Appeal by defendant from judgment entered 16 July 2004 by
Judge Larry G. Ford in Cabarrus County Superior Court. Heard in
the Court of Appeals 10 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
Defendant William Donald Seitz appeals from his conviction of
two counts of statutory sex offense. Defendant contends on appeal
that two statements of the trial court constituted impermissible
expressions of opinion, requiring a new trial. Based on our review
of the record, we disagree and hold that defendant received a trial
free of prejudicial error.
At trial, the State presented evidence tending to show the
following. On or about 15 July 2002, defendant had been living
with Brad and Carol Dobbs in their house for a few months. Ms.
Dobbs' son, Alex Measmer, was also living in the home. H.R., theprosecuting witness, had been Alex's girlfriend for approximately
three years on the date in question. On one occasion, defendant,
who was 47 years old, asked H.R. if he could have pictures of her
in her bra and panties; he also offered her $100.00 for sex. H.R.,
who was 15 years old at that time, said that she did not take
defendant's comments seriously.
On 15 July 2002, H.R. arrived at the Dobbs' house to see Alex,
but he was asleep. Defendant, who was in the living room, asked
H.R. if she wanted to ride with him to the bank and the store.
H.R. agreed, and she accompanied defendant as he drove to a bank
and withdrew some money. Defendant then drove to a store where he
bought cigarettes for himself and soft drinks for both of them.
After they left the store, defendant asked H.R. if she knew where
Northwest Cabarrus High School was. When H.R. indicated that she
knew of the location, defendant said he wanted to show her
something. While they were en route to the school, defendant asked
H.R. a few questions about her sex life with Alex.
Upon arriving at the school, H.R. followed defendant down a
cross-country trail for 10 minutes or less. H.R. said defendant
bent down as if to tie his shoes, then unbuttoned her shorts.
Defendant proceeded to penetrate her vagina with his finger and
then with his tongue. H.R. said nothing, but pulled up her shorts.
As they were walking back to defendant's vehicle, he said "Thanks
for letting me do that." Defendant handed H.R. $50.00 while he was
driving back to the Dobbs' house, telling her that it was in
payment for work she had done for Brad Dobbs and defendant on apreceding weekend.
Approximately a week later, H.R. told Alex what defendant had
done. They later told Alex's mother, who in turn informed H.R.'s
mother of the incident. H.R.'s mother contacted the police, and
Detective Luke Blume took statements from H.R. and Alex. Officers
ultimately arrested defendant at his place of employment in
On 13 January 2003, the Cabarrus County grand jury indicted
defendant on two counts of statutory sex offense. A jury
subsequently found defendant guilty of the charges on 15 July 2004.
After consolidating the convictions for judgment, the trial court
sentenced defendant to a term of 192 to 240 months imprisonment.
From the trial court's judgment, defendant appeals.
N.C. Gen. Stat. § 15A-1222 (2003) prohibits a trial judge from
"express[ing] during any stage of the trial, any opinion in the
presence of the jury on any question of fact to be decided by the
jury." Defendant contends that this principle was violated
following the testimony of Detective Blume and when the trial court
denied defendant's motion to dismiss at the close of the State's
evidence. Although defendant did not object at either time, our
Supreme Court has held that he was not required to object in order
to preserve this issue for appeal because the prohibitions against
a trial judge expressing his or her opinion contained in N.C. Gen.
Stat. § 15A-1222 are mandatory. State v. Young
, 324 N.C. 489, 494,
380 S.E.2d 94, 97 (1989). Defendant first argues that an exchange between the trial
judge and Detective Blume following the detective's testimony
constituted an impermissible expression of opinion. Detective
Blume testified he was employed as an investigator with the
Kannapolis Police Department until his retirement in August 2003
with 30 years of service. After the prosecutor congratulated him
on his retirement, he asked Detective Blume to read for the jury
the statements that he had taken from H.R. on 26 August 2002 and
from Alex on 28 August 2002. Those statements were subsequently
admitted into evidence without any objection from defendant. When
Detective Blume was excused from the witness stand, the following
THE COURT: I believe I've known you those
whole thirty years that you've been _ Officer
Blume, I've known you the whole thirty years
you've been in Kannapolis.
[DETECTIVE BLUME]: Yes, sir.
THE COURT: All right. We've known each
other a long time. Okay. Has the State got
any further witnesses?
Neither defense counsel nor the State made any comments or
objections to the exchange.
Defendant argues that the court's remarks to Detective Blume
prejudicially bolstered the detective's credibility and "tended to
increase the weight the jury would have given to his testimony, the
worthiness of his investigatory skills in general, and his
investigation of these allegations in particular." Based on our
review of Detective Blume's testimony, we disagree. The
detective's substantive testimony encompassed only (1) adescription of his procedure in obtaining the statements of H.R.
and Alex and (2) the reading of those statements. His testimony
does not indicate any investigation other than obtaining the
statements. Given the limited nature of Detective Blume's
testimony and the fact that the jury had the opportunity to review
the actual statements, the trial court's remarks constituted
harmless error. See State v. Alston
, 111 N.C. App. 416, 421, 432
S.E.2d 385, 388 (1993) (holding that colloquy between the district
attorney and the judge, while arguably demonstrating partiality to
the State, did not constitute prejudicial error when it did not
relate to any fact to be proven in the case).
Defendant also argues that the trial court's denial of his
motion to dismiss at the close of the State's evidence without
excusing the jury could have been construed by the jury as an
expression of opinion. The transcript indicates the following:
(Bench conference conducted off the
record, after which the Court dictated the
following to the reporter
THE COURT: At the end of the State's
evidence, the defendant made a motion to
dismiss. The motion is denied.
All right. Mr. Ginn [defense counsel],
do you wish to offer any evidence?
In State v. Welch
, 65 N.C. App. 390, 393, 308 S.E.2d 910, 912
(1983), defendant similarly argued that the trial court violated
N.C. Gen. Stat. § 15A-1222 "by summarily denying his motion to
dismiss in the presence of the jury." In rejecting this argument,
the Court observed that "[t]he record, however, does notaffirmatively disclose that the ruling was in fact audible to the
jurors. Defendant did not seek to have the ruling made out of the
presence of the jury, nor did he object or move for mistrial on
this account at trial." Id.
It then concluded: "Generally,
ordinary rulings by the court in the course of trial do not amount
to an impermissible expression of opinion. At most the ruling here
merely informed the jury that the evidence was sufficient to allow
it to decide the case. On this record no prejudice to defendant
at 393-94, 308 S.E.2d at 913 (internal citation
We believe Welch
controls and requires that we overrule
defendant's assignment of error. Defendant attempts to distinguish
by reading the transcript as affirmatively showing that the
court's ruling was audible to the jury. We, however, read the
court reporter's notation that "the Court dictated the following to
the reporter" as suggesting that the ruling was not audible to the
jury. At a minimum, there is no "affirmative" showing such as that
required by Welch
. As in Welch
, therefore, "no prejudice to
defendant appears." Id.
at 394, 308 S.E.2d at 913.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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