal unless defendant can show the trial court abused its discretion in denying the motion. State v. Oliver, 302 N.C. 28, 37, 274 S.E.2d183, 189 (1981). The burden rests on defendant to demonstrate “it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.” State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347 (1983). A defendant must “establish specific and identifiable prejudice against him as a result of pretrial publicity.” State v. Billings, 348 N.C. 169, 177, 500 S.E.2d 423, 428 (1998), cert. denied 525 U.S. 1005, 142 L. Ed. 2d 431 (1998).
    A trial court's findings of fact are binding on the appellate courts where there is some evidence to support those findings, even if the same evidence might support findings to the contrary. State v. Crews, 22 N.C. App. 171, 173, 205 S.E.2d 765, 767 (1974), cert. denied, 421 U.S. 987, 44 L. Ed. 2d 477 (1975).
    Defendant contends that because so many of the jurors had heard of him and stated they could not be fair, that this “infected” the jury panel and required that his change of venue motion be granted. We note that there is no transcript of the jury voir dire provided in the record. In such a situation, the findings of the trial court are presumed to be supported by competent evidence. Fellows v. Fellows, 27 N.C. App. 407, 408, 219 S.E.2d 285, 286 (1975). The trial court found the following: (1) it had dismissed for cause sixteen jurors who had knowledge of defendant and felt this would substantially impair their ability to be fair and impartial; (2) defendant had been the subject of somepublicity in the electronic and printed media in the New Bern area; (3) the jurors stated they would be able to base their decision on evidence brought out at trial and not on pretrial information; and (4) they would be able to set aside any preconceived impressions with respect to defendant. The trial court concluded defendant had failed to show either prejudice or a reasonable likelihood that he would not receive a fair trial in Craven County.
    We find that the trial court did not abuse its discretion in denying defendant's motion for a change of venue. This assignment of error is without merit.
    In his second assignment of error, defendant argues the trial court committed plain error in failing to dismiss the case or at least striking all evidence relating to the louvered door, ex mero motu. We disagree.
    Defendant contends the destruction of the louvered dressing room door violated his right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 and 23 of the North Carolina Constitution. In order to preserve a constitutional issue for appeal, it must first be raised before the trial court. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). Since defendant failed to raise this issue before the trial court, our review is limited to plain error. State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983) (noting our Supreme Court has held plain error review to be appropriate regarding situations involving evidentiary rulings). In order for the plain error rule to apply, the appellate courtmust be convinced that absent the error the jury probably would have reached a different verdict. Id. at 740-41, 303 S.E.2d at 806-07.
    The State has a duty to preserve evidence that “might be expected to play a significant role in the suspect's defense,” however, that duty is a limited one. State v. Banks, 125 N.C. App. 681, 683, 482 S.E.2d 41, 43 (1997), cert. denied, 523 U.S. 1128, 140 L. Ed. 2d 955 (1998) (citations omitted). To meet this standard the evidence must “possess an exculpatory value that was apparent before the evidence was destroyed” and “be of such character that defendant would be unable to obtain comparable evidence.” Id. Even if these two factors are present, unless defendant can show the police acted in “bad faith,” the failure of the police to preserve potentially useful evidence will not constitute a denial of defendant's due process rights. Id. at 683- 84, 482 S.E.2d at 43.
    Here, there is no evidence the police acted in bad faith when they failed to obtain the dressing room door as evidence for trial. The door in question was never in the possession of the State. It remained in place at the Salvation Army Thrift Store until the Salvation Army decided to replace it. Furthermore, the police played no part in the decision to discard the dressing room door.
    At most, defendant contends the door could have been subjected to tests, the result of which might have exonerated him. The exculpatory value of any tests defendant wanted to perform on the louvered door, however, were at most speculative. See State v. MLO,335 N.C. 353, 373, 440 S.E.2d 98, 108 (1994), cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994) (holding there was no bad faith on the part of the police where they released an impounded car from custody, thus denying defendant a chance to compare tire treads).
    Additionally, the evidence at trial was sufficient to convict defendant, even without the dressing room door being present for the jury to inspect. The evidence showed: (1) the victim saw a man looking at her while she changed; (2) the victim's grandmother saw a man leaning against the door, with his face pressed up against it; (3) the grandmother testified she could see inside the dressing room when the slats were moved; and (4) the assistant manager said two of the louvers were off track and it was possible to see everything inside the dressing room when looking through the opening in the slats.
     We are not convinced that had the door been in evidence or in the alternative, had the judge stricken any reference to the dressing room door, the jury probably would have reached a different verdict. Thus, defendant failed to meet the requirements to show “plain error.” We further hold defendant failed to demonstrate “bad faith” on the part of the police. For these reasons, this assignment of error is without merit.
