An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-431


Filed: 21 March 2006


v .                         Halifax County
                            No. 04 CRS 052718

    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.

    BRYANT, Judge.

    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 verdict.

    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, cert. denied, 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. Rasor, 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, 323 N.C. 367, 373 S.E.2d 549 (1988). In State v. Street, this Court held:
        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. denied, 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. Chandler, 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. Blackwell, “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 to comply[.]

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. We disagree.
    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, 321 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 discretionary order . . . for or against a new trial upon any ground may be reversed on appeal only 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 evidence.'”

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).
    No error.
    Judges HUDSON and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
    Initials used throughout to protect the juveniles.

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