An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 October 2006
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 02 CRS 206557
DAVID LEE RISHER
Appeal by Defendant from judgment entered 12 December 2003 by
Judge Yvonne Mims Evans in Mecklenburg
County Superior Court.
Heard in the Court of Appeals 9 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Kelly L. Sandling, for the State.
Tin Fulton Greene & Owen, PLLC, by Noell P. Tin and Matthew G.
Pruden, for Defendant-Appellant.
Defendant appeals the trial court's judgment entered 12
December 2003 upon his conviction by a jury of indecent liberties
with a child (S.C.). Defendant further appeals the court's order
of 12 October 2004 denying his motion for appropriate relief.
Defendant brings forward four assignments of error. For the
following reasons, we hold that Defendant received a fair trial,
free of error, and we affirm the denial of his motion for
At trial, the State's evidence tended to show the following:
In June 2000, S.C. and her family, consisting of her mother,stepfather, brother, sister, and cousin Gina, moved from Georgia to
Charlotte, North Carolina, because S.C.'s stepfather wanted to be
closer to his best friend, Defendant. S.C.'s stepfather and
Defendant had grown up together and lived across the street from
each other for years. When S.C.'s family moved to Charlotte, they
stayed at Defendant's home until they could find their own house.
Defendant hired S.C.'s stepfather to work in his commercial
contracting business. S.C. testified that she was a rising eighth-
grader and Gina was a rising high school freshman. S.C.'s family
lived with Defendant for approximately one month.
At the time S.C.'s family was living with Defendant,
Defendant's wife, son and daughter also lived in the home. S.C.
testified that she became especially close with Defendant's wife
and daughter. Occasionally, S.C. and Gina would receive gifts or
payment for helping Defendant's wife clean her home after S.C.'s
family had moved into their rental home. Sometimes the girls would
spend the night at Defendant's home. Gina and S.C. would also
baby-sit Defendant's children for money, and S.C.'s family became
friends with Defendant's brothers and their families as well. The
members of the Risher households considered S.C. to be a part of
their families. S.C. testified that her parents were very strict
and would not allow the children to watch MTV, watch certain
movies, go out with friends or talk on the phone to boys. On thecontrary, at Defendant's house, they were allowed to do these
things, unknown to S.C.'s parents.
During S.C.'s first year in Charlotte, Defendant had a new
home built for his family, so S.C.'s family purchased and moved
into Defendant's former home. This occurred in late summer 2001.
In July 2001, fourteen-year-old S.C. was at Defendant's new
home helping Defendant's wife clean and put things in place. At
one point during this visit, S.C. was alone with Defendant while
helping him place bricks into a trailer. Defendant asked S.C. to
go with him to his former home to retrieve papers and boxes, and
S.C. agreed. When they arrived, S.C. had to climb through a
kitchen window to let Defendant inside through the patio door.
Defendant told S.C. that the boxes were upstairs in the master
bedroom. Once upstairs, Defendant walked into the bedroom and
closed the blinds. S.C. asked him what he was doing. Defendant
then asked S.C. if he could feel her breasts. S.C. testified that
she said no and started becoming afraid. S.C. asked if they
could just leave and go home. Defendant demanded that she stay.
Then Defendant came closer to S.C., pulled up her shirt and bra,
and placed his mouth on her breast. S.C. pulled away and tried to
leave the room, but Defendant told her that if she left, he would
tell her parents everything and that her stepfather would lose
his job. Defendant told S.C. that he had had sex with one of hisnieces, A.D., and that he had paid another woman and A.D. to have
a threesome. Defendant then pulled down his pants and underwear,
grabbed S.C.'s hand and forced her to touch his penis. She noticed
that Defendant was not circumcised. She pulled away and began
crying and again told Defendant that she wanted to leave. However,
Defendant instructed S.C. to watch him masturbate. He ejaculated
on the carpeted floor. They both then left the room. Once they
got in the car, Defendant told S.C. that he would never do anything
to her again. They went to the bank and back to Defendant's new
home, where S.C. immediately called her parents to come pick her
up. She said nothing about the incident to her parents at that
S.C. testified that prior to the events of July 2001,
Defendant had frequently attempted to touch Gina's buttocks and
S.C.'s breasts. She also described an incident when Defendant was
driving S.C. and Gina to rent movies and told them that he had sex
with women when he went on business trips to Myrtle Beach. He
asked the girls if they had ever seen someone ejaculate and offered
to show them. The girls told him no. On another occasion, S.C.
was spending the night at the new house and she asked Defendant if
she could sleep in his daughter's bed. Defendant replied that she
could, but only if she would let him touch her breasts. She again
told him no. By July 2001, Gina had returned to her home in Texas.
