An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-565


Filed: 18 May 2004


         v.                        Guilford County
                                No. 98 CRS 69701

    Appeal by defendant from judgment entered 28 August 2002 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 3 May 2004.

    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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