STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 04 CRS 52932-33
DARRICK JEROME MYERS 04 CRS 322
Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.
James M. Bell for defendant-appellant.
ELMORE, Judge.
Darrick Jerome Myers (defendant) appeals his convictions for
second degree rape, first degree sex offense with a child, and two
counts of indecent liberties with a child. After a careful review
of the record, we find no error in defendant's trial.
Defendant began dating T.R. in the summer of 2002. T.R. had
three children, including the alleged victims in this case, K.R.
and S.R. All four moved in with defendant, who lived at his
mother's house, shortly after defendant and T.R. began dating. At
that time, S.R. was eight years old, and K.R., who is mentally
disabled, was ten years old. In May 2003, T.R. and her children
left defendant's mother's house, staying briefly at the Salvation
Army before settling into T.R.'s grandfather's house. T.R. anddefendant went on dating, and defendant continued to help care for
T.R.'s children while she was out. The two broke up in January
2004 after T.R.'s daughters alleged abuse by defendant.
The first accusation of abuse was in January 2004, when S.R.
complained to her mother that defendant had tried to touch her
inappropriately. S.R. recanted the story later that day. A couple
of weeks later, K.R., too, complained of abuse. K.R. also claimed
to have seen defendant abuse S.R. In response to these
allegations, T.R. took S.R. and K.R. to a medical clinic in
February 2004.
At trial, S.R., who was then ten years old, testified that
defendant had intercourse with her while she was living in his
mother's house. She also testified that he had otherwise sexually
abused her on several other occasions. K.R., twelve years old at
the time of trial, testified that defendant fondled her and
penetrated her vaginally and anally. According to K.R., these
incidents occurred both while she lived at defendant's mother's
house and later, when she and her family were living with T.R.'s
grandfather.
Defendant was convicted of one count of first-degree sex
offense with a child, one count of second-degree rape, and two
counts of indecent liberties with a child. He pled guilty to
habitual felon status. Defendant was sentenced to 360 to 441
months' imprisonment for first-degree sex offense with a child,
indecent liberties with a child, and attaining habitual felon
status; and 120 to 153 months for second-degree rape and indecentliberties with a child, to begin at the expiration of the first
sentence. Defendant now brings forth numerous issues on appeal.
Defendant first contends that the trial court committed
reversible error by denying defendant's motion to continue in order
for funds to be made available for the retention of a psychologist
to assist the defense. Defendant argues in his brief that there
was a violation of his constitutional rights. No such argument was
presented at trial, however, and defendant makes no mention of a
constitutional claim in his assignment of error. Defendant
attempts to characterize his statement, “I feel like I can't have
a fair trial unless these matters get looked into,” as a
constitutional argument. This one statement, made by defendant
himself before the trial court with no supporting constitutional
arguments, is insufficient, particularly in light of defendant's
subsequent failure to raise the constitutional issue in his
assignment of error. “Constitutional issues not raised and passed
upon at trial will not be considered for the first time on appeal.”
State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)
(citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519
(1988)). “[T]he 'scope of appellate review is limited to the
issues presented by assignments of error set out in the record on
appeal; where the issue presented in the appellant's brief does not
correspond to a proper assignment of error, the matter is not
properly considered by the appellate court.'” Walker v. Walker,
___ N.C. App. ___, ___, 624 S.E.2d 639, 641 (2005) (quoting Bustle
v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)). Because the constitutional issue was neither raised at the trial
level nor assigned as error, we will not consider it on appeal.
Absent any constitutional issue, “[a] motion for a continuance
is ordinarily addressed to the sound discretion of the trial court,
and the ruling will not be disturbed absent a showing of abuse of
discretion.” State v. Williams, 355 N.C. 501, 540, 565 S.E.2d 609,
632 (2002) (quoting State v. Blakeney, 352 N.C. 287, 301, 531
S.E.2d 799, 811 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d
780 (2001)), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
“An abuse of discretion occurs 'where the 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.