Thereafter, S.C. told Gina by telephone about the incident at
Defendant's old home. In December 2001, S.C. spent the night at
Defendant's new home to help Defendant's wife with Christmas
preparations. Everyone wanted to rent movies for the children, and
Defendant announced that just S.C. and he were going to get the
movies. S.C. was hesitant, but she went with Defendant. During
the drive, Defendant kept trying to touch S.C.'s breasts. She
moved his hand away and told him that if he did not stop, she would
tell on him.
Following a misunderstanding between Defendant and S.C.'s
parents in January 2002 involving S.C.'s decision to take
Defendant's daughter to S.C.'s youth group meeting at her church,
S.C. finally told her mother about the sexual comments Defendant
had been making to her and Gina. However, she did not tell her
mother about the July 2001 incident until a few days later when her
mother asked her if Defendant had done anything else to her. After
consulting with their pastor, S.C.'s parents called the police and
S.C. gave a five-page written statement to the authorities.
The following day, S.C. attempted to commit suicide by taking
a large amount of ibuprofen. She was taken to Matthews Hospital
and then admitted to Presbyterian Hospital as a patient in the
psychiatric ward for about a week. While at Presbyterian Hospital,S.C. experienced many emotions including shame and fear, as well as
sadness because she knew that she would never be able to have
contact with Defendant's wife and children, about whom she cared.
She was also worried about her stepfather getting fired by
Defendant and having split loyalties about whether to believe and
support her, or to support his boss. S.C.'s stepfather testified
that he was fired shortly after S.C.'s hospitalization.
S.C.'s family moved back to Georgia in May 2002. In August
2002, S.C. took a box cutter and cut her wrists, breasts and face.
S.C. was admitted to a hospital in Georgia and placed on Celexa, an
anti-depressant. S.C. testified that when her family moved back to
Georgia, her parents allowed her to have a boyfriend. It was the
first time she had begun to trust another male, but they eventually
broke up. S.C. stated that when she cut herself, she was in the
bathroom and looking in the mirror. She testified that she hated
her body because she believed her body had attracted Defendant to
her. At that time, S.C. was having continuing flashbacks and
nightmares about Defendant. She testified that she was having a
flashback while she cut herself.
S.C.'s parents and her cousin, Gina, testified and
substantially corroborated S.C.'s testimony. Dr. Bret Burquest, a
stipulated expert in the field of psychiatry and the Director of
the Adolescent Unit at Cedar Springs Hospital, testified regardinghis treatment of S.C. following her first suicide attempt. He
diagnosed S.C. with post-traumatic stress disorder and adjustment
Defendant testified on his own behalf and offered the
testimony of several witnesses tending to show that he had never
spoken about sexual matters with S.C. and had never tried to touch
her inappropriately. Defendant admitted that he had offered S.C.
and Gina friendly parental advice about abstaining from sexual
activity, but insisted he only gave such advice in the company of
S.C.'s parents. He also admitted to playfully popping Gina on
her buttocks one night because he believed that she was faking
Defendant specifically denied touching or kissing S.C.'s
breasts, forcing her to watch him masturbate, or touching his penis
with her hand in July 2001 or at any other time. He further
specifically denied each incident of inappropriate behavior alleged
by S.C. He testified that, in his opinion, S.C. fabricated the
alleged abuse as a way of retaliating against him when he told her
she could not come back to his home because of unkind remarks he
claimed S.C. made about his son.
Defendant also offered evidence tending to establish his good
character and reputation in his community. Defendant's wife,
Leslie, testified that after S.C.'s family moved to Charlotte, shebecame close to S.C., who referred to Leslie as her aunt. She
would shop with S.C., do her hair, talk with her about many kinds
of issues important to teenagers, and have regular family
gatherings that included S.C. and her family. Leslie observed that
Defendant and S.C. had a friendly and playful relationship, like an
uncle and niece. She never saw Defendant act inappropriately
toward S.C. or make inappropriate comments to her, and she did not
believe S.C.'s allegations.
