An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 May 2006
STATE OF NORTH CAROLINA
No. 04 CRS 43268
ALLEN JOHN FRYE
Appeal by defendant from judgment entered 15 November 2004 by
Judge J. B. Allen, Jr., in Durham County Superior Court. Heard in
the Court of Appeals 9 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Jennie W. Hauser, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant-appellant.
Allen Frye (defendant) appeals from judgment entered upon his
conviction of first degree sexual offense. We find no error.
The defendant was charged by indictment dated 3 May 2004 with
first degree sexual offense, taking indecent liberties with a
child, and felonious sex act with a minor by one in a parental
role. The case was tried beginning 8 November 2004. The State's
trial evidence is summarized, in relevant part, as follows: K.H.
(See footnote 1)
was six years old and in the first grade at the time of trial. In2003 she lived in Greensboro, North Carolina with her mother, T.S.,
and her younger brother. In October 2003 T.S. and her two children
moved to Durham. T.S. and defendant had a romantic relationship
and, shortly after T.S. moved to Durham, the defendant moved in
with them. In the mornings, defendant usually drove T.S. to work
and then took K.H.'s brother to day care before driving K.H. to
school. K.H. testified that, after leaving her brother at day
care, the defendant sometimes took her home before driving her to
school. On more than one occasion, defendant brought K.H. into the
bedroom he shared with her mother, showed K.H. pornographic videos,
and fondled her genitals. K.H. testified that defendant touched
me in my private and that it hurt. She also testified that
defendant asked her [t]o lick it.
K.H.'s testimony was corroborated by several other witnesses.
T.S. testified that the defendant moved in with her in October or
November of 2003, and that he generally drove her and her children
to their respective locations in the mornings. T.S. identified
sign-in sheets maintained by K.H.'s school, which indicated that on
several occasions K.H. arrived at school later than could be
accounted for by the short distance between the school and her
brother's day care. She also testified that defendant kept
pornographic videos at her house.
On 17 February 2004 T.S. noticed that the children were
unusually quiet when she saw them in the afternoon. When she
questioned K.H., the child told T.S. that the defendant had made
her watch a scary movie, had directed her to take off herclothes, and told her to get on top of him and move up and down.
The next time T.S. saw the defendant she confronted him with K.H.'s
accusations. The defendant told her that he was sorry, that he
had a talk with K.H., and that it wasn't going to happen again.
When T.S. told him that K.H. claimed there were hundreds of
incidents, the defendant said it only happened three times. The
next day T.S. called defendant and pretended to have received a
call from K.H.'s school, to which defendant responded, [w]hy would
she talk now? On 19 February 2004 T.S. contacted the Durham City
Police Department and reported that defendant had molested K.H.
She took K.H. to her family doctor, who referred her to the Center
for Child and Family Health (the Center), in Durham. On 3 March
2004 K.H. was seen at the Center, where she was interviewed and
given a physical examination.
On cross-examination, T.S. admitted that, in her initial
interview with law enforcement officers, she falsely claimed not to
have any address or phone number where defendant might be reached.
She was also questioned about accepting defendant's collect calls
from jail, her jealousy of defendant's other girlfriends, and
whether she had tried to have the charges dropped. On redirect
examination, T.S. explained that she initially lied to the police
because she was frightened of the defendant, and that she had
wanted to drop the charges because she heard that defendant was
trying to get someone to kill her.
The testimony of several law enforcement officers corroborated
the testimony of K.H. and T.S. Officer Harmon and InvestigatorBaker, both of the Durham Police Department, recounted interviews
with T.S. in which she provided an account that was substantially
similar to her trial testimony. Further corroboration came from
clinical personnel at the Center. Jeanne Arnts, a clinical social
worker at the Center, testified that she conducted a videotaped
interview with K.H. on 3 March 2004. K.H. told her that defendant
had taken her clothes off and had touched her on [her] bottom and
he hurt it. She also said that defendant had his thing out, and
that he told her that when she turned eight he would put it in
[her]. Arnts testified that K.H. used anatomical dolls and
drawings to indicate that defendant had molested her. The jury was
shown a videotape of her interview with K.H. Arnts also
interviewed T.S., who essentially told her the same thing as what
T.S. testified to during the trial.
