Appeal by defendant from judgments entered 21 November 2005 by
Judge B. Craig Ellis in Scotland County Superior Court. Heard in
the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
Defendant Michael Walter Covington appeals from convictions
for one count of first degree rape of a child, five counts of first
degree sexual offense with a child, four counts of indecent
liberties with a child, and two counts of crime against nature. On
appeal, defendant's arguments _ including a challenge to the denial
of his motion to dismiss and the jury instructions _ are primarily
founded on his contention that the State was limited to the factual
theories set forth in a pretrial document filed by the State. We
need not decide whether the State was bound by that document since
the State presented ample evidence to support those factual
theories. We, therefore, find defendant's arguments regarding the
motion to dismiss and jury instructions unpersuasive. Sincedefendant's remaining arguments are also without merit, we hold
defendant received a trial free of prejudicial error.
The State's evidence at trial tended to show the following
facts. Defendant and his wife, "Allison," had three daughters,
"Cathy" (born in 1996), "Ashley" (born in 1998), and "Madison"
(born in 1999).
(See footnote 1)
They were friends with another married couple,
"Grant" and "Samantha," who had a daughter, "Katie" (born in 1997),
and a son, "Joseph" (born in 2000). The couples frequently
alternated child care arrangements in which either the wives or
defendant would care for all five children. Because of job and
school schedules, defendant began regularly caring for the children
in January 2002.
In March and April 2002, Samantha noticed Katie and Ashley
were exhibiting unusual behaviors, including removing their clothes
and pretending to have male genitals, and "poking" each others'
genitals while bathing. Katie also kicked her brother in the nose
after he got "on her back," and Samantha later discovered Katie
kneeling in front of her brother while holding his genitals.
On 12 April 2002, Samantha contacted her sister, "Tessa," who
was a program director at the Crossnore School, a center for abused
and neglected children. Katie went to stay with Tessa for a week
at Crossnore, and during that time, Katie told Tessa that defendant
had "hurt her cootie." On 17 April 2002, Grant went to the Scotland County Sheriff's
Office and filed a report with Scotland County Detective Paul
Lemmond alleging that defendant had sexually abused Katie.
Detective Lemmond interviewed Katie, who stated that defendant had
"dug in her cootie," had "put cream between her legs," and that
"she hurt after [defendant] did this." Following a request by
Detective Lemmond, SBI Agent Janie Pinkston interviewed Katie on 12
July 2002. In addition to reiterating much of what she had told
Detective Lemmond, Katie indicated that defendant had "put his wee-
wee" on the "inside" of both her "cootie" and her "butt."
Defendant spoke with Detective Lemmond on 13 May 2002.
Although defendant initially claimed that he had never touched
Katie, the detective testified that defendant went on to say:
that he had put cream on her one time, and he
had put it on her vagina because of redness.
And then [defendant] showed me how he did
it. He stated he put his two fingers on the
vagina and spread the lips and put the cream
on her vagina. And [defendant] demonstrated
this by, when took [sic] his fingers to show
me, he took his fingers and showed how he
spread them out and took his other finger and
put cream on her vagina. He said that was for
When Detective Lemmond interviewed defendant again on 29 May 2002,
defendant stated at that time that he had applied cream to Katie in
this fashion on five occasions and had done it to his own daughters
as well. Defendant also asserted that "he had confessed everything
to God and he did not have to tell [the detective] anything."
On 3 June 2002, during a visit arranged by a Department of
Social Services social worker assigned to the case, Katie wasevaluated by developmental and forensic pediatrician Dr. Sharon W.
Cooper at Southern Regional Area Health Education Center. Katie
told Dr. Cooper that defendant had "hurt [her] on [her] cootie,"
had her "move her hand up and down" on his penis until "[i]t got
hard and big," had put his penis in her mouth, had "touch[ed] [her]
butt" with his "pee-pee," and had "rub[bed] his pee-pee" until he
ejaculated in front of her. Katie stated that defendant told her
that if she ever said anything about what he had done, "he would
hurt [her] cootie forever."
