STATE OF NORTH CAROLINA
v
.
Jackson County
No. 03 CRS 390, 396
CARL DEWAYNE MCCLURE
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Calloway, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
STEELMAN, Judge.
Defendant was convicted of taking indecent liberties with a
child and of being an habitual felon, and was sentenced to 133 to
169 months imprisonment. From this judgment defendant appeals.
Defendant moved into a trailer in Cullowee in September of
2000 that was inhabited by H.R. (a thirteen year old girl) and
H.R.'s mother (mother). Initially each person had their own
bedroom, but after a few weeks H.R. asked her mother if she could
move into defendant's room, which had one twin bed. Her mother
agreed to this arrangement. H.R.'s aunt (Aunt Kim) moved into the
room H.R. vacated, and offered to allow H.R. to sleep with her
instead of defendant. H.R. slept with Aunt Kim a few times, then
returned to share a bed with defendant. H.R. wore undergarmentswith shorts and a t-shirt when she slept with defendant. H.R.
testified that after she began sleeping with him, defendant started
touching her in a way that made her uncomfortable. She testified
that defendant would sometimes give her backrubs, then “as time
went on he started touching me in other areas.” H.R. testified
that defendant touched her on her “crotch,” sometimes over her
shorts and other times under her shorts but over her underwear.
She testified that this happened “almost every night” for as long
as she continued to sleep with him. She further testified that she
would push him away when he did this, and that she wanted to stop
sleeping with him but did not because she did not wish to upset
him. Defendant would ask her if she was mad at him when she pushed
him away, and she would tell him “no” because she “was scared.”
In late October or early November 2000, concerned about the
sleeping arrangements, another of H.R.'s aunts (Aunt Bobbie) asked
H.R. if defendant had been touching her, and H.R. “broke down and
cried” and admitted to Aunt Bobbie that defendant had in fact been
touching her. Aunt Bobbie informed her cousin (Brenda), and Brenda
contacted Child Protective Services. H.R. was removed from her
mother's custody by Child Protective Services on 7 November 2000.
The testimony at trial revealed that H.R. told the following people
largely consistent stories about the abuse: her two aunts, Aunt
Bobbie and Aunt Betty; their cousin, Brenda; social worker Laura
Brown; her mother; psychologist Betty Tulou; detective Linda
Sutton; and Dr. Judy Seago. Betty Tulou testified that she saw
H.R. on three separate occasions and that H.R.'s story was alwaysconsistent. Tulou further stated that H.R. told her she had told
defendant “she was too young for this” and that she “never wanted
[defendant] to touch [her].” H.R. also told Tulou that she was
relieved that defendant could not touch her anymore. Detective
Sutton testified concerning a statement she took from H.R. on 19
February 2001. This statement corroborated H.R.'s testimony as to
the sleeping arrangements, that H.R. told her aunt Betty that
defendant had been touching her, that defendant touched her on “the
front, bottom part of her privates and that it was on top of her
underwear. [H.R.] stated that at least one time [defendant] touched
her on the inside of her underwear.” This statement was introduced
into evidence without objection. Dr. Seago testified that H.R.
told her defendant touched her on her vaginal area over her
underwear on multiple occasions. Dr. Seago testified that H.R.
indicated that she would push defendant away from her and that she
told him she was too young. Dr. Seago testified that there was no
physical evidence of abuse, but based on the facts as given to her
by H.R., she would not expect to find any physical evidence.
At trial, the State called eight witnesses, six of whom
testified to statements H.R. made concerning the acts of defendant.
Defendant did not object to any of this testimony at trial. At the
close of State's evidence defendant rested without presenting any
evidence. After deliberation, the jury returned a verdict of
guilty of taking indecent liberties with a child and guilty of
being an habitual felon. We will discuss further relevant facts
within the context of defendant's assignments of error. In his first assignment of error defendant argues that the
trial court committed plain error by allowing noncorroborative
hearsay testimony into evidence as corroboration. We disagree.
According to The North Carolina Rules of Appellate Procedure:
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
error.
N.C. R. App.. P. Rule 10(c)(4)(2003). “The plain error rule
applies only in truly exceptional cases.” State v. Walker, 316 N.C.
33, 39, 340 S.E.2d 80, 83 (1986). “[T]he term 'plain error' does
not simply mean obvious or apparent error . . . .” State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “[T]o reach the
level of 'plain error' contemplated in Odom, the error . . . must
be 'so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.'” State v. Collins, 334 N.C.
54, 62, 431 S.E.2d 188, 193 (1993)(citations omitted).
