STATE OF NORTH CAROLINA
v
.
Wake County
No. 02 CRS 82787-93
THOMAS WESLEY WHEELER
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
defendant-appellant.
STEELMAN, Judge.
Defendant, Thomas Wesley Wheeler, appeals his convictions for
five counts of first degree sexual offense and five counts of
taking indecent liberties with a minor. For the reasons discussed
herein, we affirm the trial court.
The evidence at trial tended to show the victims, identified
here as A.B. and P.D., were half-sisters and defendant's nieces by
marriage. The girls mother, C.D., was defendant's sister-in-law.
Defendant and his family moved to North Carolina around May or June
of 1997 so that his wife could be closer to her sister, C.D. A.B.,
whose mother was divorced from her father, J.M. (father), stayed
with her mother and sister during the week, and spent most weekendswith her father. The girls also spent a lot of time at the
defendant's home, with him and their three cousins, who at the time
of trial were ages twelve, eleven and eight. Defendant babysat
A.B. and P.D as many as three or four days a week while their
mother was working. During the time defendant babysat the girls,
his wife, the victims' aunt, was rarely at home.
At trial, A.B. testified that defendant first began touching
her inappropriately when the family had gone on a camping trip in
the summer of 1998. While on the camping trip, she said defendant
slept in the same tent as her sister, her three cousins, and
herself. While A.B. tried to go to sleep, she testified that
defendant began touching her “in places he wasn't supposed to.”
She said he stuck his hand down the back of her pants and touched
her private parts. She also said he made her touch his “front
private parts.”
A.B. testified that after the camping trip, defendant would
touch her inappropriately almost every time that she was at his
house. She said defendant would sometimes touch her in her private
parts with his fingers and with his mouth while they were in the
living room on the couch. A.B. testified two of her cousins would
often be in the living room playing video games while defendant was
touching her. However, her cousins denied that they ever saw their
father act inappropriately towards the girls. A.B. said defendant
had also taken her to his bedroom and performed those same acts
upon her. This continued until A.B. was seven years old. A.B. told her
sister, P.D., about defendant touching her, and P.D. admitted that
defendant had being doing the same type of things to her. In July
2002, the girls told their father, J.M. about what defendant had
being doing to them. J.M. took the girls to Cary Pediatrics to
have the girls examined for sexual abuse. They were referred to
Wake Medical Center to be examined by a more qualified physician.
The results from the physical exams were inconclusive as to whether
the girls had been abused.
On 19 August 2002, A.B. met with Nivien Ibrahim Carey (Carey),
a licensed clinical social worker, who testified at trial as an
expert in child sexual abuse. Carey testified that the girls
exhibited characteristics that could be related to sexual abuse.
Defendant was indicted for five counts of first degree sex offense
and five counts of taking indecent liberties with a minor. These
matters were tried before a jury, which found defendant guilty of
all charges. The trial court sentenced defendant to five
consecutive sentences of 288 to 355 months for the first degree
sexual offenses and five consecutive sentences of nineteen to
twenty-three months for the indecent liberties charges. Defendant
appeals.
In defendant's first assignment of error, he contends the
trial court violated his constitutional rights when it overruled
his objection to closing the courtroom while the victims testified
without making the necessary findings that the closing was
appropriate. Our Supreme Court “has long held that where a theory argued on
appeal was not raised before the trial court, 'the law does not
permit parties to swap horses between courts in order to get a
better mount'” in the reviewing appellate court. State v. Sharpe,
344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring,
207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). See also State v.
Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11 (applying “no
swapping horses” rule where the defendant objected on one theory at
trial to denial of his request for an instruction and then asserted
a different theory on appeal).
At trial, the State requested the courtroom be cleared of all
bystanders and other witnesses, including defendant's wife, while
P.D. and A.B., ages seven and eight, testified. The transcript
shows that defense counsel objected to the trial court's decision
to remove defendant's wife from the courtroom during the girl's
testimony, while allowing the State's lead investigator to remain.
