Appeal by defendant from judgment dated 11 July 2003 by Judge
Christopher M. Collier in Superior Court, Davidson County. Heard
in the Court of Appeals 19 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Allison Smith Corum, for the State.
James M. Bell for defendant-appellant.
McGEE, Judge.
Tanya Williams (defendant) was indicted on two counts of
indecent liberties with a child. The State's evidence at trial
tended to show that defendant worked a live-in shift at Hasty
House, a group home in Davidson County for girls who have been
separated from their parents. Defendant began her employment at
Hasty House in September 2002, when she was twenty-four years old.
A.W., a Hasty House resident, testified at trial. She stated
that in October 2002, when A.W. was thirteen years old, defendant
took A.W. on a "high point trip" to Wal-Mart. A.W. had earned the
trip as a reward for having accumulated the most points for good
behavior during the previous week. After leaving Wal-Mart,
defendant drove A.W. to a church parking lot. Defendant asked A.W.if she wanted some "flash beads," or Mardi Gras beads, that were
hanging from the car's rearview mirror. A.W. said "yes," and
defendant gave A.W. the beads.
When A.W. and defendant returned to Hasty House, A.W. took a
shower. After A.W. came out of the shower, defendant asked A.W.
when A.W. was going to "earn" the beads. A.W. responded by
exposing her breasts to defendant. A.W. then went to bed and
turned out the lights. Shortly thereafter, defendant came into
A.W.'s room and told A.W. that a coworker, Sharon Harris (Harris),
was using the copy machine in the room where defendant slept.
Defendant then made a pallet on the floor in A.W.'s room and told
A.W. to lie on the pallet with her. A.W. got on the pallet with
defendant. Defendant rubbed A.W.'s back, breasts, and thigh, and
kissed A.W.
Harris testified that when she finished using the copy
machine, she went to A.W.'s room to find defendant. Harris saw
defendant and A.W. lying on the pallet. Harris told defendant that
she had finished using the copy machine, and defendant left A.W.'s
room.
A.W. testified that the following weekend, she stole all of
the trazodone and a half-bottle of Tylenol from the Hasty House
medicine closet. A.W. stated that she consumed all of the pills in
an attempt to commit suicide. When defendant asked A.W. to do
chores, A.W. responded that she had taken the pills. A.W. was then
admitted to the hospital.
A.W. testified that defendant visited her in the hospital.Defendant told A.W. that she would be mad if A.W. told anyone what
had happened between them. When A.W. was released from the
hospital, A.W. told Dorothea Giles (Giles), a Hasty House employee,
what had happened between A.W. and defendant. Giles reported the
incident to the Hasty House program director, A.J. Shabazz
(Shabazz). Shabazz suspended defendant.
Shabazz thereafter spoke with F.L., another Hasty House
resident, to determine if defendant had had any inappropriate
contact with F.L. According to Shabazz, F.L. said that nothing had
happened, but F.L. acted nervous and scared. Sometime later, F.L.
approached Shabazz and stated that in October 2002, when F.L. was
fourteen years old, defendant felt F.L.'s breast while defendant
and F.L. were in the car on the way home from school. At trial,
F.L. testified that defendant had rubbed F.L.'s back and shoulders,
kissed F.L.'s neck and cheek, and told F.L. that she loved her.
F.L. testified that on one occasion, during "quiet time," defendant
entered F.L.'s room and touched F.L.'s breast. F.L. testified that
she initially denied any inappropriate contact with defendant
because she was nervous and scared that she would get in trouble.
Defendant was convicted of two counts of taking indecent
liberties with a child. Defendant appeals.
I.
Defendant assigns error to two of the trial court's rulings
that excluded testimony. "[I]n order for a party to preserve for
appellate review the exclusion of evidence, the significance of the
excluded evidence must be made to appear in the record and aspecific offer of proof is required unless the significance of the
evidence is obvious from the record."
State v. Simpson, 314 N.C.
359, 370, 334 S.E.2d 53, 60 (1985). This rule applies even when
the excluded evidence is solicited on the cross-examination of a
witness.
State v. Ginyard, 122 N.C. App. 25, 33, 468 S.E.2d 525,
531 (1996);
see also State v. Braxton, 352 N.C. 158, 183-84, 531
S.E.2d 428, 443 (2000),
cert. denied, 531 U.S. 1130, 148 L. Ed. 2d
797 (2001). The rationale for the rule is that "the essential
content or substance of the witness' testimony must be shown before
we can ascertain whether prejudicial error occurred."
Simpson, 314
N.C. at 370, 334 S.E.2d at 60. Otherwise, this Court "can only
speculate as to what the witness' answer would have been[.]"
State
v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990).
Defendant first assigns error to the sustaining of an
objection to defendant's cross-examination of A.W. Defendant asked
A.W. why she had been kicked out of foster homes:
Q You said you first got [to Hasty House]
in July [2002]?