In other words, the appellate court must
determine that the error in question “tilted
the scales” and caused the jury to reach its
verdict convicting the defendant. Therefore,
the test for “plain error” places a much
heavier burden upon the defendant than that
imposed by N.C.G.S. § 15A-1443 upon defendants
who have preserved their rights by timely
objection. This is so in part at least because
the defendant could have prevented any error
by making a timely objection.
Walker, 316 N.C. at 39, 340 S.E.2d at 83. Defendant specifically assigns as plain error the admission of
the following testimony: 1) The testimony of social worker Brown
that according to H.R., defendant told H.R. not to tell anyone
about the abuse because he might go to jail; 2) psychologist
Tulou's testimony that according to H.R., defendant told H.R. “it
was ok to fool around.” 3) Tulou's testimony that H.R. “was aware
that to disclose the molestation might send [defendant] to jail.”
4) Detective Sutton's entire testimony about what H.R. told her; 5)
Detective Sutton's testimony that according to H.R. defendant had
touched her inside her underwear; and 6) Dr. Seago's testimony that
according to H.R., defendant “generally would put his hand inside
her underwear.”
Defendant's argument that Detective Sutton's entire testimony
about what H.R. told her constitutes plain error is without merit.
The written statement given to Detective Sutton by H.R. was entered
into evidence for corroborative purposes without objection, and
defendant makes no claim that the trial court's decision allowing
this written statement to be entered into evidence constituted
plain error. Detective Sutton read the statement verbatim to the
jury. Assuming arguendo that Detective Sutton's testimony was
error, because the same information was entered into evidence by
the written statement, allowing the verbal recitation of the
statement by Detective Sutton cannot constitute plain error. See
e.g. State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588
(1984)(“Where evidence is admitted over objection, and the same
evidence has been previously admitted or is later admitted withoutobjection, the benefit of the objection is lost.”) Defendant never
objected to admission of the written statement, and he fails to
argue that its admission amounts to plain error.
Defendant's argument that allowing Dr. Seago's testimony into
evidence constituted plain error is also without merit. While
taking H.R.'s history in preparation for her medical examination of
H.R. (for the purpose of determining any physical trauma or disease
from the alleged abuse), Dr. Seago asked H.R. about the touching
incidents. Dr. Seago testified that H.R. “stated that generally he
would put his hand inside of her underwear, but she said he did not
actually put his finger inside of her. Once he had touched her on
the bottom. She denied any touching of her breast.
“She said he had never used anything other that his hand or
fingers, no foreign objects or other body parts of his own. She
said he never took off his clothes, nor she hers.” This evidence
was admissible for substantive purposes as an exception to the
hearsay rule for “purposes of medical diagnosis or treatment.” N.C.
R. Evid. Rule 803(4) (2003).
Rule 803 states “The following are not excluded by the hearsay
rule, even though the declarant is available as a witness:”
(4) Statements made for the purposes of medical
diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or
sensations, or the inception or general
character of the cause or external source
thereof insofar as reasonably pertinent to
diagnosis or treatment.
“Rule 803(4) requires a two-part inquiry: (1) whether the
declarant's statements were made for purposes of medical diagnosisor treatment; and (2) whether the declarant's statements were
reasonably pertinent to diagnosis or treatment.” State v. Hinnant,
351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000). The declarant must
have “had the requisite intent by demonstrating that the declarant
made the statements understanding that they would lead to medical
diagnosis or treatment.” Id. at 287, 523 S.E.2d at 669. “[T]he
trial court should consider all objective circumstances of record
surrounding declarant's statements in determining whether he or she
possessed the requisite intent under Rule 803(4).” Id. at 288, 523
S.E.2d at 670.
H.R. was removed from her mother's home on 7 November 2000,
Dr. Seago's examination of H.R. occurred on 6 December 2000, and
Detective Sutton first interviewed H.R. for her criminal
investigation of defendant on 19 February 2001. H.R. was examined
shortly after the alleged abuse was reported to the Department of
Social Services. This examination occurred two and one half months
before she was interviewed by the police, suggesting the
examination was not for the purpose of prosecuting defendant. State
v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986). H.R. was examined
by a medical doctor, and at the doctor's office, suggesting she was
aware that her statements were being used for the purpose of
medical diagnosis or treatment. State v. Stancil, 146 N.C. App.