Defense counsel had no objection whatsoever to the courtroom being
closed to extraneous witnesses during the testimony of the girls,
in fact he stated “[a]s far as extraneous witnesses, I don't have
any problem with that.” In defendant's brief, however, he
contends, for the first time, that the trial court's error was in
failing to make findings of fact on the record to show the closure
of the courtroom was appropriate, and this violated his
constitutional right to a fair and public trial, not that the lead
investigator was allowed to remain, while defendant's wife had to
leave the courtroom when the girls testified. See Anderson v.Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (noting that
“[a] constitutional issue not raised at trial will generally not be
considered for the first time on appeal). Furthermore, the trial
court is not required to make specific findings of fact where the
defendant consents to the closure of the courtroom, as occurred in
this case. State v. Starner, 152 N.C. App. 150, 154, 566 S.E.2d
814, 817 (2002), certiorari. denied, 356 N.C. 311, 571 S.E.2d 209
(2002).
Based on the above stated principles, defendant cannot make
for the first time on appeal a different argument than he made
before the trial court. This assignment of error is without merit.
In defendant's second assignment of error he contends the
trial judge's statements to one of the victims, A.B., during the
trial constituted an impermissible expression of opinion about her
credibility, prejudicing defendant, and thus requiring a new trial.
On the first day of trial, the trial judge questioned eight-
year-old A.B. to determine whether or not she understood what it
meant to tell the truth in order to ascertain whether she was
competent to testify. A.B.'s testimony was not concluded that day
and the trial judge recessed for the night. The next day, before
A.B. continued testifying, the following exchange occurred between
the trial judge and A.B.:
THE COURT: [A.B.], if you will come back up
here and have a seat, please. Now, [A.B.],
you need to tell the truth today like you did
yesterday.
THE WITNESS: Okay.
THE COURT: Okay?
THE WITNESS: Um-hum.
While defendant did not object to this statement at trial, he
was not required to do so in order to preserve this issue for
appeal. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97
(1989). This is so because the prohibitions against a trial judge
expressing their opinion contained in N.C. Gen. Stat. § 15A-1222
and N.C. Gen. Stat. § 15A-1232, are mandatory. Id. As a result,
we consider the merits of this issue.
During any stage of a trial, the trial judge is prohibited
from expressing “any opinion in the presence of the jury on any
question of fact to be decided by the jury.” N.C. Gen. Stat. §
15A-1222 (2004). This prohibition includes opinions regarding the
credibility of a witness. State v. Hensley, 120 N.C. App. 313,
320-21, 462 S.E.2d 550, 554 (1995). Nevertheless, not every
improper comment by the trial judge will result in prejudicial
error requiring a new trial. State v. Blackstock, 314 N.C. 232,
236, 333 S.E.2d 245, 248 (1985). “[I]n a criminal case it is only
when the jury may reasonably infer from the evidence before it that
the trial judge's actions intimated an opinion as to . . . a
witness's credibility that prejudicial error results.” Id. When
reviewing whether a judge's comments constitute an impermissible
expression of opinion, we consider the totality of the
circumstances, rather than view the comment in isolation. State v.
Jones, 358 N.C. 330, 355, 595 S.E.2d 124, 140, certiorari. denied,
___ U.S. ___, 160 L. Ed. 2d 500 (2004); State v. Nicholson, 355
N.C. 1, 59, 558 S.E.2d 109, 147, certiorari. denied, 537 U.S. 845,154 L. Ed. 2d 71 (2002). The burden is on the defendant to
demonstrate that he was prejudiced as a result of the judge's
remarks. Jones, 358 N.C. at 355, 595 S.E.2d at 140.
In the instant case, defendant contends the judge's statement,
“Now, [A.B.], you need to tell the truth today like you did
yesterday[,]” stated an opinion as to the credibility of A.B.
Defendant asserts that the jury could not have understood the
statement as anything but the trial court's unequivocal opinion
that A.B. had testified truthfully the day before when she
recounted the sexual abuse defendant committed against her. If
one were reviewing the trial court's statement to A.B. in
isolation, this interpretation might have been possible. However,
when considering the statement in light of all the attendant
circumstances, it should be interpreted differently. The trial
judge's statement made to A.B. before she continued testifying the
next day should be interpreted as a reminder for her to tell the
truth when she testified, just like she had been instructed to do
the day before. The trial judge was addressing an eight-year-old
child and was speaking to her on a level she could understand.