Dr. Cooper's subsequent physical examination of Katie showed
abnormalities to her hymen related to "stretching" and "pressure"
trauma. Dr. Cooper believed that Katie's physical symptoms and
unusual behaviors, which had escalated to include urinating and
defecating on herself, were consistent with those seen in child
sexual abuse victims who had post-traumatic stress disorder and
On 1 July 2002, Dr. Cooper evaluated defendant's three
daughters _ Ashley, Cathy, and Madison. Defendant's wife, Allison,
indicated to Dr. Cooper that all three girls had been participating
in "sexually inappropriate behavior" similar to the behaviors
Samantha had initially noted. During Dr. Cooper's evaluation,
Ashley explained that defendant had put cream on her "butt," which
was her "family['s] term for [female] genitalia." Ashley also
stated that she had seen defendant apply cream in a similar manner
to Katie. As with Katie, Ashley's physical examination showed
"evidence of a tear." Dr. Cooper concluded Ashley's physical andbehavior symptoms were "consistent with the diagnosis of child
With respect to Cathy, Allison informed Dr. Cooper that Cathy
had been exhibiting problems with anger management and temper
tantrums over the preceding year. During her evaluation, Cathy
told Dr. Cooper that defendant had rubbed her "front butt" with
cream; that she had observed defendant put cream on Katie, Ashley,
and Madison in a similar manner; and that defendant had her rub
cream on Katie's vagina or hold Katie's hand while he did so.
Cathy's physical examination was normal, which Dr. Cooper felt was
not unusual given what Cathy had described. Dr. Cooper concluded
that Cathy's behaviors, even in the absence of physical symptoms,
were still consistent with sexual abuse.
Allison told Dr. Cooper that Madison, who was only three years
old at the time of her evaluation and too young to be effectively
interviewed, had also been exhibiting unusual "sexualized
behaviors," such as putting foreign objects in or around her
vaginal area. Although Madison's physical examination was normal,
Dr. Cooper concluded her behaviors, like Cathy's, were consistent
with a diagnosis of sexual abuse.
On 3 February 2003, defendant was indicted on one count each
of first degree sexual offense with respect to Katie, Ashley, and
Cathy, as well as one count each of taking indecent liberties with
Katie, Ashley, Cathy, and Madison. Defendant was also subsequently
indicted on 2 August 2004 as to Katie with one count each of
statutory rape, first degree sexual offense, taking indecentliberties with a child, and two counts of crime against nature, as
well as one count of first degree sexual offense as to Madison.
On 4 February 2005, defendant filed written motions for a bill
of particulars with respect to each of the indictments, asking that
the State specify (1) when the crime occurred, (2) what specific
act or acts constituted the crime, (3) where the crime occurred,
and (4) what other crimes, if any, were committed contemporaneously
with the crime in the indictment. The State responded to these
motions with an undated document entitled "State's Response and
Election," providing the requested information. The record does
not indicate whether this document was filed with the trial court.
The charges were tried before a jury during the 7 November
2005 criminal session of Scotland County Superior Court. All four
children testified, as did their parents, Tessa, Dr. Cooper, and
law enforcement officers. Defendant presented testimony of the
program director, a clinical psychologist, and a resident counselor
from Crossnore School regarding Tessa's conduct with Katie; two
expert witnesses; and a neighbor who had observed the children and
had conversations with the parents. Following this evidence, the
jury convicted defendant of each of the charges.
The trial court imposed ten consecutive presumptive range
sentences: six sentences of 240 to 297 months imprisonment for
defendant's single first degree rape conviction and five first
degree sexual offense convictions; three sentences of 16 to 20
months imprisonment for three of defendant's indecent liberties
convictions; and a single consolidated sentence of 16 to 20 monthsfor defendant's remaining indecent liberties conviction and two
crime against nature convictions. Defendant timely appealed to
I. Motion to Dismiss
We turn first to defendant's arguments pertaining to his
motion to dismiss. In ruling on a motion to dismiss, the trial
court must determine whether the State presented substantial
evidence (1) of each essential element of the offense and (2) of
the defendant's being the perpetrator. State v. Robinson
, 355 N.C.
