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1. Obscenity--disseminating harmful materials to minors--disseminating obscenity to a
minor under the age of sixteen years--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss charges occurring
between 5 September and 7 September 2003 including two counts of disseminating harmful
materials to minors and one count of disseminating obscenity to a minor under the age of sixteen
years because: (1) there was sufficient evidence that defendant provided obscene and harmful
materials to three minors on the dates charged to carry those charges to the jury; (2) although
defendant offered evidence tending to show that he was not in town on those dates, he
inaccurately characterizes his evidence as uncontradicted when the State offered evidence from
the minors themselves that defendant provided pornography to them on each occasion that they
visited defendant's home including these September dates, and defendant's evidence merely
raised a credibility issue which was for the jury to resolve; and (3) although defendant contends
that it was inconsistent for the jury to find him not guilty of providing alcohol to the boys on the
September dates in question while finding him guilty of providing those same boys with obscene
and harmful materials on the same dates, defendant abandoned his argument under N.C. R. App.
P. 28(b)(6) by failing to cite authority for his position. N.C.G.S. §§ 14-190.7, 14-190.15.
2. Sexual Offenses--crime against nature--taking or attempting to take indecent
liberties with a minor--engaging in a sexual act with a thirteen-year-old--
disseminating obscenity to a minor_-motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charges of crime
against nature, two counts of taking or attempting to take indecent liberties with a minor, one
count of engaging in a sexual act with a thirteen-year-old, and disseminating obscenity to a minor
even though defendant contends the jury was originally deadlocked and apparently did not
believe the evidence of defendant's abuse of the pertinent victim, because: (1) the mere fact that
defendant refuted the victim's testimony did not require the trial court to dismiss the charges; and
(2) the testimony of the victim and his corroborating witnesses constituted sufficient evidence to
send the charges to the jury.
3. Sexual Offenses--engaging in a sexual act with a person of the age of fifteen years--
taking or attempting to take indecent liberties with a child--crime against nature_-
motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charges of
engaging in a sexual act with a person of the age of fifteen years, taking or attempting to take
indecent liberties with a child, and crime against nature even though defendant contends thevictim's testimony was fanciful and unreasonable to the reasonable mind, because: (1) the
victim's testimony was graphic, detailed, and corroborated not only by a detective, but also by
the recorded conversation between the victim and defendant on 3 October 2003; and (2) while
reasonable minds might struggle to comprehend the reality of the victim's account of molestation
he endured, he did not describe such an inherently incredible event that the State's evidence on
these charges was rendered too immaterial for jury consideration.
4. Evidence--sexual material--rubber vagina--impeachment
The trial court did not err in an indecent liberties with a child, multiple disseminating
obscene materials to minors, multiple disseminating harmful material to minors, engaging in a
sexual act with a person of the age of fifteen years, crime against nature, possession with intent to
sell or deliver marijuana, and maintaining a dwelling to keep controlled substances case by
admitting into evidence sexual material including a rubber vagina that defendant contends was
wrongfully seized, because: (1) contrary to defendant's assertions, the trial court ruled that the
State would be allowed to introduce into evidence marijuana, drug paraphernalia, and a rubber
vagina following a hearing outside the presence of the jury on defendant's motion to suppress all
evidence seized by police from his home pursuant to two search warrants; (2) the court allowed
defendant's motion to suppress evidence gathered pursuant to a separate search warrant that
described the items to be seized merely as obscene sexual material, thereby preventing the State
from introducing the pornographic magazines, videotapes, and DVDs that were taken under that
warrant; (3) the prosecution was allowed to cross-examine defendant about the rubber vagina for
impeachment purposes, and defendant failed to demonstrate any abuse of discretion; (4) this
argument is subject to dismissal based on defendant's failure to support his argument with
appropriate authority, and even if defendant's bare citation to a case for the definition of
prejudicial error is sufficient, the rubber vagina was discovered by police pursuant to a lawful
search warrant for controlled substances and drug paraphernalia; and (5) defendant authenticated
the rubber vagina as an item belonging to him and located in the nightstand in a bedroom of his
house.
5. Jury--juror misconduct_-denial of motion for mistrial--independent investigation of
defendant's premises and subsequent communication to other jurors about
observations
The Court of Appeals exercised its discretionary authority under Rule 2 despite the
multiple violations of N.C. R. App. P. 28(b)(6) and determined that the trial court did not err in
an indecent liberties with a child, multiple disseminating obscene materials to minors, multiple
disseminating harmful material to minors, engaging in a sexual act with a person of the age of
fifteen years, crime against nature, possession with intent to sell or deliver marijuana, and
maintaining a dwelling to keep controlled substances case by failing to declare a mistrial on all
charges when it discovered that a juror violated the trial court's instructions, because: (1)
defendant did not object to the court's decision to accept the fifteen unanimous verdicts, made no
motion for mistrial or other court action as to those verdicts, and has not alleged plain error; (2)even if the issue were properly before the Court of Appeals, there was no abuse of discretion in
the trial court's failure to declare a mistrial on its own motion nor was defendant prejudiced as a
result of the juror misconduct at issue; (3) nothing in the juror's independent investigation of
defendant's premises and her subsequent communication to the other jurors about her
observations established that the jury's prior verdicts were rendered with any partiality or
prejudice; (4) the facts of the juror misconduct as it temporally occurred lend further support to
the trial court's ruling when there was no opportunity for misconduct to occur regarding the
fifteen unanimous verdicts when the verdicts were already reached prior to the juror reporting her
observations of defendant's premises to the other jurors; (5) defendant failed to show the jurors
were anything other than impartial and unbiased when deliberating the fifteen charges on which
they unanimously agreed; and (6) given the undisputed testimony of the jury foreperson that the
jury did not revisit the unanimous verdicts that had already been reached before the juror
disclosed her visit to defendant's pawn shop, and in light of the trial judge's polling of the jury
on each verdict separately, the trial court rightfully accepted all fifteen verdicts.
6. Appeal and Error--preservation of issues--sentencing within presumptive range--
failure to file writ of certiorari
Although defendant contends the trial court erred by failing to sentence defendant in the
mitigating range when he presented evidence of mitigating factors and the State offered no
evidence of aggravating factors, this assignment of error is not properly before the Court of
Appeals, because: (1) defendant was sentenced within the presumptive range and thus he has no
statutory right to appeal his sentence; and (2) defendant has not filed a petition for writ of
certiorari seeking review of this issue.
7. Constitutional Law_-effective assistance of counsel--failure to object to joinder--
failure to move for mistrial based on juror misconduct
Defendant did not receive ineffective assistance of counsel based on defense counsel's
failure to object to the State's motion for joinder, failure to move for a mistrial when juror
misconduct was discovered, and failure to object to proceeding with the trial on grounds that the
police and the State failed to turn over exculpatory tapes with numerous statements from
witnesses that provided defendant's alleged innocence, because: (1) the charges in this case could
be joined for trial under N.C.G.S. § 15A-926(a) based on the same act or transaction or a series
of acts or transactions connected together or constituting parts of a single scheme or plan; (2)
public policy strongly favors consolidation to expedite the administration of justice; (3) in regard
to juror misconduct, nothing in the juror's independent investigation of defendant's premises and
her subsequent communication to the other jurors about her observations established that the
jury's prior verdicts were rendered with any partiality or prejudice; (4) defendant failed to cite
support for his argument regarding the tapes; and (5) defendant has not demonstrated that his trial
attorney made errors so serious that he was not functioning as counsel guaranteed by the Sixth
Amendment or that his deficiencies were so serious as to deprive defendant of a fair trial.
Appeal by Defendant from judgments entered 10 September 2004
by Judge Zoro J. Guice, Jr. in Henderson County Superior Court.
