STATE OF NORTH CAROLINA
v
.
Rutherford County
Nos. 04CRS2408-09
ROBBIE DANIEL SEARCY
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Belinda A. Smith, for the State.
Haakon Thorsen for defendant-appellant.
HUNTER, Judge.
Robbie Daniel Searcy (“defendant”) appeals from his
convictions of two counts of taking indecent liberties with a
child. Defendant contends the trial court improperly allowed
introduction of hearsay evidence, and further erred in denying his
motion to dismiss the charges against him. We find no error by the
trial court.
The State introduced evidence tending to show that the thirty-
three-year-old defendant and his girlfriend (“Katy”) played a game
called “Truth or Dare” with a twelve-year-old child and a thirteen-
year-old child they were babysitting. Under pressure from
defendant and Katy, the children committed various sexual acts
during the course of the game. Specifically, the childrentestified they licked Katy's vagina and breast and kissed both
defendant and Katy on the lips. The children also watched as Katy
manually stimulated defendant, and watched defendant put a condom
on his erect penis. Defendant told the children not to tell anyone
about the events of the evening. Further facts are set out in the
opinion as necessary for an understanding of the assignments of
error.
The jury found defendant guilty of two counts of indecent
liberties with a child, and the trial court sentenced defendant to
two consecutive sentences of sixteen to twenty months'
imprisonment. Defendant appeals.
In his first three assignments of error, defendant argues the
trial court erred in allowing the State to introduce a prior
statement given by Katy to police officers for purposes of
impeaching her testimony on the stand. During its case-in-chief,
the State called Katy as a witness. Katy testified to the events
of the evening leading up to the game of “Truth or Dare.” Katy
stated that the children requested to play the game, but that she
and defendant refused. Katy denied that the sexual acts to which
the children testified occurred. She stated she remembered giving
a statement to police officers regarding the game and the sexual
acts, but that she had been “forced” to give it. Katy did not
explain what she meant by “forced.” Over defendant's objection,
the State then called the detective to whom Katy had made her
earlier statement, and he testified regarding the substance of
Katy's prior statement. Katy's prior statement generallycorroborated the testimony given by the children concerning the
events of the evening, including the sexual acts. The trial court
instructed the jury that the statement was offered for purposes of
impeachment.
Defendant's central objection to the introduction of Katy's
statement is his allegation that her statement to the detective was
“the product of coercion” and therefore inadmissible. Defendant
presents no evidence to support his theory, however, beyond Katy's
testimony at trial that she had been “forced” to give the
statement. Katy never explained what she meant by “forced.”
Neither the State nor defendant questioned her as to what she
meant, and there was no voir dire conducted on the subject. There
was no other evidence of fear, coercion, or improper means employed
by the detective taking her statement. Notably, Katy testified she
remembered making the statement and its contents.
“Under certain circumstances a witness may be impeached by
proof of prior conduct or statements which are inconsistent with
the witness's testimony.” State v. Whitley, 311 N.C. 656, 663, 319
S.E.2d 584, 589 (1984) (holding that, because the prior statement
with which the witness was impeached was inconsistent in part with
her testimony, and material in that it related to events
immediately leading to the crime in the case, the trial court
committed no error in allowing the introduction of her prior
statement). “Inconsistent prior statements are admissible for the
purpose of shedding light on a witness's credibility.” Id.; see
also N.C. Gen. Stat. § 8C-1, Rule 607 (2005) (“[t]he credibility ofa witness may be attacked by any party, including the party calling
him”); State v. Riccard, 142 N.C. App. 298, 304, 542 S.E.2d 320,
323 (2001) (holding the trial court properly allowed introduction
of prior statements given by witnesses for impeachment purposes).
Defendant cites the case of State v. Hunt, 324 N.C. 343, 378
S.E.2d 754 (1989), in support of his argument that the introduction
of Katy's prior statement was error. In Hunt, a witness called by
the State admitted she was a prostitute and that she was acquainted
with the defendant. The State then questioned the witness
regarding prior statements damaging to the defendant's case she
allegedly made to police officers. The witness denied making the
statements. When confronted with the signed statements on the
stand during voir dire, the witness acknowledged that her signature
appeared on the documents, but she denied knowledge or memory of
the statements. She repeated her denial during testimony before
the jury. Over the defendant's objections, the trial court
subsequently allowed a police officer to testify as to the
witness's prior statements for purposes of impeachment,
corroboration, and as substantive evidence. Id. at 352, 378 S.E.2d
at 759.
Upon review, our Supreme Court held that the trial court erred
in permitting the police officer to testify as to the substance of
the prior statements denied by the witness. The Court noted that
“extrinsic evidence of prior inconsistent statements may not be
used to impeach a witness where the questions concern matters
collateral to the issues[,]” and explained that collateral matters“include testimony contradicting a witness's denial that he made a
prior statement when that testimony purports to reiterate the
substance of the statement.” Id. at 348, 378 S.E.2d at 757. As
the witness in Hunt had denied making the prior statements, the
police officer
could properly have been called to contradict
the fact, denied by [the witness], that she
had made the statement to him on the specified
date. But . . . “it was improper to impeach
[the witness concerning what she had or had
not told the police officer] by offering the
testimony of [the police officer].”