This is made even more evident by the fact that when the judge
addressed an adult, he stated, “Miss Carey remains by her oath to
tell the truth and is with the defendant.” In addition, in the
trial judge's instructions to the jury, he made it clear that the
jurors were the “sole judges of the credibility and believability
of each and every witness.” In considering the totality of the circumstances, we find the
judge's statement did not constitute an impermissible expression of
opinion as to the witness' credibility. Defendant has failed to
demonstrate he was prejudiced as a result thereof. This assignment
of error is without merit.
In defendant's third assignment of error he contends the trial
court erred when it prevented him from eliciting testimony from
A.B. concerning a possible motive her mother may have had to
encourage her daughters to fabricate their accusations of sexual
abuse against their uncle.
Defendant asserts in his brief that he “relied, in part, on a
contention that the charges against him were fabricated because his
sister-in-law, the mother of the two alleged victims, did not want
him to move his family to New Hampshire[]” and that “[t]his desire
provided a motivation for her to manipulate these charges[.]”
Defendant points to the following portion of A.B.'s testimony as
constituting reversible error.
Q. [Defense Attorney:] Did you want your
cousins to move?
A. [A.B.] No.
Q. Did your mommy want your cousins to move?
A. No.
MS. KENNY: Objection what her mommy wants.
THE COURT: Sustained.
MS. KENNY: Motion to strike.
THE COURT: Allowed.
Defendant relies upon State v. Helms, 322 N.C. 315, 367 S.E.2d
644 (1988) to support his contention that the evidence concerning
a possible motive for the girls to fabricate the allegations of
sexual abuse was relevant and should have been admitted. In Helms,
a stepmother was accused of sexually molesting her husband's sons.
Prior to the natural mother's allegations of sexual abuse, the
defendant, the boys' father, and one of the boys met with a lawyer
to discuss obtaining custody of the boys from their natural mother.
The trial court refused to allow the defendant to present evidence
to the jury regarding the purpose of the visit. Our Supreme Court
held this to be error because the evidence tended to demonstrate a
motive for the boys' mother to fabricate the charges against the
defendant. Id. at 319, 367 S.E.2d at 647.
This case is clearly distinguishable from Helms, where the
evidence the trial court excluded went to the purpose of the
family's visit to the lawyer. In the instant case, the testimony
defense counsel sought to elicit called for A.B. to speculate as to
her mother's motivation, and the trial court properly sustained the
objection to the admission of this evidence. However, this did not
preclude defense counsel from cross-examining the girls' mother
concerning a possible motive to fabricate. The girls' mother
testified at trial, yet defense counsel did not attempt to elicit
such testimony upon cross-examination. Further, defense counsel
made no proffer as to what A.B. would have testified had she been
allowed to do so, and we will not speculate as to the possible
content of that testimony. See State v. Barton, 335 N.C. 741, 749,441 S.E.2d 306, 310-11 (1994). This assignment of error is with
merit.
In defendant's fourth assignment of error, he contends the
trial court erred when it failed to affirmatively exercise its
discretion under N.C. Gen. Stat. § 15A-1233, by denying the jury's
request to review a portion of a defense witness' testimony,
thereby entitling defendant to a new trial.
During its deliberations, the jury requested leave to review
the testimony of one of defendant's children. The trial judge
denied the request, stating to the jury, “in my discretion I am
going to deny your request. I don't want to give undue influence
to one person's testimony over the other. You are to consider all
the evidence in this case at arriving at your verdict.”