Heard in the Court of Appeals 6 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth J. Weese, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Defendant-Appellant.
STEPHENS, Judge.
On 1 December 2003, a grand jury indicted Defendant, Todd
Layman Hill, a career law enforcement officer who also owned and
operated a pawn shop, on twenty-three charges relating to
dissemination of harmful materials to minors, taking indecent
liberties with a child, crime against nature, statutory rape or
sexual offense, and possession with intent to sell or deliver
marijuana. The indictments referenced several different victims
and ranged across multiple dates. On motion of the State to
which Defendant's trial counsel had “[n]o objection[,]” all
charges were joined for trial. Trial began on 31 August 2004 and
concluded on 9 September 2004 with twelve guilty verdicts on onecount of indecent liberties with a child, three counts of
disseminating obscene material to minors, four counts of
disseminating harmful material to minors, one count of engaging
in a sexual act with a person of the age of fifteen years, one
count of crime against nature, one count of possession with
intent to sell or deliver marijuana, and one count of maintaining
a dwelling to keep controlled substances. Defendant was found
not guilty on three charges (one count of possession of drug
paraphernalia and two counts of giving alcoholic beverages to
minors); two charges of delivering marijuana to minors were
dismissed by the trial court at the close of the State's
evidence; and the court declared a mistrial as to the remaining
six charges (one count of second- degree sexual offense, one
count of crime against nature, two counts of taking or attempting
to take indecent liberties with a minor, one count of engaging in
a sexual act with a thirteen-year-old, and one count of
disseminating obscenity to a minor). From judgment on the
verdicts entered by Judge Guice on 10 September 2004 imposing an
active prison sentence within the presumptive sentencing range of
256 to 317 months, followed by five years of supervised
probation, Defendant appeals. For the reasons stated herein, we
affirm.
12. That upon the execution of the
search warrant on October the 24th, 2003,
that controlled substances were found in two
places at the Hill residence where [C.B.,
C.A., S.H. and M.K.] stated that the
controlled substances were kept, and
therefore, found in places where the
individuals stated that the said controlled
substances would be.
Based upon the above findings of fact,
the Court now makes the following conclusions
of law:
9. That under the scenario contained in
these cases a substantial basis existed for
the district court judge to conclude that
there was a fair probability that marijuana
and drug paraphernalia would be found at the
defendant's residence on the date the search
warrant was issued; to wit, October 24, 2003.
15. That the objection lodged by the
defendant has no support in law or in fact,
and the objection should be overruled.
IV. SENTENCING ISSUES
*** Converted from WordPerfect ***
At trial, the State's evidence tended to show the following:One of the victims, C.H., who had known Defendant since C.H. was
a little boy, worked for Defendant in Defendant's pawn shop in
the summer of 2002. His duties included cleaning out the back of
the pawn shop. C.H. was fifteen at the time, and Defendant was
thirty-eight. While C.H. was at Defendant's shop, Defendant
would periodically give C.H. magazines such as Nugget and Playboy
as well as Playboy movies, “just different pornographic
material,” and ask C.H. what he thought about it. In July 2002,
after C.H. had been working two to three hours, Defendant told
C.H. that they needed to go to Defendant's home to move an old
wood-burning stove. Defendant drove C.H. to his home, where the
two loaded the stove onto Defendant's truck from the garage.
Afterward, Defendant asked C.H. to come inside for a drink of
water. Once inside the house, Defendant took C.H. to a back
bedroom ostensibly to show him Defendant's gun collection. While
C.H. was looking at the guns, Defendant suddenly grabbed him
around the waist, threw him onto the bed, pinned him down, and
put his hands down C.H.'s pants. C.H. repeatedly told Defendant
to stop, but Defendant persisted and told C.H. that it was
“normal for people to do this kind of thing.” When C.H.
continued to protest, Defendant told him that C.H. “owed”
Defendant for the paint ball materials and hunting supplies that
Defendant had given him. Then Defendant took off C.H.'s pantsand performed oral sex on him until C.H. ejaculated in
Defendant's mouth. When the act was over, Defendant told C.H.
that he “better not tell anybody” what had happened. All the way
back to the pawn shop, Defendant made C.H. “swear and promise
that [he] would never tell anybody.” For a time after the
incident, Defendant regularly called C.H. “want[ing] to do stuff”
to him.
C.H. did not tell anyone about the incident right away. He
specifically did not tell his parents because his mother had
suffered several heart attacks, and he was afraid the news would
cause her to have another heart attack. In September 2003, C.H.
told his friend S.H. what had happened at Defendant's house. The
two boys decided to alert school officials who, in turn, called
the Hendersonville Police Department.
C.B. met Defendant through his friend M.K. M.K. introduced
Defendant as his “uncle.” On or about 21 February 2003, C.B. and
S.H. came to see M.K. at his home. They expected to sleep there,
but M.K.'s mother did not want the two boys to spend the night.
Therefore, M.K. arranged for all three boys to sleep over at
Defendant's home. Defendant picked them up and drove them to his
house.
After they arrived at Defendant's home, Defendant told S.H.
and C.B. they could sleep upstairs. He then poured the boyscoconut rum shots and gave them wine. On another occasion in the
spring of 2003, M.K., C.B. and S.H. spent an evening at
Defendant's house watching pornography, smoking marijuana, and
drinking alcohol. M.K. provided the marijuana. The marijuana
was kept in a container under the bed in which M.K. slept at
Defendant's house and in Defendant's garage. M.K. told C.B. that
Defendant “stole” the marijuana while they were on a vacation
trip to Maine.
C.B. described Defendant as “touchy feely as in he would hug
us and kiss [S.H.] and [M.K.] on the forhead [sic] and the
cheek.” C.B. spent the night at Defendant's home five or six
times. On each occasion, pornographic tapes were available for
him to watch. C.B. was fifteen at the time.
On or about 30 May 2003, C.B., S.H., M.K. and C.A. went to
Defendant's home. C.A., who was sixteen at the time, first met
Defendant on this occasion. Defendant cooked a meal for the boys
and served them wine and beer. Later that evening, Defendant
made strawberry daiquiris for the boys. C.A. consumed a glass of
wine, two daiquiris, and two to three beers, after which he was
“pretty well drunk.” After Defendant went to bed, the boys
smoked marijuana which was obtained by M.K. from “a Tupperware
thing” under M.K.'s bed. C.A., who visited Defendant's home five
or six times, was also aware that “a stash” of marijuana was keptin Defendant's garage.
In June 2003, C.A. gave Defendant ten to fifteen dollars for
Defendant to buy him a six pack of beer and a forty-ounce beer.
On 9 August 2003, C.B. went to Defendant's home with M.K., S.H.
and other friends while Defendant was not at home. C.B. and S.H.
observed a brown box of marijuana in the garage and in a tub
under a bed. C.B. also observed marijuana at Defendant's home on
16 August and 22 August 2003.
At Defendant's home on 6 September 2003, Defendant told
C.B., M.K. and S.H. that there were pornographic videos in his
television cabinet. While the video was playing, Defendant stood
in the room and watched portions of it with the boys. C.A.
testified that he watched “pornographic images” every time he
visited Defendant's home.
S.H. testified that he visited Defendant's home five or six
times during the summer of 2003. “We'd go over there and we'd
drink and smoke marijuana and smoke cigars, and [Defendant]
supplied all those.” Defendant told him that there was “'beer in
the fridge[,]'” he showed him where the liquor cabinet was, and
told S.H. and his friends (C.B. and C.A.) to “'help yourself.'”
S.H. was seventeen at the time.
