State v Evans, 168 NC App 730 (03-1693) 03/01/2005

Appeal by defendant from judgments entered 11 September 2002 by Judge Jack W. Jenkins in Orange County Superior Court. Heard in the Court of Appeals 13 October 2004.

Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State.

Duncan B. McCormick for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals after a jury found him guilty of one count of first-degree sexual offense and five counts of indecent liberties with a child. The State's evidence tended to show that John Pritchard was the pastor of Calvary Independent Baptist Church in Timberlake, North Carolina. Defendant was a member of the church. Many of the children in the church gravitated to defendant and viewed him as a grandfather figure. Defendant sat with children at church, gave them candy and presents, and invited them to his house. Some of the children even spent the night at defendant's house. Three of the accusers in this case, R.P., H.P, and E.P., are sisters who visited defendant frequently.    R.P. began visiting defendant when she was six or seven years old. R.P. alleged that defendant engaged in a number of inappropriate sexual acts with her including: masturbating her private parts, undressing in front of her, showing her his penis, ejaculating in her presence, and making her touch his penis. R.P. stated that these types of activities occurred between 200-300 times.
    There were other alleged improprieties. R.P. claimed that defendant took her into his sauna, removed his clothes, and made her touch his penis while he ejaculated. Defendant described what intercourse was, told her that she was special, and made her rub his sperm on her like hand lotion. He also told her that there was a container of the hand lotion on the sink if she wanted more. On another occasion, defendant masturbated R.P.'s genitals to the point that she wet the bed.
    R.P. claimed that defendant used a blanket so no one could see him masturbating her underneath. R.P. believed that defendant's conduct was her fault. Although defendant never warned R.P. not to tell anyone, he did suggest that R.P. pray about it because “God would forgive” her. For a long time, R.P. never told anyone because she was afraid.
    H.P. also testified about visiting defendant's house. She described numerous incidents in which defendant put his hand in her underpants and rubbed her privates. H.P. said that this happened over 100 times, and like her sister, she was afraid to tell anyone.     E.P. recounted an incident that occurred right before she started seventh grade. While E.P. was watching television, defendant put his fingers inside her vagina and moved them back and forth. There was a blanket over her. E.P. never told anyone because she was afraid that she would get in trouble. She also thought it was her fault.
    On 28 August 2001, the accusers' father received a phone call that prompted him to ask his daughters if anyone had ever touched them inappropriately. In response to this question, R.P. bit her upper lip, looked up at the ceiling, and began to cry profusely. H.P. sat stiff like a statue, and E.P. began to pull on her hair. All of the girls identified defendant as the culprit, but they were reluctant to give details. At that point, the girls' father allowed them to speak to “Nana,” their great aunt.
    “Nana” recounted the conversations she had with the girls. Her testimony mirrored the details the girls gave at trial, including specific references to the blanket and the hand lotion.     The girls also met with medical professionals, social workers, and law enforcement officers and described symptoms which were consistent with having been sexually abused.
    T.B., age 15 at trial, was a friend of E.P. and H.P. and a member of the church. T.B. also spent time at defendant's house and described one incident in which defendant touched her breasts. She also mentioned other incidents and defendant's use of blankets when he was sitting with the girls.     After the allegations surfaced, T.B.'s mother asked her about it. T.B. was scared and denied that anything happened. Eventually, T.B. told her sister who in turn told her mother.
    Defendant did not testify, but he did present some evidence. His wife, Betty Evans, testified that she did not see any inappropriate touching. Two other witnesses, Bruce Peters and Donna Walker, testified that they knew defendant well. They also stated that he had a good reputation for truthfulness.
    After hearing all of the evidence, the jury found defendant guilty as charged. Defendant appeals.
    On appeal, defendant argues that the trial court erred by (1) failing to exclude two jurors, (2) erroneously admitting letters defendant wrote, and (3) refusing to dismiss the case because the indictment was defective. We disagree and conclude that defendant received a fair trial free from reversible error.