234, 552 S.E.2d 212 (2001); State v. Summers, 92 N.C. App. 453, 374
S.E.2d 631 (1988). These circumstances, when viewed together,
provide sufficient evidence of H.R.'s intent in the Rule 803(4)
context. See State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663,667 (2000). For the purposes of diagnosis and treatment, Dr. Seago
reasonably inquired into the nature of the touching. It was
important to know where and how H.R. was touched, especially
concerning the presence or absence of penetration, for Dr. Seago to
make her determinations concerning the alleged abuse and any
necessary treatment. The proffered testimony passes both prongs of
the test for admissibility under Rule 803(4).
Further, Dr. Seago's report, including the notes from which
she refreshed her memory concerning her interview with H.R., was
entered into evidence without objection. Assuming arguendo that
the testimony of Dr. Seago was improperly admitted, defendant does
not now contest the admission of this report, thus defendant can
not show prejudice amounting to plain error resulting from the
testimony of Dr. Seago concerning the contents of the report. See
e.g. State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588
(1984).
Assuming arguendo that it was error for the trial court to
admit the remaining incidents of testimony of which defendant
complains, defendant cannot meet his burden under plain error
analysis. The unchallenged evidence is more than sufficient to
support the jury's verdict that defendant was guilty of indecent
liberties with a child.
In order to prove indecent liberties, the State must prove the
defendant is sixteen or older, at least five years older than the
victim, and that he willfully “takes or attempts to take any
immoral, improper, or indecent liberties with any child of eithersex under the age of 16 years for the purpose of arousing or
gratifying sexual desire . . . .” N.C. Gen. Stat. § 14-
202.1(a)(1)(2003). That the purpose of the act was for arousing or
gratifying sexual desire may be inferred from defendant's actions.
State v. Rhodes, 321 N.C. 102, 361 S.E.2d 578 (1987); State v.
Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993). In fact, it is
not even necessary that defendant touch the victim to be guilty of
taking indecent liberties with a minor. State v. Hicks, 79 N.C.
App. 599, 339 S.E.2d 806 (1986).
The evidence in this case, even excluding all the contested
evidence, is sufficient to show defendant repeatedly took advantage
of the appalling lack of parental protection in H.R.'s household to
arouse or satisfy his sexual gratification by fondling H.R.
Defendant does not contest that H.R. was under sixteen, or that he
was at least sixteen and at least five years older than her.
Whether defendant fondled the child on top of or beneath her
underwear is of no consequence. The act itself, and the fact that
it was repeated again and again despite H.R. pushing his hand away,
is plenary evidence that defendant committed an indecent liberty
for the purpose of sexual gratification. There is no evidence in
the record to suggest any alternate reason for defendant's acts.
There is no probability that the admission of the testimony
defendant complains of “resulted in the jury reaching a different
verdict than it otherwise would have reached.” This assignment of
error is without merit. In defendant's second assignment of error he argues his
conviction must be vacated because the trial court gave a jury
instruction that included an error of law allowing jurors to
improperly consider corroborative evidence as substantive evidence.
We disagree.
Defendant admits that he did not object to the jury
instruction at trial, but argues the issue is preserved for normal
appellate review under N.C. Gen. Stat. § 15A-1446(d)(13) (2003)
which states that an “[e]rror of law in the charge to the jury”
“may be the subject of appellate review even though no objection,
exception or motion has been made in the trial division.” Our
Supreme Court has held:
Rule 10(b)(2) [of the North Carolina Rules of
Appellate Procedure] and G.S. 15A-1446(d)(13)
are in conflict. . . . Rule 10(b)(2) states:
“No party may assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict . . . .” Rule 10(b)(2) is
a rule of appellate practice and procedure,
promulgated by the Supreme Court pursuant to
its exclusive authority under the Constitution
of North Carolina, Article IV, Section 13(2).
To the extent that G.S. 15A-1446(d)(13) is
inconsistent with Rule 10(b)(2), the statute
must fail. See State v. Elam, 302 N.C. 157,
273 S.E.2d 661 (1981).
State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983);
See also State v. Moore, 107 N.C. App. 388, 395, 420 S.E.2d 691,
696 (1992). Defendant did not object to the now contested
instruction as required by Rule 10(b)(2), nor does he argue plain
error. This assignment of error is without merit. In defendant's third assignment of error he argues the trial
court erred by including a non-pattern jury instruction at trial
without notice to the parties in violation of N.C. Gen. Stat. §
15A-1231(b)(2003), and that this instruction prejudiced him. We
disagree.
