State v Bailey, (04-612) 05/03/2005

Appeal by defendant from judgments entered 5 August 2003 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 8 December 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams and Assistant Attorney General Jane T. Hautin, for the State.

Richard E. Jester for defendant-appellant.

    ELMORE, Judge.

    Derrick Thomas Bailey (defendant) was charged with multiple counts of first degree rape, indecent liberties with a minor, and one count of sexual offense in the first degree. He was tried and, after five minutes of deliberations, found guilty of all charges. From the judgments entered consistent with the jury's verdicts, defendant appeals.
    Defendant has already been convicted of similar crimes arising out of a prosecution in Durham County. See State v. Bailey, 163 N.C. App. 84, 592 S.E.2d 738, disc. review denied, 358 N.C. 733, 601 S.E.2d 861 (2004). The charges in Beaufort County arise from acts performed on different children than those in Durham.    The victim here, S.J.W., was “eight or nine” and in the second grade during 1998 and 1999 when two of the incidents involving defendant occurred. Defendant was a family friend, then living in Beaufort County, who would occasionally babysit S.J.W. and her brother, D.W.
        STATE: Between the beginning of school in the second grade and Christmas of your second year at [school], did [defendant] babysit you?

        S.J.W.: Yes.

        STATE: Did something happen? Did [defendant] do something to you when he babysat you?

        S.J.W.: Yes.

        STATE: How many times?

S.J.W.: Two.

STATE: How many? You need to speak up.

S.J.W.: Two.

STATE: I want to talk about the first time something happened. What happened?

. . .

S.J.W.: He took my pants down and he stuck his penis in my vagina (crying).

. . .

STATE: Did it happen again?

S.J.W.: Yes.

STATE: Again, did it happen before Christmas when you were in the second grade?

S.J.W.: Yes.

        STATE: Was Ms. Cobb still your teacher?

        S.J.W.: Yes.
        STATE: What happened the second time?

S.J.W.: [Defendant] stuck his penis in my behind.

. . .

STATE: Did he stick his penis anywhere else?

        S.J.W.: No, sir.

    In addition to S.J.W., several other people testified at trial. S.J.W.'s mother testified that a statement regarding the incidents made by S.J.W. to an investigator on 31 July 2001 was consistent with what S.J.W. said during that interview.
    The State also called L.O. to testify. This young boy testified that defendant, while babysitting him, attempted to commit a sexual act against him: defendant pulled his own pants down; then pulled L.O.'s pants down; but before anything could happen, L.O. ran out of the room. The State notes that L.O. was called pursuant to Rule 404(b) in order to prove defendant's knowledge or intent.
    The State next called Investigator Laurel Miller of the Beaufort County Sheriff's Office. Miller testified that she interviewed both S.J.W. and L.O. on 31 July 2001 and 14 August 2001, respectively. She was asked to testify to the statements both children made during their interviews.
        STATE: Relate to the jury, if you would, what it is that [L.O.] told you back on August 14th, 2001.

        DEFENSE: Objection.

COURT: Overruled.