Joshua Hemsath, a thirty-year-old former employee of
Defendant, testified that he bought marijuana from Defendantmultiple times over a six- to nine-month period of time between
2002 and 2003, and that he had personally observed marijuana in
the freezer at Defendant's home. He paid Defendant $90.00 an
ounce. Hemsath stated that Defendant told him he had gone to
Maine with another law enforcement officer to hunt, and while
they were there, they spotted marijuana growing in a field.
Defendant told Hemsath that they harvested the marijuana and
brought it back. Hemsath estimated the quantity of the marijuana
that Defendant brought back from Maine to be five to ten pounds.
Fourteen-year-old P.S. testified that he first met Defendant
at a DARE camp in the summer of 2002. In March 2003, P.S. was
placed at Grandfather Home for Children after sexual misconduct
involving four people in the fall of 2002. In February 2003,
when P.S. was in the sixth grade, he ran away from home on
several occasions and began visiting Defendant at his pawn shop
to practice archery. On one particular visit four days before
P.S. was to go to Grandfather Home, Defendant stood behind P.S.
to show him how to place his hands on the bow to shoot the arrow
more effectively. Suddenly, Defendant reached inside of P.S.'s
pants and fondled him. P.S. immediately slapped Defendant's
hands. Defendant told P.S. to never do that again.
On the following day, Defendant asked P.S. if Defendant
“could masturbate [P.S.] and suck on [his] penis.” P.S. agreedbecause Defendant wore a holstered gun and P.S. was afraid of
him. While Defendant was performing oral sex on P.S., Defendant
showed him a DVD cover that had a picture of naked men and women
having sex. P.S. was thirteen years old when these events took
place.
P.S. did not tell anyone about what Defendant had done until
he learned that Defendant had been accused of molesting another
child. He was at Grandfather Home at the time. P.S. testified
that he did not know C.H., C.A., S.H., C.B., or M.K.
Detective David Adams testified that he was assigned to the
case after a report had been filed at East Henderson High School.
On 26 September 2003, Detective Adams met with C.H. and S.H.
Individually, each told Detective Adams about the oral sex and
alcohol drinking at Defendant's house. Specifically, C.H. told
Detective Adams about the July 2002 incident in which Defendant
grabbed him and performed oral sex on him. C.H. provided
Detective Adams with a copy of a pornographic magazine that
Defendant had given C.H. He also told Detective Adams that
Defendant had recently contacted him to let C.H. know he had a
tracking system which he would sell C.H. for $250.00 or “he would
trade it for 250 minutes of [C.H.'s] personal time.” S.H. told
Detective Adams that Defendant “had supplied him and his friends
with marijuana, alcoholic beverages and pornographic movies athis residence.”
Subsequently, to corroborate C.H.'s story because “[t]his
was a very serious allegation . . . against another police
officer,” on 3 October 2003, Detective Adams had C.H. call
Defendant at the pawn shop to record a conversation. During that
conversation, Defendant indicated his interest in meeting C.H.
for “about the same thing that happened last time[] . . . unless
[C.H.] want[ed] something different[.]” When C.H. clarified that
what Defendant “had in mind” was a “BJ”, Defendant responded,
“Yeah.” C.H. testified that by “BJ,” he meant “blow job” or oral
sex. In a second recorded conversation between C.H. and
Defendant, also on 3 October 2003, C.H. attempted to “get
[Defendant] to come out and talk about it on the phone[,]” and
the following exchange occurred:
CH: . . .[I]f you want we can just do what we
did the last time?
[Defendant]: Yeah.
CH: Unless you're wanting something . . .
like you did the blow job and everything like
that?
[Defendant]: Hey!
CH: Huh?
[Defendant]: You're on the telephone.
CH: Alright.
[Defendant]: Yeah, I just . . . .
CH: Oh, yeah.
Before the conversation ended, C.H. told Defendant that C.H.'s
mother had found a Nugget magazine and a Playboy movie thatDefendant had given C.H. They agreed that if C.H.'s mother asked
Defendant where C.H. obtained those items, Defendant would tell
her that “Steve” gave them to C.H., “just to cover [Defendant].”
Detective Adams also had C.B. and C.A. go to Defendant's
pawn shop on two occasions and ask for a pornographic videotape.
On each occasion, Detective Adams and other law enforcement
officers watched from a vantage point as the boys walked to and
entered the pawn shop. On the first occasion, 13 October 2003,
Defendant told C.B. that he did not want anyone to see him so he
would place the tape outside for C.B. Defendant then went
outside to let his dog out and laid the videotape face down on
top of a bush. C.B. retrieved the tape and took it to Detective
Adams. The videotape, titled “Cumming Attractions 2,” had sexual
scenes including oral, anal, and homosexual acts.
On 15 October 2003, C.B. and C.A. went back to the pawn shop
for a different pornographic video. While there, C.B. apologized
for forgetting to bring the previous videotape back to Defendant.
Defendant replied, “You can just keep it.” Defendant then handed
C.B. two movies in a brown paper bag and said that the movies
were particularly entertaining because “[i]t's got that fisting
stuff on it.” The videos, titled “Erotic Hours, Nastiest
Scenes[,]” included explicit scenes of oral, anal, homosexual and
group sex. Detective Adams also organized a recordedconversation of C.B. setting up a marijuana transaction with M.K.
to corroborate the boys' statements about being given marijuana.
Based on his investigation, which included interviews with
approximately forty people, Detective Adams prepared a narrative
and obtained search warrants for Defendant's pawn shop and home
on 24 October 2003. Searching officers found marijuana and drug
paraphernalia at Defendant's residence. In addition, although
excluded from the evidence at trial on Defendant's motion to
suppress, they found pornographic magazines, DVDs and videotapes.
The magazines were found in the bedroom where M.K. usually slept.
The videotapes and DVDs were found in the living room.
Defendant also presented evidence on his behalf, which
tended to show the following: Defendant testified that he was
forty years old and had worked as a law enforcement officer for
twelve years. He testified that he and C.H. never moved the old
stove. He further testified that (1) he never took C.H. to his
home, (2) he was not a homosexual, (3) he had never had sex with
a child, and (4) he had never given C.H. pornographic magazines
or movies.
Defendant also testified that he was not M.K.'s uncle, but a
good friend of the family. Defendant admitted that he allowed
M.K. to sleep at his house for the better part of four years, and
he allowed M.K. to invite other boys to sleep at his home. Defendant stated that he did not know the boys smoked marijuana
at his house and claimed he did not even know there was marijuana
in his house.
Defendant stated that he came home one night and saw that
the boys had drunk all of his beer. Defendant was angry and
demanded the boys pay him back for the beer they had consumed.
In addition, Defendant stated that he was in Maine on the
dates in July, August, and September 2003 when the boys alleged
that he gave them alcohol and pornographic materials. The
defense introduced out-of-state receipts and telephone records
from Maine, West Virginia, New Hampshire, Connecticut and
Pennsylvania. Defendant went to Maine periodically to shop for
liquor and repair his father's cabin.
Defendant asserted that when C.B. and C.A. asked to borrow a
movie, they did not specify what type of movie they wanted.
Defendant assumed it was a non-pornographic movie and said, “Yes,
go ahead and borrow one.” Defendant stated that his pawn shop
did not deal in pornography. However, he admitted that he had
ordered a subscription to “Girls Gone Wild” DVDs from California,
in which “young women disrobe and do various sex acts.” As to
whether he had allowed the young boys who visited in his home to
watch such DVDs, Defendant testified, “I never gave them anything
at all. I never allowed it; I never permitted it; I did not takethe chance.” Defendant further asserted that he did not
remember P.S. from DARE camp until P.S. came into his shop and
hugged him. Defendant showed P.S. how to properly shoot a bow
and arrow and gave P.S. a shirt since it was winter and P.S. was
dressed in only a t-shirt and windbreaker pants. Defendant said
he and Alan Brown, an employee, then let P.S. out of the store
and locked up.