Id. at 348-49, 378 S.E.2d at 757 (quoting State v. Williams, 322
N.C. 452, 456, 368 S.E.2d 624, 626 (1988)). Thus, the Court in
Hunt determined that the trial court improperly allowed
introduction of extrinsic evidence of collateral matters.
The Hunt Court further held that the trial court also erred
because the prior statements constituted impermissible hearsay
evidence offered under the guise of impeachment: “Under the facts
of this case, circumstances accompanying the introduction of [the
witness's] prior unsworn statement[s] provide no assurance either
that [her] testimony was critical to the state's case or that it
was introduced altogether in good faith and followed by effective
limiting instructions.” Id. at 351, 378 S.E.2d at 758. Finally,
the Court noted that, even if the witness's “testimony on the
subject of the prior statements had not been collateral and the
purposes of their introduction had not been suspect as subterfuge,
the application of the safeguard test of Rule 403 would properly
have excluded them[,]” in that the prejudicial effect of theevidence far outweighed its impeachment and corroborative value.
Id. at 353, 378 S.E.2d at 760. The Court therefore granted the
defendant a new trial.
The case of Hunt is distinctly different from the present case
on several key grounds. First and most significantly, Katy did not
deny making the prior statement. Unlike the statement of the
witness in Hunt, Katy's statement was therefore not a collateral
matter and could be used for impeachment purposes. See Riccard,
142 N.C. App. at 303, 542 S.E.2d at 323 (stating that, because the
witnesses admitted making the prior statements in question, the
statements were not collateral matters, and their introduction was
permissible for purposes of impeachment). Second, there is no
evidence here that the State was attempting to introduce otherwise
impermissible hearsay evidence under the guise of impeachment.
Unlike the witness in Hunt, Katy gave significant substantive
evidence before the State confronted her regarding her prior
inconsistent statement. There was no evidence of bad faith or
subterfuge on the part of the State, and the trial court gave
appropriate limiting instructions to the jury. Notably, the prior
statement was introduced for purposes of impeachment only, and not,
as in Hunt, for purposes of substantive evidence. Third, the
prejudicial effect of the statement did not outweigh its
impeachment value. Both of the children who testified were old
enough to be reliable witnesses, and they gave detailed and
substantial evidence against defendant. Katy's prior statement
merely corroborated the testimony of the children, and itsadmission did not significantly prejudice defendant. We therefore
find Hunt inapposite to the case sub judice.
Although defendant now contends Katy's statement was the
product of coercion, he did not object to it as such. The basis of
defendant's objection at trial was that the evidence could not be
used for substantive purposes, and that even if it were admitted
for purposes of impeachment, the jury might nevertheless use the
statement as substantive evidence to satisfy the elements of the
offense. It is well established that “where a theory argued on
appeal was not raised before the trial court, 'the law does not
permit parties to swap horses between courts in order to get a
better mount in the [appellate court].'” State v. Sharpe, 344 N.C.
190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C.
6, 10, 175 S.E. 836, 838 (1934)). According to Rule of Appellate
Procedure 10(b)(1), in order to preserve a question for appellate
review, the party must state the specific grounds for the ruling
the party desires the court to make. N.C.R. App. P. 10(b)(1).
Defendant argues that, to the extent he failed to properly preserve
this argument, the Court should nevertheless find plain error.
Plain error analysis requires, however, that “[w]e determine
whether, absent the error, . . . the jury [would] have returned a
different verdict.” State v. Ewell, 168 N.C. App. 98, 102, 606
S.E.2d 914, 917, disc. review denied, 359 N.C. 412, 612 S.E.2d 326
(2005). We determined supra that the statement did not
significantly prejudice defendant, given the substantial evidence
against defendant and the relative insignificance of the priorstatement. We hold the trial court did not err in admitting Katy's
prior statement for purposes of impeachment. Defendant's first
three assignments of error are overruled.
By his final assignment of error, defendant states that “[t]he
evidence was insufficient to convince a rational trier of fact.”
Defendant then offers a two-sentence factual summary of the basis
of his motion to dismiss before the trial court, followed by a one-
sentence general proposition of law. Defendant never applies this
general proposition to the facts of this case, nor does he make any
substantive argument regarding the grounds for his motion to
dismiss. As such, defendant has waived this assignment of error.
See N.C.R. App. P. 28(a) (“[q]uestions raised by assignments of
error . . . but not then presented and discussed in a party's
brief, are deemed abandoned”). Even if defendant had properly
preserved this argument, there was substantial evidence to support
his convictions. We dismiss this assignment of error.
In conclusion, we find no error by the trial court.
No error.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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