Fuller, ___ N.C. App. ___, ___, 626 S.E.2d 655, 657-58 (2006)
(quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988)). In this case, taking into consideration the ages of the
victims, the tardiness of defendant's request, the fact that the
case had already been continued, and that the State's witnesses
were available and ready to testify, there is no basis to find an
abuse of discretion. Accordingly, defendant's first contention of
error must fail.
Defendant next contends that the trial court committed
reversible error by denying defendant's motion in limine to
restrict statements regarding his incarceration and by allowing the
State to play tape-recorded conversations between defendant and
T.R. made while he was incarcerated. Because these assignments oferror deal with essentially the same issue, we will address them
together.
Once again, defendant attempts to raise a constitutional issue
in his brief after failing to either raise the issue at trial or to
include the issue in his assignments of error. As a result, we may
not consider the constitutional issues on appeal. See Lloyd, 354
N.C. at 86-87, 552 S.E.2d at 607; Walker, ___ N.C. App. at ___, 624
S.E.2d at 641. Defendant makes no other arguments in his brief.
“Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.” State v. McNeill, 360 N.C.
231, 241, 624 S.E.2d 329, 336 (2006) (quoting N.C.R. App. P.
28(b)(6) and citing State v. Augustine, 359 N.C. 709, 731 n.1, 616
S.E.2d 515, 531 n.1 (2005)). Accordingly, we will not review these
assignments of error.
We will next address defendant's contention that the trial
court committed reversible error by finding K.R. and S.R.,
respectively, to be competent witnesses. “Absent a showing that
the trial court's ruling on a challenge to the competency of a
witness could not have been the result of a reasoned decision, we
must leave the ruling undisturbed.” State v. Hyatt, 355 N.C. 642,
664, 566 S.E.2d 61, 76 (2002) (citing State v. Hicks, 319 N.C. 84,
89, 352 S.E.2d 424, 426 (1987)).
There is a presumption of competency under the North Carolina
Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 601 (2005). A
person may be disqualified, however, upon a determination by thetrial court that he is “(1) incapable of expressing himself
concerning the matter as to be understood, either directly or
through interpretation by one who can understand him, or (2)
incapable of understanding the duty of a witness to tell the
truth.” Id. In this case, the trial court allowed voir dire for
both K.R. and S.R. to determine their competency prior to allowing
their testimony to be heard by the jury.
Following K.R.'s testimony on voir dire, during which both the
State and defense had the opportunity to ask questions of the
witness, the trial judge gave a summary of his findings:
The court finds that this witness knows her
name, and can spell her name, knows the date
of her birth, knows the name of her family
members, knows their ages, knows what school
she attends, knows what grade she is in,
states her teachers [sic] names, states . . .
the address where she lives; and who she lives
with; she states the name of the church that
she attends; . . . expresses what happens . .
. when she misbehaves at school; what happens
when she misbehaves at home; expresses the
opinion that lying is bad; that adults go to .
. . jail when they lie; that she knows what a
promise is; that she knows what it means to
tell the truth; she's able to distinguish
colors; she expresses that her definition of
what the oath that she took with her hand on
the Bible means to be going to tell the truth
to the Lord.
Likewise, the court allowed a voir dire of S.R. With regards
to that examination, the trial judge gave the following summary:
The Court finds that this witness is able to
express herself; that she indicates that she
understands that the truth is to be honest; it
appears from her answers that she is able to
understand the duty to tell the truth; she's
expressed what happens when people disobey,
and what happens to people who don't tell thetruth, saying that some adults go to jail for
not doing so.
Based upon these findings, the trial court determined that K.R. and
S.R. were capable of expressing themselves and understanding their
duty to tell the truth, and allowed them to testify before the
jury. We cannot say that the trial court failed to make a reasoned
decision. Consequently, we will leave the ruling undisturbed.