Defendant testified that, as a law enforcement tool, he had
books on how to grow marijuana. He also testified that he hired
Hemsath as a “subcontractor” so he could pay him “under the
table” and not have to carry insurance on him or provide health
benefits to him. Defendant stated that he did not sell marijuana
to Hemsath.
On cross-examination, Defendant claimed that he did not
allow M.K. to keep a rubber vagina in his nightstand. Defendant
admitted that the rubber vagina belonged to him, but testified
that he did not know how it came to be in M.K.'s room at
Defendant's home.
Alan Brown, Defendant's only full-time employee, testified
that he had never seen Defendant act inappropriately with
children or adults. Robert Orr, Jr., a pastor and a student in a
massage school, testified that he had never seen Defendant act
inappropriately with children. Connie Snyder testified that C.H.told her that Defendant had knocked him down and performed oral
sex on him in a parking lot. Snyder described C.H.'s demeanor as
“like he was proud of it or something, you know. He didn't act
like he was abused[.]”
M.K. testified that Defendant would pick him up and take him
to school when his mother was working the early shift as a nurse.
He stated that Defendant had never touched him inappropriately,
never smoked marijuana with him and never watched pornography
with him. M.K. claimed that the boys drank while they were at
Defendant's house, but only after Defendant went to bed.
According to M.K., he and his friends “just took what [they]
wanted” of Defendant's liquor and beer. He further claimed that
he would sneak marijuana out of his room at Defendant's home for
the boys to smoke outside. He knew nothing about the presence of
marijuana in Defendant's freezer. M.K. testified that some of
the drug paraphernalia seized from Defendant's home belonged to
him, but that certain items were not his. He had “no idea” how
the rubber vagina got in the drawer of the nightstand in the
bedroom he used at Defendant's house.
M.K. testified that his interview with Detective Adams did
not go “very well”: “He ended up throwing me out, cursing and
screaming at me.” M.K. claimed that Adams told him he [M.K] was
going to be charged “unless [M.K.] changed [his] story[.]” Headmitted that he had not been charged with anything since his
interview.
In all, Defendant presented the testimony of fifteen people
who testified generally that they had never observed Defendant
act inappropriately in any way with young people, including their
children and grandchildren; that they had never observed
Defendant use marijuana, or alcohol to excess, or even smoke
cigarettes; that they had never known Defendant to provide drugs
or alcohol to any minors, including themselves; and that
Defendant had a “stellar” reputation for honesty and integrity.
Following the court's ruling on motions at the close of the
evidence, including the denial of Defendant's motion to dismiss
the charges, on 7 September 2004, the trial court sent twenty-one
charges to the jury for their deliberation. On that same day,
the jury reached unanimous verdicts of guilty on the following
charges: three counts of disseminating obscene material to a
minor under the age of sixteen, four counts of disseminating
harmful material to minors, and one count of maintaining a place
to keep controlled substances. On the following day, the jury
reached unanimous verdicts of guilty on one count of taking or
attempting to take indecent liberties with a child, one count of
engaging in a sexual act with a person of the age of fifteen
years, and one count of possession with the intent to sell ordeliver marijuana. On 9 September 2004, the jury reached a
unanimous verdict of guilty on one charge of crime against
nature. The jury also reached unanimous verdicts of not guilty
as to three charges. For reasons discussed below, the court
declared a mistrial as to the six remaining charges. The trial
judge sentenced Defendant within the presumptive range to 256 to
317 months in prison, followed by five years of supervised
probation. Defendant gave notice of appeal in open court. He
brings forth five assignments of error for our review.
___________________________________
It is well settled that, upon a motion to dismiss, the trial
court must determine whether there is substantial evidence, taken
in the light most favorable to the State, of each essential
element of the offense charged, or of a lesser offense included
therein, and of the defendant's being the perpetrator of the
offense. State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993); State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980) (citations omitted). The evidence is considered in
the light most favorable to the State, and the State is entitled
to every reasonable inference arising therefrom. Powell, 299
N.C. at 99, 261 S.E.2d at 117. The trial court is concerned only
with the sufficiency of the evidence to go to the jury. State v.
Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005).
“The trial court does not weigh the evidence, consider evidence
unfavorable to the State, or determine any witnesses'
credibility.” Id. (Citation omitted). [1] With respect to the five charges occurring between 5
September and 7 September 2003, Defendant was charged with
violation of N.C. Gen. Stat. § 14-190.7, which is titled,
“Dissemination to minors under the age of 16 years.” The
elements of this offense are (1) the defendant is eighteen years
of age or older, and the defendant (2) knowingly, (3)
disseminates, (4) to any minor under the age of sixteen, (5) any
material which the defendant knows or reasonably should know to
be obscene within the meaning of N.C. Gen. Stat. § 14-190.1.
N.C. Gen. Stat. § 14-190.7 (2005). He was also charged with
violation of N.C. Gen. Stat. § 14-190.15, titled “Disseminating
harmful material to minors; exhibiting harmful performances to
minors[,]” the relevant elements of which are that the defendant
(1) furnishes, presents, distributes, or allows review or perusal
of; (2) harmful material; (3) to a minor (under the age of
eighteen years); and (4) “knowing the character or content of the
material[.]” N.C. Gen. Stat. § 14-190.15 (2005). Defendant
contends that the State did not present substantial evidence of
dissemination to survive his motions to dismiss because he
presented uncontradicted evidence that he was not in the state of
North Carolina on any of the dates on which these offenses
allegedly occurred.
Dissemination is defined in N.C. Gen. Stat. § 14-190.1 as: A person, firm or corporation disseminates
obscenity within the meaning of this Article
if he or it:
(1) Sells, delivers or provides or offers or
agrees to sell, deliver or provide any
obscene writing, picture, record or other
representation or embodiment of the
obscene[.]
N.C. Gen. Stat. §14-190.1 (2005). The same definition applies to
the dissemination of harmful material under section 14-190.15 as
to the dissemination of obscene material under section 14-190.7.
We believe there was sufficient evidence that Defendant
provided obscene and harmful materials to the minors C.A., S.H.
and C.B. on the dates charged to carry those charges to the jury.
Although Defendant offered evidence tending to show that he was
not in town from 5 September 2003 to 7 September 2003, and
therefore, was unable to provide obscene or harmful materials to
the minors, he inaccurately characterizes his evidence on this
issue as “uncontradicted.” On the contrary, the State offered
evidence from the minors themselves that Defendant provided
pornography to them on each occasion that they visited
Defendant's home, including the September dates in question.
Defendant's evidence merely raised a credibility issue as to who
was telling the truth about whether Defendant disseminated
harmful and obscene materials to minors. That issue was solely
for the jury to resolve. See, e.g., State v. Scott, 356 N.C.591, 573 S.E.2d 866 (2002). Moreover, as the State correctly
points out, when considering the sufficiency of evidence to be
presented to the jury, the trial court should disregard the
defendant's evidence unless that evidence does not conflict with
the State's evidence. State v. Scott, supra; State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982). Here, the trial judge
properly determined that the State's evidence on these charges
was sufficient for jury consideration.
Defendant further argues, however, that because the jury
found him not guilty of providing alcohol to the boys on the
dates in question in September 2003, it was inconsistent for the
jury to find him guilty of providing those same boys with obscene
and harmful materials on the same dates and that, therefore,
“[t]hese inconsistent verdicts cannot stand.” Defendant cites no
authority for his position in this regard. Thus, as the State
points out, this argument is deemed abandoned under N.C. R. App.
