STATE OF NORTH CAROLINA
v. Guilford County
No. 98 CRS 69701
SAM DANIEL HUBBARD
Attorney General Roy Cooper, by Assistant Attorney General R.
Kirk Randleman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
CALABRIA, Judge.
Sam Daniel Hubbard (“defendant”) was found guilty of taking
indecent liberties with a minor and was sentenced to an active term
of eighteen to twenty-two months. Defendant appeals asserting the
trial court committed plain error by failing to instruct the jury
regarding corroborative testimony. We find no plain error.
In July 1998, defendant hired the male victim, born 15
February 1989, to mow his yard in Greensboro. The victim testified
that defendant picked him up at his house, took him to get some
breakfast and then brought him to defendant's house to mow the
lawn. Defendant took the victim into his bedroom, applied lotion
to the victim's face, and removed the victim's clothing piece by
piece as he applied lotion all over the victim's body. Defendantpushed the victim onto his stomach on the bed as he applied the
lotion. Defendant got on top of the victim and attempted to insert
his penis in the boy's anus. He told the boy, “Sometimes Uncle Sam
go in and out.” When the boy told defendant that he would tell his
mother, defendant stopped. Defendant provided the boy with a
bicycle with a flat tire to ride home. As the boy rode on the
bicycle, he flagged down a taxicab. Meanwhile, defendant mowed his
yard.
Travis Funderburk, Jr. testified that he was driving his
taxicab on 7 July 1998 when a boy, riding a bicycle, ran to his
taxicab and asked him for his help. The boy pointed to a man who
was mowing his yard and stated that the man was “feeling on me,
putting his hands all over me.” Funderburk invited the boy, whom
he identified as the victim, to get into his vehicle. Funderburk
took the weeping boy to the boy's home and told him to get his
mother. The boy's mother came out to the cab. Funderburk and the
boy's mother talked about the situation.
The victim's mother testified that she gave defendant
permission to hire her son to mow his grass. Defendant came to her
house and got her child. She was subsequently awakened by the boy,
who was shaking, crying and saying, “Sam tried to rape me.” She
went outside and talked to the taxicab driver, who told her that
the boy had flagged him down and told him that a man had tried to
rape him. She called the police. Shortly after the boy returned
home, defendant came to her house and denied any improper touchingof her child. Defendant stated the child became angry when he
would not allow him to play a video game.
The victim's stepfather testified that he and the boy's mother
gave defendant permission to take the boy to his house to mow grass
and that the boy returned home, woke them up, and said Sam had
“tried to rape him.” The boy did not tell him any details.
Defendant came to their house later that morning but the stepfather
did not have any conversation with defendant.
Greg Young of the Greensboro Police Department testified that
he answered a dispatch to the boy's residence. The boy's mother
was very upset, and the boy was upset and crying. Young took the
boy's stepfather and the boy to the police station for an
interview. In Young's presence another officer interviewed the
stepfather and the boy. The stepfather related that the boy had
returned home in a taxicab, awakened him and his wife, and told
them that “Sam” took him into his house, removed the boy's clothes
and his own clothes, and “tried to attack him.” The boy told the
officers that after he finished eating breakfast, defendant took
him into a bedroom, removed the boy's clothes, and lowered his own
pants to his knees. The boy caused defendant to stop by
threatening to tell his mother and by kicking defendant. Young
also testified that he interviewed the taxicab driver, who related
that the boy had stopped his cab, told him a man had tried to “mess
with him,” and pointed to a man mowing the grass as the
perpetrator. Mitch Harris testified that he was a detective with the
Greensboro Police Department at the time of this incident and that
he and Officer Young interviewed the child's stepfather and the
child at the police department. The stepfather related that
defendant came and got the child to mow his grass and that the
child subsequently returned home and told him and his mother
defendant had tried to remove his clothes. The boy stated to the
officer that defendant grabbed him by the wrist and pulled him into
defendant's bedroom, closed the door, removed the boy's clothes,
pushed the boy onto the bed, lowered his pants to his knees, and
got on top of the boy. The boy threatened to tell his mother. He
pushed defendant away, causing defendant to fall to the floor and
hit his head against a table. The boy ran out of the house but
returned to sit on the porch as defendant mowed the lawn. The boy
asked defendant to take him home. Defendant provided the boy with
a bicycle and told him to ride the bicycle home. As the boy rode
the bicycle, a tire went flat. He saw a taxicab, flagged it down,
and asked the driver to take him home. The boy's mother told
Harris that the boy came home crying and told her that “Sam tried
to rape [him].”
Harris and another officer took the boy with them in a police
car and had him identify the house where the incident occurred. He
pointed to a house located at 307 W. Camel Street. Defendant
resided at 307 W. Camel Street. As the officers were returning the
boy to his residence, the boy saw a red pickup truck and excitedly
said, “There he is; there's Sam.” The officers subsequently approached the red truck and the man
identified by the boy. Harris asked the man, who identified
himself as Sam Hubbard, to go downtown with him to talk about
allegations made against him by a juvenile. Defendant told the
officer that he did bring the boy to his house for the purpose of
mowing his yard. He stated that the boy began to apply lotion to
his own body and that he helped the boy take off his shirt so he
could apply the lotion. Defendant denied removing any other
articles of the boy's clothing or of his own clothing. He left the
boy inside playing a Nintendo game while he mowed the yard himself.
The boy subsequently asked to go home. He gave the boy a bicycle
to ride home.
Defendant did not present any evidence.
By the sole assignment of error argued in his brief, defendant
contends that the court committed plain error by failing to
instruct the jury regarding the use of corroborative evidence.
Defendant argues the jury should have been given a limiting
instruction at least once. He submits the jury should have been
told that the previous statements of the prosecuting witness should
not be considered for the truth of what was said.
By assigning plain error, defendant acknowledges that he did
not request the limiting instruction or object to the court's
failure to give a limiting instruction in its charge. Plain error
is defined 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 adenial 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)). Historically the failure to give the omitted limiting
instruction has not been treated as a fundamental error. It has
long been the rule in this state that an instruction limiting the
admissibility of testimony to corroboration is not required unless
the defendant specifically requests such an instruction. State v.
Quarg, 334 N.C. 92, 101, 431 S.E.2d 1, 5 (1993). In fact, the
failure to request the instruction has long been a bar to assigning
error to it. State v. Bryant, 282 N.C. 92, 97, 191 S.E.2d 745, 749
(1972). Moreover, the corroborating evidence in this case,
disregarding the boy's statements to the witnesses, is so strong
that it is not probable a different result would have occurred if
the instruction had been given. For these reasons, plain error has
not been shown.
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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