A Yes.
Q Okay. And earlier when you said that you
went there because you were being kicked
out of other foster homes; is that right?
A Yes.
Q Why were you being kicked out of those
foster homes?
[ATTORNEY FOR THE STATE]: Object to that. It
is not relevant.
THE COURT: Sustained.
Defendant argues that the trial court erred by excluding thistestimony because it
could have indicated that A.W. was being
kicked out of foster homes for dishonesty. Thus, defendant argues,
this testimony would have had bearing on A.W.'s credibility and
would have been crucial for the defense since A.W.'s testimony was
a large part of the State's evidence.
It is not obvious from the record what A.W.'s answer would
have been, since she could have been removed from foster homes for
any number of reasons. In addition, defendant failed to make an
offer of proof as to what A.W.'s answer would have been. As a
result, defendant has not preserved this issue for appellate review
and we overrule this assignment of error.
Defendant next assigns error to the sustaining of an objection
to defendant's direct examination of witness Ollie Williams
(Williams). Williams worked at Hasty House and her duties included
counseling A.W. and other Hasty House residents when they had
problems. During direct examination, the following colloquy
occurred:
Q . . . . [H]ow well would you say that you
knew [A.W.]?
A Well, at first she was more distant and
then . . . she just warmed up to me[.] I
would ask her her problem and it was
like, well, it was just ["]certain staff
I can talk to about my problems.["] I
said, well, that's fine. Then as I say,
she just started talking and warming up
to me, so --
. . . .
Q Was [A.W.] prone to exaggerate?
[ATTORNEY FOR THE STATE]: Objection. THE COURT: Sustained.
Defendant argues that the trial court's exclusion of this evidence
deprived the jury of hearing whether A.W. had a propensity to
exaggerate, thus depriving defendant of a fair trial.
Again, defendant has failed to preserve this issue for
appellate review. It is not obvious from the record what
Williams's answer would have been, and defendant did not make an
offer of proof as to what Williams's answer would have been.
Furthermore, shortly after the trial court sustained the State's
objection, defendant was permitted to elicit the following
testimony from Williams:
Q And do you know whether [A.W.] has a
reputation in . . . Hasty House as far as
being truthful or untruthful?
[ATTORNEY FOR THE STATE]: Objection.
THE COURT: Overruled.
A Yes, sir.
Q And what is that reputation?
A She's -- when things don't usually go her
way she's very traumatic to a point she
gets to acting out, screaming, I'm going
to runaway [sic], I'm going to kill
myself. You all don't love me. We try
to calm her down. That's not the case.
Why are you acting like this? Well, I
don't want to be here no more. I hate it
here. You know, if things don't go her
way she don't get what she wants, she
tends to act out.
This testimony essentially allowed defendant to establish that A.W.
was prone to exaggerate. Defendant did not suffer any prejudice by
the trial court's exclusion of the earlier testimony.
II.
Defendant's next assignment of error concerns the testimony of
James Greer (Greer). Greer was area director of six group homes in
the Davidson County area, including Hasty House. On cross-
examination, Greer gave the following testimony:
Q And earlier you stated something
about . . . kids being reluctant to talk
about things. In your experience isn't
it true that most . . . children,
especially a troubled teen, [are]
reluctant to talk about things that are
causing them great depression or causing
them some trauma in their life; isn't
that true?
[ATTORNEY FOR DEFENDANT]: Objection.
THE COURT: Overruled.
A Yeah. I mean, a lot of times they pick
and choose who they want to talk to.
They --
Q They sort of disclose when it is their
proper time. They are not going to tell
anybody before they are ready to; isn't
that true?
A Sometimes that's correct.
Defendant argues that this testimony was improper because no
foundation was established to qualify Greer as an expert in
adolescent behavior.
Rule 702 of the North Carolina Rules of Evidence states: "If
scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702 (2003). Whenevaluating the admissibility of expert testimony, the test is
"whether the opinion expressed is really one based on the special
expertise of the expert, that is, whether the witness because of
his expertise is in a better position to have an opinion on the
subject than is the trier of fact."
State v. Wilkerson, 295 N.C.
559, 568-69, 247 S.E.2d 905, 911 (1978). The witness's
qualifications as an expert must be established, because "[w]ithout
a foundation showing the witness to have sufficient skill,
knowledge or experience . . . it [is] impossible to determine
whether [the witness's] opinion would aid the trier of fact in the
search for truth."
State v. Goodwin, 320 N.C. 147, 151, 357 S.E.2d
639, 641 (1987).
We find that Greer was not qualified to testify as an expert
in this case. Neither defendant nor the State ever tendered Greer
as an expert and there was no evidence presented as to Greer's
education or training. The evidence does not show that Greer was
better qualified, or in a better position, than the jury to form an
opinion on the behavior of adolescents.
