STATE OF NORTH CAROLINA
v
.
Macon County
Nos. 01 CRS 50675
01 CRS 50677
MICHAEL WILLIAM DELCONTE 02 CRS 83-88
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Reita P. Pendry for defendant-appellant.
McGEE, Judge.
*** Converted from WordPerfect ***
Michael William Delconte (defendant) appeals from judgment of
the trial court entered upon jury verdicts finding him guilty of
statutory rape, indecent liberties with a child, four counts of
engaging in first degree sexual offense, and two counts of first
degree statutory rape. The trial court sentenced defendant to a
term of 288 to 355 months in prison for the statutory rape
conviction, with a sentence of nineteen to twenty-three months in
prison for the indecent liberties with a child conviction. The
trial court consolidated the four counts of first degree sexual
offense with a child and sentenced defendant to a term of 288
months to 355 months in prison. The trial court sentenced
defendant to 288 months to 355 months in prison for each of the twocounts of first degree rape of a child. All sentences were to be
served consecutively. Defendant appeals.
The State presented evidence at trial tending to show that
defendant's fourteen-year-old stepdaughter (the juvenile) resided
with her mother and defendant for approximately nine years. The
juvenile testified that during the summer of 2000, defendant
touched her breasts and vagina and put his penis inside her. She
testified defendant inserted his penis into her approximately twice
per week and that the frequency increased to four times a week
after the fall school term began. In addition, the juvenile stated
defendant touched her on the breast and vagina in the fall of 2001,
"right after school started." The juvenile reported defendant's
actions to her mother, her oldest sister, two teachers and the
assistant principal of her school, following which the Department
of Social Services (DSS) initiated an investigation.
Defendant was arrested based upon the juvenile's accusations.
While incarcerated, defendant initiated contact with Robert Holland
(Detective Holland), a detective with the Macon County Sheriff's
Office, and requested an interview. After being advised of his
rights, defendant admitted he had inappropriate contact with the
juvenile, including insertion of his finger into her vagina, as
well as oral sex with the juvenile. Defendant also admitted he
attempted to insert his penis into the juvenile's vagina on
numerous occasions, although he stated he was unable to maintain an
erection. Defendant repeatedly stated he had inserted his penis
into the juvenile, albeit only slightly. Detective Hollandrecorded his interview with defendant by means of a concealed
camera.
Defendant's eleven-year-old biological son testified he never
observed defendant and the juvenile behind the building where some
of the sexual acts were reported to have occurred and that he was
never told to leave the house when defendant and the juvenile were
present.
Defendant testified on his own behalf and denied the
juvenile's allegations of inappropriate sexual behavior. Defendant
testified he was unaware he was being videotaped during his
interview with Detective Holland. He stated he lied to Detective
Holland because he was "looking for a way out" and believed it
would help his family to cooperate with law enforcement. Defendant
further testified he was intimidated and under duress when he made
the videotaped statement.
Defendant asserts four assignments of error on appeal, arguing
the trial court erred by (1) joining for trial the indictments
against him; (2) admitting a videotaped statement by defendant
containing references to uncharged acts of misconduct; (3)
admitting prior statements of the juvenile; and (4) denying his
motions to dismiss. For the reasons stated herein, we find no
error by the trial court.
By his first assignment of error, defendant argues the trial
court erred in joining for trial the two indictments for statutory
rape and indecent liberties occurring on 3 August 2001 with the six
indictments for sex offenses and statutory rape occurring in Julyof 2000.
N.C. Gen. Stat. § 15A-926 provides that joinder is appropriate
where "the offenses, whether felonies or misdemeanors or both, are
based on the same act or transaction or on a series of acts or
transactions connected together or constituting parts of a single
scheme or plan." N.C. Gen. Stat. § 15A-926 (2003). A two-step
analysis is necessary for all joinder inquiries. State v.
Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247, 250, cert.
denied, 353 N.C. 275, 546 S.E.2d 386 (2000). First, the trial
court must determine whether a sufficient transactional connection
exists between the criminal offenses. Id. Second, where an
adequate transactional connection exists, the trial court must
consider whether joinder undermines the defendant's right to a fair
hearing on each charge and the defendant's ability to present a
defense. Id. While the first question of whether an adequate
connection exists is fully reviewable on appeal, the latter
question is within the sound discretion of the trial court and will
not be disturbed absent a manifest abuse of discretion. Id.
Reversible error occurs only where "the charges are 'so separate in
time and place and so distinct in circumstances as to render the
consolidation unjust and prejudicial to defendant.'" State v.
Beckham, 145 N.C. App. 119, 126, 550 S.E.2d 231, 237
(2001)(citation omitted). "Our courts have previously held in
various circumstances that it was not error for the trial court to
consolidate multiple sexual offense charges against a defendant
where such offenses were transactionally connected." Id. at 126,550 S.E.2d at 236-37.