P. 28(b)(6), and we therefore do not consider it. See, e.g.,
State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518 (2000),
overruled on other grounds by Crawford v. Washington, 541 U.S.
36, 158 L. Ed. 2d 177 (2004).
(See footnote 1)
[2] Defendant next argues that the trial court should have
dismissed all charges relating to P.S. (one count of crime
against nature, two counts of taking or attempting to take
indecent liberties with a minor, one count of engaging in a
sexual act with a thirteen-year-old, and one count of
disseminating obscenity to a minor), because the State's evidence
on such charges was insufficient for jury deliberation.
Defendant supports this argument with his observation that the
jury was “hopelessly deadlocked” and did not believe the evidence
of Defendant's abuse of P.S. As earlier discussed, however, the
test for whether the State's evidence is sufficent to carry
charges to the jury is not whether the jury believes the
evidence, nor whether the jury is ultimately able to reach a
verdict on such charges. Here, P.S. testified that Defendant
fondled him on one occasion and performed oral sex on him on
another, during which Defendant showed P.S. obscene material. The testimony of P.S. was corroborated by his mother and
Detective Adams. Defendant denied engaging in any improper or
illegal behavior with P.S., testifying that he simply showed him
how to properly shoot a bow and arrow and gave him appropriate
clothes for the weather conditions. The mere fact that Defendant
refuted P.S.'s testimony, however, did not require the trial
court to dismiss these charges. On the contrary, in ruling on
the motion to dismiss, the court was required to ignore
Defendant's contradictory evidence. State v. Scott, supra; State
v. Thaggard, supra. Clearly, the testimony of P.S. and his
corroborating witnesses constituted sufficient evidence to send
these charges to the jury.
[3] Finally, by his first assignment of error, Defendant
argues that all charges related to C.H. should have been
dismissed because
the testimony of C.H. was “fanciful and unreasonable to the
reasonable mind.”
(See footnote 2)
Again, we disagree. C.H.'s testimony was
graphic, detailed and corroborated not only by Detective Adams,
but also by the recorded conversation between C.H. and Defendant
on 3 October 2003. While reasonable minds might struggle tocomprehend the reality of C.H.'s account of the molestation he
endured, he did not describe such an inherently incredible event
that the State's evidence on these charges was rendered too
immaterial for jury consideration. Accordingly, we overrule
Defendant's first assignment of error.
II. SUPPRESSION OF EVIDENCE
[4] By his second assignment of error, Defendant argues that
the trial court erred and tainted the jury when it admitted into
evidence sexual material that Defendant contends was wrongfully
and unlawfully seized, after initially ruling that the evidence
was inadmissible. We likewise overrule this assignment of error
for the following reasons:
Defendant testified that he did not provide obscene
materials to any of the boys in question, including M.K., who had
his own bedroom at Defendant's house. After that testimony, the
State cross-examined Defendant, over his objection, as to whether
he allowed M.K. to keep a rubber vagina in his nightstand at
Defendant's home. Defendant denied allowing M.K. to keep the
item in M.K.'s bedroom, but admitted that the item belonged to
him, testifying that he had not seen the item “for several
months[.]” Defendant also identified State's Exhibit 24, which
was a picture of a rubber vagina on a nightstand in Defendant's
home in the bedroom that M.K. used. Over Defendant's objection,the trial court admitted the photograph into evidence.
Defendant contends this line of questioning was “highly
prejudicial” and that the exhibit was erroneously admitted
because the trial court had previously granted Defendant's motion
to suppress evidence of a sexual nature gathered by the police
pursuant to a defective search warrant. Contrary to Defendant's
assertions, following a hearing outside the presence of the jury
on Defendant's motion to suppress all evidence seized by police
from his home pursuant to two search warrants, the trial court
ruled that the State would be allowed to introduce into evidence
marijuana, drug paraphernalia, and the rubber vagina. The court
allowed Defendant's motion to suppress evidence gathered pursuant
to a separate search warrant that described the items to be
seized merely as “obscene sexual material[,]” thereby preventing
the State from introducing the pornographic magazines, videotapes
and DVDs that were taken under that warrant. Specifically, the
court made the following pertinent findings of fact and
conclusions of law regarding the issues raised by the motion to
suppress:
4. That . . . all of the individuals
. . . complained of similar type conduct
with respect to the defendant, Hill and that
some of the said conduct complained of with
respect to the defendant, Hill included the
use, distribution, sale or the providing of a
controlled substance, marijuana, to the namedindividuals who were all minors.
5. That the information provided to
Detective Adams by the individuals was, to
the effect, that some or all of the said
individuals had seen marijuana stored in
multiple areas or places in and around the
defendant Hill's residence, located at 220
Millard Jay Drive. That the information
provided specifically related to controlled
substances and drug paraphernalia being
contained in an area in the defendant Hill's
bedroom in a container underneath the bed
where the individual [M.K.] slept while at
the defendant Hill's home. In addition
thereto, the information related to cabinets
throughout the residence where . . . such
substances or paraphernalia were stored . . .
.
. . . .
13. That the defendant Hill objects to,
in addition to the evidence with respect to
the controlled substances and drug
paraphernalia, that Hill objects to the
admission into evidence of a rubber vagina
found in a drawer along with drug
paraphernalia and controlled substances.
That, inasmuch as the defendant was accused,
and thereafter charged with disseminating
obscenity, or obscene materials to minors,
that the said rubber vagina was relevant
evidence and subject to a seizure at the same
time the drug paraphernalia and controlled
substances were seized. That, in fact, the
defendant was charged and is on trial forsome eight different charges with respect to
disseminating obscenity to minors and in
addition thereto a number of sexual offenses
with minors. That the rubber vagina is
physical evidence which is relevant to all of
the said charges.
. . . .
. . . .
. . . .
Based upon the above findings of fact
and conclusions of law, it is therefore
ordered that the objection of the defendant
to State's exhibit number 17, and the
admissibility of the evidence pertaining to
the execution of the search authorized by
State's exhibit number 17 be and are, hereby,
overruled.
Further order that the State be allowed
to admit into evidence the items seized
pursuant to the said search, including the
controlled substance, marijuana, the drug
paraphernalia, and the rubber vagina.
Defendant objected at the time to the court's ruling. He
argues on appeal that the rubber vagina was “unlawfullyseized[,]” but he cites no authority to support his argument. He
also argues that questioning about the rubber vagina was “highly
prejudicial” and that the court erred by allowing the item to be
admitted into evidence. The only authority addressed by
Defendant to support this argument is State v. Lanier, 165 N.C.
App. 337, 598 S.E.2d 596, disc. review denied, 359 N.C. 195, 608
S.E.2d 59 (2004), a case cited by Defendant solely for the
definition of prejudicial error.
The State contends that the trial court properly allowed the
prosecution to cross-examine Defendant about the rubber vagina
for impeachment purposes. We agree. The cross-examination of
witnesses is a matter within the sound discretion of the trial
court. State v. Wrenn, 316 N.C. 141, 144, 340 S.E.2d 443, 446
(1986). In addition, a criminal defendant who elects to testify
on his own behalf is subject to questions relating to prior acts
of misconduct which tend to discredit his character or challenge
his credibility. State v. Foster, 293 N.C. 674, 239 S.E.2d 449
(1977)(superceded by statute on other grounds as stated in State
v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982)). “A witness may
be cross-examined on any matter relevant to any issue in the
case, including credibility.” N.C. Gen. Stat. § 8C-1, Rule
611(b). The trial court's ruling regarding the scope of cross-
examination will only be disturbed upon a showing of abuse ofdiscretion. Wrenn, 316 N.C. at 144, 340 S.E.2d at 446.