Additionally, Defendant offered the testimony of Dr. William
Michael Tyson, stipulated to be an expert in clinical forensic
psychology with specific expertise in the investigation of sexual
crimes against children. Dr. Tyson testified that he reviewed
S.C.'s medical records and case investigative materials. Based on
his review of these materials, he was of the opinion that further
investigation was needed to evaluate S.C.'s allegations and to
determine the correct diagnosis of her emotional disorders.
At the conclusion of the evidence, the trial court submitted
three counts of indecent liberties with a minor to the jury.
Following a day and a half of deliberations, the jury found
Defendant guilty of one count of indecent liberties with a child by
masturbating to ejaculate in her presence. On 12 December 2003,
Judge Evans imposed a suspended sentence and placed Defendant on
probation for thirty-six months. Defendant gave notice of appealthat same day and filed a timely motion for appropriate relief on
22 December 2003. By order filed 12 October 2004
(See footnote 1)
, Judge Evans
denied Defendant's motion for appropriate relief, from which
Defendant gave notice of appeal on 26 October 2004.
We note first that this appeal is subject to dismissal for
rule violations. The North Carolina Rules of Appellate Procedure
provide, in pertinent part, that
[i]mmediately following each question [in the
appellant's brief] shall be a reference to the
assignments of error pertinent to the
question, identified by their numbers and by
the pages at which they appear in the printed
record on appeal. Assignments of error not
set out in the appellant's brief . . . will
taken as abandoned.
N.C.R. App. P. 28(b)(6) (2005) (emphasis added). In the present
case, Defendant failed to refer to any assignment of error after
each question presented in his brief, nor did Defendant include the
page numbers of the record to which each of his arguments relates.
Violations of the Rules of Appellate Procedure subject an appeal to
dismissal. Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610
S.E.2d 360, 360, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005)
(appeal dismissed for multiple rule violations). However, Rule 2of the Rules of Appellate Procedure allows this Court to suspend
any of the appellate rules to prevent manifest injustice to a
party, or to expedite decision in the public interest. N.C.R.
App. P. 2 (2005).
Although in Viar, our Supreme Court cautioned
this Court to refrain from creating an appeal for the appellant,
this Court has since reached the merits of cases despite Rule 28
violations, as long as the appellee 'had sufficient notice of the
basis upon which our Court might rule.' Hammonds v. Lumbee River
Elec. Membership Corp., ___ N.C. App. ___, ___, 631 S.E.2d 1, 9-10
(2006) (quoting Davis v. Columbus County Schools, ___ N.C. App.
___, ___, 622 S.E.2d 671, 674 (2005)). See also Youse v. Duke
Energy Corp., 171 N.C. App. 187, 192, 614 S.E.2d 396, 400 (2005).
Here, from its thorough response to Defendant's arguments, we
conclude that the State had sufficient notice of the basis upon
which we might rule regarding Defendant's assignments of error. We
therefore choose to invoke Rule 2 and hear this appeal on its
merits despite the violation of Rule 28.
Defendant first argues that the trial court should have
excluded testimony of S.C.'s stepfather concerning a conversation
he had with Defendant about alleged semen stains on the floor of
the room in which the July 2001 incident occurred. Specifically,
Defendant argues that this evidence was not admissible because theprosecutor failed to timely disclose Defendant's alleged statements
to the stepfather, in violation of N.C. Gen. Stat. § 15A-903(a)(2)
(2003). We disagree.
Under the terms of this statute in effect at the time of the
trial in this case
(See footnote 2)
, upon a motion by the defense, the State was
divulge, in written or recorded form, the
substance of any oral statement relevant to
the subject matter of the case made by the
defendant, regardless of to whom the statement
was made, within the possession, custody or
control of the State, the existence of which
is known to the prosecutor or becomes known to
him prior to or during the course of trial . .
. . If the statement was made to a person
other than a law-enforcement officer and if
the statement is then known to the State, the
State must divulge the substance of the
statement no later than 12 o'clock noon, on
Wednesday prior to the beginning of the week
during which the case is calendared for trial.
N.C. Gen. Stat. § 15A-903(a)(2) (2003).