In the case before us, the criminal charges involved
substantially similar actions of sexual abuse by defendant upon the
same juvenile such that joinder was proper. The underlying
incidents took place over a one-year time period and occurred in
the same two locations. Moreover, public policy favors
consolidation in order to avoid the necessity of calling the same
witness twice, a factor particularly compelling in trials where
juveniles testify about sexual abuse. State v. Bruce, 90 N.C. App.
547, 552, 369 S.E.2d 95, 99, disc. review denied, 323 N.C. 367, 373
S.E.2d 549 (1988). In State v. Street, this Court held that
even though the time period between some of
the acts was substantial, the acts were
nonetheless so similar in circumstance and
place as not to render the consolidation of
the offenses prejudicial to the defendant. We
also note that all of the offenses involved
sexual abuses of stepchildren, and although
N.C. Gen. Stat. § 15A-926 does not permit
joinder of offenses solely on the basis that
they are the same class, the nature of the
offenses is a factor which may properly be
considered in determining whether certain acts
constitute parts of a single scheme or plan.
Street, 45 N.C. App. 1, 6, 262 S.E.2d 365, 368, cert. denied, 301
N.C. 104, ___ S.E.2d ___ (1980); see also Beckham, 145 N.C. App. at
126, 550 S.E.2d at 236; Bruce, 90 N.C. App. at 552, 369 S.E.2d at
99. Under the facts of this case, the trial court did not abuse
its discretion in joining the offenses for trial. See State v.
Owens, 135 N.C. App. 456, 459, 520 S.E.2d 590, 592 (1999). We
overrule this assignment of error.
By his second assignment of error, defendant contends thetrial court erred in admitting a portion of the videotaped
confession by defendant containing references to uncharged acts of
sexual misconduct by him against his stepdaughters that allegedly
occurred out-of-state. During the videotaped confession, defendant
briefly referred to previous allegations of sexual abuse made
against him by his stepdaughters while the family resided in South
Carolina and Arkansas. In the videotape, defendant stated these
allegations were investigated and could not be substantiated.
(Videotape; State's Exhbit 4) Defendant contends admission of this
information irreparably prejudiced him, requiring a new trial. We
do not agree.
Assuming arguendo that admission of that portion of the
videotape was error, defendant has failed to show prejudice arising
therefrom. Under N.C. Gen. Stat. § 15A-1443(a), defendant has the
burden of showing that if the error in question had not been
committed, a different result would have been reached. N.C. Gen.
Stat. § 15A-1443(a) (2003). Before presentation of the videotape,
the trial court instructed the jury to only consider any
possible crimes or misdeeds that [defendant]
may allude to . . . . for the limited purpose
as to whether or not he possessed in the
charges that appear before you[,] a plan,
and/or preparation, and/or motive, and/or
intent, and/or a common scheme to commit to
one, some or all of the charges that he's
facing before, and/or whether or not there was
any absence or mistake about his alleged
conduct.
The trial court repeated this admonition to the jury several times
during the jury's viewing of the videotape. In light of the strong
evidence against defendant, including his own admission of sexualmisconduct, we cannot say that the brief references by defendant on
the videotape concerning prior unsubstantiated allegations against
him, accompanied by a limiting instruction by the trial court,
constitutes reversible prejudice. Moreover, although defendant
objected to the admission of this portion of the videotape, he
later testified about these out-of-state incidents. It is a well
settled rule that if a party objects to the admission of certain
evidence and the same or similar evidence is later admitted without
objection, the party has waived the initial objection. State v.
Wingard, 317 N.C. 590, 599, 346 S.E.2d 638, 644 (1986). We
overrule this assignment of error.
Defendant further argues the trial court erred in admitting
prior statements by the juvenile to a social worker and
pediatrician. Defendant contends the prior statements were not
sufficiently similar to the juvenile's testimony at trial, and
could not be properly admitted under the corroboration exception to
the rule of evidence barring hearsay. Defendant asserts he is
therefore entitled to a new trial. We disagree.
Prior statements are admissible to corroborate a witness'
trial testimony, even though it is hearsay. State v. Gell, 351
N.C. 192, 204, 524 S.E.2d 332, 340, cert. denied, 531 U.S. 867, 148
L. Ed. 2d 110 (2000). Prior corroborative statements must be
substantially similar to the witness' testimony in court. State v.
Williamson, 333 N.C. 128, 136, 423 S.E.2d 766, 770 (1992).
However, corroborative testimony is not rendered incompetent by the
fact that there is some variation, "even though [it] contain[s] newor additional information so long as the narration of events is
substantially similar to the witness' in-court testimony." Id; see
also State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980).
It is within the province of the jury to decide whether the
testimony corroborates the testimony of another witness. Rogers,
299 N.C. at 601, 264 S.E.2d at 92.
Defendant argues that the juvenile's prior statements made to
a social worker and pediatrician were not substantially similar to
the juvenile's trial testimony and were therefore inadmissible.