320, 336, 561 S.E.2d 245, 255, cert. denied
, 537 U.S. 1006, 154 L.
Ed. 2d 404, 123 S. Ct. 488 (2002). "Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." State v. Brown
, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). When deciding a motion to dismiss, the
trial court must view all of the evidence presented "in the light
most favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
A. First Degree Sexual Offense and Indecent Liberties as to
Cathy and Madison
Defendant argues that the trial court erred by denying his
motion to dismiss the two counts of first degree sexual offense and
two counts of indecent liberties pertaining to Cathy and Madison.
Defendant points to the State's "Response and Election" thatspecified that the conduct referred to in the indictments for these
offenses was "[d]igital penetration." Defendant contends that this
"Response and Election" was either a binding election or a bill of
particulars and, therefore, the State could establish the four
disputed offenses only by specifically showing digital penetration.
In making this argument, defendant relies exclusively on State
, 317 N.C. 487, 346 S.E.2d 657 (1986). In Jones
, the State
used a short-form indictment sufficient to charge either first or
second degree rape, but specified in the caption that the defendant
was being charged only with second degree rape; the defendant was
arraigned solely on second degree rape; and the State failed to
express any intent to pursue first degree rape before the jury was
impaneled and jeopardy attached. Id.
at 493, 346 S.E.2d at 660-61.
According to the Supreme Court, under these circumstances, "the
State made a binding election not to pursue the greater degree of
the offense, and such election was tantamount to an acquittal of
first-degree rape." Id.
at 494, 346 S.E.2d at 661.
We find Jones
inapplicable to this case since defendant was
prosecuted precisely for the crimes originally alleged in the
indictments. This case does not involve an implied acquittal of a
greater charge. Defendant is instead attempting to bind the State
to a particular factual theory on a given charge. Nothing in Jones
addresses that situation.
We note that the State agrees that the prosecutor in the
present case pursued only the theory specified in its "Response and
Election," but contends that its voluntary response was neither abinding election nor a bill of particulars. See State v.
, 107 N.C. App. 241, 245-46, 419 S.E.2d 586, 588 (1992)
(State's oral response at pretrial hearing to defendant's motion
for bill of particulars pertaining to charge of sexual offense that
"the victim referred to the use of [defendant's] finger in her
bottom part" was not a bill of particulars because it was not in
writing or filed with court), disc. review improvidently allowed
333 N.C. 784, 429 S.E.2d 717 (1993). We need not, however, address
whether the "Response and Election" was binding _ apart from Jones
_ because, even assuming that it was, the State presented
sufficient evidence of digital penetration of both Cathy and
Madison to survive defendant's motion to dismiss.
Our Supreme Court has held that evidence a defendant entered
the labia is sufficient to prove the element of penetration for a
charge of rape. State v. Johnson
, 317 N.C. 417, 434, 347 S.E.2d 7,
17 (1986), superseded by statute on other grounds as stated by
State v. Moore
, 335 N.C. 567, 440 S.E.2d 797, cert. denied
U.S. 898, 130 L. Ed. 2d 174, 115 S. Ct. 253 (1994). This Court
adopted this standard for showing penetration for statutory sexual
offense cases in State v. Bellamy
, 172 N.C. App. 649, 617 S.E.2d 81
(2005), appeal dismissed and disc. review denied
, 360 N.C. 290, 628
S.E.2d 384 (2006). In that case, we concluded that the State had
shown sufficient evidence to support the penetration element of
first degree statutory sexual offense when the victim testified
that she had "felt the barrel of [defendant's] gun on the inside of
her labia." Id.
at 657, 617 S.E.2d at 88. See also
N.C. Gen.Stat. § 14-27.1(4) (2005) ("Sexual act also means the penetration,
, by any object into the genital or anal opening of
another person's body[.]" (emphasis added)).
At trial, Detective Lemmond testified that defendant had
explained during his 29 May 2002 interview that he would "pull the
vagina lips apart and put . . . cream on his finger and put the
cream . . . inside
of [Katie]'s vagina . . . ." (Emphasis added.)
