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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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STATE OF NORTH CAROLINA v. JAMES EDWARD THAGGARD
Filed: 1 February 2005
1. Appeal and Error--preservation of issues--failure to argue in brief
Defendant voluntarily abandoned two assignments of error in a statutory rape, statutory
sexual offense, and taking indecent liberties case related to admission of evidence concerning the
victims' past sexual conduct and that sustained the State's objection to character testimony about
one of the victims, because defendant failed to argue these issues in his brief.
2. Evidence--prior crimes or bad acts_-similar sex offenses--temporal proximity--
opportunity--common scheme or modus operandi--identity
The trial court did not abuse its discretion in a statutory rape, statutory sexual offense,
and taking indecent liberties case by allowing two witnesses who were not the victims in this
case to testify that they had been sexually abused by defendant, because: (1) the alleged incidents
involving the witnesses occurred in 1999 and 2000, while the events at bar occurred in early to
mid 2001; (2) the witnesses were the same age as the victims; (3) in both situations, defendant
frequently visited or stayed overnight at the homes where the incidents occurred; (4) all four
girls were assaulted as they slept or were about to fall asleep while others were present
elsewhere in the residence; (5) the two sets of victims are sisters, and the oldest was abused first
in both cases; and (6) based on the above similarities and the temporal proximity, the testimony
was proper to show opportunity, a common scheme or modus operandi, and the assailant's
3. Evidence_-officer's testimony_-prior consistent statements--corroboration
The trial court did not err in a statutory rape, statutory sexual offense, and taking indecent
liberties case by permitting an investigator to testify that the two minor victims' in-court
testimony was consistent with their previous statements to the investigator, because: (1) a review
of the investigator's testimony with the victims' in-court testimony shows his testimony to be
corroborative; (2) the differences that defendant cites in the statements are not appreciable
variances and instead appeared to be either where the investigator did not receive all the details
during the initial meetings or the order of details in the victims' stories varied between their
initial statements and their testimony at trial; and (3) any disparities affect the weight, not the
admissibility, of the statements and the witnesses' credibility.
4. Evidence--opinion testimony--medical expert--sexual abuse--no prejudicial error
Although the trial court erred in a statutory rape, statutory sexual offense, and taking
indecent liberties case by admitting opinion testimony from a medical expert, a forensic
pediatrician, that the victims were truthful and did not just get together to tell each other what to
say, the error was not prejudicial to defendant because the State presented other overwhelming
evidence against defendant including that: (1) the victims' testimony was consistent with
statements made to parents, counselors, social workers, law enforcement officers, and the
pediatrician as shown through corroborative testimony, (2) the pediatrician's medical
examinations discovered numerous physical and emotional injuries consistent with the victims'
histories and indicative of sexual abuse; and (3) both victims experienced noticeable behavioral
changes following the incidents.
5. Evidence_-prior crimes or bad acts-_indecent liberties--no prejudicial error
Although the trial court erred in a statutory rape, statutory sexual offense, and taking
indecent liberties case by allowing the State to ask a defense witness, defendant's formergirlfriend, whether she knew that defendant had previously been convicted of taking indecent
liberties with a child, this error was not prejudicial to defendant even though defendant contends
it made him change trial tactics and forced him to testify because: (1) the State presented a
wealth of testimony and physical evidence implicating defendant as the perpetrator of the crimes
against the two victims; (2) the trial court gave a lengthy limiting instruction prior to two
witnesses testifying about defendant's prior sexual abuse of them that the evidence could not be
used to show defendant acted in conformity with it to commit the crimes; and (3) the court's jury
instructions prior to deliberation ensured that any evidence pertaining to defendant's prior
convictions of taking indecent liberties with children was to be considered solely for the
N.C.G.S. § 8C-1, Rule 404(b) factors of identity, motive, intent, or common scheme.
6. Evidence_-victims' juvenile records--failure to grant complete access
The trial court did not err in a statutory rape, statutory sexual offense, and taking indecent
liberties case by failing to allow defendant to gain complete access to the victims' juvenile
records, because: (1) the trial court reviewed the victims' juvenile records upon defendant's
motion and determined that there was nothing defendant was entitled to see; (2) the records do
not contain information material to defendant's case and no reasonable probability exists that the
result of the proceeding would have been different; and (3) the documentation further
corroborated the facts of the case.
7. Indecent Liberties; Rape; Sexual Offenses--statutory rape--statutory sexual offense-
-motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motions to dismiss the charges of
statutory rape, statutory sexual offense, and taking indecent liberties with a minor based on
alleged insufficiency of the evidence, because: (1) in regard to the rape and sexual offense
charges, the record indicated that the pertinent victim was fourteen years old, defendant was
thirty-six years old, they were not lawfully married at the time of the incident, and defendant
forced the victim to engage in vaginal and anal intercourse; (2) in regard to the taking indecent
liberties charge, the pertinent victim was twelve and defendant was over the age of sixteen and at
least five years older than the victim, the victim awoke after passing out to find defendant on top
of her, both the victim's and defendant's pants and underwear were pulled down, the victim later
experienced pain in her vaginal and anal areas, and a forensic pediatrician determined from a
medical exam that the victim was both physically and mentally injured by nonconsensual sexual
abuse; and (3) although defendant contends the victims' and the corroborative testimonies are
contradictory and lack credibility, the credibility and weight given to a witness's testimony is
determined by the jury and not the court.
