Appeal by defendant from judgment entered 31 May 2006 by Judge
Richard L. Doughton in Wilkes County Superior Court. Heard in the
Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
William D. Auman for defendant-appellant.
Defendant Tony Robert Shumate appeals from his conviction for
taking indecent liberties with a child. On appeal, defendant
primarily argues that the trial court violated his constitutional
right to remain silent by permitting testimony regarding his
failure to provide police with a statement. Because the testimony
related to a time frame before defendant had been read his Miranda
rights and prior to any arrest, we hold there was no violation of
defendant's constitutional rights.
The State's evidence at trial tended to show the following
facts. Rebecca Taylor was dating defendant (born in 1961)
throughout 2005. Defendant stayed with Rebecca and her daughter,"Beth" (born in 1993),
(See footnote 1)
over Easter weekend. At around 5:00 a.m.
on Easter morning, 27 March 2005, Rebecca went to her great aunt's
house to help prepare Easter dinner.
Beth awoke a short time later to find defendant kissing her
neck. Although Beth tried to get up, defendant put one arm around
her waist and pulled her back down,
touched her breast, put a hand
in her pants, and rubbed her "private." Defendant then told Beth
to keep quiet and began unbuttoning his pants. Defendant took
Beth's hand as if to "try to make [her] touch his penis" but,
before she did, the phone rang and Beth leapt from her bed to
answer it. The phone call was from Beth's mother, who was
returning home. Defendant did not touch Beth again.
Beth eventually told her parents what happened, and they
reported the matter to the police on 3 June 2005. Following an
investigation, defendant was indicted for taking indecent liberties
with a child on 12 September 2005. A jury found defendant guilty
on 31 May 2006, and the trial court sentenced defendant to 21 to 26
months imprisonment. Defendant now appeals to this Court.
Defendant first argues that the trial court erred by
permitting the State to question Detective Linda Nichols of the
Wilkes County Sheriff's Department regarding her unsuccessful
efforts to locate defendant in order to obtain his statement. Specifically, defendant points to the following exchange between
the prosecutor and Detective Nichols:
Q. [Prosecutor] . . . . How long did you
try to track down the Defendant to get a
statement from him?
A. [By Detective Nichols] Quite some
time. I tried to _ every place I knew to go
to find him without any luck.
Q. Okay. How many days or weeks did you
[Defense Counsel]: Objection, Your
Honor, as to this whole line of questioning.
He has a right not to give a statement.
COURT: Well, overruled.
Detective Nichols went on to testify that defendant failed to
appear at two appointments with her and that she was, in fact,
never able to speak with defendant. According to defendant, this
testimony violated his constitutional rights by introducing
evidence of his election to "remain silent" and to decline to
provide Detective Nichols with a statement.
The United States Supreme Court first held in Doyle v. Ohio
426 U.S. 610, 618, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245
(1976), that Miranda
warnings contain an implicit assurance to a
person who is given them that he will not be penalized for his
post-arrest silence. "In such circumstances, it would be
fundamentally unfair and a deprivation of due process to allow the
arrested person's silence to be used to impeach an explanation
subsequently offered at trial." Id.
Based on Doyle
, our Supreme
Court has held that "a defendant's exercise of his constitutionally
protected rights to remain silent and to request counsel duringinterrogation may not be used against him at trial." State v.
, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994).
Assuming, without deciding, that defendant's objection was
sufficient to preserve this issue for appellate review, we hold
do not apply to the facts of this case. As
our Supreme Court has explained, "[a]lthough the rule set forth in
is well established, certain limitations to Doyle
developed in the case law of the United States Supreme Court and
have been applied by this Court." State v. Westbrooks
, 345 N.C.
43, 63, 478 S.E.2d 483, 495 (1996).
Thus, in Jenkins v. Anderson
, 447 U.S. 231, 240, 65 L. Ed. 2d
86, 96, 100 S. Ct. 2124, 2130 (1980), the United States Supreme
Court held that Doyle
did not apply when "no governmental action
induced petitioner to remain silent before arrest." The Court
explained: "The failure to speak occurred before the petitioner was
taken into custody and given Miranda
warnings. Consequently, the
fundamental unfairness present in Doyle
is not present in this
case. We hold that impeachment by use of prearrest silence does
not violate the Fourteenth Amendment." Id.