Although specifically referring to Katie, defendant went on to
explain that he similarly "put cream on his daughters' vagina[s]."
Further, Cathy testified at trial that defendant put cream "in the
outside" of her vagina and that sometimes it hurt when defendant
"pushed down too hard." Cathy also testified that defendant put
cream on her genital area "the same way that [she] saw him put it
on [Katie]," and Katie testified that defendant put cream "[i]n"
her vagina "the same way" that she observed defendant put cream on
When viewed in the light most favorable to the State, we hold
that this evidence was sufficient to allow the jury to find that
defendant digitally penetrated both Cathy and Madison. Although
defendant questions Dr. Cooper's credibility and points to other
evidence indicating no digital penetration occurred, such as the
lack of definitive physical findings for those two girls, such
arguments were for the jury to resolve. State v. Scott
, 356 N.C.
591, 596, 573 S.E.2d 866, 869 (2002). The trial court, therefore,
properly denied the motion to dismiss with respect to these
charges. B. Indecent Liberties as to Katie
Defendant next argues that the trial court erred by denying
his motion to dismiss one count of indecent liberties as to Katie.
Defendant again points to the "Response and Election," which stated
that "the following conduct" was relied upon for that charge:
"Instructing/Watching a minor child fondle another's genitals."
Defendant concedes that Katie's and Cathy's testimony
indicated that defendant instructed Cathy to apply cream to Katie's
genital area and watched while she did so. Defendant also does not
dispute that observing a child involved in sexual activities is
sufficient to sustain a conviction for taking indecent liberties.
See State v. Ainsworth
, 109 N.C. App. 136, 146-47, 426 S.E.2d 410,
417 (1993) (evidence was sufficient to sustain indecent liberties
conviction where defendant passively observed her child having
Defendant, instead, reads the State's "Response and Election"
as meaning that Katie applied the cream to the genitals of another
child. In support of this construction, defendant points to the
trial court's jury instructions. The pertinent jury instruction
An indecent liberty is an immoral,
improper, or indecent touching by the
defendant upon the child, or an inducement by
the defendant of an immoral or indecent
touching by the child
, [Katie], or committed
or attempted to commit a lewd or lascivious
act upon the child
(Emphases added.) We agree with the State that its response does not actually
specify whether Katie "fondled another child" or whether Katie was
the child fondled. Moreover, with respect to the jury
instructions, this Court reviews a jury charge "'contextually and
in its entirety.'" State v. Blizzard
, 169 N.C. App. 285, 296, 610
S.E.2d 245, 253 (2005) (quoting Bass v. Johnson
, 149 N.C. App. 152,
160, 560 S.E.2d 841, 847 (2002)). The complete instruction
provides for both possibilities: that Katie did the touching or
that Katie was touched in a lewd or lascivious act.
As the State presented substantial evidence that defendant
watched Cathy apply cream to Katie's genitals, as he had instructed
her to do, we hold that the State satisfied any burden it may have
had under its response and that the evidence was sufficient to
sustain a conviction of indecent liberties as to Katie. Ainsworth
109 N.C. App. at 146-47, 426 S.E.2d at 417. This aspect of
defendant's motion to dismiss was thus also properly denied.
II. Excluded Expert Testimony
Defendant next argues that the trial court erred by sustaining
the State's hearsay objection to portions of the testimony of Dr.
Charles J. Hyman, one of defendant's expert witnesses. Defendant
sought to have Dr. Hyman testify as to records produced by a "Dr.
Mangiardi," a doctor who did not testify at trial. Defendant
argues that this testimony was admissible under Rule 703 of the
Rules of Evidence, which provides that testimony "as to information
relied upon by an expert when offered to show the basis for the
expert's opinion is not hearsay, since it is not offered assubstantive evidence." State v. Huffstetler
, 312 N.C. 92, 107, 322
S.E.2d 110, 120 (1984), cert. denied
, 471 U.S. 1009, 85 L. Ed. 2d
169, 105 S. Ct. 1877 (1985). See also State v. Jones
, 322 N.C.