Appeal by defendant from judgments entered 3 November 2003 by
Judge James Floyd Ammons, Jr., in Cumberland County Superior Court.
Heard in the Court of Appeals 18 November 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Christine M. Ryan, for the State.
Terry W. Alford, for defendant-appellant.
James Edward Thaggard (defendant)
appeals from judgments
entered after a jury found him to be guilty of:
rape; (2) statutory sexual offense; and (3) taking indecent
liberties with a child. We find no prejudicial error.
Sisters Jo.P., age fourteen, and Je.P., age twelve
(collectively, the victims) lived with their father and brother
in a three bedroom mobile home in Cumberland County. Defendant was
a friend of the victims' father and occasionally spent the night
with them. In August 2001, defendant was at the home watching
television in the living room with the victims and several others.
Defendant left and went to their brother's bedroom. Jo.P. left the
living room to take a shower. After her shower, she went to her
bedroom and laid face down on her bed.
The State's evidence tended to show that after Jo.P. laid on
her bed, she felt someone crawl up behind her, put a gun to her
head, and say he would shoot her if she made a sound. Jo.P. could
not see the person, but recognized defendant's voice. The
assailant removed Jo.P.'s underwear, pulled up her nightgown, and
proceeded to engage in anal and vaginal intercourse with her.
After the assaults were completed, the assailant got off of the bed
and walked out of the bedroom. Jo.P. turned to see who the
assailant was and recognized defendant. Jo.P. first told her
sister, Je.P., about the assault a week later, and told the
Cumberland County Department of Social Services (DSS) and the
police in April 2002.
Later that summer, the sisters, brother, and father held a
cookout at their mobile home. Je.P. drank liquor at her brother's
request and became dizzy. She went inside, laid down on the couch,and passed out. When she awoke, defendant was on top of her.
Je.P.'s and defendant's pants and underwear were pulled down. She
fell back asleep until her brother came into the mobile home and
began arguing with defendant. Je.P. felt pain in her vaginal and
anal areas. Je.P. told her sister and her guardian ad litem about
In April 2002, DSS conducted a neglect investigation of the
sisters. The investigator, Edward Morley (Investigator Morley),
met with Jo.P. and Je.P. separately, and each described the above
events. A medical exam was performed by Dr. Sharon Cooper (Dr.
Cooper) on the victims. Tears and scarring consistent with sexual
trauma were found in Jo.P.'s vagina and anus. A similar injury was
found in Je.P.'s vagina. Dr. Cooper diagnosed the victims with
injuries consistent with a non-consensual sexual assault.
On 9 December 2002, defendant was indicted for one count of
statutory rape of a person who is 13, 14, or 15 years old, one
count of statutory sexual offense of a person who is 13, 14, or 15
years old, and one count of taking indecent liberties with children
with respect to Jo.P. Defendant was also indicted for one count of
statutory rape and one count of taking indecent liberties with
children with respect to Je.P. Defendant was tried before a jury
during the 27 October 2003 Criminal Session of the Superior Court
of Cumberland County.
Defendant's former girlfriend, Brenda Murray (Murray),
testified she knew the victims and their reputations as liars in
the community. Defendant testified the victims conspired against
him. He also admitted to being previously convicted of two counts
of taking indecent liberties with minors. The jury found defendant to be not guilty of: (1) taking
indecent liberties with a child for Jo.P.; and (2) first-degree
statutory rape of Je.P. Defendant was found to be guilty of: (1)
statutory rape of Jo.P.; (2) statutory sexual offense of Jo.P.; and
(3) taking indecent liberties with a child for Je.P. The trial
court sentenced defendant to three consecutive active sentences of:
(1) not less than 336 nor more than 413 months for statutory rape;
(2) not less than 336 nor more than 413 months for statutory sex
offense; and (3) not less than twenty-one nor more than twenty-six
months for indecent liberties. Defendant appeals.
The issues on appeal are whether the trial court erred in:
(1) not allowing admission of evidence concerning the victims' past
sexual conduct; (2) allowing two witnesses to testify that they
were sexually abused by defendant when they were minors; (3)
allowing Investigator Morley to testify that Jo.P.'s testimony was
consistent with prior statements she had made to him; (4) allowing
the State's medical expert to testify that she did not believe the
two sisters conspired together to lie against defendant; (5)
permitting the State to ask defendant's character witness about
defendant's prior convictions; (6) sustaining the State's objection
to character testimony about Jo.P.; (7) not providing defendant
access to the victims' juvenile files; and (8) failing to dismiss
the charges against defendant for insufficiency of the evidence.
