An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
STATE OF NORTH CAROLINA
Nos. 01 CRS 103482-
MICHAEL CREVEST WILLIAMS 90, 01 CRS 103492
Appeal by defendant from judgments entered 15 November 2002
by Judge Catherine C. Eagles in Guilford County Superior Court.
Heard in the Court of Appeals 31 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Anita Leveaux for the State.
Marlet L. Massey for defendant appellant.
Defendant Michael Crevest Williams appeals after being found
guilty of ten counts of indecent liberties with a child, two counts
of first-degree sexual offense with a child, and two counts of
attempted first-degree rape of a child. The State's evidence tended
to show that S.M., who was fourteen years old at trial, lived with
her mother. The pair also lived with S.M.'s sister and her
sister's four children. Defendant also resided in the household.
The oldest child, M.M., testified that just before she entered
the seventh grade, defendant touched her inappropriately while her
mother was at work. Defendant would ask her to sit on his lap and
then rub her chest. The victim asked defendant to stop, but he
refused. Defendant would also touch M.M. around her vagina and tryto force his hand into the vaginal area through her underwear.
This happened about five times. Two of the other children told
M.M. that defendant did similar things to them. The girls did not
tell their mother because they were afraid of defendant.
S.M. testified that when she was twelve years old, defendant
would stare at her with a funny look. One day, when S.M. was alone
in the home, defendant told her to come to his bedroom and sit on
his lap. Defendant started kissing her and putting his tongue in
her mouth. When S.M. turned thirteen, defendant tried to have sex
with her in his bed. S.M. noted all of this in her diary.
S.M.'s sister became aware of the situation after reading
S.M.'s diary. When defendant came home, he insisted that S.M. was
telling a lie. He also proceeded to beat S.M. through every room
of the house with his hands and a belt.
In addition to beating S.M., defendant tried to have sex with
her on more than five occasions. S.M. also stated that defendant
would try to put his fingers, hand, and penis into her vagina.
S.M. met with a physician at Moses Cone Hospital, Dr. Angela
Stanley, and a counselor, Kim Madden. At the time, S.M. was afraid
and initially lied about the sexual abuse. M.M. also met with Kim
Madden. M.M. explained that her mother told the girls they could
go shopping and get their nails done if they did not say anything
to Dr. Stanley.
L.W. testified that when she was ten years old, defendant
would call her into his room. He would tell her to sit on his lapand proceed to touch her chest and private area. On more than five
occasions, defendant put his finger into her vagina.
When L.W. went to the hospital, she did not mention the abuse
because her mother and defendant instructed her not to say
anything. The first person L.W. told was her foster parent.
Dr. Stanley examined the alleged victims and testified that
S.M.'s vaginal wall had a huge hymenal tear consistent with S.M.'s
allegations of sexual abuse. L.W. had no tears in her vagina.
Defendant took the stand and denied sexually abusing the
On 15 November 2002, the jury found defendant guilty of ten
counts of indecent liberties with a child, two counts of first-
degree sexual offense with a child, and two counts of attempted
first-degree rape of a child. The trial court imposed a sentence
of 480-585 months in the North Carolina Department of Corrections.
On appeal, defendant argues that the trial court erred by (1)
failing to rule on a motion to sequester, (2) excluding evidence of
another perpetrator, (3) allowing evidence in violation of the best
evidence rule, (4) excluding evidence showing that defendant's wife
was served with a petition to terminate parental rights, (5)
interrupting defendant while he was testifying, and (6) failing to
thoroughly investigate allegations of juror misconduct. We
disagree and conclude that defendant received a fair trial free
from reversible error.
I. Failing to Rule on the Motion to Sequester
Defendant argues that the trial court erred by failing to rule
on a motion to sequester the guardian ad litem. To preserve a
question for appellate review, a party must make an objection and
obtain a ruling from the trial court. N.C.R. App. P. 10(b)(1)
(2004). In the present case, defendant did request that the
guardian ad litem be sequestered while the girls testified, and the
trial judge indicated that she would consider the issue during the
lunch break. The record shows that the judge did take a lunch
recess at 12:41 p.m., but there is no evidence that defendant
obtained a ruling when court reconvened at 2:06 p.m. From there,
the record fails to show that the issue was discussed at any other
point during the trial. Because defendant failed to obtain a
ruling on the motion to sequester, this issue has not been
preserved for appellate review. This assignment of error is
II. Exclusion of Evidence
Defendant argues that the trial court erred in excluding
evidence of another perpetrator. We disagree.
