STATE OF NORTH CAROLINA
v
.
Durham County
No. 04 CRS 43059
KENNETH LAMONT TAYLOR
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart and Assistant Attorney General
Elizabeth N. Strickland, for the State.
Peter Wood for defendant.
LEVINSON, Judge.
*** Converted from WordPerfect ***
Defendant (Kenneth Lamont Taylor) appeals from a judgment
entered upon his conviction for taking indecent liberties with a
child. We find no error.
The State's evidence at trial tended to show the following:
L.D., the child and complaining witness, testified that some time
in February 2004, when she was 14 years old, the defendant entered
the Taylor family kitchen and touched her breasts and rubbed her
vaginal area. Shortly thereafter, the defendant gave L.D. a hand-
written letter. The letter described explicit references of sexual
feelings that defendant had for L.D. In particular, the letteracknowledged that the defendant had dreams about L.D. and
referenced a time when the defendant was “feeling all over her.”
On cross-examination, L.D. acknowledged making pre-trial
statements that were, in part, inconsistent with her trial
testimony. For example, during a 1 March 2004 taped interview at
the Public Defenders office, L.D. stated that she had told a
sheriff's deputy and a social services employee that defendant
only touched her once on her buttocks over her clothes in the
family kitchen. In addition, during a later visit to the Public
Defenders' office on 21 May 2004, L.D. told an assistant public
defender that the defendant never touched her inappropriately and
that she did not want him to go to prison.
The testimony of two Durham County Sheriff's deputies largely
corroborated L.D.'s trial testimony. Deputy Gary Smith testified
that L.D. told him that defendant had given her the letter.
Sergeant William Oakley testified that L.D. told him that defendant
rubbed her vaginal area and breasts in the kitchen. Sergeant
Oakley also testified that when he showed the letter to defendant,
defendant admitted that he wrote the letter and did some
“inappropriate stuff.”
Defendant was convicted of taking indecent liberties with a
child and was sentenced to a prison term of 24-29 months. From
this conviction and judgment defendant appeals, contending that the
trial court erred by (1) granting the State's motion to prevent the
defendant from cross-examining L.D. concerning inconsistent
statements about an alleged pregnancy, and by (2) failing to grantthe defendant's motion to dismiss the charge based upon
insufficiency of the evidence.
In his first argument on appeal, defendant contends the trial
court should have permitted his counsel to cross-examine L.D.
concerning prior sexual activity that may have resulted in a
pregnancy. In particular, defendant argues that L.D.'s
inconsistent statements in this regard would have helped
demonstrate that L.D. was not credible.
Here, defense counsel sought to question L.D. concerning an
alleged pregnancy by an unidentified third party male. In regards
to the alleged pregnancy, L.D. told the public defender's office
that she was pregnant, but denied the pregnancy to the State
prosecutor. Pursuant to Rule 412, the trial court granted the
State's pre-trial motion in limine to prevent the defense from
cross-examining L.D. concerning her prior sexual history and
questions concerning whether she had changed her representations
concerning the pregnancy.
It is a well-established principle that an accused is assured
of the right to cross-examine adverse witnesses. State v. Newman,
308 N.C. 231, 254, 302 S.E.2d 174, 187 (1983).
However, cross-
examination concerning a victim's sexual history is limited by the
Rape Shield Statute. See N.C. Gen. Stat. § 8C-1, Rule 412 (2005).
Ultimately, the scope of cross-examination is within the sound
discretion of the trial court, and its rulings thereon will not be
disturbed absent a showing of abuse of discretion.
State v.
Hinson, 310 N.C. 245, 254, 311 S.E.2d 256, 263 (1984). An “[a]buseof discretion results where the [trial] court's ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision.” State v. Roache,
358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). T
he
defendant does not contend that any of the exceptions set forth in
Rule 412 apply here. Rather, defendant argues generally that the
cross-examination of L.D. concerning her inconsistent statements
regarding her alleged pregnancy was necessary to impeach L.D.'s
credibility.
In the instant case, L.D.'s inconsistent claims regarding an
alleged pregnancy by an unidentified male announced fourteen months
after defendant's alleged touching of L.D.
was not closely related
to L.D.'s account of the conduct for which defendant stood accused.
In addition, defendant's own admissions mirrored L.D.'s testimony
in many ways. We are unpersuaded that L.D.'s inconsistent
statements related to her alleged pregnancy would have cast
meaningful doubt on the credibility of L.D.'s testimony concerning
the conduct for which defendant was tried, and we therefore
conclude the trial court did not abuse its discretion in limiting
the scope of defense counsel's cross-examination. This assignment
of error is overruled.
In his second assignment of error, defendant contends the
trial court erred by failing to dismiss the indecent liberties
charge because no evidence of the his age was offered. We
disagree.
When ruling on a motion to dismiss, “the trial court must
determine only whether there is substantial evidence of each
essential element of the offense charged and of the defendant being
the perpetrator of the offense.” State v. Crawford, 344 N.C. 65,
73, 472 S.E. 2d 920, 925 (1996).
Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. 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. The
trial court must also resolve any
contradictions in the evidence in the State's
favor. The trial court does not weigh the
evidence, consider evidence unfavorable to the
State, or determine any witness' credibility.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002)
(internal citations and quotation marks omitted). “[T]he rule for
determining the sufficiency of evidence is the same whether the
evidence is completely circumstantial, completely direct, or both.”
State v. Crouse, 169 N.C. App. 382, 389, 610 S.E.2d 454, 459 (2005)
(quoting State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703
(1981)).
N.C. Gen. Stat. § 14-202.1 (2005) provides in pertinent part:
(a) A person is guilty of taking indecent
liberties with children 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 with
any 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.
Thus, the statute requires that an accused be at least 16
years of age and at least five years older than the child. In the
instant case, Sergeant Oakley testified that the defendant was 26
years of age and was born on 20 March 1977. Consequently, we
conclude that the evidence was sufficient to withstand defendant's
motion to dismiss. This assignment of error is overruled.
We have evaluated defendant's remaining assignment of error
and conclude it is without merit.
No error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).