Appeal by defendant from a judgment entered 3 November 2004 by
Judge Quentin T. Sumner in Halifax County Superior Court. Heard in
the Court of Appeals 2 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Calloway, for the State.
Attorney Daniel F. Read for defendant.
Allen Wayne Ross (defendant) appeals from a 3 November 2004
judgment entered consistent with a guilty verdict of taking
indecent liberties with his minor daughter in February 2004. The
jury found defendant not guilty on three remaining charges of
indecent liberties with a minor.
The State's evidence tended to show J.R.
(See footnote 1)
was ten years old in
February 2004 and was the biological daughter of the forty-one-
year-old defendant. J.R. had two thirteen year old girlfriends
L.K. and S.M. who were also neighbors, and who testified that
defendant touched them inappropriately while they visited J.R. in
her home. L.K. testified that on 3 November 2003 defendant sat onthe couch next to her in the living room at the Ross house, then
rolled over and put his knees on her knees, and started rubbing her
breasts. She asked him to get off of her and when he refused, L.K.
pushed him off and ran upstairs. L.K. testified that J.R.'s mother
was in the living room at the time, watching them, but never said
anything. L.K. also testified she did not tell anyone because she
was afraid defendant might hit her as she had witnessed defendant
hitting J.R. and her brother C.R. many times.
S.M. testified that just before Christmas in December 2003,
while spending the night at J.R.'s house, S.M. went into the living
room, and sat on the couch next to defendant who then leaned over
her, and started touching her chest and between her thighs. S.M.
testified J.R.'s mother was sitting across from them on another
couch, watching everything but never said a word. L.K. said she
went home immediately without letting J.R. know she was gone.
J.R. testified that around Valentine's Day of 2004, she was
upstairs in her bedroom in her pajamas and defendant came into her
bedroom, sat down on her bed, touched her thigh and put his arm
around her as if he was going to hug her, but instead touched her
breasts. J.R. demonstrated for the jury how defendant touched her
on her breasts and said that his hands stayed on her breasts for a
few minutes. She testified that at the time of the touching,
defendant was talking to her, then he became upset and started to
cry, at which point he took his hands away and left the room. J.R.
testified that she was afraid but did not do anything because she
thought defendant would hit her. J.R. testified about another incident in March 2004 in which
defendant, who was really drunk, yelled at her and her brother C.R.
to come home from the neighbor's, pulled them into the house, hit
J.R. on the head, hit C.R. upside the face, knocked C.R.'s
glasses off, and then began punching C.R. in the face with a closed
fist. J.R. testified that her father sat on the couch in the
living room between her and her brother and touched her breasts and
also her thigh. J.R. testified that the lights were on in the
living room but the television was off and that her mother was
about four feet away seated on the loveseat.
C.R. testified that on 20 March 2004 defendant came home
drunk. While his parents argued, C.R. went to the neighbor's house
and stayed there until defendant yelled for C.R. and J.R. to come
home. After arriving home, defendant hit C.R. three times in the
jaw with his closed fist and told him to get out of defendant's
face before defendant broke his jaw. C.R. stated that later, when
he was sitting on the couch with defendant and J.R. his vision was
impaired because defendant had knocked his glasses off. C.R. also
indicated his mother was seated on the loveseat in the same room.
Roanoke Rapids Police Officer Terrence Tyler testified for the
State that he was not only a police officer, but was also assigned
to C.R.'s school as a resource officer. Officer Tyler testified he
took a statement from C.R. recounting the events of 20 March 2004
and as a result, he notified the Halifax County Department of
Social Services (DSS) and forwarded C.R.'s statement to Detective
Adam Bondarek with the Roanoke Rapids Police Department. On 25 and26 March 2004, two DSS Child Protective Services Investigators
interviewed J.R. who told them defendant had touched her on her
breasts and the top of her thigh and had hit her three times on the
back of the head. Immediately thereafter, DSS removed the children
from the home. Defendant did not put on any evidence. Following
conviction and sentencing, defendant appealed.