Defendant next contends that the trial court committed
reversible error by allowing the State's expert witness, Cynthia
Stewart, to refer to articles and literature in answering a
question on direct examination over defendant's objection. Though
defendant specified in his brief that the objection was that the
testimony was in violation of the hearsay rule, defendant made only
a general objection at trial. Generally, “to preserve a question
for appellate review, a party must have presented to the trial
court a timely . . . objection . . . stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context.” N.C.R. App. P.
10(b)(1) (2005) (emphasis added). “Defendant made only general
objections to the witnesses' testimony, and this Court has held 'a
general objection, if overruled, is ordinarily not effective on
appeal.'” State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656,
665 (2000) (quoting State v. Hamilton, 77 N.C. App. 506, 509, 335
S.E.2d 506, 508 (1985) (citations omitted)); see also State v.
Johnson, 340 N.C. 32, 47, 455 S.E.2d 644, 651 (1995) (where
defendant failed to object to admission of statements on basis of
inadmissible hearsay, defendant's objection did not preserve issueof hearsay for appellate review). Here, where there was a general
objection, the objection was overruled, and the testimony was
presented without further discussion, this issue was not preserved
for appeal.
Similarly, defendant failed to properly preserve the issues
asserted in his next three assignments of error. Defendant claims
that the trial court erred in allowing Lesley Berenson, Dr. Guy
Palmes, and Susan Vaugn, respectively, to testify that a victim
displayed characteristics of sexual abuse. Defendant's objections
at trial were general, and “a general objection, if overruled, is
ordinarily not effective on appeal.” Parker, 140 N.C. App. at 183,
539 S.E.2d at 665 (internal quotation omitted). Moreover,
defendant's argument regarding Susan Vaugn's testimony does not
focus on the testimony complained of in the assignment of error.
Rather, defendant seems to base his argument on a subsequent remark
by the witness, which was properly objected to and struck with an
instruction to the jury to disregard it. “[T]he 'scope of
appellate review is limited to the issues presented by assignments
of error set out in the record on appeal; where the issue presented
in the appellant's brief does not correspond to a proper assignment
of error, the matter is not properly considered by the appellate
court.'” Walker, ___ N.C. App. at ___, 624 S.E.2d at 641.
Defendant's next contention is that the trial court committed
reversible error when it allowed Dr. Guy Palmes to use the word
“rape” five times in his testimony concerning the report of S.R.'s
hospitalization. Though defendant claims in his assignment oferror and argues in his brief that the testimony was allowed in
over the objection of trial counsel, defendant in fact only
objected to the first, third, and fourth recitations of the word
“rape.” “Where evidence is admitted over objection and the same
evidence has been previously admitted or is later admitted without
objection, the benefit of the objection is lost.” State v. Alford,
339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (citing State v.
Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984); State v.
Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984); and State v.
Chapman, 294 N.C. 407, 412-13, 241 S.E.2d 667, 671 (1978)); see
also State v. O'Hanlan, 153 N.C. App. 546, 553, 570 S.E.2d 751, 756
(2002), cert. denied, 358 N.C. 158, 593 S.E.2d 397 (2004). In this
case, the use of the word “rape” was admitted without objection on
two occasions. “Thus, defendant's contentions are reviewable only
for plain error.” O'Hanlan, 153 N.C. App. at 553, 570 S.E.2d at
756. “Defendant has further waived his opportunity for plain error
review of this issue. Rule 10(c)(4) of the North Carolina Rules of
Appellate Procedure requires that an assignment of error be
'specifically and distinctly contended to amount to plain error.'”
State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004) (quoting
N.C.R. App. P. 10(c)(4)), cert. denied, 544 U.S. 1052, 161 L. Ed.
2d 1094 (2005). Because defendant failed to assign the error as
plain error, it was not properly preserved, and will not now be
considered.