The disputed portion of the trial court's instruction states:
But there are three things and three things
only that you use to come to whatever
conclusions you come to in this case. One is
the testimony of witnesses that came to you
from the mouths of witnesses after they took
some kind of oath, that is such testimony as
you deem to be believable to the extent of
beyond a reasonable doubt. Any reasonable
inferences that rise from that same evidence
you deem to be believable beyond a reasonable
doubt, and any exhibits incidental to,
relevant to, germane to that same evidence you
deem to be believable to the extent of beyond
a reasonable doubt.
We first note that pattern jury instructions “are drafted by
a committee of the North Carolina Conference of Superior Court
Judges and . . . do not in themselves have the force of the law.”
State v. Warren, 348 N.C. 80, 120, 499 S.E.2d 431, 453 (1998). The
fact that a non-pattern jury instruction is given by the court is
not error per se as suggested by defendant. “When instructing the
jury, the trial court is not required to use 'an exact formula,'
however, 'its instruction must be a correct statement of the law.'”
State v. McAdoo, __ N.C. App. __, __, 598 S.E.2d 227, 230
(2004)(citation omitted).
Defendant argues that he was prejudiced by this instruction
because it encouraged jurors to consider evidence as substantive
that was only admitted for purposes of corroboration, and that noinstruction limiting consideration of the evidence for
corroborative purposes was given. However, the complained of
instruction given by the trial court does not, as defendant argues,
encourage the jury to consider corroborative evidence as
substantive evidence. The instruction merely admonishes the jurors
to limit their consideration to evidence properly before them,
namely sworn testimony, permissible inferences therefrom, and
exhibits entered into evidence. Defendant acknowledges that he did
not object to the instruction at trial as required by Rule
10(b)(2), but argues the trial court's purported violation of N.C.
Gen. Stat. § 15A-1231(b) amounts to plain error, or in the
alternative that this Court should exercise its power under N.C. R.
App. P. Rule 2 to evaluate his argument.
N.C. Gen. Stat. § 15A-1231(b) states:
Before the arguments to the jury, the judge
must hold a recorded conference on
instructions out of the presence of the jury.
At the conference the judge must inform the
parties of the offenses, lesser included
offenses, and affirmative defenses on which he
will charge the jury and must inform them of
what, if any, parts of tendered instructions
will be given. A party is also entitled to be
informed, upon request, whether the judge
intends to include other particular
instructions in his charge to the jury. The
failure of the judge to comply fully with the
provisions of this subsection does not
constitute grounds for appeal unless his
failure, not corrected prior to the end of the
trial, materially prejudiced the case of the
defendant.
At the jury charge conference the following exchange occurred:
THE COURT: Any special requests for
instructions by the defense?
MR. HILTY [defendant's attorney]: No.
THE COURT: What about your client's election
not to testify, do you want that one?
MR. HILTY: Certainly would want that.
THE COURT: All right.
MR. HILTY: The court will also be giving I
take it burden of proof, standard of proof,
all those basics?
THE COURT: Yes. I was mainly concerned about
the one I just asked you about any other
special requests. Anything else by way of
precharge conference?
MS. LESLIE [prosecutor]: No, sir.
MR. HILTY: No, sir.
Defendant never requested that the trial court give notice of any
other instructions it intended to present to the jury. After the
trial court instructed the jury, it inquired of the parties:
“Anything else by way of instructions from either the State or the
defense?” To which the defendant answered: “None from the
defense.” The trial court then asked the State and the defense
again separately if there were any other requests for instructions,
then for a third time asked “Any requests for any further
instructions?” Defendant replied in the negative.
Defendant argues that by his statement: “The court will also
be giving I take it burden of proof, standard of proof, all those
basics?” he was asking the trial court specifically to be informed
of any other particular instructions as authorized under N.C. Gen.
Stat. § 15A-1231(b). First, this was not a specific request of the
trial court to be informed of additional instructions as requiredby N.C. Gen. Stat. § 15A-1231(b). Second, the instruction given is
one of the “basics” (instructing the jury on what evidence they may
consider) and thus defendant was put on notice that this
instruction could be given. Finally, defendant was given multiple
opportunities to object to the instruction, or request additional
instructions, but did not do so. The trial court did not violate
N.C. Gen. Stat. § 15A-1231(b).
Assuming arguendo that the trial court did violate N.C. Gen.
Stat. § 15A-1231(b), we determine that: “Having reviewed this
instruction and the whole record, we find that the trial court did
not commit 'plain error' such as to require a new trial in spite of
the defendant's failure to comply with the requirements of Rule
10(b)(2).” Bennett, 308 N.C. at 536, 302 S.E.2d at 790. We decline
to review this assignment of error under Rule 2 of the Rules of
Appellate Procedure. This assignment of error is without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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