Defendant cites to State v. Barrow, 350 N.C. 640, 517 S.E.2d
374 (1999), State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), and
State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980) to support his
contention that the trial court did not exercise it's discretion in
denying the jury's request to review one witness' testimony. This
case is readily distinguishable from each of those cases. In those
cases, the trial court denied the motion because it erroneously
believed it did not have the authority to grant the request. See
e.g. State v. Barrow, 350 N.C. 640, 647, 517 S.E.2d 374, 378 (1999)
(holding the trial court's statement that it “doesn't have the
ability to now present to you the transcription of what was said
during the course of the trial” indicated a failure to exercise
discretion). In the instant case, the trial court explicitly stated it was
exercising its discretion and denying the request, then gave a
reason supporting its decision. The trial court's reasoning in no
way indicated that it believed it lacked the authority to grant
such a request. “When the trial court states for the record that,
in its discretion, it is allowing or denying a jury's request to
review testimony, it is presumed that the trial court did so in
accordance with N.C.G.S. § 15A-1233.” State v. Weddington, 329
N.C. 202, 208, 404 S.E.2d 671, 675 (1991).
Since a trial court's ruling under N.C. Gen. Stat. § 15A-1233
is within the court's discretion, we review the decision applying
an abuse of discretion standard, that is, “whether the ruling 'was
so arbitrary that it could not have been the result of a reasoned
decision.'” State v. Perez, 135 N.C. App. 543, 555, 522 S.E.2d
102, 110 (1999) (citations omitted). Just as in Perez, we find no
abuse of discretion where the trial court explained that to grant
the request could lend undue importance to the portions of the
evidence reviewed without giving equal importance to the other
evidence in the case and cautioned the jurors that it was their
duty to recall and consider all of the evidence. Accord id.
Defendant argues in the alternative, that if the trial court
did exercise its discretion as required by statute, then he was
denied the effective assistance of counsel, when his attorney
acquiesced to the court's denial of the jury's request.
In order for a defendant to demonstrate he was denied
effective assistance of counsel he must satisfy a two-prong test:(1) his counsel's performance was deficient or fell below an
objective standard of reasonableness; and (2) his attorney's
deficient performance prejudiced him. State v. Fletcher, 354 N.C.
455, 481, 555 S.E.2d 534, 550 (2001), certiorari. denied, 537 U.S.
846, 154 L. Ed. 2d 73, 123 S. Ct. 184 (2002) (applying the test set
out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d
674,(1984)). In other words, counsel's errors must be considered
“'so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'” Id. (citations omitted).
Our Supreme Court has held that “'counsel is given wide
latitude in matters of strategy, and the burden to show that
counsel's performance fell short of the required standard is a
heavy one for defendant to bear.'” State v. Roache, 358 N.C. 243,
279, 595 S.E.2d 381, 405 (2004) (citations omitted). It is
presumed that trial counsel's representation is within the
boundaries of acceptable professional conduct. Id. at 280, 595
S.E.2d at 406.
In analyzing the reasonableness of the attorney's actions
under the first prong of the test, “the material inquiry is whether
the actions were reasonable considering the totality of the
circumstances at the time of performance.” State v. Gainey, 355
N.C. 73, 112-113, 558 S.E.2d 463, 488, certiorari. denied, 537 U.S.
896, 154 L. Ed. 2d 165 (2002).
In the instant case, defense counsel's consent to the denial
of the jury's request was not an unreasonable trial strategy. When
the judge inquired as to defense counsel's position regarding thejury's request, defense counsel stated: “it may open the floodgates
for [the jury] asking for transcripts of everyone as the District
Attorney pointed out. We ask the Judge simply instruct the jury it
is their responsibility to recall the evidence as best they can.”
This statement was an accurate prediction of what could have
occurred. Had the trial judge permitted the jury to review one
witness' testimony, it could have resulted in additional requests
from the jury to review the transcripts of other witnesses,
including the two victims. It can reasonably be deduced from the
record that defense counsel made a tactical decision so that the
testimony of other witnesses would not be requested. Defendant has
not shown his counsel's actions fell below the standard of
reasonableness. As defendant has failed to satisfy the first prong
of the test, this assignment of error is without merit.
In defendant's fifth assignment of error, he contends the
trial court committed reversible error in allowing an expert
witness to give an impermissible opinion as to A.B.'s credibility.
