NO. COA05-1297

NORTH CAROLINA COURT OF APPEALS

Filed: 16 May 2006

    Appeal by defendant from judgments entered 21 February 2005 by Judge William Z. Wood, Jr. in Stokes County Superior Court. Heard in the Court of Appeals 20 April 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State.

    A. Wayne Harrison for defendant-appellant.

    STEELMAN, Judge.

    Defendant appeals his convictions for the offenses of statutory rape, felony incest, and indecent liberties with a child. For the reasons stated herein, we find no error.
    J.H. is defendant's daughter. On 5 June 2003, she and her mother went to the Stokes County Sheriff's Department and reported that defendant had been sexually abusing J.H. since December 2001, when she was thirteen years old. Detective Randy Joyce interviewed J.H, who made a written statement. J.H. stated that at the time the abuse began she was living with her father, mother, and youngersister. J.H. said that on numerous occasions her father fondled her, made her perform fellatio on him, and had sexual intercourse with her, with the incidents occurring more frequently as time progressed. J.H. also told the deputies she had bitten her father twice on two separate occasions when she had tried to fight him off , once on his lower arm and once on his left shoulder. J.H. said she did not tell anyone at first because defendant had threatened to kill her mother, but she finally told because the abuse was becoming more violent.
    Following Detective Joyce's interview with J.H., he and Detective Bottoms visited defendant at his home around 12:30 a.m. on 6 June 2003. Defendant agreed to talk with the deputies, who conducted the interview in defendant's kitchen. Detective Joyce told defendant that J.H. had accused him of inappropriate sexual activity. The deputy asked defendant if he had had sex with his daughter. In response, defendant asked if that was what she said. Defendant then indicated he wanted to come into the sheriff's office the next day and tell the deputies what had happened. Detective Joyce told defendant he was not in custody or under arrest, they were just talking about the allegations. The deputies stated they wanted to make this as painless on J.H. as possible, but she had indicated a willingness to testify in court about her allegations. Defendant said he would not make her testify incourt. Detective Joyce then asked defendant if he could see his shoulders to see if there were any bite marks. Defendant pulled his shirt to the left side, at which time the detective saw a distinctive bite mark. After seeing the bite mark on defendant's shoulder, the detective also noticed a place on defendant's arm consistent with the bite mark J.H. described making on his lower arm. Detective Joyce asked defendant how he got the bite marks. Defendant did not respond. To which Detective Joyce said: “I guess me and you both know how you got the bite mark.” Defendant answered: “I guess we do.” At that point, defendant left the room; the deputies did not follow him. When defendant returned, the deputies placed him under arrest.
    Dr. Sara Sinal was tendered and allowed to testify as an expert in child abuse. She testified she examined J.H. and found an interruption of the hymen compatible with a history of penile vaginal intercourse. Although J.H. initially said she had not been sexually active, she later admitted she had sexual intercourse with Junior Seay (Seay) in April 2003. She also admitted at trial that she wanted to go and live with her maternal grandmother in Pennsylvania because she had friends there, as well as a romantic interest. She further testified that she and her father argued concerning this matter.     Defendant was indicted on two counts of statutory rape, three counts of statutory sexual offense, two counts of felonious incest, and one count of indecent liberties with a child, all related to the alleged sexual behavior with his daughter. The jury found defendant guilty on seven of the eight counts and not guilty of one count of statutory sex offense. The trial court arrested judgment on two counts of statutory rape/sex offense and sentenced defendant to consecutive terms of imprisonment of 229 to 332 months for one count of statutory rape/sex offense and 269 to 332 months for the second. Defendant was also sentenced to 269 to 332 months for each of the two counts of felonious incest and 21 to 26 months for indecent liberties with a child to be served concurrently. Defendant appeals.
    In defendant's first argument, he contends the trial court erred in admitting defendant's statements garnered during an interview with the police at his home because the statements were the product of an unlawful custodial interrogation, conducted without the benefit of Miranda warnings, and should have been suppressed. We disagree.
