NO. COA03-1549
On appeal defendant raises three issues: whether the trial
court erred by (I) allowing Dr. Sinal to testify that C.M. and hertwo sisters had been sexually assaulted; (II) finding Cynthia
Stewart to be an expert in the field of interviewing child abuse
victims and allowing her to give opinions concerning the
characteristics of sexually abused children; and (III) not imposing
sanctions against the State for alleged discovery violations.
In defendant's first two assignments of error, defendant has
failed to properly preserve the issues for appellate review
pursuant to N.C. R. App. P. 10(b)(1). “In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.” N.C.
R. App. P. 10(b)(1) (2003).
As to issue (I), after extensive testimony from Dr. Sinal,
defendant lodged only one objection to Dr. Sinal's testimony:
regarding defendant's sexual acts as to C.M.'s sister, C.W.
However, the testimony to which defendant objected had already been
admitted.
See State v. Pate, 62 N.C. App. 137, 139, 302 S.E.2d
286, 288 (1983) (evidence admitted over objection after the same
evidence had been previously admitted or is later admitted without
objection loses the benefit of the objection);
State v. Whitley,
311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (same). As to issue
(II), defendant did not object at trial to the admission of CynthiaStewart's expert opinion testimony concerning the characteristics
of a sexually abused child. N.C. R. App. P. 10(b)(1) (2003).
Further, we note while defendant argues plain error in his brief as
to both issues, he has failed to “specifically and distinctly”
allege plain error in the record on appeal and we therefore dismiss
defendant's assignments of error (I) and (II). N.C. R. App. P.
10(c)(4) (2003);
State v. Flippen, 349 N.C. 264, 276, 506 S.E.2d
702, 710 (1998) (defendant failed to allege plain error in his
assignments of error, subjecting issue to dismissal);
State v.
Bell, 359 N.C. 1, 27-28, 603 S.E.2d 93, 111 (2004);
State v.
Robinson, 355 N.C. 320, 332, 561 S.E.2d 245, 253 (2002);
State v.
Ward, 354 N.C. 231, 263, 555 S.E.2d 251, 271-72 (2001);
State v.
Allen, 346 N.C. 731, 740-41, 488 S.E.2d 188, 193 (1999).
In his final assignment of error, defendant argues that the
trial court erred in not imposing sanctions allowable under N.C.
Gen. Stat. § 15A-910 (2003) against the State pursuant to N.C. Gen.
Stat. § 15A-903(a)(2) (2002), which states in pertinent part:
§ 15A-903. Disclosure of evidence by the State
-- Information subject to disclosure (a)
Statement of Defendant. -- Upon motion of a
defendant, the court must order the
prosecutor:
. . .
(2) To divulge, in written or recorded form,
the substance of any oral statement relevant
to the subject matter of the case made by thedefendant, regardless of to whom the statement
was made, within the possession, custody or
control of the State, the existence of which
is known to the prosecutor or becomes known to
him prior to or during the course of trial
. . . . If the statement was made to a person
other than a law-enforcement officer and if
the statement is then known to the State, the
State must divulge the substance of the
statement no later than 12 o'clock noon, on
Wednesday prior to the beginning of the week
during which the case is calendared for trial.
If disclosure of the substance of defendant's
oral statement to an informant whose identity
is or was a prosecution secret is withheld,
the informant must not testify for the
prosecution at trial.
Defendant contends that the State should have been sanctioned
for failing to timely inform defendant of the intention to use
statements by the defendant to C.M., her sisters and her mother.
These statements included defendant's threats of harm made to the
victims if they disclosed acts of sexual abuse. Defendant moved to
exclude these statements because the State served notice to the
defendant at 2:44 p.m., rather than 12:00 noon, on the Wednesday
before trial, pursuant to N.C.G.S. § 15A-903(a)(2).
After hearing arguments regarding defendant's motion, the
trial court made the following findings:
The [c]ourt finds that some of the statements
that were made that the defendant had earlier
notice that there was a generalized mention of
threats; that the district attorney's filing
these matters at 2:44 p.m. on Wednesday, May
14th instead of 12:00 noon on Wednesday, May
14th, 2003 did not prejudice the defendant. The motion to exclude the statements revealed,
the motion's denied and [defendant's]
exception is noted.
“The decision as to which sanctions to apply, or whether to
apply any sanctions at all, rests within the trial court's
discretion.”
State v. Carson, 320 N.C. 328, 335, 357 S.E.2d 662,
667 (1987). “The trial court may be reversed for an abuse of
discretion in this regard only upon a showing that its ruling was
so arbitrary that it could not have been the result of a reasoned
decision.”
Id. Even if a prosecutor's actions constitute a
discovery violation, a trial judge still retains broad discretion
to determine if sanctions are appropriate; unless the trial judge
abuses that discretion, the decision will not be reversed.
State
v. Nolen, 144 N.C. App. 172, 184, 550 S.E.2d 783, 791 (2001). The
determination of appropriate sanctions for a discovery order
violation is within the trial court's sound discretion.
State v.
Lopez, 101 N.C. App. 217, 220, 398 S.E.2d 886, 888 (1990).
A district attorney's failure to timely disclose evidence
under this section does not automatically require the exclusion of
the undisclosed evidence. “A variety of sanctions is authorized by
[N.C.]G.S. § 15A-910, and the choice of which to apply -- if any --
rests entirely within the discretion of the trial judge [and] will
not be reversed except for abuse of that discretion.”
State v.
Stevens, 295 N.C. 21, 38, 243 S.E.2d 771, 781 (1978);
See State v.Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988) (trial court is
not
required to impose any sanctions for abuse of discovery orders; the
question of what sanctions to impose, if any, is within the trial
court's discretion, including whether to admit or exclude evidence
not disclosed in accordance with a discovery order) (emphasis
added).
When a party fails to comply with discovery procedures, the
trial court may grant a continuance or a recess, prohibit the
violating party from introducing the non-disclosed evidence, or
enter any other appropriate order. N.C.G.S. § 15A-910 (2003).
Here, the trial court did not abuse its discretion by denying
defendant's motion. Where defendant knew of threats at an earlier
time and where discovery was provided within three hours of the
time required by statute, defendant can show no prejudice.
No error.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1