Dr. Edith Kocis, a physician working at the Center, was
qualified by the trial court as an expert in child sexual abuse.
On 3 March 2004 Dr. Kocis conducted a comprehensive physical
examination of K.H., including an examination of the child's
genitalia. Dr. Kocis observed an abnormal capillary break or
bruise on K.H.'s hymen. She offered an expert opinion that the
hymeneal hemorrhage (1) was consistent with K.H.'s description of
defendant's actions, and (2) could have come only from some object
entering her vagina and making contact with her hymen. On cross-
examination, Dr. Kocis explained further that a girl K.H.'s age
often could not distinguish between the inside and outside of
her genitals. Dr. Dana Hagele, also employed at the Center, wasqualified as an expert in child abuse. When she conducted a
follow-up exam on K.H. on 10 March 2004, the hymeneal bruising had
healed. Drs. Hagele and Kocis each testified that this finding
enabled the physicians to rule out a congenital abnormality as the
cause of the bleeding.
The witnesses presented by the defendant included defendant's
ex-wife; his mother; his twenty-one year old daughter; a long-time
female friend; two women with whom defendant had been romantically
involved; and a young man whose mother was defendant's friend. The
general import of their testimony was that: (1) defendant was a
loving and appropriate father; (2) defendant had a good
relationship with K.H.; and (3) T.S., who was jealous and
possessive, was angry when defendant moved back to Greensboro. The
defendant also testified, denying he ever touched K.H.
inappropriately or molested her.
Following the presentation of evidence, the jury returned
verdicts finding defendant guilty as charged on all offenses. Upon
these verdicts, the trial court sentenced defendant to a prison
term of 384 to 470 months for first degree sex offense, and
continued prayer for judgment on the other two convictions.
Defendant timely appealed.
Defendant first argues that the trial court erred by denying
his motion to dismiss the charge of first degree sex offense for
insufficient evidence, contending there was no evidence that
defendant penetrated K.H.'s genital opening. We disagree. A defendant's motion to dismiss must be denied if the
evidence considered in the light most favorable to the State
permits a rational jury to find beyond a reasonable doubt the
existence of each element of the charged crime and that defendant
was the perpetrator. State v. Trull
, 349 N.C. 428, 447, 509
S.E.2d 178, 191 (1998) (citation omitted).
In considering a
motion to dismiss, the trial court must examine the evidence in the
light most favorable to the State and give the State the benefit of
every reasonable inference that may be drawn from the evidence.
The standard of review for a motion to dismiss based on
insufficiency of the evidence is 'the substantial evidence test.'
Substantial evidence is defined as the amount of 'relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.' State v. Verrier
, __ N.C. App. __, __, 617 S.E.2d
675, 678 (2005)
(quoting State v. Jones
, 110 N.C. App. 169, 177,
429 S.E.2d 597, 602 (1993), and State v. Smith
, 300 N.C. 71, 78-79,
265 S.E.2d 164, 169 (1980)) (citations omitted). Further, the
'test for sufficiency of the evidence is the same whether the
evidence is direct or circumstantial or both. . . . If the
evidence presented is circumstantial, the court must consider
whether a reasonable inference of defendant's guilt may be drawn
from the circumstances[.]' State v. Roberts
, __ N.C. App. __, __,
625 S.E.2d 846, 849 (2006) (quoting State v. Scott
, 356 N.C. 591,
596, 573 S.E.2d 866, 869 (2002)).
Under the circumstances of this case, the elements essential
to the proof of first degree sexual offense are that (1) thedefendant engaged in a 'sexual act,' (2) the victim was at the time
of the act twelve years old or less, and (3) the defendant was at
least twelve years old and four or more years older than the
victim. N.C.G.S. [§]14-27.4(a)(1) [(2005)]. State v. Griffin
319 N.C. 429, 433, 355 S.E.2d 474, 477 (1987). N.C. Gen. Stat. §
14-27.1 (2005) defines a sexual act to include, in relevant part
the penetration, however slight, by any object into the genital .
. . opening of another person's body[.]
In the instant case, defendant contends there was no evidence
that defendant penetrated K.H.'s genital opening. Accordingly, we
confine our review to this issue. The record shows that K.H.
testified, in pertinent part, as follows:
PROSECUTOR: Okay. Now are you ready to tell
the jury what happened?