First, although the trial court did exclude some testimony
regarding the possibility that another person, S.M.'s cousin, could
have been the perpetrator, some of this evidence did reach the
jury. Kim Madden testified that S.M. told her that her cousin
touched her inappropriately. Madden also mentioned that S.M.
claimed to mix up her cousin with defendant. S.M. testified that
she did not remember telling Madden that her cousin had sexuallyabused her. By questioning these witnesses, defendant's attorney
raised the possibility that S.M.'s cousin was the perpetrator,
rather than defendant.
Even if we assume arguendo that additional evidence was
excluded improperly, [n]ot every erroneous ruling on the
admissibility of evidence will result in a new trial. State v.
Knox, 78 N.C. App. 493, 496, 337 S.E.2d 154, 157 (1985). Defendant
is only entitled to a new trial if there is a reasonable
possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which
the appeal arises. N.C. Gen. Stat. § 15A-1443(a)(2003). The
burden of showing such prejudice under this subsection is upon the
In this case, there is not a reasonable possibility that a
different result would have been reached, even if additional
evidence of another perpetrator had been admitted. Here, the
evidence of this defendant's guilt was overwhelming. The State's
evidence tended to show a pattern of abusive behavior in which
defendant harmed multiple victims on multiple occasions.
Ultimately, the jury convicted defendant of ten counts of indecent
liberties with a child, two counts of first-degree sexual offense
with a child, and two counts of attempted first-degree rape of a
child. If this case had involved mistaken identity and a single
act with a single victim, competent evidence of another perpetrator
may have been compelling. Here, however, that is not the case.
Three different victims testified that this defendant was guilty ofthe crimes charged, and the jury rejected defendant's claims to the
contrary. Because the evidence of defendant's guilt was
overwhelming and a different result would not have been reached if
the challenged evidence had been admitted, this assignment of error
III. Best Evidence Rule
Defendant suggests that the trial court violated the best
evidence rule by failing to have S.M.'s diary entered into
evidence. We disagree.
To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by statute. N.C. Gen.
Stat. § 8C-1, Rule 1002 (2003). The best evidence rule applies
only when the 'content' of a writing, recording, or photograph is
in question. 2 Kenneth S. Broun, Brandis and Broun on North
Carolina Evidence § 254 (6th ed. 2004). However, if the fact
exists independently of such content, it may be proved by other
competent evidence, such as oral testimony by one with knowledge,
without producing or accounting for nonproduction of the
In the present case, the contents of a writing were not in
question. In her testimony, S.M. offered a firsthand account of
defendant's alleged abuse. Since a witness with personal knowledge
testified to facts that exist independently of the diary which
recorded those same facts, the best evidence rule does not apply.
This assignment of error is overruled.
IV. Rule 403 Evidence
Defendant argues that the trial judge erred by excluding
evidence that defendant's wife was served with a petition to
terminate parental rights. Defendant contends that this was a
witness intimidation tactic that infringed upon defendant's ability
to present witnesses to establish his defense. This argument is
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 403 (2003):
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
Defendant cites State v. Mackey,
58 N.C. App. 385, 387-88, 293
S.E.2d 617, 619, disc. review denied, appeal dismissed,
748, 295 S.E.2d 761 (1982) for the following proposition:
Substantial government interference with the voluntariness of a
witness's choice of whether or not to testify and with the content
of that testimony infringes on a defendant's constitutional right
to present witnesses to establish his defense.
Court ordered a new trial after a prosecutor pressured a defense
witness into changing his testimony. Id.
at 387, 293 S.E.2d at
The situation in the present case is not comparable to the
factual scenario in Mackey.