The statement at issue was S.C.'s stepfather's testimony that
one day, when he was walking out of the office of Defendant's
business, Defendant stopped him. Defendant asked about S.C., who
was in the hospital after her first suicide attempt. In response,
S.C.'s stepfather asked Defendant about the ejaculation there inthe house and told Defendant that S.C. had actually pointed out
the place where the semen landed on the floor. Defendant denied
the allegations and explained that there could be semen all over
that room (by which Defendant meant the master bedroom) from his
prior private activities there with his wife. The stepfather
responded that he had not even mentioned in which room S.C. said
the incident happened. Subsequently, the stepfather admitted that
S.C. had never pointed out any place where semen had landed. He
testified that he made the comments to Defendant to see how
Defendant would react.
The State concedes that it did not provide the statement to
defense counsel until the morning of the trial. The prosecutor
explained that he did not provide the statement on the Wednesday
prior to trial, as mandated by N.C. Gen. Stat. § 15A-903(a)(2),
because Defendant served the State with three motions on the
Tuesday before trial, one of which requested the very information
contained in the statement in question. The prosecutor argued at
the hearing on Defendant's motion in limine to exclude the
statement that since Defendant had requested the identical
information in his supplemental discovery motion, the State chose
to supply the statement in response to that motion by delivering
the stepfather's statement within five days of receiving themotion, rather than by providing the statement pursuant to the
Defendant argued that he was severely prejudiced by receiving
the statement on the first day of trial because he thus had no
opportunity to examine the carpet. We are not persuaded by this
argument. The testimony of S.C.'s stepfather establishes that his
statement to Defendant was false and made solely to see how
Defendant would react. The State offered no evidence to prove that
Defendant's semen could be found in any place on the floor of the
bedroom in question. Thus, Defendant had no need to examine the
Moreover, [a] district attorney's refusal to comply with a
discovery order under G.S. 15A-903 does not automatically require
the exclusion of the undisclosed evidence. State v. Stevens, 295
N.C. 21, 37, 243 S.E.2d 771, 781 (1978). It is within the trial
court's discretion whether to allow such statements after
considering the circumstances surrounding the discovery issue.
State v. East, 345 N.C. 535, 481 S.E.2d 652, cert. denied, 522 U.S.
918, 139 L. Ed. 2d 236 (1997). This Court will not reverse the
trial court absent a showing of abuse of discretion. State v.
Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). An abuse of discretion
results from a ruling so arbitrary that it could not have been the
result of a reasoned decision or from a showing of bad faith by theState in its noncompliance. State v. Nolen, 144 N.C. App. 172, 550
S.E.2d 783, appeal dismissed and cert. denied, 354 N.C. 368, 557
S.E.2d 531 (2001).
The purpose of N.C. Gen. Stat. § 15A-903 is to protect the
defendant from unfair surprise by the introduction of evidence he
cannot anticipate. State v. Payne, 327 N.C. 194, 202, 394 S.E.2d
158, 162 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062
(1991). Here, Defendant has not shown that the trial judge's
decision to allow the statement was so arbitrary that it could not
have been the result of a reasoned decision. Defendant has
likewise failed to offer any proof that the prosecutor's decision
to supply the statement in response to Defendant's motion, rather
than pursuant to the statute, was made in bad faith. Therefore, we
hold that the trial judge did not err by allowing the evidence.
This assignment of error is overruled.
Defendant next argues that the trial court erred by allowing
counsel for the State to insert his interpretation of S.C.'s
potential testimony in his opening statement. Again, we disagree.
This Court has held that [t]he purpose of an opening
statement 'is to allow the party to inform the court and jury of
the nature of his case and the evidence he plans to offer in
support of it.' State v. Elliott, 69 N.C. App. 89, 93, 316 S.E.2d632, 636, disc. review denied, 311 N.C. 765, 321 S.E.2d 148 (1984).
In general, counsel should not (1) refer to inadmissible evidence,
(2) exaggerate or overstate the evidence, or (3) discuss evidence
he expects the other party to introduce. State v. Freeman, 93 N.C.
App. 380, 389, 378 S.E.2d 545, 551, disc. review denied, 325 N.C.
229, 381 S.E.2d 787 (1989). Nonetheless, counsel is given wide
latitude in the scope of his or her opening statement. State v.
Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479
U.S. 871, 93 L. Ed. 2d 166 (1986). The trial court has the
discretion to determine the scope of an opening statement.