406, 411, 368 S.E.2d 844, 847 (1988) (noting that a "testifying
expert can reasonably rely on the opinion of an out-of-court expert
and can testify to the content of that opinion").
According to defendant's offer of proof, Dr. Hyman would have
testified that Dr. Mangiardi's records reflected that Dr. Mangiardi
had interviewed Katie's mother, Samantha, and Samantha had told Dr.
Mangiardi that Katie's version of events sounded "rehearsed," was
what Katie thought people "want[ed] to hear," and that Katie had
"talked to numerous people and recanted the story." The trial
court excluded the testimony, concluding that it was not being
offered to show the bases of Dr. Hyman's opinions, but, rather,
only to prove that Katie had in fact rehearsed or recanted her
Both before the trial court and before this Court, defendant
has provided no explanation as to how the excluded testimony was
necessary under N.C.R. Evid. 703 to demonstrate the bases of Dr.
Hyman's opinions. To the contrary, Dr. Hyman was permitted to
testify extensively as to his opinions, arrived at after
"review[ing] all the materials" and "talk[ing] to people," that
Tessa's questioning of the children after the alleged sexual abuse
"completely tainted the case" and that Dr. Cooper was incorrect
that the children's behavior was consistent with sexual abuse.
Indeed, while arguing for the admissibility of the testimony attrial, defense counsel admitted that Dr. Hyman's testimony as to
Dr. Mangiardi's notes went to "the rehearsal issue."
When an out-of-court statement is not offered to show a basis
for the expert's opinion, but rather to prove the truth of the
matter asserted in the statement, then the statement is hearsay and
its admissibility will "'depend on an exception to the hearsay
rule.'" State v. Golphin
, 352 N.C. 364, 467, 533 S.E.2d 168, 235
(2000) (quoting State v. Wood
, 306 N.C. 510, 517, 294 S.E.2d 310,
313 (1982)), cert. denied
, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S.
Ct. 1379 (2001). We agree with the trial court that defendant was
offering Dr. Hyman's testimony as to Dr. Mangiari's notes to prove
that Katie had in fact rehearsed or recanted her story and not to
show the bases of Dr. Hyman's opinions. See State v. Robinson
N.C. 1, 26, 409 S.E.2d 288, 302 (1991) (expert testimony regarding
results of experiment was inadmissible under Rule 703 when "the
evidence would have been admitted to prove the truth of the matter
asserted and, in this context, would be inadmissible hearsay").
As a result, the statements in Dr. Mangiardi's records could
only be admitted if they fell within an exception to the hearsay
, 352 N.C. at 467, 533 S.E.2d at 235. If admitted,
Dr. Hyman's testimony as to Dr. Mangiardi's notes would have
amounted to multi-layered hearsay: what Dr. Hyman said Dr.
Mangiardi wrote about what Samantha told him about what Katie had
said. Hearsay included within hearsay is admissible only if "each
part of the combined statements conforms with an exception to the
hearsay rule . . . ." N.C.R. Evid. 805. Defendant has made noeffort on appeal to establish that each level of this hearsay
testimony was admissible, and, therefore, we conclude that
defendant has failed to demonstrate the trial court erred in
excluding the testimony. See State v. Baldwin
, 330 N.C. 446, 457,
412 S.E.2d 31, 37-38 (1992) (trial court did not err by excluding
expert testimony of defendant's self-serving hearsay statements).
III. The Jury Instructions
Finally, defendant contends that the trial court erred by
instructing the jury with a "generic" charge for indecent liberties
that permitted conviction upon the basis of a finding of "immoral,
improper, or indecent touching," or the commission or attempted
commission of a "lewd or lascivious act." According to defendant,
the instruction should have incorporated the State's election in
its "Response and Election" that it would establish the indecent
liberties charges by "digital penetration" or defendant's
instructing or watching a child fondle another's genitals.