Rule 702(a) of the Rules of Evidence permits “a witness
qualified as an expert by knowledge, skill, experience, training,
or education, [to] testify thereto in the form of an opinion” if it
will assist the trier of fact. N.C. Gen. Stat. § 8C-1, Rule 702(a)
(2004). In a prosecution for a sexual offense involving a child
victim, an expert's opinion that sexual abuse has in fact occurred
is inadmissible absent physical evidence supporting a diagnosis of
sexual abuse, because such testimony is an impermissible opinion
which goes to the victim's credibility. State v. Stancil, 355N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002). However, an expert
may testify about the profiles of sexually abused children and
whether a particular child exhibits symptoms or characteristics
consistent with such a profile when a proper foundation has been
laid. Id. at 267, 559 S.E.2d at 789.
In the instant case, defendant cites as error the admission of
testimony of Carey, the social worker who was qualified as an
expert in child sexual abuse. In defendant's brief, he points to
a statement made by Carey that A.B. “had a lot of anxiety issues
which is pretty common, what we see with a lot of children,
specifically the children that I've seen[,]” and recommended A.B.
receive therapy for possible sexual abuse. This statement was made
during voir dire and outside the presence of the jury. Defendant's
assignment of error is to a specific portion of the transcript,
page 332, lines 15-25. This portion of the transcript sets out the
ruling of the trial court at the end of the voir dire of Carey.
The trial court ruled that Carey was allowed to testify about
characteristics of children who have been abused and that A.B.
exhibited the characteristics of being anxious and fearful, as such
testimony with within Carey's expertise and experience. This
ruling was correct in light of the applicable case law. See id.
Following the jury's return to the courtroom, the prosecutor
laid a proper foundation by questioning Carey in detail about
characteristics common to sexually abused children and then related
that to whether A.B. exhibited any of those characteristics. The
prosecutor also asked whether the anxiety and fearfulness A.B.demonstrated, was common among abused children. At no point did
Carey say A.B. had in fact been abused, only that in light of her
behavior and the things she said during the interview, that she
recommended her for therapy. This did not constitute impermissible
opinion testimony as to the victim's credibility.
Defendant also asserts that Carey did not give any specific
examples of the manifestation of anxiety or fear that she witnessed
in the victims. This assertion is incorrect. Since Carey did not
do a physical examination of A.B., she could not attest to whether
A.B. had any physical injuries indicating sexual abuse. However,
she did point to several factors that led her to believe A.B. was
fearful and had anxiety, including A.B. shaking and the way her
answers became disjointed towards the end of the interview.
Carey's testimony, following the voir dire and in the presence of
the jury, was consistent with what is allowed by law. Just because
this evidence may support the credibility of the victim does not
render it inadmissible per se. State v. Kennedy, 320 N.C. 20, 32,
357 S.E.2d 359, 367 (1987). This assignment of error is without
merit.
In defendant's sixth and final assignment of error he contends
one of the indictments for first degree sexual offense did not
allege all of the elements of the crime. Stated more specifically,
he contends the indictment did not specify the exact sexual act
defendant was charged with committing, and thereby violated
defendant's constitutional rights to notice and due process. Defendant recognizes this Court previously rejected a similar
argument in State v. O'Hanlan, 153 N.C. App. 546, 550-51, 570
S.E.2d 751, 755 (2002), certiorari. denied, 358 N.C. 158, 593
S.E.2d 397 (2004). See also State v. Harris, 140 N.C. App. 208,
215-16, 535 S.E.2d 614, 619, appeal dismissed, disc. review denied,
353 N.C. 271, 546 S.E.2d 122 (2000) (upholding as constitutional
the short-form indictments for rape and sexual offenses).
Defendant urges this Court to reconsider these holdings, or in the
alternative to find O'Hanlan distinguishable. The challenged
indictment contained all the necessary elements as listed in N.C.
Gen. Stat. § 15-144.2, which our appellate courts have found to be
sufficient. Accordingly, defendant's assignment of error is
without merit.
NO ERROR.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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