Regarding such testimony, the trial court gave limiting
instructions as follows:
Members of the jury, you cannot consider
what any of these witnesses are testifying to
you about what the child . . . told them as
the truth of anything or in support of any
facts that the State must prove beyond a
reasonable doubt to satisfy you of the
defendant's guilt of any charge or charges.
But you can consider them for a limited
purpose.
If you find that what th[ese]
witness[es]. . . related to you that the child
told them, if you find that that was
consistent with what you remember [the
juvenile's] . . . sworn testimony to have
been, you can let that be reflected in what
credibility or believability you give [the
juvenile's] testimony about those particular
points.
On the other hand if you find that it is
inconsistent - in other words this witness or
any other witness she talked to, you find that
what they tell you is inconsistent with what
you recall [the juvenile's] testimony to have
been, then you can let that be reflected in
what lack of credibility or believability you
give [the juvenile's] sworn testimony.
Defendant objects to several statements as inadmissible. Forexample, the juvenile told her social worker that no incidents of
sexual abuse occurred after she moved to a new home. The juvenile
testified at trial, however, that inappropriate touching had taken
place after that move. This apparent confusion by the juvenile as
to the exact date upon which the sexual offense was committed goes
to her credibility as a witness, however, and not the admissibility
of the evidence. State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247,
249 (1984). Defendant also notes that the pediatrician's testimony
included many details of the alleged abuse not testified to by the
juvenile. Specifically, the pediatrician testified the juvenile
reported defendant had been abusing her since the age of five, that
he washed bedclothes to conceal evidence of his conduct from his
wife, the juvenile's mother, and that defendant was angered by the
juvenile's refusal to touch him. The juvenile did not testify to
such events. While we agree that admission of such statements was
improper, we are not persuaded that, given the relative minor
importance of such statements, the strong evidence against
defendant, and the limiting instruction given by the trial court,
that the improper admission of such testimony requires a new trial.
We therefore find no prejudicial error.
Finally, defendant urges reversal on the ground that the trial
court erred by failing to grant defendant's motions to dismiss the
charges against him. We find no merit to defendant's argument. In
determining whether to grant or deny a defendant's motion to
dismiss, the trial court must decide "whether there is substantial
evidence of each essential element of the offense charged and ofthe defendant being the perpetrator of the offense." State v.
Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial
evidence is such relevant evidence that a "reasonable mind might
accept as adequate to support a conclusion." State v. Barden, 356
N.C. 316, 351, 572 S.E.2d 108, 131 (2002), cert. denied, 538 U.S.
1040, 155 L. Ed. 2d 1074 (2003). As to whether substantial
evidence exists, the question for the trial court is not one of
weight, but of the sufficiency of the evidence. State v. Lucas,
353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). "'In resolving this
question, the trial court must examine the evidence in the light
most advantageous to the State, drawing all reasonable inferences
from the evidence in favor of the State's case.'" State v. Hyatt,
355 N.C. 642, 665, 566 S.E.2d 61, 76 (2002) (citation omitted),
cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
Defendant first urges reversal on the ground that the State
produced insufficient evidence of defendant's age. Defendant was
charged with numerous crimes containing as a required element that
the perpetrator be older than the victim by a certain number of
years, see, e.g., N.C. Gen. Stat. § 14-27.7A(a) (a person must be
at least six years older than the victim to be guilty of the crime
of statutory rape). Defendant contends the State presented
insufficient evidence to show that defendant was older than
juvenile by at least six years. We disagree. In State v. Bynum,
this Court held that a jury may determine the age of the defendant
based on observation of the defendant during trial. Bynum, 111
N.C. App. 845, 850, 433 S.E.2d 778, 781, disc. review denied, 335N.C. 239, 439 S.E.2d 153 (1993). Defendant is, in fact, thirty-six
years older than the juvenile. Also, defendant testified that he
had been married to the juvenile's mother for approximately eleven
years. Defendant does not contend he was actually less than six
years older than the victim.
From the evidence at trial, including
defendant's appearance on the witness stand, the jury could
conclude that defendant was well over six years older than the
juvenile.
Defendant also argues there was insufficient evidence of the
dates of the crimes committed since the statement made by the
juvenile before trial conflicted with her testimony at trial. For
example, the juvenile told her social worker and her school
principal that defendant had sexual intercourse with her in August
of 2001. The juvenile later testified that no intercourse had
occurred in their new house, into which the family moved two months
before August of 2001. As we have already stated, however, any
discrepancy in the juvenile's statements as to the date of the
alleged acts goes to the weight of the evidence. Upon appeal, we
must consider the evidence in the light most favorable to the State
and any discrepancies must be resolved in the State's favor. Under
the facts of the present case, if we remanded for a new trial for
lack of evidence we would be usurping the jury's longstanding role
of weighing evidence.
In conclusion, we find no prejudicial error by the trial
court.
No prejudicial error.
Judges CALABRIA and STEELMAN
Report per Rule 30(e).