III. Abandonment of Assignments of Error
 Defendant voluntarily abandoned assignment of error number
1, not allowing admission of evidence concerning the victims' past
sexual conduct; and number six, sustaining the State's objection to
character testimony about Jo.P., by failing to argue them in hisbrief. N.C.R. App. P. 10 (2004); N.C.R. App. P. 2 (2004). We
decline to review these abandoned assignments of error and dismiss.
N.C.R. App. P. 2.
IV. Other Crimes, Wrongs, or Acts
 Defendant asserts the trial court erred in allowing two
witnesses who were not the victims to testify that they had been
sexually abused by defendant. We disagree.
Rule 404(b) of the North Carolina Rules of Evidence states in
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). The admissibility of
404(b) evidence is subject to the weighing of probative value
versus unfair prejudice mandated by Rule 403. State v. Agee, 326
N.C. 542, 549, 391 S.E.2d 171, 175 (1990); 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 unfair delay, waste of time, or needless
presentation of cumulative evidence.). Rule 404(b) is a rule of
inclusion, not exclusion. Agee, 326 N.C. at 550, 391 S.E.2d at
The balancing of these factors lies within the sound
discretion of the trial court, and the trial court's ruling should
not be overturned on appeal unless the ruling was 'manifestly
unsupported by reason or [was] so arbitrary that it could not have
been the result of a reasoned decision.' State v. Hyde, 352 N.C.37, 55, 530 S.E.2d 281, 293 (2000) (quoting State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert. denied, 531 U.S.
1114, 148 L. Ed. 2d 775 (2001).
Here, the State offered the testimonies of C.W. and N.W.,
defendant's nieces. C.W. testified that when she was fourteen, she
spent the night at her grandmother's house. Defendant stopped by
the house while she was asleep. C.W. stated that she awoke to
discover that defendant had put his mouth on my vaginal area . .
. and had his tongue down there. Defendant asked C.W. if she
wanted to have sex, then stuck his finger . . . in my vaginal
N.W. testified that when she was between eleven and twelve
years old, she awoke one night as defendant was trying to remove
her pants. She tried to push and kick him away, but he succeeded
in rubbing her buttocks with his hands before she got up and left
The trial court specifically instructed the jury before the
witnesses testified that they could consider this evidence only to
the identity of a person who has committed a
crime that's charged in the case, to show that
the defendant had the motive for commission of
a crime that is charged in this case, to show
that a defendant had the intent, which is a
necessary element of a crime that might be
charged in this case or to show that there
existed in the mind of a defendant a plan, a
scheme or a system designed to involve the
elements involved in the crime charged in this
case . . . . I want you to . . . keep these
limitations in mind.
Defendant participated in crafting this instruction. He received
three opportunities to cross-examine C.W. and cross-examined N.W.
once. North Carolina's appellate courts have been markedly liberal
in admitting evidence of similar sex offenses to show one of the
purposes enumerated in Rule 404(b). State v. Scott, 318 N.C. 237,
247, 347 S.E.2d 414, 419 (1986) (citations omitted). Our Supreme
Court has been very liberal in admitting evidence of similar sex
crimes in construing the exceptions to the general rule. State v.
Greene, 294 N.C. 418, 423, 241 S.E.2d 662, 665 (1978) (citing State
v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Davis, 229
N.C. 386, 50 S.E.2d 37 (1948); State v. Biggs, 224 N.C. 722, 32
S.E.2d 352 (1944)).
This Court has also applied a liberal interpretation of Rule
404(b). See State v. Carpenter, 147 N.C. App. 386, 392, 556 S.E.2d
316, 321 (2001) (where this court permitted evidence of prior bad
sex acts to show the defendant used ministry and church activities
as an excuse for spending time with his previous victims, did
similar activities with the victims, and sexually abused the
victims in similar areas and by using a similar manner), cert.
denied, 355 N.C. 222, 560 S.E.2d 365 (2002), cert. denied, 536 U.S.
967, 153 L. Ed. 2d 851 (2002), reh'g denied, 536 U.S. 983, 153 L.
Ed. 2d 885 (2002); State v. Patterson, 149 N.C. App. 354, 362-64,
562 S.E.2d 321, 326-27 (2002) (affirming trial court's admission of
evidence showing prior bad acts by defendant who met his victims at
skating rinks, invited the victims to his home, and provided them
drugs and alcohol); State v. Brothers, 151 N.C. App. 71, 76-77, 564
S.E.2d 603, 607 (2002) (noting prior bad acts need not be 'unique
or bizarre' and it was not error to admit evidence showing the
defendant's victims were the same age, the acts occurred under
similar circumstances, the defendant used a similar manner tocommit the acts, and the defendant was the stepfather to both
victims), cert. denied, 356 N.C. 681, 577 S.E.2d 895 (2003).