    Defendant argues that the trial court erred in failing to exclude two jurors. He claims that juror number 12, Anita Wilson, should have been excused for telling another juror that she had heard enough and was ready to go home. Similarly, defendant suggests that juror number 4, Kevin Keller, should have been excluded because defendant's brother backed his truck into Keller's truck during the course of the trial.
    “Once a jury has been impaneled, any further challenge to a juror is a matter within the trial court's sound discretion.” State v. Conaway, 339 N.C. 487, 518, 453 S.E.2d 824, 844, cert.denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). To establish reversible error, defendant must show prejudice and an abuse of discretion. State v. Meyer, 353 N.C. 92, 109, 540 S.E.2d 1, 11 (2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 54 (2001).     In this case, the trial judge cleared the courtroom and made an inquiry regarding the allegations involving juror number 12, Anita Wilson. The trial judge questioned the woman who claimed to hear the statement, the juror who allegedly heard the statement, and Anita Wilson, the juror who allegedly made the statement. Under oath, Wilson testified that she may have made statements such as, “I wonder how long we are going to be here” because she had concerns about child care and scheduling matters. However, Wilson also indicated that she had not made up her mind on the question of defendant's guilt or innocence and believed it was her “duty to see this through to the end.” Based on this testimony, the trial judge declined to excuse this juror.
    We believe that the trial judge made the proper inquiry and acted appropriately. Evidence in the record revealed that Wilson was concerned about child care issues and other inconveniences. Although she may have been worried about scheduling matters, Wilson did not make a judgment regarding defendant's guilt or innocence. Furthermore, Wilson acknowledged the importance of completing her service as a juror. Under these circumstances, defendant has not shown that the trial judge abused his discretion in failing to excuse juror number 12.    Defendant also believed that juror number 4, Kevin Keller, should have been excused after defendant's brother backed his truck into Keller's truck. Once again, the trial judge cleared the courtroom and questioned the juror. Under oath, Keller indicated that there was nothing about the incident that would impair his ability to be a fair and impartial juror. Defendant did not present any evidence which tended to refute this assertion. As was the case with the decision regarding juror number 12, there is no evidence that the trial judge abused his discretion in refusing to exclude juror number 4. We overrule this assignment of error.

    Defendant argues that the trial court erred in admitting incriminating letters that defendant wrote to Reverend Pritchard because the letters were written in the course of plea negotiations. He also contends that his right to effective assistance of counsel was violated because his attorney encouraged him to send the letters.
    The record shows that defendant wrote two letters to Reverend Pritchard admitting that he had sinned and made a bad mistake. Later, defendant submitted an affidavit stating that he had written the letters at the direction of his attorney at the time. In contrast, the prosecution argued that defendant wrote the letters after plea negotiations had ended and against the advice of defendant's attorney at the time. The trial judge also questioned defendant's attorney. However, defendant's attorney refused to explain the circumstances surrounding the letters because hisremarks would be harmful to defendant. Later, the trial judge admitted the letters into evidence.
    We do not believe that defendant has made a persuasive argument regarding the inadmissibility of the letters. However, even if we assume arguendo that the letters were improperly admitted, defendant would not be entitled to a new trial. “Not 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 defendant.” Id.
    In this case, there is not a reasonable possibility that a different result would have been reached even if the letters had been excluded. Here, the evidence of defendant's guilt was overwhelming. The State's evidence tended to show that defendant acted inappropriately with multiple victims on multiple occasions. In fact, four victims testified about defendant's misconduct over a long period of time. Testimony from health professionals and law enforcement officers substantiated the accusers' claims, and the accusers had symptoms that were consistent with sexual abuse. In light of this overwhelming evidence, the admission of the letters did not amount to prejudicial error warranting a new trial.    Defendant claims that the performance of his counsel was ineffective and that the result in this case is therefore unreliable. “A defendant's right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness.” Id. at 561-62, 324 S.E.2d at 248. To meet this burden, defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced defendant. Id. at 562, 324 S.E.2d at 248. A reversal is not warranted “unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.” Id. at 563, 324 S.E.2d at 248.
    The record regarding the conduct of defendant's attorney is incomplete. It is not clear whether counsel's performance was deficient because there are different accounts regarding when and why defendant sent the letters. Furthermore, even if there was a deficient performance, defendant has not been prejudiced. We have already determined that there is not a reasonable possibility that a different result would have been reached even if the letters were not part of this case. Therefore, we reject this assignment of error.

    Defendant argues that the trial court should have dismissed this case because the indictment was defective. However, in hisbrief, defendant admits that the short form indictment used in this case complies with N.C. Gen. Stat. § 15-144.2 (2003). Defendant “also acknowledges that the constitutionality of the short-form indictment used in this case had been upheld.” See State v. Shepherd, 156 N.C. App. 69, 72, 575 S.E.2d 776, 778 (2003) (noting that short-form indictments, including those for first-degree sexual offense, that comply with the statutes authorizing short-form indictments but fail to allege all the elements of the crime charged are constitutional). Therefore, we dismiss this assignment of error.
    After carefully reviewing the record, briefs, and transcript, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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