Although defendant did not object at trial to these
instructions, he nonetheless asserts that we should review this
issue de novo "by operation of law." Defendant's argument on this
issue depends upon his assumptions that (1) under Jones
, 317 N.C.
at 494, 346 S.E.2d at 661, the State's written response to his
motion for a bill of particulars somehow "acquitted" him of the
more generically formatted indecent liberties charge and (2) that
this "acquittal" divested the trial court of jurisdiction to try
defendant for the more broadly-phrased indecent liberties charges,
see State v. Boone
, 310 N.C. 284, 288, 311 S.E.2d 552, 556 (1984)("Jurisdictional questions which relate to the power and authority
of the court to act in a given situation may be raised at any
time."). We have, however, concluded that Jones
does not apply to
Alternatively, defendant asks that we review this issue for
plain error. N.C.R. App. P. 10(c)(4). The plain error rule is
only applied when "'it can be said the claimed error is a
error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done . . . .'" State
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting
United States v. McCaskill
, 676 F.2d 995, 1002 (4th Cir.), cert.
, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)).
"'Before deciding that an error by the trial court amounts to plain
error, the appellate court must be convinced that absent the error
the jury probably would have reached a different verdict. . . . In
other words, the appellate court must determine that the error in
question tilted the scales and caused the jury to reach its verdict
convicting the defendant.'" State v. Duke
, 360 N.C. 110, 138-39,
623 S.E.2d 11, 29-30 (2005) (quoting State v. Walker
, 316 N.C. 33,
39, 340 S.E.2d 80, 83 (1986)), cert. denied
, __ U.S. __, 166 L. Ed.
2d 96, 127 S. Ct. 130 (2006).
Defendant's argument appears to be foreclosed by State v.
, 151 N.C. App. 71, 79, 564 S.E.2d 603, 609 (2002), appeal
dismissed and disc. review denied
, 356 N.C. 681, 577 S.E.2d 895
(2003), in which the defendant argued that "the trial court erred
in denying his motion to require the jury to convict him [ofindecent liberties and first degree sexual offense] on the specific
acts set out in the bill of particulars."
(See footnote 2)
This Court found no
error when, rather than repeating in the jury instructions the
specific conduct set out in the bill of particulars, the trial
court used the same instruction employed in this case. Id.
564 S.E.2d at 609. The Court noted that the purpose of a bill of
particulars is to inform the defendant of the specific occurrences
intended to be investigated at trial and to limit the course of the
at 81, 564 S.E.2d at 610. The Court concluded that
no error occurred when "the testimony was not inconsistent with the
State's bill of particulars." Id.
We have already concluded in this case that the testimony
presented paralleled the State's "Response and Election."
Accordingly, under Brothers
, there appears to have been no error.
Even if Brothers
is limited to considerations of verdict unanimity
_ a possible reading of the opinion _ defendant has failed to
demonstrate that any error likely caused the jury's verdict in this
case. In the closing argument, the prosecutor argued, consistent
with its "Response and Election":
The next charge the judge will instruct
you on is taking indecent liberties with a
child, and there are four different counts of
taking indecent liberties with a child; one
involving instructing [Cathy] to apply cream
to [Katie] and three counts involving the
digital molestation of [defendant's] own
The prosecutor continued her argument by reciting the instruction
that the judge was going to give regarding the elements of indecent
liberties _ the "generic" instruction at issue here. She then
Now, under North Carolina law certain
conduct can violate two statutes at the same
time, and the defendant may be properly
charged with and convicted of both of those
violations of the law if his conduct violates
two different laws. And I would submit to you
that if you believe that this defendant
digitally molested his children and find him
guilty of first-degree sex offense involving
his own children, you should find him guilty
of each of these taking indecent liberties'
The trial court's instructions immediately followed the State's
Since (1) the State relied in its closing argument only on the
conduct specified in the "Response and Election," (2) the State
related that conduct to the general instruction on indecent
liberties, and (3) the record contained ample evidence _ including
defendant's own admissions _ to support a finding of that conduct,
we cannot conclude that the jury would probably have reached a
different verdict had the trial court incorporated into its jury
instructions the conduct identified in the "Response and Election."
As a result, defendant has failed to establish plain error. Duke
360 N.C. at 139, 623 S.E.2d at 30.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).