[S]uch evidence is relevant and admissible so long as the
incidents are sufficiently similar and not too remote. State v.
Blackwell, 133 N.C. App. 31, 35, 514 S.E.2d 116, 119 (citing State
v. Bagley, 321 N.C. 201, 207, 362 S.E.2d 244, 247-48 (1987)), cert.
denied, 350 N.C. 595, 537 S.E.2d 483 (1999); see also State v.
Smith, 152 N.C. App. 514, 527, 568 S.E.2d 289 (2002) (The use of
evidence permitted under Rule 404(b) is guided by two constraints:
similarity and temporal proximity.) (citation omitted).
The alleged incidents involving C.W. and N.W. occurred in 1999
and 2000, while the events at bar occurred in early to mid 2001.
Je.P. and N.W. were both about twelve years old, and Jo.P. and C.W.
were fourteen years old. In both situations, defendant frequently
visited or stayed overnight at the homes where the incidents
occurred. All four girls were assaulted as they slept or were
about to fall asleep while others were present elsewhere in the
residence. The two sets of victims are sisters, and the oldest was
the abused first in both cases.
Based on the above similarities and the temporal proximity, we
conclude the admission of C.W. and N.W.'s testimony was for proper
purposes: to show opportunity, a common scheme or modus operandi,
and the assailant's identity. Although differences exist in the
four assaults, defendant failed to show that the trial court abused
its discretion by allowing the testimony. This assignment of error
V. Corroborative Witness Testimony
 Defendant contends the trial court erred in permitting a
witness to testify that the victims' testimony was consistent with
what they told him during an earlier conversation. We disagree.
Our Supreme Court has held that a witness's prior consistent
statements may be admissible to corroborate the witness's in-court
testimony. 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). To
constitute corroborative evidence, the prior statement of the
witness need not merely relate to specific facts brought out in the
witness's testimony at trial, so long as the prior statement in
fact tends to add weight or credibility to such testimony. State
v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986).
The trial court possesses broad discretion in deciding whether
a prior consistent statement may be admitted for corroboration.
State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998)
(citing State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)), cert.
denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001), cert. denied, 357
N.C. 579, 589 S.E.2d 130 (2003). The statements must be generally
consistent with one another. State v. Britt, 291 N.C. 528, 535,
231 S.E.2d 644, 650 (1977). Slight variations will not render the
statements inadmissible, but such variations only affect the
credibility of the statement, not its admissibility. State v.
Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983) (citing
Britt, 291 N.C. at 528, 231 S.E.2d at 644). The State may not
proffer evidence of prior statements of a witness that directly
contradict that witness's trial testimony. Gell, 351 N.C. at 204,
524 S.E.2d at 340.
Here, defendant assigns error to Investigator Morley's
testimony that the victims' in-court testimony was consistent withtheir earlier statements to him. Defendant argues four
discrepancies exist between the victims' statements to Investigator
Morley and their testimony in court. First, Investigator Morley
testified that Je.P. complained that [defendant] tried to touch
her and that he was a pervert . . . and that he had also tried to
touch her sister. Je.P. did not mention to Investigator Morley
at that time that she awoke to find defendant on top of her.
Second, Jo.P. initially told Investigator Morley that defendant
came up behind her and took her clothes off while she was standing.
She then immediately corrected herself to say that she was lying on
the bed during the entire incident. Third, Jo.P. did not tell
Investigator Morley that she saw defendant leave the room after the
assault. Fourth, Investigator Morley testified that Jo.P. stated
defendant penetrated her vaginally first, then anally, where Jo.P.
testified to the reverse order.
A careful review of Investigator Morley's testimony with the
victims' in-court testimony shows them to be corroborative. The
differences that defendant cites are not appreciable variances.
This was not a situation where multiple, divergent stories were
told. Rather, the differences appeared to be either where
Investigator Morley did not receive all the details during the
initial meetings or the order of details in the victims' stories
varied between their initial statements and their testimony at
trial. See State v. Harrison, 328 N.C. 678, 681-82, 403 S.E.2d
301, 303-04 (1991) (slight variances in corroborative testimony go
to credibility, not admissibility). Considered in totality,
Investigator Morley's testimony of the victims' statements to him
were substantially consistent with that of the victims' in-court
testimony. Any disparities affect the weight, not theadmissibility, of the statements and the witnesses' credibility.
Britt, 291 N.C. at 535, 231 S.E.2d at 650. This assignment of
error is overruled.
VI. Medical Expert Opinion Testimony
 Defendant argues the trial court committed prejudicial
error by admitting opinion testimony from a medical expert that the
victims were truthful. We agree, but find the error to be non-
prejudicial to defendant.
A. Expert Opinion on Witness Credibility
Our Supreme Court has held that under Rules 405(a) and 608(a)
of the North Carolina Rules of Evidence, an expert witness may not
testify that the prosecuting child-witness in a sexual abuse trial
is believable, State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76
(1986), or that the child is not lying about the alleged sexual
assault, State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986).