Defendant does not argue that the trial court abused its
discretion, and we perceive no such abuse. Rather, we are of the
opinion that (1) this assignment of error, too, is subject to
dismissal for Defendant's failure to support his arguments with
appropriate authority (“[t]he body of the argument . . . shall
contain citations of the authorities upon which the appellant
relies.” N.C. R. App. P. 28(b)(6) (emphasis added); (2) even if
Defendant's bare citation to State v. Lanier, supra, for the
definition of prejudicial error is sufficient to meet the
requirements of Rule 28(b)(6), the trial court properly found
that the rubber vagina was discovered by the police pursuant to a
lawful search warrant for controlled substances and drug
paraphernalia, the propriety of which has not been challenged by
Defendant on this appeal, and the item was therefore admissible
as part of the drug evidence in the case; (3) Defendant
authenticated the photograph of the rubber vagina as an item
belonging to him and located in the nightstand in a bedroom of
his house; and (4) Defendant has failed to demonstrate any abuse
of discretion on the part of the trial court in permitting the
State to cross-examine him about this evidence. Defendant's
argument is without merit, and this assignment of error is
overruled. III. JUROR MISCONDUCT
[5] By his third assignment of error, Defendant argues the
trial court erred by failing to declare a mistrial on all charges
when it discovered that a juror violated the trial judge's
instructions. However, Defendant again failed to cite to any
legal authority to support this assignment of error, in violation
of Rule 28(b)(6). “The appellate courts of this state have long
and consistently held that the rules of appellate practice, now
designated the Rules of Appellate Procedure, are mandatory and
that failure to follow these rules will subject an appeal to
dismissal.” Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d
298, 299 (1999) (citations omitted). Indeed, in Viar v. N.C.
DOT, 359 N.C. 400, 610 S.E.2d 360, reh'g denied, 359 N.C. 643,
617 S.E.2d 662 (2005), our Supreme Court admonished this Court
for invoking Rule of Appellate Procedure 2 and thereby suspending
the rules to consider the merits of an appeal subject to
dismissal for rule violations. “It is not the role of the
appellate courts . . . to create an appeal for an appellant.”
Id. at 402, 610 S.E.2d at 361. It is likewise not the duty of
the appellate courts to supplement an appellant's brief with
legal authority or arguments not contained therein. “A party's
assignment of error is deemed abandoned in the absence of
citation to supporting authority.” Consol. Elec. Distribs., Inc.v. Dorsey, 170 N.C. App. 684, 686-87, 613 S.E.2d 518, 520 (2005)
(citation omitted).
Since Viar, this Court has been more reluctant to use the
authority allowed by Rule 2 to suspend or vary the requirements
of any of the rules “[t]o prevent manifest injustice to a party,
or to expedite decision in the public interest[.]” N.C. R. App.
P. 2. As a consequence, cases in which appeals have been
dismissed, or arguments deemed abandoned, abound. See, e.g.,
N.C. Dep't of Crime Control & Pub. Safety v. Greene, 172 N.C.
App. 530, 616 S.E.2d 594 (2005) (appeal dismissed because
assignments of error were too broadsided and were not followed by
record or transcript citations, nor an indication regarding which
findings the appellant challenged, in violation of Rule 10(c));
State v. Buchanan, 170 N.C. App. 692, 613 S.E.2d 356 (2005)
(appeal dismissed for Defendant's failure to preserve error at
trial, in violation of Rule 10(b)).
On the other hand, this Court has also distinguished Viar on
many occasions and considered the merits of the case or issue
before it despite rule violations. See, e.g., Davis v. Columbus
Cty. Schools., 175 N.C. App. 95, 622 S.E.2d 671 (2005) (despite
appellant's failure to direct the Court's attention to which
findings of fact or conclusions of law were being contested in
the assignments of error, dismissal was unwarranted becauseappellant included assignments of error with record references in
their brief); Youse v. Duke Energy Corp., 171 N.C. App. 187, 192,
614 S.E.2d 396, 400 (2005) (appeal heard despite several rule
violations because the Court was “able to determine the issues in
this case on appeal[]” and “defendant . . . was put on sufficient
notice of the issues on appeal[]”).
In this case, despite the multiple violations of Rule
28(b)(6) as noted above and despite Defendant's failure to
request the Court to nevertheless consider his arguments, we
think it appropriate to exercise our authority under Rule 2
because of the seriousness of allegations of juror misconduct.
Moreover, the thoroughness of the State's response to Defendant's
argument establishes that the State was on sufficient notice of
the issue sought to be raised by Defendant and of the basis on
which this Court might rule on this issue. Thus, a primary
concern expressed by Viar and other cases as one reason for
strict application of the Rules of Appellate Procedure is absent
in this circumstance. See, e.g., McCutchen v. McCutchen, 170
N.C. App. 1, 612 S.E.2d 162 (2005), aff'd on other grounds, 360
N.C. 280, 624 S.E.2d 620 (2006). Accordingly, we address the
merits of Defendant's assignment of error three.
In this case, the jury began deliberations on 7 September
2004 on all twenty-one charges against Defendant. On that sameday, the jury reached unanimous verdicts, and verdict sheets so
indicating were signed by the foreperson, on eight of the
charges. On the following day, verdict sheets were signed
indicating unanimous verdicts on three additional charges. On 9
September 2004, the jury foreperson signed a verdict sheet
stating that the jury had reached a unanimous verdict on one more
charge. The jury also reached unanimous verdicts of not guilty
on three charges, although the record on appeal does not reflect
when these verdicts were reached.
On the morning of 9 September 2004, the jury foreperson sent
a note to the trial judge which stated the following:
Your honor, I feel that you should be
made aware that Juror #3 violated your
instruction not to do investigative work on
our own. This juror looked at the business
site of Mr. Hill and shared with us that
because of the size of the extension [sic] of
the building, the interior must be small, and
therefore one of the incidents could not have
occurred as described.
The trial judge discussed the note with counsel for the State and
Defendant, and after discussion, decided “that the jury should
continue deliberations, and that any inquiry into the matter
would contaminate one or more, or all of the jury.”
Consequently, deliberations continued until approximately noon,
when the trial judge received a second note from the juryforeperson advising that “on six of the charges we cannot reach a
unanimous verdict.” The jury thus requested the court's
“counsel.”
At that point, the judge excused the jury for the lunch
recess, noting that “[m]aybe going to lunch will be beneficial
for you.” The transcript reflects that the jury resumed
deliberations at 2:00 p.m. with no further exchange with the
judge after they returned from lunch, and that at approximately
2:30 p.m., the judge began a hearing in chambers with counsel for
Defendant and the State present. The judge first questioned his
bailiff about the circumstances surrounding receipt of the two
notes from the jury foreperson. He then called the foreperson
from the jury room to ask her questions, during which the
foreperson advised the following:
On the afternoon of 8 September 2004, one of the jurors went
to Hot Dog World, an establishment across the street from
Defendant's pawn shop. While she was there, she looked at
Defendant's place of business and “deduced” that since the
building “looked very small to her from the outside . . . it must
be small inside.” Thus, with respect to the allegations made by
P.S. of having been sexually assaulted by Defendant at the pawn
shop, this juror expressed her opinion that if P.S. had “cried
out[,]” she thought “someone would have heard him inside thebuilding.” The foreperson told the members of the jury that “'we
have to disregard that'” and told the trial judge that “we
disregarded it. . . . I don't believe the rest of us were
influenced in anyway [sic] . . . we all felt it was
inappropriate.”
In response to further questioning from the judge and
counsel for both Defendant and the State, the foreperson then
told the court that the jury had not “revisited” any of the
unanimous verdicts they had reached before juror number three
advised of her opinions from looking at the pawn shop premises.