Elliott, 69 N.C. App. at 93, 316 S.E.2d at 636.
In this case, in discussing his forecast of anticipated
testimony that Defendant told S.C. her father would lose his job if
S.C. left the room during the incident in July 2001, the prosecutor
characterized that testimony as a threat against S.C.
Specifically, he said, [y]ou'll also hear some conversation
between the two of them there about _ I'm going to interpret it as
a threat, you know, don't tell anybody about this or your dad will
[lose] his job. The trial judge overruled Defendant's objection
to this statement.
During direct examination of S.C., she testified that I tried
to leave the room and [Defendant] said no, don't you leave; I'll
tell your parents everything and your dad will lose his job andlose everything. Based on this testimony, we hold that the
prosecutor's characterization was an accurate forecast of the
evidence. The prosecutor did not refer to inadmissible evidence,
exaggerate or overstate the evidence, or discuss evidence he
expected Defendant to introduce. Moreover, Defendant has not
shown any abuse of discretion on the part of the trial judge in
allowing the prosecutor's statement. Accordingly, this assignment
of error is without merit and is also overruled.
By his next argument, Defendant contends the trial court erred
in refusing to allow testimony regarding alleged false allegations
of abuse made by S.C. against her stepfather. Defendant argues
such testimony was relevant to impeach S.C.'s credibility. This
argument has no merit.
Upon the State's objection to the evidence in question, the
trial court conducted voir dire
hearings to determine whether the
testimony would be admissible. During the voir dire
of S.C., she
testified that she had never made allegations against her
stepfather that he inappropriately touched her in any way at any
time. On cross-examination at trial, she again denied having ever
made any allegations against her stepfather. Nevertheless, defense
counsel attempted to question S.C. about a conversation she
allegedly had with another witness regarding these allegations. The State objected to the questioning based on relevance, and the
trial court sustained the objection. During the voir dire
S.C.'s former boyfriend and his mother, the defense elicited
testimony that S.C. had complained to them that her stepfather had
inappropriately touched her. Likewise, at trial, the judge
sustained the State's objection to questioning of these witnesses
on grounds of relevancy. Defendant contends that his proposed
questioning of all three witnesses was relevant and the court's
refusal to allow the questioning deprived him of his right to
effective cross-examination to attack S.C.'s credibility.
Rule 607 of the North Carolina Rules of Evidence provides that
[t]he credibility of a witness may be attacked by any party,
including the party calling him. N.C. Gen. Stat. § 8C-1, Rule 607
(2005). Cross-examination of an adverse witness is a matter of
right, but the scope of cross-examination is subject to appropriate
control by the court. State v. Hosey
, 318 N.C. 330, 348 S.E.2d 805
(1986). The issue here is whether the evidence was admissible
after S.C. denied making the prior alleged accusations.
It is well settled that [w]hen a cross-examiner seeks to
discredit a witness by showing prior inconsistent statements . . .
the answers of the witness to questions concerning collateral
matters are generally conclusive and may not be contradicted by
extrinsic testimony. State v. Cutshall
, 278 N.C. 334, 349, 180S.E.2d 745, 754 (1971). This is because once a witness denies
having made a prior inconsistent statement, the [cross-examiner]
may not introduce a prior statement in an attempt to discredit the
witness; the prior statement concerns only a collateral matter,
i.e., whether the statement was ever made. State v. Najewicz
N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993), disc. review
, 335 N.C. 563, 441 S.E.2d 130 (1994). A collateral matter
is irrelevant to the issues in the case, and therefore,
. In State v. Williams
, 322 N.C. 452, 455, 368
S.E.2d 624, 626 (1988) (citation omitted), our Supreme Court held
[a] witness may be cross-examined by
confronting him with prior statements
inconsistent with any part of his testimony,
but where such questions concern matters
collateral to the issues, the witness's
answers on cross-examination are conclusive,
and the party who draws out such answers will
not be permitted to contradict them by other
In the case sub judice, S.C.'s testimony on cross-examination
that her stepfather had not inappropriately touched her could not
be contradicted by alleged inconsistent statements she made to the
defense's other witnesses. This is because the testimony is
irrelevant as to whether Defendant masturbated in S.C.'s presence
in July 2001 and lacks any probative value toward establishing a
material fact on that issue. Defendant sought to introduce thealleged prior inconsistent statements only to contradict S.C.'s
statement that her stepfather had not inappropriately touched her.