State v. Baymon, 336 N.C. 748, 752, 446 S.E.2d 1, 3 (1994); see
also N.C. Gen. Stat. § 8C-1, Rule 405(a) (2003); N.C. Gen. Stat. §
8C-1, Rule 608(a) (2003).
However, a trial court may permit otherwise inadmissible
evidence to be admitted if the opposing party opens the door
through cross-examination of the witness. Baymon, 336 N.C. at 752,
446 S.E.2d at 3. Opening the door is the principle where one
party introduces evidence of a particular fact and the opposing
party may introduce evidence to explain or rebut it, even though
the rebuttal evidence would be incompetent or irrelevant, if
offered initially. Id. at 752-53, 446 S.E.2d at 3 (citations
Here, Dr. Cooper, a forensic pediatrician, was tendered by the
State as a witness. The Court recognized Dr. Cooper as an expertin the field of child sexual abuse and child sexual evaluations.
She treated both victims after removal from their father's house.
Dr. Cooper explained the histories as told to her by the victims,
social workers, and counselors. She further discussed the physical
examinations she performed on the victims and existing behavioral
disorders caused by the incidents. Based on the histories,
physical examinations, and behavioral issues, Dr. Cooper diagnosed
Jo.P. and Je.P. as victims of sexual assault, sexual exploitation,
and post-traumatic stress disorder.
Following Dr. Cooper's explanation of her diagnosis of the
victims, the State asked on direct examination, Now, Dr. Cooper,
based on your training and experience and your examination of the
two girls, [Jo.P.] and [Je.P.], do you think that the two girls
just got together and told each other what to say to you?
Following an objection by defendant, which the trial court
overruled, Dr. Cooper responded, No. No, I don't. Dr. Cooper
then proceeded to discuss the basis of her opinion.
The State's question and Dr. Cooper's answer speak directly to
the credibility of the victims' testimony. This testimony was an
impermissible comment by an expert medical witness on the
credibility of the two prosecuting witnesses. This evidence is
allowed only if defendant opened the door by addressing the
victims' credibility on cross-examination. See Baymon, 336 N.C. at
752-53, 446 S.E.2d at 3 (citations omitted). This opinion was
expressed on direct examination of Dr. Cooper during the State's
case-in-chief before defendant had the opportunity to open the
door. Admission of Dr. Cooper's opinion that she did not believe
the two girls just got together and told each other what to say
B. Prejudicial Error
Having found the admission of Dr. Cooper's opinion bolstering
the credibility of the victims was error, we now consider whether
this error was prejudicial to defendant.
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when 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). A reasonable possibility
must exist that the evidence complained of contributed to the
conviction. State v. Milby, 302 N.C. 137, 142, 273 S.E.2d 716, 720
(1981). The burden is on the defendant to show both the error and
its prejudicial effect. Id.; N.C. Gen. Stat. § 15A-1443(a).
Defendant failed to argue how Dr. Cooper's testimony was
prejudicial to his case. After a complete review of the record and
transcripts, we do not conclude that Dr. Cooper's opinion testimony
concerning the victims' credibility caused a different result at
trial. The State presented other overwhelming evidence against
defendant. The victims' testimony was consistent with statements
made to parents, counselors, social workers, law enforcement
officers, and Dr. Cooper, as shown through corroborative testimony.
Dr. Cooper's medical examinations discovered numerous physical and
emotional injuries consistent with the victims' histories and
indicative of sexual abuse. Both victims experienced notable
behavioral changes following the incidents.
Based on other overwhelming evidence of defendant's guilt, we
hold the admission of Dr. Cooper's opinion was not prejudicial
error. This assignment of error is overruled.
VII. Admission of Prior Convictions
 Defendant asserts the trial court committed prejudicial
error by allowing the State to ask a defense witness whether she
knew that defendant had previously been convicted of taking
indecent liberties with a child. We disagree.
A. Impeachment of a Witness
The North Carolina Rules of Evidence permit the introduction
of opinion and reputation testimony concerning the credibility of
a previously heard witness. State v. Oliver, 85 N.C. App. 1, 22-
23, 354 S.E.2d 527, 539, cert. denied, 320 N.C. 174, 358 S.E.2d 64
(1987); N.C. Gen. Stat. § 8C-1, Rule 405; N.C. Gen. Stat. § 8C-1,
Rule 608. This method of impeachment must be preceded by a proper
foundation showing the testifying witness has sufficient contact
with the community to qualify as having a credible opinion or
knowing what kind of reputation the other witness has. State v.
Morrison, 84 N.C. App. 41, 47-48, 351 S.E.2d 810, 814 (citing State
v. Sidden, 315 N.C. 539, 340 S.E.2d 340 (1986); State v. McEachern,
283 N.C. 57, 194 S.E.2d 787 (1973)), cert. denied, 319 N.C. 408,
354 S.E.2d 724 (1987).
Here, the State offered the testimony of both victims and
additional corroborative evidence from other witnesses. In
response, defendant offered the testimony of his former girlfriend,
Murray, who lived in the same community as the victims and who was
familiar with their reputations.