PROSECUTOR: Okay. Go ahead and tell these
ladies and gentlemen over here what happened.
K.H.: [The defendant] took me in my mom's
room and he turned the TV on.
PROSECUTOR: He took you in your mom's room?
PROSECUTOR: What happened when you were in
your mom's room?
K.H.: He turned the TV on.
PROSECUTOR: Then what happened?
K.H.: He touched me in my private.
PROSECUTOR: Touched you in your private?
PROSECUTOR: When you say your private, do
you know what part of your body that is?
PROSECUTOR: Could you describe it to the
jury. What do you call it?
K.H.: Where I use the bathroom.
PROSECUTOR: Where you use the bathroom from?
PROSECUTOR: Is that where you pee-pee from?
PROSECUTOR: With what part of his body did he
touch you in your private?
K.H.: With his hand.
PROSECUTOR: With his hand?
(emphasis added). Thus, in her testimony before the jury, K.H.
expressly stated that defendant touched her in her private area.
This testimony, considered with the medical evidence of hymeneal
bruising and the balance of the record, constitutes sufficient
evidence of penetration to submit the case to the jury. This
assignment of error is overruled.
Defendant next argues that the trial court abused its
discretion by denying his motion for a mistrial. During cross-
examination, defendant questioned T.S. extensively about the fact
that, in her initial interview with law enforcement officers, T.S.
lied and told the officers that she did not know defendant'saddress or phone number. When T.S. indicated that she worr[ied]
about Mr. Frye to this day, the defendant pressed T.S. to admit
that, when she gave the statement, she was in a safe place away
from defendant. The defendant also cross-examined T.S. about her
earlier attempt to drop the charges against defendant. On redirect
examination, T.S. explained that she had asked to drop the charges
because she was told by a law enforcement officer that defendant
was trying to hire someone to kill her, and that this threat was
the reason she worried to this day about the defendant. The
defendant subsequently moved for a mistrial, on the grounds that
this testimony was inadmissible and was so prejudicial as to
require a mistrial. Defendant argues that the trial court erred by
denying his motion for mistrial. We disagree.
Under N.C. Gen. Stat. § 15A-1061 (2005), the trial court must
declare a mistrial upon the defendant's motion if there occurs
during the trial an error . . . resulting in substantial and
irreparable prejudice to the defendant's case. The decision of
the trial judge is entitled to great deference since he is in a far
better position than an appellate court to determine whether the
degree of influence on the jury was irreparable. State v.
Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 772 (1992) (citation
omitted). Not every error requires a mistrial. See, e.g., State
v. Mills, 39 N.C. App. 47, 50-51, 249 S.E.2d 446, 448 (1978)
(Although the conversation between the breathalyzer operator and
the juror was improper and should not have occurred, there has been
no showing that the trial court abused its discretion or that theconversation had a prejudicial effect on the outcome of the
case.). Accordingly, the decision to grant or deny such a motion
will not be disturbed on appeal unless it is so clearly erroneous
as to amount to a manifest abuse of discretion. State v. Diehl,
353 N.C. 433, 436, 545 S.E.2d 185, 187 (2001).
In the instant case, the State argues that the trial court
correctly admitted the challenged testimony, based on the court's
finding that defendant opened the door on cross-examination to
questions about T.S.'s fear of defendant. However, even assuming,
arguendo, that admission of this testimony was error, such error
did not require the trial court to order a mistrial.
As discussed above, the State presented substantial evidence
against the defendant, including: (1) direct testimony by K.H.; (2)
corroborative testimony by T.S. and by Arnts; (3) testimony by T.S.
that defendant had admitted molesting K.H.; (4) the testimony of
several law enforcement officers corroborating the trial testimony
of T.S.; and (5) the presence of hymeneal bruising and hemorrhage
that, in the expert opinion of Dr. Kocis, could only have been
caused by some foreign object penetrating her genital opening.
Under N.C. Gen. Stat. § 15A-1443(a) (2005), [a] defendant is
prejudiced by errors . . . when there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial. . . . The burden of
showing such prejudice . . . is upon the defendant. In the
instant case, we conclude that, in the context of the evidence
against the defendant, the admission of T.S.'s testimony, even iferror, would not have changed the outcome of the trial. Here,
where the testimony would not have changed the outcome of the
trial, we cannot conclude the trial abused its discretion by
denying defendant's motion for mistrial. This assignment of error
We next consider defendant's argument that the trial court
committed plain error by ruling that K.H. was competent to testify
and admitting her testimony.
