STATE OF NORTH CAROLINA
v
.
Union County
Nos. 04 CRS 50819-20,
JOSEPH BRIAN TARLETON 50822-26, 50834-36
Attorney General Roy Cooper, by Assistant Attorney General
Jill A. Bryan, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant appellant.
McCULLOUGH, Judge.
Joseph Tarleton (“defendant”) appeals from judgments entered
consistent with the jury's verdict finding him guilty of 9 counts
of taking or attempting to take indecent liberties with a child and
1 count of disseminating obscenity to a minor under the age of 13
years. After a thorough review of the record, transcripts and
defendant's arguments on appeal, we hold that defendant received a
trial free from prejudicial error and therefore we affirm the
judgments entered against him.
Defendant was indicted on 29 November 2004 of 6 counts of
taking or attempting to take indecent liberties with a minor, E.M.
and 1 count of disseminating obscenity to a minor under the age of13 years. Defendant was thereafter indicted on 26 April 2004 of 3
counts of taking indecent liberties with a minor, J.T.(1).
The State presented evidence at defendant's trial tending to
show the following: Defendant was the uncle of the minor children,
E.M. and J.T.(1), who alleged that sexual incidents occurred
between them and defendant for several years. Defendant lived in a
camper and his shop on his mother's and the minors' grandmother's
property. E.M. and J.T.(1) regularly visited their grandmother.
E.M. testified that, when she was 10 years old, defendant
showed her and her cousin, J.T.(1), Playboy magazine, computer
images of naked children and adults, and computer images of men
having sex with children. Defendant told the girls that he wanted
to engage in the actions portrayed with them. On another occasion,
at E.M.'s grandmother's house, defendant asked E.M. and her cousin
to perform fellatio on him. Defendant subsequently showed E.M. and
her cousins computer images of naked men and women engaged in
intercourse and naked men having sex with children when the
children visited defendant in his shop. After viewing the pictures,
defendant told E.M., “I can't wait until me and you do that.” When
E.M. was 11 years old, defendant attempted to take her shirt off
and told E.M. that her cousin Sarah allowed him to do that. E.M.
testified that when she was 12 years old defendant exposed himself
twice and asked her to perform fellatio, once when she and
defendant were on a four-wheeler ride and once in defendant's shop.
Defendant further showed E.M. a nude photograph of a little girl
whom he identified as E.M.'s cousin J.N. and told E.M. that he andJ.N. had previously engaged in intercourse and that now he and E.M.
could as well. E.M. did not report these incidents to anyone
because defendant threatened to hurt her and her grandmother if she
told anyone.
J.T.(1) testified that she first remembered being touched by
defendant when she was 5 years old. Defendant rubbed her inner
thighs, tried to kiss her and explained to her that this is how
adults kiss. Defendant subsequently fondled J.T.(1)'s breast and
vagina and showed her how to perform fellatio which she did.
Defendant asked J.T.(1) to perform fellatio on him at least 10
times between 1991 and 2004. When J.T.(1) visited defendant in his
camper, defendant showed her computer images of children and adults
engaging in intercourse and suggested that they act this out.
Defendant also took J.T.(1) out on the four-wheeler and fondled
her. J.T.(1) testified that defendant would try to persuade the
girls to engage in sexual activity with them by telling J.T.(1)
that he had done those sexual things with E.M. and telling E.M.
that he had done those things with J.T.(1). J.T.(1) did not tell
anyone because defendant threatened to hurt her grandmother or
someone in their family if she did.
At trial, both E.M. and J.T.(1) identified magazines recovered
from defendant's shop at the time of arrest as the magazines shown
to them by defendant and identified defendant as the perpetrator of
the incidents described by them. The jury found defendant guilty on
9 counts of taking or attempting to take indecent liberties with a
child and 1 count of disseminating obscenity to a minor under theage of 13 years. Defendant was sentenced to 21 to 26 months'
imprisonment for each of the 9 indecent liberties convictions and
6 to 8 months' imprisonment for the conviction of disseminating an
obscenity to a minor which was suspended and a 5-year period of
supervised probation imposed to commence at the expiration of the
active sentences. Defendant appeals.
Defendant asserts that the trial court improperly admitted
evidence of alleged sexual acts against persons other than the
victims under N.C. Gen. Stat. § 8C-1, Rule 404(b).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) sets forth the
proposition that “[e]vidence of other crimes, wrongs, or acts” is
not admissible as character evidence for the purpose of showing a
propensity to act in such a manner. Id. However, evidence of other
crimes, wrongs or acts may be admissible for other purposes “such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident.” Id. The North Carolina Supreme Court has stated, “as a
careful reading of Rule 404(b) clearly shows, evidence of other
offenses is admissible so long as it is relevant to any fact or
issue other than the character of the accused.” State v. Weaver,
318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986). Further, Rule 404(b)
is to be treated as a rule of inclusion rather than exclusion as
long as the probative value goes to something other than showing
that the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged. State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990), cert. denied, 421S.E.2d 360 (1992). Moreover, our Courts have been “'markedly
liberal' in holding evidence of prior sex offenses 'admissible for
one or more of the purposes listed [in the Rule] . . . , especially
when the sex impulse manifested is of an unusual or “unnatural”
character.'” Id. at 279, 389 S.E.2d at 54-55 (citation omitted).