Defendant: Ms. Murray, do you -- in the
community in which you live,
does (sic) [Jo.P.] and [Je.P.]
have a reputation as to whether
or not they tell the truth?
Defendant: What is that reputation?
Murray: They lie.
Under Rules 405(a) and 608(a) of the North Carolina Rules of
Evidence and North Carolina case law, this line of questioning by
defendant is permitted as an impeachment of the credibility of the
State's two prosecuting witnesses. N.C. Gen. Stat. § 8C-1, Rule
405(a); N.C. Gen. Stat. § 8C-1, Rule 608(a); see State v. Wise, 326
N.C. 421, 426, 390 S.E.2d 142, 145, cert. denied, 498 U.S. 853, 112
L. Ed. 2d 113 (1990).
A defendant in a criminal case is entitled to introduce
evidence of his own good character as substantive evidence in his
favor. State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d 654, 658
(1987) (citations omitted). However, should the defendant proffer
such testimony, the State may respond by introducing evidence of
his bad character in rebuttal. Id.; N.C. Gen. Stat. § 15A-1226(a)
B. Cross-Examination of Defense Character Witness
In North Carolina, [a] witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.
N.C. Gen. Stat. § 8C-1, Rule 611(b) (2003); see also State v.
Freeman, 319 N.C. 609, 616, 356 S.E.2d 765, 769 (1987). 'Relevant
evidence' means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2003). However,
evidence admissible during cross-examination remains subject to
the limits of other rules governing relevancy, including Rules 402,
403, and 404, as well as to Rule 609. State v. Lynch, 334 N.C.
402, 411, 432 S.E.2d 349, 353 (1993).
Rule 404(a)(1) of the North Carolina Rules of Evidence limits
the evidence the State may offer to a pertinent trait of [thedefendant's] character offered by an accused, or by the prosecution
to rebut the same . . . . N.C. Gen. Stat. § 8C-1, Rule 404(a)(1).
Rule 405 provides the options available to proving character:
(a) Reputation or opinion. -- In all cases in
which evidence of character or a trait of
character of a person is admissible, proof may
be made by testimony as to reputation or by
testimony in the form of an opinion. On
cross-examination, inquiry is allowable into
relevant specific instances of conduct.
Expert testimony on character or a trait of
character is not admissible as circumstantial
evidence of behavior.
(b) Specific instances of conduct. -- In cases
in which character or a trait of character of
a person is an essential element of a charge,
claim, or defense, proof may also be made of
specific instances of his conduct.
N.C. Gen. Stat. § 8C-1, Rule 405. Under Rule 405, the State may
question the defense witness's basis for the favorable testimony by
asking, did you know, or have you heard about specific
instances of the defendant's conduct. See id.; see also N.C. Gen.
Stat. § 8C-1, Rule 608(b) (2003) (cross examination permitted only
for questions probative of truthfulness).
Here, Murray testified solely to the credibility of Je.P. and
Jo.P. Defendant did not proffer opinion or reputation testimony of
his good character through Murray as permitted under Rules 404 and
405. See State v. Powell, 340 N.C. 674, 691, 459 S.E.2d 219, 227
(1995), cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688 (1996).
Rather, Murray's testimony was offered to impeach the State's
primary witnesses. Murray made no mention of defendant's character
until the State initiated the inquiry on cross-examination.
Murray: Me and [defendant] were like
off and on. We didn't have a
steady relationship. We were
off and on.
State: But you just said you dated him
for three and a half years?
Murray: We did. Everybody have their
problems. We break up, go back
together, break up, go back
State: So you're saying Mr. Thaggard
wouldn't do anything like this?
State: Your Honor, may I approach?
. . . .
State: Ms. Murray --
State: -- do you know Mr. Thaggard was
The Court: Overruled.
State: -- of taking indecent liberties
with a child?
The Court: Overruled.
State: Do you know he was convicted of
two counts of taking indecent
liberties with a child?
This was an impermissible admission into evidence of
defendant's prior convictions. The victims' characters, not
defendant's, were placed in issue by Murray's testimony. Any
inquiries into Murray's credibility regarding her testimony should
have been limited as such. We further note that, in moving the
trial court for admission of C.W. and N.W.'s testimony concerning
the underlying facts of the prior indecent liberties convictions,
the State specifically declared, The State's not going to attempt
to bring in the actual convictions through these young ladies. The trial court erred in permitting the State to introduce evidence
of defendant's previous convictions through Murray.
C. Prejudicial Error
Defendant contends the error was prejudicial in that it
changed trial tactics and forced him to testify. He further
asserts that by taking the stand, he was forced to answer
additional questions about the prior convictions, which created a
reasonable possibility that the jury returned a different verdict
after listening to the prior convictions evidence. State v. Brown,
101 N.C. App. 71, 80, 398 S.E.2d 905, 910 (1990). We disagree.
We have already determined the admission of C.W. and N.W.'s
testimony concerning the previous sexual abuse by defendant was
proper under Rule 404(b). The same reasoning also applies here.