We also find that Greer's testimony was not proper lay opinion
testimony. Lay opinion testimony is governed by Rule 701 of the
North Carolina Rules of Evidence:
If the witness is not testifying as an expert,
his testimony in the form of opinions or
inferences is limited to those opinions or
inferences which are (a)
rationally based on
the perception of the witness and (b) helpful
to a clear understanding of his testimony or
the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2003) (emphasis added). In this case, there was no evidence that Greer's testimony
that children are reluctant to speak about troublesome events was
rationally based on his perception. Although Greer indicated that
he based his testimony on his experience, there was no evidence as
to what his experience was. Therefore, Greer's testimony was
inadmissible as a lay opinion.
Even though we have determined that Greer's testimony was not
proper expert or lay opinion testimony, we find that his testimony
was not prejudicial to defendant. In order to prove prejudice, a
defendant must show "a reasonable possibility that, had the error
in question not been committed, a different result would have been
reached at the trial[.]" N.C. Gen. Stat. § 15A-1443(a) (2003).
However, "[a] defendant is not prejudiced by . . . error resulting
from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2003).
In this case, defendant had previously elicited similar
testimony on his direct examination of Greer:
Q Okay. Did you ever have an occasion to
speak with [A.W.]?
A Yes, I did.
Q Okay. What did you discuss with her?
A . . . . I asked [A.W.] the specific
questions, did [defendant] touch [you],
did [defendant] threaten you, did
. . . anything inappropriate happen and
[A.W.] told me, she told me, "No. No,
nothing happened." I, you know,
sometimes kids, you know are a little
reluctant to say things. Anyway, I also
drew up a safety plan that if --
Q Let's just stick to my question. What
did [A.W.] say to you, what did [A.W.]
say to you?(emphasis added). After eliciting this testimony from Greer,
defendant did not object to Greer's statement about children's
reluctance to talk, nor did defendant move to strike. Since this
testimony is essentially the same as the testimony to which
defendant assigns error, defendant cannot now argue prejudice from
Greer's testimony on cross-examination.
See State v. Jennings, 333
N.C. 579, 604, 430 S.E.2d 188, 200,
cert. denied, 510 U.S. 1028,
126 L. Ed. 2d 602 (1993) (holding that the defendant could not
argue prejudice when the challenged testimony was elicited by
defense counsel and the defendant did not object to the testimony
or move to strike);
see also State v. Batchelor, 157 N.C. App. 421,
429, 579 S.E.2d 422, 428,
disc. review denied, 357 N.C. 462, 586
S.E.2d 101 (2003).
III.
Defendant's final assignment of error contends that the trial
court erred by denying defendant's request for a jury instruction
regarding simple assault. Defendant argues that simple assault is
a lesser included offense of taking indecent liberties with a
child.
To qualify as a lesser included offense, "all of the essential
elements of the lesser crime must also be essential elements
included in the greater crime. If the lesser crime has an
essential element which is not completely covered by the greater
crime, it is not a lesser included offense."
State v. Weaver, 306
N.C. 629, 635, 295 S.E.2d 375, 379 (1982),
overruled on other
grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193(1993). A defendant is guilty of taking indecent liberties with a
child when the defendant is at least sixteen years old and five
years older than the victim, and the defendant either
(1) Willfully takes or attempts to take any
immoral, improper, or indecent liberties
with any child of either sex under the
age of 16 years for the purpose of
arousing or gratifying sexual desire; or
(2) Willfully commits or attempts to commit
any lewd or lascivious act upon or with
the body or any part or member of the
body of any child of either sex under the
age of 16 years.
N.C. Gen. Stat. § 14-202.1(a) (2003). In contrast, a defendant
commits assault when the defendant accomplishes
an overt act . . . evidencing an intentional
offer or attempt by force and violence to do
injury to the person of another or by the
"show of violence" on the part of the
[defendant] sufficient to cause a reasonable
apprehension of immediate bodily harm on the
part of the person assailed which causes him
to engage in a course of conduct which he
would not otherwise have followed.
State v. O'Briant, 43 N.C. App. 341, 344, 258 S.E.2d 839, 841-42
(1979) (citations omitted).
We have previously held that assault is not a lesser included
offense of indecent liberties since "[n]either definition of
assault constitutes an essential element of" indecent liberties.
State v. Holman, 94 N.C. App. 361, 364, 380 S.E.2d 128, 130 (1989)
(noting that in order to sustain a conviction for an indecent
liberties charge, "[n]o touching is required" and "[a] defendant
does not have to be in close proximity to the victim"). The trial
court did not err in denying defendant's request to instruct onsimple assault.
Defendant elected to make no argument regarding his final
assignment of error, and we therefore do not address it.
No error.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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