    In his third assignment of error, defendant argues the trial court erred in failing to dismiss the case for insufficiency of the evidence. We disagree.
    When considering a motion to dismiss, the trial court must determine whether “there is substantial evidence of each element”of the offense charged and defendant is the perpetrator of the offense. State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987). Substantial evidence means such relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Id. In ruling on a motion to dismiss, “the trial court must view the evidence in the light most favorable to the state, giving the state the benefit of every reasonable inference that might be drawn therefrom.” Id.
    Defendant first argues the trial court erred in refusing to dismiss the charges against him because the State failed to show defendant “peeped secretly” as required by N.C. Gen. Stat. § 14- 202 (2003). N.C. Gen. Stat. § 14-202 provides that “[a]ny person who shall peep secretly into a room occupied by a female person shall be guilty of a Class 1 misdemeanor.” To be found guilty, the State must prove beyond a reasonable doubt: (1) that defendant peeped; that is, he intentionally looked slyly or cautiously into a room; (2) that the peeping was done secretly; (3) that the victim was in the room at the time of the peeping; and (4) that the victim was a female person having a legitimate expectation of privacy at that time. N.C.P.I.--Crim. 226.75 (2003) . The basis of defendant's argument is that the State failed to show he “peeped secretly” because the State's evidence showed defendant was in a public place at the time of the peeping, not a secret place.
    N.C. Gen. Stat. § 14-202 has commonly been refereed to as the “Peeping Tom” statute. In re Banks, 295 N.C. 236, 241, 244 S.E.2d 386, 389 (1978). Our Supreme Court has stated that “'to peep"means 'to look cautiously or slyly -- as if through a crevice -- out from chinks and knotholes.'” Id. at 241, 244 S.E.2d at 390. (citations omitted). The Court has also construed the term “secretly” as used in N.C. Gen. Stat. § 14-202 to mean “spying upon another with the intention of invading her privacy.” Id. at 242, 244 S.E.2d at 390 (emphasis added). The Court stated that N.C. Gen. Stat. § 14-202 “prohibits the wrongful spying into a room upon a female with the intent of violating the female's legitimate expectation of privacy.” Id. (emphasis added).
    To say, as defendant suggests, that one cannot “secretly peep” in a public or semi-public place would result in an absurd interpretation of the statute and would contravene the legislative intent. The term “secretly” relates to the intent of the defendant to invade a female's privacy, not whether people might be able to observe the defendant peeping. Moreover, the term “secretly” is defined from the victim's perspective, not from the perspective of the one who is peeping. In this case, the victim was in a dressing room, with the door closed and she had a reasonable expectation of privacy. Just because defendant was “peeping” in a semi-public place does not negate the element of secrecy required by the statute.
    Viewing the evidence in the light most favorable to the state, it shows defendant did intentionally look through a broken louver in the dressing room door, he did spy on the victim with the intent to invade her privacy, the victim was in the room at the time of the peeping, and the victim was a female. Accordingly, we concludethere was sufficient evidence in this case to support the “secret” element of “secretly peeping.”
    By this same assignment of error, defendant contends the trial court erred by not granting his motion to dismiss the charge of “secret peeping” because the State's evidence was “inherently incredible.” We disagree.
    It is for the jury to determine the proper weight to give a witnesses' testimony and resolve any issues of the witnesses' credibility, not the court. State v. Miller, 270 N.C. 726, 730, 154 S.E.2d 902, 904 (1967). This is true, unless the testimony is inherently incredible and in conflict with the physical conditions established by the State's own evidence. Id. at 731, 154 S.E.2d at 905.
    Defendant contends the testimony of the victim was inherently incredible and in conflict with the physical conditions of the louvered door established by the State's own witness, Ms. Taber. Even though Ms. Taber and the victim differed on whether a person could see through the slats on the lower portion of the door, all three of the State's witnesses, Ms. Taber, E.H., and the victim, testified there was a broken louver on the dressing room door through which an individual could see into the dressing room. This evidence was not inherently incredible.
    Finally, defendant contends the trial court erred by not granting his motion to dismiss because the State failed to preserve the louvered dressing room door for jury inspection. We disagree.     For the same reasons as discussed above regarding the failure to preserve the dressing room door, we conclude this assignment of error is without merit.
    In his fourth and final assignment of error, defendant contends the trial court erred when it gave the jury additional instructions as to the meaning of “peep” and “secretly” beyond that set forth in the pattern jury instructions. We disagree.
    After giving these additional instructions, the trial judge afforded defendant the opportunity to object to the additional instructions given to the jury. See N.C. R. App. P. 10(b)(2). Defendant failed to do so. Defendant also failed to specifically assign this as plain error on appeal as required by N.C. R. App. P. 10(c)(4). Accordingly, defendant has waived his right to appellate review of this issue.
    NO ERROR.
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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