In the instant case, the trial court admitted the testimony
of the victims' cousins, J.N. and J.T.(2), regarding incidents of
sexual misconduct between defendant and the two minor children
under Rule 404(b). J.T.(2) testified that defendant, his uncle,
first made him put his mouth on defendant's penis when he was 6 or
7 years old. He further testified that defendant later performed
fellatio on J.T.(2) and forced him to masturbate defendant.
Defendant also showed J.T.(2) nude photographs of women and young
girls in magazines and on the internet. J.T.(2) testified that
these incidents occurred when he would visit his aunt's house where
defendant was at that time living in a camper on her property.
Defendant told J.T.(2) not to tell anyone about the incidents or
else he would get in trouble.
J.N., J.T.(2)'s sister, testified that defendant, her uncle,
fondled her in her vaginal area, showed her magazine photographs of
naked women and forced her to engage in reciprocal fellatio when
she was between the ages of 6 and 8 years old. J.N. testified that
many of these acts occurred when she was at her grandmother's house
visiting while her grandmother was asleep. J.N. further testified
that additional sexual acts occurred between her and defendant in
a house that he owned in Albemarle. J.N. stated that defendantthreatened that if she ever told anyone about these incidents, he
would go to jail and she would never see him again. She further
testified that she was afraid of defendant.
A review of the testimony of the four children reveals that
defendant engaged in inappropriate sexual activities with his
nieces and nephews when all were very close to the same age. A
majority of the encounters occurred at the grandmother's house when
the children were visiting their grandmother or in defendant's
camper. Defendant showed all of the minor children nude photographs
in magazines or on the internet and either engaged or attempted to
engage in fellatio. Defendant further threatened all of the
children with harm to them or their family members if they revealed
the incidents that occurred between them and defendant. The
evidence offered by J.T.(2) and J.N.'s testimony tends to prove
defendant's opportunity and common scheme or plan to engage in
sexual activities with the minor children and was not offered for
the purpose of proving propensity to act in conformance therewith.
Therefore, this assignment of error is overruled.
Defendant next excepts to the trial court's admission of
evidence that defendant burned down a house where such evidence was
admitted in error and was further plain error.
During the testimony of J.N. the following exchange occurred:
Q Does the house in Albemarle still exist?
A No, it does not.
Q Do you know what happened to it?
A It was burnt.
On direct examination defendant testified that the house in
Albemarle burned down as a result of a chimney fire. On cross-
examination the State asked defendant whether he told J.N. that he
burned the house down for insurance money, and defendant answered
over objection that it was a rumor started by the father of J.N.
Even assuming arguendo, that it was error for the trial court
to admit evidence regarding defendant's alleged burning of a house
in Albemarle for insurance money, the inclusion of the evidence
could not have affected the case where there was overwhelming
evidence of defendant's guilt. The two victims, defendant's nieces,
testified to inappropriate sexual encounters between them and
defendant, including encounters involving both girls, they
identified several magazines recovered from defendant's home as
those shown to them by defendant and identified defendant as the
perpetrator of the crime. Thus, any possible error would have been
harmless.
Finally, defendant asserts that the trial court's denial of
defendant's motion for a bill of particulars as to the counts
involving E.M. was an abuse of discretion.
“The grant or denial of a bill of particulars is generally
within the discretion of the trial court and is not subject to
review 'except for palpable and gross abuse thereof.'” State v.
Easterling, 300 N.C. 594, 601, 268 S.E.2d 800, 805 (1980) (citation
omitted). “An appellate court should reverse the denial of a motion
for a bill of particulars only if it clearly appears that the 'lack
of timely access to the requested information significantlyimpaired defendant's preparation and conduct of his case.'” State
v. Hines, 122 N.C. App. 545, 551, 471 S.E.2d 109, 113 (1996)
(citation omitted). The record is devoid of any indication that the
trial court's denial of a bill of particulars in regard to the
incidents involving E.M. significantly impaired defendant's
preparation of his defense. The State stated at the hearing on the
motion that defendant was currently in possession of all witnesses'
statements and that he would continue to hand over all information
as it became available. Further, during the cross-examination of
E.M., defendant possessed the prosecutor's notes of E.M.'s witness
interview and used those notes in the cross-examination of the
victim. Defendant has failed to point to any prejudice incurred by
him as a result of the denial of the motion for a bill of
particulars and therefore we find no abuse of discretion.
Accordingly, defendant received a trial free from prejudicial
error.
No prejudicial error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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