On appeal defendant raises five issues: whether the trial
court erred in (I) allowing the State's motion to join four counts
of indecent liberties against defendant for trial; (II) admitting
his son's testimony regarding child abuse; (III) admitting the
Tedi Bear report; (IV) denying defendant's motion to dismiss for
insufficiency of the evidence; and (V) failing to set aside the
Defendant argues the trial court erred by joining the four
counts of indecent liberties against him. We disagree.
N.C. Gen. Stat. § 15A-926(a), which governs joinder, states:
Two 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.
N.C.G.S. § 15A-926(a) (2005).
The trial court must determine whether a sufficient
transactional connection exists between the criminal offenses and
whether joinder undermines the defendant's right to a fair hearing
on each charge and the defendant's ability to present a defense.State v. Montford
, 137 N.C. App. 495, 498, 529 S.E.2d 247, 250,
, 353 N.C. 275, 546 S.E.2d 386 (2000). Whether
defendants should be tried jointly or separately . . . is a matter
addressed to the sound discretion of the trial judge. State v.
, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987). Public
policy favors consolidation in order to avoid the necessity of
calling the same witness twice, a factor particularly compelling in
trials where juveniles testify about sexual abuse. State v. Bruce
90 N.C. App. 547, 552, 369 S.E.2d 95, 99, disc. review denied
N.C. 367, 373 S.E.2d 549 (1988). In State v. Street
, this Court
even though the time period between some of
the acts was substantial, the acts were
nonetheless so similar in circumstance and
place as not to render the consolidation of
the offenses prejudicial to the defendant. We
also note that all of the offenses involved
sexual abuses of [children with a relationship
to defendant], and although N.C. Gen. Stat. §
15A-926 does not permit joinder of offenses
solely on the basis that they are the same
class, the nature of the offenses is a factor
which may properly be considered in
determining whether certain acts constitute
parts of a single scheme or plan.
State v. Street
, 45 N.C. App. 1, 6, 262 S.E.2d 365, 368, cert.
, 301 N.C. 104, ___ S.E.2d ___ (1980); see State v. Beckham
145 N.C. App. 119, 126, 550 S.E.2d 231, 237 (2001) (joining
multiple sexual offense charges against a defendant is reversible
error only where the charges are 'so separate in time and place
and so distinct in circumstances as to render the consolidation
unjust and prejudicial to defendant.'). It is not error for the
trial court to consolidate multiple sexual offense charges againsta defendant where the sexual offenses are transactionally
connected. State v. Swann
, 322 N.C. 666, 370 S.E.2d 533 (1988).
The present case has a transactional connection in that the
defendant allegedly touched or rubbed the breast of three young
girls in his home, while sitting down next to them and touching
their thighs and putting his arm around them. In three of the four
allegations, the victims were afraid that the defendant might harm
them if they told anyone. In three of the four charges, the
conduct alleged occurred in the same room of defendant's house.
The time lapse between each alleged act was close and occurred
within a span of five months (i.e. November and December 2003 and
February and March 2004). See Street
, 45 N.C. App. at 6, 262
S.E.2d at 368. Further, defendant's argument that joining the
cases prejudiced him lacks merit since the jury would have heard
the other crimes evidence as part of a common scheme or plan
under North Carolina Rules of Evidence 404(b). See State v.
, 324 N.C. 172, 188, 376 S.E.2d 728, 738 (1989) (if the
cases were tried separately the State could still have presented
evidence of other similar sex crimes as evidence of a common scheme
or plan) (citing N.C. Gen. Stat. § 8C-1, Rule 404 (b)). This
assignment of error is overruled.
Defendant next argues the trial court erred by admitting his
son's testimony regarding child abuse because it was evidence of
defendant's bad character and such admission was prejudicial to
defendant. We disagree. Under N.C. Gen. Stat. § 8C-1, Rule 404(b), [e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident. N.C.G.S. § 8C-1, Rule 404(b) (2005). In State v.
