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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-903

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA
                            Scotland County
    v.                        Nos. 02 CRS 52146-47
                                02 CRS 53195-98
MICHAEL WALTER COVINGTON,            03 CRS 451-56
        Defendant.

    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.

    GEER, Judge.

    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.

Facts

    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 redness.
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 depression.
    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 sexual abuse."
    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 this Court.
Discussion

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. 2565 (1995).
    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 v. Jones, 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. Stallings, 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, 513 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, however slight, 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 Madison.
    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 sex).
    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 stated:
            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 story.
    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, 330 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 rule. Golphin, 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 this case.
    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 fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . .'" State v. Odom, 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. denied, 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. Brothers, 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. at 80, 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 evidence. Id. 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 children.
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 explained:
            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' [sic] charges.

The trial court's instructions immediately followed the State's closing argument.
    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.

    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
    Pseudonyms will be used throughout the opinion to protect the children's privacy and for ease of reading.
Footnote: 2
    Notably, defendant in this case cites no authority apart from Jones as support for this assignment of error.

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