The State presented a wealth of testimonial and physical evidence
implicating defendant as the perpetrator of the crimes against
Je.P. and Jo.P. The trial court gave a lengthy limiting
instruction prior to C.W. and N.W. testifying that the Rule 404(b)
evidence could not be used to show defendant acted in conformity
with it to commit the crimes at bar. The court's jury instructions
prior to deliberation ensured that any evidence pertaining to
defendant's prior convictions of taking indecent liberties with
children was to be considered solely for the Rule 404(b) factors:
identity, motive, intent, or common scheme.
We hold the admission of defendant's prior crimes through
Murray and defendant's subsequent decision to testify in response
to the evidence is not prejudicial error in light of the
considerable amount of other evidence against defendant. In
addition, the trial court twice provided the jury limiting
instructions concerning the use of the Rule 404(b) evidence.
VIII. Review of Juvenile Records
 Defendant argues the trial court erred in not providing
him complete access to the victims' juvenile records. We disagree.
In Pennsylvania v. Ritchie, the Supreme Court of the United
States held that a defendant may request the trial court to conduct
an in camera review of juvenile records created during the
investigation of a victim's complaint. 480 U.S. 39, 58, 94 L. Ed.
2d 40, 58 (1987). The purpose is to protect the defendant's due
process rights by access, through the trial court, of files that
may contain information material to his guilt or punishment. Id.;
Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963).
However, in the interest of protecting the minors involved, defense
counsel is prohibited from personally combing through the files.
Our Supreme Court ruled in State v. Hardy,
since realistically a defendant cannot know if
a statement of a material State's witness
covering the matters testified to at trial
would be material and favorable to his
defense, Brady [373 U.S. 83, 10 L. Ed. 2d 215]
and Agurs [United States v. Agurs, 427 U.S.
97, 49 L. Ed. 2d 342 (1976)] require the judge
to, at a minimum, order an in camera
inspection and make appropriate findings of
fact. As an additional measure, if the judge,
after the in camera examination, rules against
the defendant on his motion, the judge should
order the sealed statement placed in the
record for appellate review.
293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977) (citing State v.
Chavis, 24 N.C. App. 148, 176-84, 210 S.E.2d 555, 574-78 (1974)).
On appeal, the appellate court is required to examine the
sealed records to determine whether they contain information that
is favorable and material to an accused's guilt or punishment.
Ritchie, 480 U.S. at 57, 94 L. Ed. 2d at 57 (citations omitted).
'Favorable' evidence includes evidence which tends to exculpatethe accused, as well as 'any evidence adversely affecting the
credibility of the government's witnesses.' State v. McGill, 141
N.C. App. 98, 102, 539 S.E.2d 351, 355 (2000) (quoting U.S. v.
Trevino, 89 F.3d 187, 189 (4th Cir. 1996)). Evidence 'is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different. A 'reasonable probability' is a probability
sufficient to undermine confidence in the outcome. Ritchie, 480
U.S. at 57, 94 L. Ed. 2d at 57 (quoting U.S. v. Bagley, 473 U.S.
667, 682, 87 L. Ed. 2d 481, 494 (1985)).
A defendant is not entitled to a new trial based on trial
errors unless such errors were material and prejudicial. State v.
Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). A
constitutional rights violation is prejudicial unless this Court
finds that it was harmless beyond a reasonable doubt. N.C. Gen.
Stat. § 15A-1443(b) (2003).
Here, the trial court reviewed the victims' juvenile records
upon defendant's motion and determined there was nothing defendant
was entitled to see. Under Ritchie and Hardy, this Court
thoroughly reviewed the juvenile files for both victims provided in
the record. The record included medical examination reports, DSS
progress updates, evaluations by social workers, updates from
foster homes, status reports from Falcon Children's Home, and legal
documentation regarding the victims' removal from their father's
We conclude the trial court properly withheld the files from
defendant. They do not contain information material to defendant's
case and no reasonable probability exists that the result of the
proceeding would have been different. Bagley, 473 U.S. at 682, 87L. Ed. 2d at 494. The documentation further corroborated the facts
of the case. This assignment of error is overruled.
IX. Motions to Dismiss
 Defendant contends the trial court erred in denying his
motions to dismiss for insufficiency of the evidence. We disagree.
The standard of review for a motion to dismiss in a criminal
trial is, Upon defendant's motion for dismissal, the question for
the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant's being the perpetrator of
such offense. If so, the motion is properly denied. State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
Evidence is substantial if it is relevant and adequate to
convince a reasonable mind to accept a conclusion. State v. Vick,
341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995) (citing State v.
Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). If
substantial evidence, whether direct, circumstantial, or both,
supports a finding that the offense charged has been committed and
that the defendant committed it, the motion to dismiss should be
denied and the case goes to the jury. State v. Williams, 319 N.C.