, Our Supreme Court has characterized rule 404(b) as a
general rule of inclusion of relevant evidence of other crimes,
wrongs, or acts which is subject to but one exception, evidence
should be excluded if its only
probative value is to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged. Accordingly, although 'evidence
may tend to show other crimes, wrongs, or acts by the defendant and
his propensity to commit them, it is admissible under rule 404(b)
so long as it also is relevant for some purpose other than to show
that defendant has the propensity for the type of conduct for which
he is being tried.' State v. Blackwell
, 133 N.C. App. 31, 34, 514
S.E.2d 116, 119, cert. denied
, 350 N.C. 595, 537 S.E.2d 483 (1999)
(citations and quotations omitted). In sex abuse cases, the
victim's state of mind can be relevant. State v. Bynum
, 111 N.C.
App. 845, 849, 433 S.E.2d 778, 780-81 (1993). When it is relevant,
any evidence tending to show the victim is afraid of her abuser is
admissible. State v. Thompson
, 139 N.C. App. 299, 305, 533 S.E.2d
834, 839 (2000). Evidence of defendant hitting C.R. was properly admitted for
the purpose of showing J.R.'s fearful state of mind. The events of
20 March 2004 were that defendant hit J.R. several times in the
head and hit C.R. several times in the face with a closed fist,
knocking off his glasses, before approaching J.R. and touching her
breasts and thigh. Because J.R.'s fear of defendant was based not
only on his treatment of her, but also on his treatment of C.R.,
evidence of defendant's treatment of C.R. was relevant and properly
admitted. This assignment of error is overruled.
Defendant argues the trial court erred by admitting the Tedi
Bear (Child Advocacy Center) report based on the State's discovery
violation. Defendant contends the Tedi Bear report was not given
to him in discovery and that he was prejudiced by its admission.
N.C. Gen. Stat. § 15A-910 governs discovery violations:
§ 15A-910. Regulation of discovery -- Failure
to comply (a) If at any time during the course
of the proceedings the court determines that a
party has failed to comply with this Article
or with an order issued pursuant to this
Article, the court in addition to exercising
its contempt powers may
(1) Order the party to
permit the discovery or inspection, or (2)
Grant a continuance or recess, or (3) Prohibit
the party from introducing evidence not
disclosed, or (3a) Declare a mistrial, or (3b)
Dismiss the charge, with or without prejudice,
or (4) Enter other appropriate orders. (b)
Prior to finding any sanctions appropriate,
the court shall consider both the materiality
of the subject matter and the totality of the
circumstances surrounding an alleged failure
N.C. Gen. Stat. § 15A-910 (2005)(emphasis added). At trial, the Assistant District Attorney asserted the Tedi
Bear report was included in her District Attorney's report when
she received the file on 1 May 2004 and that the report was
available to defendant under open file discovery from 5 May 2004 to
1 November 2004. However, defendant argued it was not in the file
on 1 June 2004 or the Friday before the trial. The remaining
arguments at trial were off the record. Suzanne Jolissaint
testified as to her forensic summary contained in the Tedi Bear
report. Ms. Jolissaint was employed by East Carolina University
Pediatrics in the Tedi Bear Children's Advocacy Center as a
forensic interviewer. On 30 April 2004, she interviewed J.R. and
C.R. at which time J.R. related that defendant had hit her brother
with his fist and thrown him against a wall. Using an anatomical
drawing, J.R. told Ms. Jolissaint her father touched her breasts on
top of her clothing by moving his hand around for a couple of
minutes. On cross-examination, Ms. Jolissaint testified that
everything in her summary was what J.R. disclosed to her regarding
physical and sexual abuse. Defendant exercised his opportunity to
closely cross-examine Ms. Jolissaint as well as J.R. and C.R. as to
the contents of the report. We are left to conclude that prejudice
to the defendant did not result where the alleged discovery
violation was not clear and defendant has not shown how the
admission of the report would have changed the verdict in this
case. This assignment of error is overruled.
Defendant contends the trial court erred by denying
defendant's motion to dismiss for insufficiency of the evidence.
The standard of review for a motion to dismiss is, whether
there is substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and (2)
of defendant's being the perpetrator of such offense. If so, the
motion is properly denied. State v. Barnes
, 334 N.C. 67, 75, 430
S.E.2d 914, 918 (1993) (citation omitted). In considering a motion
to dismiss, the trial court must analyze the evidence in the light
most favorable to the State and give the State the benefit of every
reasonable inference from the evidence. State v. Gibson
, 342 N.C.