Under N.C.R. App. P. 10(b)(1), to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion. The defendant concedes that
he did not object at trial to the trial court's determination that
K.H. was competent to testify. Therefore, we review only for plain
error. See N.C.R. App. P. 10(c)(4); State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983):
The plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' . . . or where
the error is such as to 'seriously affect the
fairness, integrity or public reputation of
Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill,
676 F.2d 995, 1002 (4th Cir. 1982)) (citations omitted).
Rule of Evidence 601(a) provides that [e]very person is
competent to be a witness except as otherwise provided in these
rules. N.C.R. Evid. 601 (a). However, under Rule 601(b), awitness may be disqualified to testify as a witness when the court
determines that [she] is . . . (2) incapable of understanding the
duty of a witness to tell the truth.
The law in this State regarding a child's
competency to testify was [articulated] in
State v. Jones, 310 N.C. 716, 722, 314 S.E.2d
529, 533 (1984):
There is no age below which one is
incompetent, as a matter of law, to testify.
The test of competency is the capacity of the
proposed witness to understand and to relate
under the obligation of an oath facts which
will assist the jury in determining the truth
of the matters as to which it is called upon
to decide. This is a matter which rests in
the sound discretion of the trial judge in the
light of his examination and observation of
the particular witness.
State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554-55 (1985)
(internal quotation marks omitted).
It is undisputed that K.H. testified several times that she
knew the difference between the truth and a lie; that she correctly
identified several statements as either true or a story; and that
she stated several times that she would tell the truth.
Defendant's contention that K.H. was not competent to testify is
based solely on the fact that, when K.H. was asked if she knew
what happens when you don't tell the truth, she answered No.
The defendant argues that this demonstrates that K.H. did not
understand the duty of a witness to tell the truth. In the only
case cited by defendant to support this argument, the North
Carolina Supreme Court considered a challenge to the competency of
a child witness who, like K.H., indicated she did not know what
would happen if a person lied. The Court held: It is true that certain of the child's answers
during the voir dire were somewhat vague and
self-contradictory, just as might be expected
of a little child of such tender years.
Nevertheless, at points in her testimony she
said quite clearly that she knew what it meant
to tell the truth and to tell a lie and that
it was bad to tell a lie. She also said that
she was going to tell the truth and was not
going to tell a lie. Since the trial judge's
discretionary ruling was supported by such
evidence, the defendant has failed to show
that the ruling could not have been the result
of a reasoned decision. Therefore, we leave
the ruling undisturbed.
State v. McNeely, 314 N.C. 451, 457-58, 333 S.E.2d 738, 742 (1985).
In the instant case, we conclude that defendant has failed to
show that the trial court's ruling was an abuse of discretion, and
thus has not shown error or plain error in the admission of K.H.'s
testimony. This assignment of error is overruled.
Finally, defendant argues that the trial court committed
reversible error by admitting the testimony of two pediatricians
that their findings were consistent with K.H.'s statements. We
Defendant filed a pretrial motion to exclude expert medical
testimony on the probability
that sexual abuse had occurred.
During trial the issue was revisited, and the trial court asked
defendant if his motion was directed at any opinion of the
physicians. Defense counsel clarified that defendant sought
exclusion of specifically any opinion as to the probability of
sexual abuse having occurred. The prosecutor responded that the
State did not intend to question its expert medical witness on theprobability that a sexual assault had occurred, but the injury she
saw would have been consistent with what the child had said
happened. Defendant did not object to this proposed testimony.
At trial, the State's expert medical witnesses did not testify
to the probability that sexual abuse had occurred, but to their
opinion that K.H.'s testimony was consistent with the physical
injury they observed. Defendant's motion in limine
did not seek to
exclude testimony that specific findings were consistent with a
witness's account. Nor does defendant cite any cases holding that
such expert opinion testimony is inadmissible. This assignment of
error is overruled.
For the reasons discussed above, we conclude that defendant
had a fair trial, free of reversible error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
To protect her privacy, we refer to the minor victim by the
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