73, 79, 352 S.E.2d 428, 432 (1987) (quoting State v. Young, 312
N.C. 669, 680, 325 S.E.2d 181, 188 (1985)). But, if the evidence
is sufficient only to raise a suspicion or conjecture as to either
the commission of the offense or the identity of the defendant as
the perpetrator of it, the motion should be allowed. Powell, 299
N.C. at 98, 261 S.E.2d at 117 (citations omitted). In considering a motion to dismiss, the trial court must
analyze the evidence in the light most favorable to the State and
give the State the benefit of every reasonable inference from the
evidence. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199
(1995). The trial court must also resolve any contradictions in
the evidence in the State's favor. State v. Lucas, 353 N.C. 568,
581, 548 S.E.2d 712, 721 (2001). The trial court does not weigh
the evidence, consider evidence unfavorable to the State, or
determine any witnesses' credibility. Id. It is concerned only
with the sufficiency of the evidence to carry the case to the
jury. State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236
(1983). Ultimately, the court must decide whether a reasonable
inference of defendant's guilt may be drawn from the circumstances.
Powell, 299 N.C. at 99, 261 S.E.2d at 117.
The jury found defendant to be guilty of three crimes. The
first two were the statutory rape and the sexual offense of Jo.P.
North Carolina defines these two crimes as vaginal intercourse or
a sexual act with another person who is 13, 14, or 15 years old and
the defendant is at least six years older than the person, except
when the defendant is lawfully married to the person. N.C. Gen.
Stat. § 14-27.7A(a) (2003). The record indicates that Jo.P. was
fourteen years old, defendant was thirty-six years old, and they
were not lawfully married at the time of the incident. Further
evidence in the case, considered in the light most favorable to the
State, tended to show defendant forced Jo.P. to engage in vaginal
and anal intercourse. This evidence was based on Jo.P.'s
testimony, corroborative testimony by the State's witnesses, and
physical evidence. Third, defendant was convicted of taking indecent liberties
with a minor, Je.P. The elements are: (1) the defendant was at
least 16 years of age; (2) he was five years older than his victim;
(3) he willfully took or attempted to take an indecent liberty with
the victim; (4) the victim was under 16 years of age at the time
the alleged act or attempted act occurred; and (5) the action by
the defendant was for the purpose of arousing or gratifying sexual
desire. State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 579
(1987) (citing State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806
(1986)); N.C. Gen. Stat. § 14-202.1(a) (2003).
At the time of the alleged incident, Je.P. was twelve and
defendant was over the age of sixteen and at least five years older
than Je.P. Additional evidence considered in the light most
favorable to the State showed Je.P. awoke after passing out to find
defendant on top of her. Both Je.P.'s and defendant's pants and
underwear were pulled down. Je.P. later experienced pain in her
vaginal and anal areas. Dr. Cooper determined from a medical exam
that Je.P. was both physically and mentally injured by
nonconsensual sexual abuse.
Defendant contends the victims' and the corroborative
testimonies are contradictory and lack credibility. Our Supreme
Court has held that the credibility of and the weight given to a
witness's testimony is determined by the jury, not the court.
State v. Upright, 72 N.C. App. 94, 100, 323 S.E.2d 479, 484 (1984),
cert. denied, 313 N.C. 610, 332 S.E.2d 82 (1985); see also State v.
Miller, 270 N.C. 726, 730-31, 154 S.E.2d 902, 904-05 (1967).
Contradictions and inconsistencies are credibility factors the jury
considers and are not grounds for dismissal. State v. Benson, 331N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (quoting State v.
Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982)). Defendant
was provided the opportunity and attempted to impeach witnesses
through cross-examination, his testimony, and the testimony of his
We hold that the State presented sufficient evidence that
defendant committed statutory rape and sexual offense against Jo.P.
and took indecent liberties with a minor, Je.P., to withstand
defendant's motions to dismiss. The record and transcripts are
replete with substantial evidence to warrant consideration of the
charges by the jury. The jury has the ultimate responsibility of
determining the credibility of and weight given to the evidence.
This assignment of error is overruled.
The trial court did not err in: (1) allowing C.W. and N.W. to
testify about past sexual abuse by defendant; (2) permitting
Investigator Morley to testify that Jo.P. and Je.P.'s in-court
testimony was consistent with their previous statements to him; (3)
not allowing defendant to gain complete access to the victims'
juvenile records; and (4) denying defendant's motions to dismiss
the charges for insufficiency of the evidence. Defendant did not
suffer prejudicial error by the trial court allowing: (1) Dr.
Cooper to testify that she did not believe the victims' conspired
to testify against defendant; and (2) the State to ask Murray about
defendant's prior convictions. Defendant received a fair trial
free from prejudicial errors he assigned and argued.
No prejudicial error.
Judges TIMMONS-GOODSON and GEER concur.
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