STATE OF NORTH CAROLINA
v. Onslow County
No. 02 CRS 51810
DANIEL ANTHONY BERARDUCCI
Attorney General Roy Cooper, by Assistant Attorney General
Jane Rankin Thompson, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for
defendant-appellant.
CALABRIA, Judge.
On 7 October 2002, defendant Daniel Anthony Berarducci was
indicted on charges of taking indecent liberties with a child and
assault on a child under 12. The case was tried at the 9 June 2003
Criminal Session of Onslow County Superior Court.
The evidence at trial tended to show the following: On 23
February 2002, defendant Daniel Anthony Berarducci went out with
his friend, Daniel Preston, and also Kimberly Johnson. Johnson's
husband, Randy Johnson, from whom she was separating, stayed home
with their two children. During the evening, Preston and defendant
became intoxicated, so after returning to the Johnson's home at
approximately 5:00 a.m., Preston and defendant were invited to stayover so that they would not drive. The following sleeping
arrangements were made: Mr. Johnson slept on the couch; Ms. Johnson
slept in her own bed; their two children slept in one room, and
defendant and Preston slept together in another room.
Mr. Johnson later heard a “ruckus” coming from the kids'
bedroom and went to check on them. Mr. Johnson found his eight-
year-old-daughter sitting up in bed crying, and he spotted
defendant “peeking around her wall into the room.” The daughter
told Mr. Johnson that defendant tried to kiss her. Mr. Johnson
told defendant and Preston to leave and then went to check again on
his daughter to make sure she was okay. She said, “There's more.”
“He tried to pull down my pants, touched my privates, and wanted me
to touch his.” Mr. Johnson told Ms. Johnson what happened and told
her to call the police. Mr. Johnson then grabbed a butcher knife
and told defendant not to leave the area. Defendant got in his car
and started to drive away, and Mr. Johnson got in his car and
chased him. Eventually, the sheriff pulled both men over, told Mr.
Johnson to drop the knife, and arrested defendant.
Defendant was convicted of taking indecent liberties with a
child but was found not guilty of assault on a child under the age
of twelve. He was sentenced to a term of sixteen to twenty months'
imprisonment. Defendant appeals.
I. Motion in Limine
We first consider whether the trial court erred by granting
the State's motion in limine and refusing to allow defendant to
introduce an exculpatory statement he made to Juvenile DetectivePam Sanders (“Detective Sanders”). Defendant chose not to take the
stand, but made an offer of proof that he told Detective Sanders he
did not recall going into the bedroom where Mercedes was sleeping
or leaving the room he was sharing with Preston. Defendant
contends that the statement should have been admitted as a present
sense impression. We disagree.
Rule 803(1) provides for an exception to the hearsay rule for
a present sense impression _ “A statement describing or explaining
an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter.” N.C. Gen. Stat. §
§ 8C-1, Rule 803(1). “The basis of the present sense impression
exception is that closeness in time between the event and the
declarant's statement reduces the likelihood of deliberate or
conscious misrepresentation.” State v. Pickens, 346 N.C. 628, 644,
488 S.E.2d 162, 171 (1997) (citing State v. Gainey, 343 N.C. 79,
86, 468 S.E.2d 227, 232 (1996)). “'[T]here is no per se rule
indicating what time interval is too long under Rule 803(1). . . .
[A]dmissibility of statements under hearsay exceptions depends upon
the facts of the particular case.'” State v. Cummings, 326 N.C.
298, 314, 389 S.E.2d 66, 75 (1990) (quoting United States v.
Blakey, 607 F.2d 779, 785 (7th Cir. 1979)). “Under the identical
Federal Rule, the lapse of time allowable appears to be very
small.” State v. Odom, 316 N.C. 306, 313, 341 S.E.2d 332, 336
(1986) (citations omitted).
In the case sub judice, approximately three hours passed
between the alleged incident and defendant's statement to DetectiveSanders. Three hours is not “immediately thereafter,” and does not
reduce the likelihood of deliberate or conscious misrepresentation.
The statement was not a present sense impression that would satisfy
an exception to the hearsay rule. Accordingly, the assignment of
error is overruled.
II. Denial of Motion to Dismiss
Defendant next argues that the trial court erred by denying
his motion to dismiss. Defendant contends that there was
insufficient evidence of his age to sustain the conviction.
Defendant further argues that his high level of intoxication
negated the element of the offense that his actions were for the
purpose of sexual gratification.
After careful review of the record, briefs, and contentions of
the parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). “'Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When
reviewing the sufficiency of the evidence, “[t]he trial court must
consider such evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439
S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 236,
400 S.E.2d 57, 61 (1991)). In the instant case, defendant was charged with taking
indecent liberties with a minor. In order to convict the
defendant, the State must prove:
(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, 580 (1987)
(citing State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806 (1986)).
Defendant argues that the State failed to prove the first and fifth
elements of the offense. However, Deputy Holden testified that
defendant told him he was born on 13 August 1980, which would have
made defendant 21 on the day of the alleged incident. Defendant
did not dispute this evidence. Furthermore, the victim testified
that she woke up to find defendant touching her private area under
her clothes. She stated that defendant kissed her on the neck,
grabbed her hand and tried to make her touch his private area
underneath his clothes. A jury could properly infer from this
testimony that defendant's actions were for the purpose of arousing
or gratifying sexual desire. Id. at 105, 361 S.E.2d at 580.
Accordingly, we conclude the trial court did not err in denying the
motion to dismiss.
Defendant next argues that the trial court committed plain
error by prematurely instructing the jury on further deliberations
pursuant to G.S. 15A-1235. Defendant contends that the trial courtshould not have given the “dynamite charge” where there was no
indication that the jury was deadlocked. We are not persuaded.
In the case sub judice, the jury had been deliberating
approximately two hours. In State v. Adams, 85 N.C. App. 200, 210,
354 S.E.2d 338, 344 (1987), this Court found no abuse of discretion
where the trial court instructed the jury pursuant to N.C. Gen.
Stat. § 15A-1235(c) after the jury had been deliberating less than
two hours. Furthermore, this Court noted that even assuming
arguendo that the instruction was in error, there was no prejudice
to defendant “where the record provided no indication that the jury
was deadlocked in its deliberations or in any other way open to
pressure by the trial judge to force a verdict.” Id. Similarly,
here, there is no evidence in the record that the jury was
deadlocked or subject to coercion. When instructing the jury, the
trial court specifically stated that it was not trying to force the
jury to reach a verdict. Accordingly, we find no error.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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