“Those that we have already decided on were before this issue.
And . . . [w]e did not go back.” She advised further that the
jury had not reached any additional verdicts since learning of
juror number three's visit. The judge sent the foreperson back
to the jury room, but told her not to continue deliberations on
the six remaining charges. During further discussions with the
parties' attorneys regarding how to handle the matter, counsel
for Defendant stated that, in his opinion, “the verdicts they've
got are okay[,]” but that the remaining six charges should be
mistried. Counsel for the State agreed.
The trial court then called the jury into the courtroom and
accepted their fifteen unanimous verdicts after polling the jury
as to each verdict. None of the unanimous verdicts involvedcharges related to P.S. The court declared a mistrial as to the
remaining six counts upon which the jury had not agreed (five
counts involving P.S. and one count involving C.H.). Defendant
did not object to either the procedure employed by the court to
resolve the matter, nor to the court's acceptance of the
unanimous verdicts. On appeal, however, Defendant argues that
the trial court, on its own motion, should have declared a
mistrial as to all charges.
The law is well-settled in North Carolina regarding the
discretion afforded to trial courts on questions of juror
misconduct. When juror misconduct is alleged, the trial court
must investigate the matter and make appropriate inquiry. State
v. Najewicz, 112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993),
disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). Since
no one is in a better position than the trial judge, who
contemporaneously observes and participates in the trial, to
investigate allegations of misconduct, the trial court's broad
discretion is appropriate and will not be reversed on appeal
unless it is clearly an abuse of discretion. State v. Harris,
145 N.C. App. 570, 577, 551 S.E.2d 499, 504 (2001), disc. review
denied, 355 N.C. 218, 560 S.E.2d 146 (2002). A trial court is
held to have abused its discretion only when “its ruling was so
arbitrary that it could not have been the result of a reasoneddecision.” State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78,
82 (1985) (citation omitted). “However great and responsible
this power, the law intends that the Judge will exercise it to
further the ends of justice, and though, doubtless it is
occasionally abused, it would be difficult to fix upon a safer
tribunal for the exercise of this discretionary power, which must
be lodged somewhere.” State v. Sanders, 347 N.C. 587, 597, 496
S.E.2d 568, 575 (1998) (citations omitted).
A mistrial is appropriate when such serious improprieties
occur that it becomes impossible for a defendant to receive a
fair, impartial verdict. State v. Steen, 352 N.C. 227, 279, 536
S.E.2d 1, 31 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d
997 (2001). Whether to grant or declare a mistrial is within the
sound discretion of the trial court, and the court's ruling will
not be reversed on appeal unless there has been a manifest abuse
of that discretion. Id. “This is so even when the basis of the
motion for mistrial is misconduct affecting the jury.” State v.
Gardner, 322 N.C. 591, 593, 369 S.E.2d 593, 595 (1988) (citation
omitted). In this case, then, Defendant must show that the
trial judge manifestly abused his discretion by failing, on his
own motion, to declare a mistrial on all charges when the conduct
of juror number three was discovered. “[I]f[,] in the sound
discretion of the trial judge, it is possible . . . to preservedefendant's basic right to receive a fair trial before an
unbiased jury, then the motion for mistrial should be denied.”
State v. Parker, 119 N.C. App. 328, 335, 459 S.E.2d 9, 13 (1995)
(citation omitted).
In State v. Najewicz, supra, this Court found it unnecessary
to determine “whether an abuse of discretion occurred since
defendant never questioned the jury's behavior at trial.”
Najewicz, 112 N.C. App. at 291, 436 S.E.2d 139 (emphasis in
original). Noting that the defendant in that case “made no
motion for mistrial or request for other court action based upon
the alleged juror misconduct,” the Court held that the defendant
had waived his right to assign error on appeal under N.C. R. App.
P. 10. Id. Nonetheless, the Court also observed that it was
“unlikely defendant suffered any prejudice as a result of the
alleged jury misconduct.” Id.
The same principles guide our decision in this case. First,
since Defendant (1) did not object to the Court's decision to
accept the fifteen unanimous verdicts and made no motion for
mistrial or other court action as to those verdicts, and (2) has
not alleged plain error, Defendant has waived his right to raise
this issue on appeal. N.C. R. App. P. 10; State v. Gainey, 355
N.C. 73, 96, 558 S.E.2d 463, 478, cert. denied, 537 U.S. 896, 154
L. Ed. 2d 165 (2002). Second, even if the issue were properlybefore us, we perceive no abuse of discretion in the trial
judge's failure to declare a mistrial on his own motion, nor do
we believe that Defendant was prejudiced as a result of the juror
misconduct at issue. Nothing in the juror's independent
“investigation” of Defendant's premises and her subsequent
communication to the other jurors about her observations
establishes that the jury's prior verdicts were rendered with any
partiality or prejudice, much less the serious prejudice calling
for a mistrial under Steen.
The facts of the juror misconduct in this case as it
temporally occurred lend further support to the correctness of
the trial court's ruling. A determination of juror misconduct
“must be made on the facts and circumstances present in each
case.” State v. Jackson, 77 N.C. App. 491, 502, 335 S.E.2d 903,
910 (1985) (citation omitted). With respect to the fifteen
unanimous verdicts, not only is there no proof of misconduct, in
fact, there is no evidence that there was even an opportunity or
chance for such misconduct to occur. By the time juror number
three had reported her observations of Defendant's premises to
the other jurors, contamination of the unanimous verdicts already
reached was virtually impossible. Thus, it may be safely assumed
that identical verdicts would have been reached as to the fifteen
verdicts, even absent the misconduct. Defendant has failed toshow that the jurors were anything other than impartial and
unbiased when deliberating the fifteen charges on which they
unanimously agreed. See State v. Rutherford, 70 N.C. App. 674,
320 S.E.2d 916 (1984), disc. review denied, 313 N.C. 335, 327
S.E.2d 897 (1985).
Moreover, we are not persuaded that the trial judge should
have declared a mistrial sua sponte solely because the unanimous
verdicts had not yet been announced in open court when the juror
misconduct was discovered. In this regard, this case is
indistinguishable from State v. Gardner, supra. The misconduct
at issue in Gardner involved a conversation between the jury
foreman and the bailiff. Noting that the jury had already
reached its verdicts, the verdicts had been recorded on the
verdict sheets and the foreman had signed the verdict sheets,
leaving only the announcement of the verdicts in open court and
recordation of the verdicts in the minutes to be done, our
Supreme Court held that the bailiff's words to the foreman “could
not possibly have affected the foreman's view of the evidence
presented at trial, nor could the conversation have resulted in
harm to the defendant.” Gardner, 322 N.C. at 594, 369 S.E.2d at
595-96. Given the undisputed testimony of the jury foreperson in
the case at bar that the jury did not revisit the unanimous
verdicts they had already reached before juror number threedisclosed her visit to Defendant's pawn shop, and in light of the
trial judge's polling of the jury on each verdict separately, we
are convinced that Judge Guice rightfully accepted all fifteen
verdicts. This assignment of error is overruled.
[6] By his fourth assignment of error, Defendant argues that
the trial court erred by failing to sentence him in the mitigated
range when he presented evidence of mitigating factors and the
State offered no evidence of aggravating factors. This
assignment has no merit.
Defendant was sentenced in the presumptive range, and
therefore, has no statutory right to appeal his sentence. See
N.C. Gen. Stat. § 15A-1444(a1) (2005). Because Defendant has not
filed a petition for writ of certiorari seeking review of this
issue, it is not properly before this Court and we do not
consider it. Id. See also State v. Brown, 146 N.C. App. 590,
553 S.E.2d 428 (2001), appeal dismissed, disc. review denied, 356
N.C. 306, 570 S.E.2d 734 (2002).