Here, defendant's wife had prior
knowledge that her parental rights were going to be terminated
More importantly, defendant's wife could not explain how hertestimony would have been different if she had not received the
petition to terminate parental rights. Finally, unlike the witness
defendant's wife was never intimidated or encouraged to
modify her testimony in any way.
Under these circumstances, we cannot conclude that the
exclusion of this evidence prejudiced defendant. We believe that
the trial judge was correct in excluding the evidence under Rule
403. This assignment of error is overruled.
V. Limiting the Scope of Examination
Defendant contends that the trial judge erred by limiting the
scope of his testimony. In particular, defendant's attorney asked,
Mr. Williams, is there anything else that you would like this
Court to know about this case? At that point, the trial judge
instructed defendant's attorney to ask specific questions.
Defendant's attorney proceeded to ask another general question
about whether defendant had anything else to say about the victims.
Once again, the trial judge told defendant's attorney that this was
not satisfactory. At that point, defendant's attorney asked no
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003):
The court shall exercise reasonable control
over the mode and order of interrogating
witnesses and presenting evidence so as to (1)
make the interrogation and presentation
effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue
One legal expert has described the court's authority in this
way: Although there is no rigid rule against permitting a witness
to tell what he knows about the case in his own way, it is
customary to ask more specific questions, designed to develop his
testimony more logically, to keep it within proper bounds, and to
give opposing counsel an opportunity to object to inadmissible
evidence before the jury has heard it. 1 Kenneth S. Broun,
Brandis and Broun on North Carolina Evidence § 168 (6th ed. 2004).
The conduct of the examination is largely in the control of the
trial judge. Id. (emphasis added).
We believe that the trial judge acted reasonably in limiting
the scope of defendant's testimony. By encouraging defendant's
attorney to ask more specific questions, the trial judge complied
with Rule 611(a). The judge's purpose was to make the interrogation
effective for the ascertainment of the truth, rather than to
prevent defendant from asserting his defense. Accordingly, this
assignment of error is rejected.
VI. Juror Misconduct
Defendant argues that the trial court erred by allowing jurors
to continue to deliberate after an allegation of possible juror
misconduct. Defendant suggests that the trial court did not
conduct a thorough and careful investigation to determine if there
was any misconduct.
Under N.C. Gen. Stat. § 15A-1061 (2003), [t]he judge must
declare a mistrial upon the defendant's motion if there occurs
during the trial an error or legal defect in the proceedings, orconduct inside or outside the courtroom, resulting in substantial
and irreparable prejudice to the defendant's case. Whether a
motion for mistrial should be granted is a matter which rests in
the sound discretion of the trial judge. State v. Harris,
N.C. App. 570, 576, 551 S.E.2d 499, 503 (2001), disc. review
denied, appeal dismissed,
355 N.C. 218, 560 S.E.2d 146-47 (2002).
The decision to grant or deny such a motion will not be disturbed
on appeal unless it is so clearly erroneous as to amount to a
manifest abuse of discretion. Id.
The rationale behind this
deferential standard is that the trial judge is in a better
position to conduct this kind of investigation. Id.
In the present case, two individuals overheard a few jurors
discussing the case in the bathroom. The trial court made an
inquiry and asked the men what they heard. Both men revealed that
the jurors were inquiring about whether they needed to be at court
for the sentencing phase of the case. Ultimately, the judge
decided not to take action because the conversation was about a
scheduling matter, rather than the substance or merits of the case.
The judge also noted that at least one of the jurors had a
scheduling conflict and had inquired about whether the jury would
have to stay after 5:00 p.m.
We believe that the trial judge did not abuse her discretion
in this case. There is no question that the trial judge conducted
an investigation as soon as she was aware of potential misconduct.
The judge listened to the men who overheard the conversation and
determined that the jurors were talking about a scheduling matter,rather than the merits of the case. We acknowledge that, if
possible, the better practice would have been to conduct a voir
of the jurors themselves. However, it is unclear from the
record whether the men who overheard the conversation actually saw
which jurors were speaking. In any event, defendant has failed to
show that an abuse of discretion has occurred. Therefore, this
assignment of error is overruled.
After a careful review of the transcript, record, briefs, and
arguments of the parties, we conclude that defendant received a
fair trial free from reversible error.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
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