Such evidence is plainly collateral, and consequently,
inadmissible. See also State v. Shane, 304 N.C. 643, 285 S.E.2d
813 (1981), cert. denied, 465 U.S. 1104, 80 L. Ed. 2d 134 (1984);
State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Long,
280 N.C. 633, 187 S.E.2d 47 (1972); State v. Crockett, 138 N.C.
App. 109, 530 S.E.2d 359 (2000).
Accordingly, we hold that the trial court properly refused to
allow the defense attorney to question S.C. and other witnesses as
to whether she told someone else that her stepfather had touched
By his final argument, Defendant contends that the trial court
abused its discretion by denying his motion for appropriate relief.
For the reasons which follow, we disagree.
Defendant's motion for appropriate relief, filed on 22
December 2003, alleged that (1) the trial court erred by failing to
exclude the stepfather's statement because it was not provided to
the defense by noon on the Wednesday before trial, (2) the trial
court erred in not allowing evidence of S.C.'s third
hospitalization, (3) the trial court erred in excluding evidence
that S.C. gave a prior inconsistent statement regarding allegedinappropriate touching by her stepfather, (4) the verdict was
contrary to the weight of the evidence at trial, and (5) the
verdict was not fair and impartial.
We review the trial court's order denying a motion for
appropriate relief under an abuse of discretion standard. State v.
Haywood, 144 N.C. App. 223, 236, 550 S.E.2d 38, 46, disc. review
denied, 354 N.C. 72, 553 S.E.2d 206 (2001). An abuse of 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. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988).
We have already addressed Defendant's arguments regarding the
admission of the stepfather's statement and testimony relating to
S.C.'s alleged prior inconsistent statements. Defendant offers no
additional reasons to support his motion for appropriate relief on
these grounds, and consequently, we need not discuss them further.
As for the remaining bases alleged as support for this motion,
Defendant argues only that the trial court . . . erred by denying
said Motion. He offers no explanation or even contention to prove
that the trial judge abused her discretion, and from our thorough
review of the evidence in this case, we perceive none.
Defendant further contends, however, that his motion for
appropriate relief should have been allowed because the juryverdict was coerced. After a day and a half of deliberations,
the jury informed the judge that it was deadlocked. The trial
judge then read the pattern instructions regarding failure to reach
a verdict to the jury. Specifically, the judge further charged the
jury in accordance with North Carolina Criminal Pattern Jury
Members of the jury, you have indicated
by a note that you have not been able to agree
upon a verdict.
I want to emphasize to you that it is
your responsibility to do whatever you can to
reach a verdict.
You should reason together as reasonable
men and women and try to reconcile your
differences if you can.
However, you should not surrender your
No juror should surrender his
conscientious conviction or honest conviction
as to the weight or the effect of the evidence
solely because of the opinion of your fellow
jurors or for the mere purpose of returning a
Now I will let you go back and try to
reason together for a period of time and we
will wait to hear from you again.
The jurors then deliberated for an additional forty-five
minutes until they reached a verdict finding Defendant guilty on
one count of the three submitted. Defendant contends that during
the additional forty-five minutes, several jurors could be heard
yelling at the one juror responsible for the deadlock. Neither in
his motion to the trial court nor on this appeal, however, didDefendant support this contention with any evidence from any
source, such as an affidavit from a member of the jury or a court
official. While we recognize that a defendant is entitled to a new
trial where coercion occurred within the jury, State v. Dexter, 151
N.C. App. 430, 566 S.E.2d 493 (2002), in this case there is no
evidence on which the trial court or this Court can determine that
the jury's verdict was coerced. Defendant's unsupported and bare
allegation is not only insufficient to establish coercion of a
juror, it is also improper. The trial court correctly denied his
motion for appropriate relief, and we thus affirm Judge Evans's 12
October 2004 order.
For the foregoing reasons, we hold that Defendant received a
fair trial, free of error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
In the order, the trial judge notes that the trial court
was not aware of the motion for appropriate relief until on or
about 20 September 2004.
Section 15A-903 was subsequently amended by 2004 N.C.
Sess. Laws 2004-154, s.4, which became effective on 1 October
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