    Miranda warnings are only required when a defendant is subjected to custodial interrogation. State v. Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 404 (1997). The term custodial interrogation is defined in Miranda v. Arizona as “questioninginitiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966). Whether a defendant was subject to a custodial interrogation is a question of law reviewable by this Court de novo. State v. Patterson, 146 N.C. App. 113, 120, 552 S.E.2d 246, 253 (2001). In order to determine whether an encounter is custodial, we apply the objective test of “whether a reasonable person in the suspect's position would feel free to leave.” Gaines, 345 N.C. at 662, 483 S.E.2d at 405. In making this determination, we must consider all the circumstances surrounding the interrogation. Id. However, “the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” Id.
    It is well established that any interview of a suspect by a law enforcement officer will have coercive aspects to it. Gaines, 345 N.C. at 662, 483 S.E.2d at 405. Even so, law enforcement officers are not required to give Miranda warnings “'simply because . . . the questioned person is one whom the police suspect.'” Id. (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)). The fact law enforcement had identified defendant as a suspect and the interview was designed to produce incriminating responses is not determinative of whether he was in custody forMiranda purposes absent objective indicia of formal arrest or similar restraint. State v. Cockerham, 155 N.C. App. 729, 736, 774 S.E.2d 694, 699 (2003) (citing Stansbury v. California, 511 U.S. 318, 324, 128 L. Ed. 2d 293, 300 (1994)).
    In the instant case, two deputies interviewed defendant in his home. In Miranda, the United States Supreme Court recognized there was an important difference between questioning a suspect at police headquarters versus questioning him in his home. Miranda, 384 U.S. at 449-50, 16 L. Ed. 2d at 709. The Court noted the favorable psychological influence an interviewee's physical surroundings could have, stating: “In his own home, [the defendant] may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home.” Id. See also State v. West, 317 N.C. 219, 227, 345 S.E.2d 186, 191 (1986) (finding an officer's conversation with the defendant in the “familiarity and convenience” of the defendant's own living room was not the “equivalent to the 'compelling atmosphere' of a custodial interrogation”). Further, there is no evidence the interview was particularly long or grueling.
    The evidence also shows the deputies introduced themselves to defendant and asked if they could speak with him. Defendant agreed and admitted them into his home. Detective Joyce told defendantthat J.H. had made allegations of sexual abuse against him and said they wished to hear his side. The deputies told defendant he was not in custody or under arrest. They did not restrain defendant in any fashion. Defendant was free to move around the residence, and he did just that. At one point he left the kitchen and went to the back of the trailer. The deputies allowed him to go and did not follow him.
    Defendant cites to the fact he told the deputies several times in response to their questions that he would come to the station the next day and tell them what happened as being tantamount to him requesting they leave. He asserts their continued questioning amounted to the functional equivalent of his being in custody. However, defendant never asked the deputies to leave. Further, he stated that he would come to the station the next day, intimating that he believed he would not be arrested that night and would be free to travel to the sheriff's office the next day of his own accord. See State v. Parrish, 32 N.C. App. 636, 641-42, 233 S.E.2d 690, 694 (1977) (holding that where the defendant was questioned in his home and was not deprived of his freedom in any significant way, he was not subject to custodial interrogation). In addition, defendant had prior convictions and was familiar with law enforcement procedures. See Gaines, 345 N.C. at 663, 483 S.E.2d at 405.     Considering all the factors in their totality, we hold that a person in a similar position as defendant would not reasonably believe he was in custody during the interview. As such, Miranda warnings were not required. This argument is without merit.
    Defendant argues in the alternative, that the trial court erred in admitting defendant's statements to the deputies in violation of Rule 402 and 403 of the Rules of Evidence. We disagree.
    As a general rule, relevant evidence is admissible, N.C. Gen. Stat. § 8C-1, Rule 402 (2006), except when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, N.C. Gen. Stat. § 8C-1, Rule 403 (2006). It is left to the sound discretion of the trial court whether to exclude relevant but prejudicial evidence under Rule 403. State v. Braxton, 352 N.C. 158, 186, 531 S.E.2d 428, 444 (2000).
    The statements to which defense counsel objected read as follows:
        [Detective Joyce]: I asked Mr. Huffman at one point if he had ever had sex with his daughter. He asked me if that's what she had said. And I told him at that point I was not going to disclose exactly what she had said. But I asked him if he had ever had sex with his daughter.
    