(See footnote 3)
V. ASSISTANCE OF COUNSEL
[7] By his fifth and final assignment of error, Defendant
argues that his trial counsel was ineffective because he failed
to object to the State's motion for joinder and failed to move
for a mistrial when jury misconduct was discovered. We disagree.
To prevail on a claim of ineffective assistance of counsel,
a defendant must first prove that his attorney's performance was
deficient and the deficiency resulted in defendant being denied a
fair trial, with a reliable result. Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984). Secondly, once he satisfies the
first prong, he must prove that his defense was thereby
prejudiced. State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d
241, 248 (1985). In matters of strategy, “[c]ounsel is given
wide latitude . . ., 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. Fletcher, 354 N.C. 455, 482,
555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L.
Ed. 2d 73 (2002). Indeed, our law recognizes a presumption “that
trial counsel's representation is within the boundaries of
acceptable professional conduct.” State v. Roache, 358 N.C. 243,280, 595 S.E.2d 381, 406 (2004)(citation omitted). “[T]he
material inquiry is whether [counsel's] actions were reasonable
considering the totality of the circumstances at the time of
performance[,]” Gainey, 355 N.C. at 112-13, 558 S.E.2d at 488,
and the reviewing court “should avoid the temptation to second-
guess the actions of trial counsel[;] . . . judicial review of
counsel's performance must be highly deferential.” Id. at 113,
558 S.E.2d at 488 (citing Strickland, 466 U.S. at 689, 80 L. Ed.
2d at 698). Applying these principles to the case at bar, we
find no basis for a determination that Defendant's trial attorney
provided ineffective assistance of counsel, for the following
reasons:
Defendant first argues that “[i]t was not sound trial
strategy, it was highly prejudicial, and [Defendant] would have
achieved a different result had these cases not all been tried
together.” To support his position that trial counsel should
have objected to joinder of all the charges for trial, Defendant
broadly asserts that the issues were “mixed and confused” because
some involved alcohol and marijuana while others involved
pornography and sex crimes. However, except to argue that “the
boys alleging marijuana and alcohol misconduct were different
from the boys alleging sexual abuse,” and that the sentences for
the sex crimes were “disproportionately longer” than thesentences for the other crimes, Defendant cites no specific
reason that trial counsel's decision not to object to joinder was
so deficient that Defendant was deprived of a reliable, fair
trial.
Multiple charges may be joined for trial when the offenses
are based on a series of acts or transactions connected together
or constituting parts of a single scheme or plan. N.C. Gen.
Stat. § 15A-926(a) (2005). It is clear that the charges in
this case could be joined for trial pursuant to section
15A-926(a), which provides in pertinent part that “[t]wo or more
offenses may be joined . . . for trial when the offenses, whether
felonies or misdemeanors or both, are based on the same act or
transaction or on a series of acts or transactions connected
together or constituting parts of a single scheme or plan.” Id.
Moreover,
[p]ublic policy strongly favors consolidation
because it expedites the administration of
justice, reduces the congestion of trial
dockets, conserves judicial time, lessens the
burden upon citizens who must sacrifice both
time and money to serve upon juries and
avoids the necessity of recalling witnesses
who would otherwise be called upon to testify
only once.
State v. Jenkins, 83 N.C. App. 616, 617-18, 351 S.E.2d 299, 301
(1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987)
(citation omitted). Here, Defendant does not assign error to the trial court's
ruling allowing the State's motion to join all the charges for
one trial. Instead, he now second-guesses the decision of his
trial attorney not to oppose the motion. Responding to
Defendant's argument, the State asserts that trial counsel made a
calculated and reasoned decision to agree to joinder because he
clearly “viewed the State's case as weak and its witnesses as
unreliable . . . [and] it would not be unreasonable to . . . meet
all charges at once, rather than . . . piecemeal. . . .”
Further, the State details the evidence reflecting trial
counsel's obvious, extensive preparation, including his success
on Defendant's motion to suppress all “obscene” evidence seized
by police, his thorough cross-examination of the State's
witnesses on inconsistencies in their testimony, and his
presentation of fifteen witnesses on Defendant's behalf. Even if
the benefits of hindsight were appropriate to measure counsel's
performance at trial, we would not be persuaded that Defendant's
trial attorney was ineffective by agreeing to defend all the
charges against his client at one trial. We reject Defendant's
contention to the contrary.
Defendant next argues that his trial counsel provided
ineffective assistance when he failed to move for a mistrial on
all charges upon the court's discovery of juror misconduct. Forthe reasons delineated in section III above, this argument has no
merit.
Finally, Defendant argues that his trial attorney was
ineffective because he did not object to proceeding with the
trial on grounds that the police and the State “failed to turn
over exculpatory tapes with numerous statements from witnesses .
. . that proved [Defendant's] innocence [and] that was [sic] in
the possession of the police.” Defendant provides no citation of
legal authority for this argument, except a lone reference to
“Brady,” and he references no record or transcript pages to
support it. For these reasons, this argument is deemed
abandoned.
More importantly, however, there is no evidence in the
record to which Defendant could cite to support this argument.
Specifically, there are no motions, witness statements, defense
requests, offers of proof, exhibits, or even a colloquy between
anyone to demonstrate that there is any basis whatsoever for
Defendant to advance this argument. The highly inflammatory
nature of this allegation magnifies the egregious and improper
inclusion of this argument in Defendant's brief. We summarily
dismiss the argument and strongly caution counsel to refrain from
arguments unsupported by the record.
Defendant has not demonstrated that his trial attorney madeerrors so serious that he was not functioning as counsel
guaranteed by the Sixth Amendment or that his deficiencies were
so serious as to deprive Defendant of a fair trial with a
reliable result, Braswell, 312 N.C. at 562, 324 S.E.2d at 248,
nor has Defendant demonstrated that the outcome of the trial
would have been different, absent the alleged errors. This
assignment of error is overruled.
In conclusion, we hold that Defendant received a fair trial
free of error.
NO ERROR.
Chief Judge MARTIN and Judge WYNN concur.
Footnote: 1 Defendant also argues that it was inconsistent for the jury
to deadlock on the second-degree sexual offense charge involving
C.H. and yet find him guilty of indecent liberties, crime against
nature, and statutory rape of C.H. Defendant likewise cites noauthority to support his position that these guilty verdicts
“cannot stand.” This argument, too, is therefore waived. We
note, however, that our appellate courts have uniformly held that
consistency between verdicts on several counts is not required.
State v. Rosser, 54 N.C. App. 660, 284 S.E.2d 130 (1981). In
State v. Davis, 214 N.C. 787, 1 S.E.2d 104 (1938), our Supreme
Court held that a jury is not required to be consistent and mere
inconsistency will not invalidate a verdict. See also Dunn v.
United States, 284 U.S. 390, 76 L. Ed. 356 (1932); State v.
Black, 14 N.C. App. 373, 188 S.E.2d 634, appeal dismissed, 281
N.C. 624, 190 S.E.2d 467 (1972); State v. Jones, 3 N.C. App. 455,
165 S.E.2d 36 (1969).
Footnote: 2 Defendant's primary challenge to the charges involving C.H.
is based on his argument that the jury's verdicts were
inconsistent, an argument which we do not consider for the
reasons discussed in footnote 1, supra.
Footnote: 3 As State v. Brown makes clear, even if we were to hear
Defendant's appeal as a petition for certiorari and review this
issue, Defendant's position would still fail. The court has the
discretion to impose the presumptive sentence even where there is
evidence of mitigating factors. There is no basis for a
determination in this case that the trial court abused itsdiscretion in imposing the presumptive, rather than a mitigated,
sentence.