142, 150, 463 S.E.2d 193, 199 (1995). The trial court must also
resolve any contradictions in the evidence in the State's favor.
Id. The trial court . . . is concerned only with the sufficiency
of the evidence to carry the case to the jury; it is not concerned
with the weight of the evidence. State v. Lowery
, 309 N.C. 763,
766, 309 S.E.2d 232, 236 (1983). Ultimately, the Court must decide
whether a reasonable inference of defendant's guilt may be drawn
from the circumstances. State v. Powell
, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980).
Defendant was convicted of taking indecent liberties with a
minor. Pursuant to N.C. Gen. Stat. § 14-202.1:
(a) A person is guilty of taking indecent
liberties with [a minor] if, being 16 years of
age or more and at least five years older than
the child in question, he either: (1)
Willfully takes or attempts to take any
immoral, improper, or indecent liberties withany child of either sex under the age of 16
years for the purpose of arousing or
gratifying sexual desire; or (2) Willfully
commits or attempts to commit any lewd or
lascivious act upon or with the body or any
part or member of the body of any child of
either sex under the age of 16 years.
N.C.G.S. § 14-202.1 (2005). In the case sub judice
, the evidence
showed that J.R. was approximately ten years old during the acts in
question and that there was a nearly thirty year age difference
between J.R. and defendant. As for showing the defendant's purpose
for committing indecent liberties with a minor, our Supreme Court
has held such a purpose is seldom proved by direct evidence and is
properly and most often proven by inference. State v. Rhodes
N.C. 102, 105, 361 S.E.2d 578, 580 (1987) ([T]hat the action was
for the purpose of arousing or gratifying sexual desire, may be
inferred from the evidence of the defendant's actions. This is
sufficient evidence to withstand a motion to dismiss the charge of
taking indecent liberties with a child.). The testimony at trial
as to the incident of February 2004 was that defendant came to
J.R.'s bedroom, sat on the bed beside her and while talking to her,
rubbed her breasts and touched her thigh before he started crying
and left the bedroom. Viewing the evidence in the light most
favorable to the State, there was sufficient evidence for the jury
to find defendant had committed an indecent liberty with J.R. in
February 2004. This assignment of error is overruled.
Defendant argues the trial court erred committed error by
failing to set aside the verdict of indecent liberties with J.R. inFebruary 2004 because the jury acquitted defendant on three other
charges of indecent liberties. We disagree.
[I]t is plain that a trial judge's
order . . . for or against a new
trial upon any
ground may be reversed on
in those exceptional cases where
an abuse of discretion is clearly shown. We
find nothing in the record at bar to clearly
show an abuse of discretion on the part of
the trial judge in his ruling to deny
defendant's motion to set aside the verdicts.
Our courts have long held that the trial
judge has a manifest duty
to exercise such
power to prevent injustice 'when in his
opinion the verdict is not supported by the
evidence or is against the weight of the
State v. Bowen
, 139 N.C. App. 18, 31, 533 S.E.2d 248, 256 (2000)
(citations omitted) (emphasis in original).
Defendant alleges the jury convicted defendant because they
had to find defendant guilty of something where there were so many
charges. Here, based on the evidence, it is reasonable for the
jury to conclude that defendant did not inappropriately touch J.R.
and her two friends while within a few feet of his wife in each of
the other charges as opposed to the February 2004 allegation in
which defendant was alone with J.R. in her bedroom. Nevertheless,
even if they seem to be inconsistent, the United States Supreme
Court has stated that inconsistent verdicts in a criminal trial
need not be set aside, but may instead be viewed as a demonstration
of the jury's lenity. United States v. Powell
, 469 U.S. 57, 69, 83
L. Ed. 2d 461, 471 (1984). This assignment of error is overruled.
We note defendant has abandoned assignments of error one, six
and seven. Therefore, pursuant to N.C. R. App. P. 28(b)(6),assignments of error not set out in appellant's brief, or in
support of which no reason or argument is stated or authority is
cited, will be taken as abandoned. See State v. Bonney
, 329 N.C.
61, 82, 405 S.E.2d 145, 157 (1991).
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).