Defendant next asserts that the trial court committed
reversible error by admitting into evidence portions of a tapedinterview between defendant and law enforcement that defendant
characterizes as “speculative and highly prejudicial.” “The
standard of review for this Court assessing evidentiary rulings is
abuse of discretion.” State v. Boston, 165 N.C. App. 214, 218, 598
S.E.2d 163, 166 (2004) (citing State v. Meekins, 326 N.C. 689, 696,
392 S.E.2d 346, 350 (1990)); see also Hyatt, 355 N.C. at 662, 566
S.E.2d at 74 (citing State v. Mason, 315 N.C. 724, 731, 340 S.E.2d
430, 435 (1986), and quoting State v. Syriani, 333 N.C. 350, 379,
428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341
(1993)), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003)
(“The exclusion of evidence under Rule 403 is a matter generally
left to the sound discretion of the trial court . . . which we
leave undisturbed unless the trial court's ruling is manifestly
unsupported by reason or is so arbitrary it could not have been the
result of a reasoned decision[.]”).
As the State points out in its brief, Rule of Evidence 602 is
inapplicable to this case. Rule 602 reads, in part, “A witness may
not testify to a matter unless evidence is introduced sufficient to
support a finding that he has personal knowledge of the matter.”
N.C. Gen. Stat. § 8C-1, Rule 602 (2005). In this case, Detective
Israel, the witness, was testifying as to the subject matter of the
taped interview, not as to the veracity of the statements contained
therein. The fact that the question asked in the taped interview
may have been speculative does not aid defendant in excluding his
subsequent statement against interest. Defendant is therefore left with a Rule 403 argument. Rule
403 reads, “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice[.]” N.C. Gen. Stat. § 8C-1, Rule 403 (2005). Here, the
statement was made by defendant himself. Though certainly
prejudicial, the statement was probative as to defendant's
credibility, and we cannot hold that the admission of the taped
interview was “manifestly unsupported by reason” or “so arbitrary
it could not have been the result of a reasoned decision.” See
Hyatt, 355 N.C. at 662, 566 S.E.2d at 74; see also State v.
Lambert, 341 N.C. 36, 50, 460 S.E.2d 123, 131 (1995) (noting that
“the fact that [evidence] is also very prejudicial does not make it
unfairly so”) (quoted in State v. al-Bayyinah, 359 N.C. 741, 748,
616 S.E.2d 500, 507 (2005)).
Finally, defendant challenges the trial court's ruling to
allow defense witness Hazel Watson to testify to certain matters on
cross-examination. Defendant contends this witness was permitted
to testify broadly outside the scope of cross-examination over his
objection. “It is within the trial court's sound discretion to
ensure that all cross-examination questions are proper in scope and
asked in good faith.” State v. Prevatte, 356 N.C. 178, 237, 570
S.E.2d 440, 472 (2002) (citing State v. Bronson, 333 N.C. 67,
79-80, 423 S.E.2d 772, 779 (1992)). “A witness may be cross-
examined on any matter relevant to any issue in the case, including
credibility.” N.C. Gen. Stat. § 8C-1, Rule 611(b) (2005).
“'Relevant evidence' means evidence having any tendency to make theexistence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
“While 'the trial court's rulings on relevancy technically are not
discretionary and therefore are not reviewed under the abuse of
discretion standard applicable to Rule 403, such rulings are given
great deference on appeal.'” State v. Corbett, 168 N.C. App. 117,
124, 607 S.E.2d 281, 285 (2005) (quoting Dunn v. Custer, 162 N.C.
App. 259, 266, 591 S.E.2d 11, 17 (2004)). The testimony in
question dealt with various issues, including possible reasons that
T.R.'s children would be hesitant to tell their mother about the
abuse. This is an issue relating to the victims' credibility, and
as such it is relevant to the case. Accordingly, defendant's
assignment of error is without merit.
Defendant chose not to argue the remaining assignment of
error. It is, therefore, deemed abandoned. N.C.R. App. P.
28(b)(6). For the reasons stated herein, we hold defendant's
assignments of error are without merit and affirm the judgment
entered by the trial court.
No error.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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