        STATE: Go ahead.
Miller then testified as to her methods of investigation regarding child molestation or abuse, and how she determines if a child can tell the difference between “real or make-believe.” Defense counsel interposed an objection, stating “[t]his is not corroborating what the child said.” The trial court sustained the objection. The State asked Miller more directly what L.O. said “in reference to his testimony here[.]” Miller then read L.O.'s statement, which was entirely consistent with the events he testified to at trial.
    The State then inquired as to S.J.W.'s statement made on 31 July 2001. Just before reading it, defense counsel interposed a general objection that was summarily overruled by the trial court. S.J.W.'s statement was consistent with her trial testimony save for one crucial variance. The statement given to Miller, and read into the record, described different events occurring during the “second” incident with defendant. The statement, in part said, “[t]he second time he put his private in my privates and he put his private in my behind.”
    The State finally called Robert Weston McLaughlin of the Durham Police Department. Officer McLaughlin testified to investigating defendant in Durham and eventually arresting him. During his detention at the police station, defendant waived his rights and created a list of children he had sexual relations with, including their relationship to him, if any, and the number and type of sexual relations that he had with them. S.J.W. and L.O. were on this list. Next to S.J.W.'s name was the notation thatdefendant had had vaginal and anal intercourse six times over three years. The list was introduced at trial.
    Defendant first argues that his conviction on the two indictments implicates double jeopardy. This argument is not properly before this Court for two reasons. First, defendant's assignments of error do not support a discussion of double jeopardy. See State v. Thomas, 332 N.C. 544, 553-54, 423 S.E.2d 75, 80 (1992) (assignments of error must correlate to the argument raised), overruled on other grounds by State v. Richmond, 347 N.C. 412, 430, 495 S.E.2d 677, 686-87 (1998); State v. McCoy, 303 N.C. 1, 28, 277 S.E.2d 515, 534 (1981) (recognizing that broadside assignments of error do not permit review). Second, this constitutional argument was not made to the trial court at any time. See State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (constitutional arguments cannot be argued for the first time on appeal); State v. Fuller, ___ N.C. App. ___, ___, 603 S.E.2d 569, 575 (2004) (discussing double jeopardy).
    Defendant also argues that the two indictments alleging the multiple counts of sex crimes span too broad a time frame and are invalid on their face. See N.C. Gen. Stat. § 15A-924(a)(4) (2003). The date of the offense listed as to each count of the indictments was the same, “1998-1999.” Conceivably, this covers a two year time frame. Yet, based on the evidence presented, the absence of any defense asserted, and the fact that when dealing with children and sexual crimes there is leniency regarding dates, we do not find this time frame overly broad. See State v. Poston, 162 N.C. App.642, 646-47, 591 S.E.2d 898, 902 (2004); State v. Blackmon, 130 N.C. App. 692, 696-97, 507 S.E.2d 42, 45-46 (1998). The evidence presented was confined to S.J.W.'s second grade school year, a period of 10 months that happens to span two calendar years. In fact, the evidence presented was confined to incidents prior to Christmas of 1998. Coupling this fact with the fact that defendant showed no prejudice to his defense or preparation by the dates listed supports a conclusion that the dates were not overly broad. See State v. Stewart, 353 N.C. 516, 546 S.E.2d 568 (2001) (defendant must demonstrate that his defense was hindered due to a non-specific time frame in the indictment). Moreover, the trial court granted defendant's motion for a bill of particulars that included information regarding “what each of the children alleged that [defendant] did to them.”
     Next, defendant argues that the trial court erred in admitting the testimony of L.O. under Rule 404(b). We disagree. Rule 404(b) provides that evidence of a person's crimes or bad acts may be admissible for certain purposes, but not admissible if its sole purpose is to show that defendant acted in conformity with his character during the alleged incident. See N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). We recently discussed the application of this rule to cases involving sex crimes in State v. Thaggard, ___ N.C. App. ___, ___, 608 S.E.2d 774, 779-781 (2005). There the Court concluded that similarity of age between the victims, the exploitation of similar opportunities alone with the victims, and the temporal proximity of the incidents all supported the trialcourt's decision to admit the evidence in order “to show opportunity, a common scheme or modus operandi, and the assailant's identity.” Id.; see also State v. Brothers, 151 N.C. App. 71, 76-77, 564 S.E.2d 603, 607 (2002) (victims being the same age, the acts occurring under similar circumstances and in the same manner, and defendant being of the same relationship to victim were dispositive in a 404(b) decision), disc. review denied, 356 N.C. 681, 577 S.E.2d 895 (2003).
    Here, defendant took advantage of babysitting opportunities when he was able to isolate one child away from the others in their own homes. He attempted anal sex with L.O. and completed that same act on S.J.W. The children were both eight years old when defendant took advantage of them, and both instances occurred within several months of one another. Defendant, according to his confession, is also a cousin to both victims. We hold that the trial court did not err in allowing this testimony into trial for a proper purpose under Rule 404(b).
    Defendant next argues that the trial court erred in denying his motion to dismiss the “second” count of rape in the first degree on the basis of insufficient evidence. It is evident from the transcript that S.J.W. testified to only one incident of vaginal intercourse. Therefore, her testimony alone would not support more than one count of rape in the first degree. But, the State presented S.J.W.'s previous out-of-court statement through the testimony of Investigator Miller and defendant's confession to having vaginal and anal sex with S.J.W. six times over three years.     Our courts have continually held that corroborative testimony is admissible so long as it is substantially similar to the testimony given at trial. See State v. Riddle, 316 N.C. 152, 156- 57, 340 S.E.2d 75, 77-78 (1986). But when a previous statement does not corroborate, and in fact contradicts an in-court statement, that statement is inadmissible. See State v. Frogge, 345 N.C. 614, 617-18, 481 S.E.2d 278, 280 (1997). S.J.W.'s “corroborative” statement declared that both vaginal and anal intercourse occurred during her second interaction with defendant, but her trial testimony was only that anal sex occurred on the second occasion. However, defendant failed to interpose anything other than a general objection when Miller began to read the statement, portions of which were corroborative; he did not ask for a limiting instruction; failed to object upon the statement being uttered; failed to make a motion to strike; and did not argue plain error in his brief to this Court. Accordingly, any review of the admissibility of this evidence is not properly before this Court. See N.C.R. App. P. 10(b)(1) (timely objection must state the specific grounds to preserve error); State v. Dennison, No. 179A04, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (filed 04 March 2005) (absent specific and distinct allegation of plain error, plain error review is not proper); Viar v. N.C. Dep't. of Transp., No. 109A04, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (filed 07 April 2005) (“It is not the role of the appellate courts, however, to create an appeal for an appellant.”).    Defendant's confession that vaginal intercourse had occurred six times was also admitted through the testimony of Officer McLaughlin, without objection or limiting instruction. Defense counsel's brief notes that “[defendant's] statement also indicated he had sex with several other children at various times and places. There was nothing to corroborate or support that fact as being true.” He argues, therefore, that his confession was not supported by other corroborating evidence and thus “cannot be the basis for the trial court submitting a third sexual offense to the jury. See State v. Cofield, 129 N.C. App. 268, 280-81, 498 S.E.2d 823, 832 (1998) (examining need for corroborating evidence of a confession before it can be considered as evidence of the crime); see also State v. Corbett, 339 N.C. 313, 334, 451 S.E.2d 252, 263 (1994) (same); State v. Trexler, 316 N.C. 528, 531-33, 342 S.E.2d 878, 880-81 (1986) (same).
    Defendant's statement regarding six incidents of intercourse is corroborated to the extent that S.J.W.'s statement stated that intercourse had happened twice. That statement was before the trial court on the motion to dismiss, and its admissibility is presently beyond the reach of this Court. Defendant's confession is, as defense counsel points out, unsupported by corroborating evidence as to incidents of intercourse three through six; however, defendant was charged with two acts of rape, not six.
    Thus, when reviewed in the light most favorable to the State, there was sufficient evidence in the record to deny the defendant's motion. Defendant's other assignments of error contain no argumentor citation of authority. Accordingly, they are abandoned. See N.C.R. App. P. 28(b)(6).
    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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