        Q: And what was his response?

        A: Basically that he asked me: Is that what she was saying? He never denied having sex with her; never admitted having sex with her.

        [Defense Counsel]: Object.

        The Court: Overruled.

        Q: And what happened next after you asked him if he had sex with his daughter?

        A. Mr. Huffman indicated that he wanted to come to the Sheriff's Office the next day. He indicated that he would tell us what had been going on between him and his daughter, but he would rather come to the Sheriff's Office the next day.

        Q. What did you do next?

        A. I indicated to Mr. Huffman that -- again, at one point we were talking and he indicated he was ready to go. And I told him that he was not in custody at that point, he was not under arrest, that we were just talking about the allegations.
        . . . .

        Q. Did you and the defendant have any conversation about the bite mark?

        A. Once seeing the bite mark on his shoulder I asked him how he got the bite mark. And at that point he did not respond to me. So I said to him, “I guess me and you both know how you got the bite mark.”

        Q. Did he make any response?

        A. His response to me was, “I guess we do.”
    Detective Joyce's testimony regarding what defendant said to him during the course of their interview was admissible under Rule 801(d) of the Rules of Evidence as an admission of a party opponent. N.C. Gen. Stat. § 8C-1, Rule 801(d) (2006). Our Supreme Court has stated that evidence of a defendant's admission to an incriminating fact is “highly probative; [and] the fact that it is also very prejudicial does not make it unfairly so.” State v. Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995). In addition, these statements, as well as the remainder of Detective Joyce's testimony, including his impressions and observations of defendant and his conduct on 6 June 2003, would also be admissible under Rule 701. N.C. Gen. Stat. § 8C-1, Rule 701 (2006). Under Rule 701, also called a “shorthand statement of fact,” a witness may state the “'instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.'” Braxton, 352 N.C. at 187, 531 S.E.2d at 444-45 (citations omitted). Therefore, we find no merit to defendant's alternative argument that his statements should have been excluded under N.C. Gen. Stat. § 8C-1, Rule 403 because the probative value was outweighed by risk of unfair prejudice.      In defendant's second argument, he contends the trial court erred in refusing to allow defense counsel the opportunity to cross-examine J.H. concerning her inconsistent statements about her prior sexual activity for impeachment purposes. We disagree.
    Defendant filed a pre-trial motion seeking permission to introduce evidence that J.H. lied about having sexual intercourse with another individual during a medical examination for sexual abuse. Defendant argued this evidence was relevant and admissible under Rule 412 to impeach J.H.'s credibility. It also appears from the transcript the defense wanted to present evidence of J.H.'s sexual activity with Seay in order to advance its theory that J.H. was lying about the abuse because she wanted to move to Pennsylvania to be with Seay.
    After reviewing defendant's brief, we are unable to discern exactly what error he asserts occurred. In his brief, defendant only cites to the portion of the transcript in which defense counsel stated the sole purpose he sought to introduce evidence that J.H. had sexual intercourse with Seay was to impeach her. A review of the transcript demonstrates that defense counsel was allowed to cross-examine and impeach J.H. on all relevant points. On cross-examination, J.H. admitted she wanted to return to Pennsylvania because she had “special friendships” and “romantic interests” there and her grandmother was less strict. J.H.admitted she had sex with Seay in April 2002, during the period of alleged sexual abuse by her father. Furthermore, J.H. admitted lying during the medical examination that she had not been sexually active. The evidence to which defendant vaguely cites as error in his brief was received into evidence. Thus, this argument is without error.
    In defendant's final argument, he contends the trial court erred by instructing the jury in accordance with the pattern jury instructions that he had admitted facts related to the charges against him. We disagree.
    During his charge to the jury, the trial judge instructed the jury in accordance with North Carolina Criminal Pattern Jury Instruction 104.60 as follows:
        In this case there's evidence which tends to show that the defendant has admitted some fact relating to the crime or crimes charged in this case. If you find that the defendant made such an admission then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight you will give to it.

The record reveals the trial court's admission instruction was based on Detective Joyce's testimony regarding defendant's statements on 6 June 2003, and are set forth in detail above. Our Supreme Court has previously found a trial court did not err in submitting to the jury an identical admission instruction where, ashere, the alleged admission was introduced into evidence through the testimony of an investigating officer. State v. McKoy, 331 N.C. 731, 733-34, 417 S.E.2d 244, 246 (1992). In McKoy, the Court emphasized that the admissions instruction “made it clear that even though there was evidence tending to show that the defendant had made an admission, it was solely for the jury to determine whether the defendant in fact had made any admission.” Id. at 734, 417 S.E.2d at 246-47. See also State v. Cummings, 353 N.C. 281, 296, 543 S.E.2d 849, 858 (2001). In the instant case, there was evidence tending to show that defendant admitted facts relating to the crimes charged, including the statements he made to Detective Joyce, coupled with his behavior on the night he made those statements. Because this instruction was supported by the evidence, the trial court did not err in so charging the jury. This argument is without merit.
     Finally, we note that Rule 9(a)(3)f of the Rules of Appellate Procedure provides that in criminal cases the record on appeal “shall contain” a transcript of the entire jury charge given by the trial court “where error is assigned to the giving or omission of instructions to the jury[.]” N.C. R. App. P. 9(a)(3)f. In the present case, the record on appeal does not contain a copy of the trial judge's charge to the jury. This defect is not cured by filing the trial transcript with this Court. Counsel isremonstrated that such violations subject them to sanctions for failure to comply with the Rules of Appellate Procedure. Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) .
    As to the remaining assignments of error contained in the record on appeal, but which defendant has not brought forward or argued in his brief, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
    NO ERROR.    
    Judges MCCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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