Our Supreme Court has
since applied Jenkins
to hold that no constitutional violation
occurred when the silence at issue occurred prior to arrest and
invocation of or reliance on the defendant's right to remain
silent. See, e.g.
, State v. Bishop
, 346 N.C. 365, 386, 488 S.E.2d
769, 780 (1997) ("The use of prearrest silence to impeach a
defendant's credibility on cross-examination does not violate the
Fifth or Fourteenth Amendment to the United States Constitution. In the present case defendant was not induced to remain silent
prior to her arrest by any government assurances that her silence
would not be used against her. Defendant did not invoke or rely
upon her right to remain silent." (internal citations omitted));
345 N.C. at 63, 478 S.E.2d at 495 (holding that Doyle
did not apply because "defendant was not induced to remain silent
before her arrest, and use of her prearrest silence does not
violate defendant's Fifth Amendment rights").
As is apparent from Detective Nichols' testimony, defendant
had not yet been arrested or otherwise taken into custody at the
time of her efforts to obtain a statement from him. Defendant had
not been read his Miranda
rights or in any other manner been
induced to remain silent. Further, defendant had not, at that
time, invoked or relied upon his right to remain silent. Under
these circumstances, admission of Detective Nichols' testimony
regarding defendant's failure to provide a statement did not
violate defendant's rights under the Fifth and Fourteenth
Amendments to the United States Constitution. Since defendant does
not challenge this testimony on any other basis, this assignment of
error is overruled. See also State v. Washington
, 141 N.C. App.
354, 372, 540 S.E.2d 388, 400 (2000) (concluding testimony
regarding defendant's pre-arrest silence did not implicate concerns
embodied in Miranda
because defendant had not yet received Miranda
warnings), disc. review denied
, 353 N.C. 396, 547 S.E.2d 427
Defendant next argues that the trial court erred by denying
his motion to dismiss the charge of taking indecent liberties with
a child for insufficient evidence. A defendant's motion to dismiss
should be denied if there is substantial evidence: (1) of each
essential element of the offense charged and (2) of defendant's
being the perpetrator of the offense. State v. Scott
, 356 N.C.
591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that
amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion. Id.
at 597, 573 S.E.2d at 869. On review
of a denial of a motion to dismiss, this Court must view the
evidence in the light most favorable to the State, giving the State
the benefit of all reasonable inferences. Id.
at 596, 573 S.E.2d
at 869. Contradictions and discrepancies do not warrant dismissal
of the case, but, rather, are for the jury to resolve. Id.
In order to obtain a conviction for taking indecent liberties
with a child, "the State must prove (1) the defendant was at least
16 years of age, (2) he was five years older than his victim, (3)
he willfully took or attempted to take an indecent liberty with the
victim, (4) the victim was under 16 years of age at the time the
alleged act or attempted act occurred, and (5) the action by the
defendant was for the purpose of arousing or gratifying sexual
desire." State v. Rhodes
, 321 N.C. 102, 104-05, 361 S.E.2d 578,
580 (1987). See also
N.C. Gen. Stat. § 14-202.1(a) (2005).
Defendant does not specifically contest the sufficiency of the
evidence supporting any particular element, but, rather, onlygenerally argues that "the evidence presented was insubstantial to
support his conviction."
Here, Detective Nichols testified without objection that
defendant was born in 1961, and Beth testified that she was born in
April 1993. Beth went on to testify that while her mother was out
of the home on 27 March 2005, Beth awoke in the early morning hours
to find defendant kissing her neck. He also touched her breast,
put a hand in her pants, and, after unbuttoning his own pants, took
her hand as if to "try to make [her] touch his penis."
This testimony is sufficient evidence to survive defendant's
motion to dismiss. See, e.g.
, State v. Slone
, 76 N.C. App. 628,
631, 334 S.E.2d 78, 80 (1985) (finding sufficient evidence of
taking indecent liberties when 32-year-old defendant led
12-year-old girl into dark shed, put an arm around her, placed hand
beneath her shorts, rubbed her vagina, and, when she tried to move
away, pulled her back and fondled her again); State v. Bruce
N.C. App. 547, 551, 369 S.E.2d 95, 98 (finding sufficient evidence
of taking indecent liberties when adult defendant, while alone with
young girl, placed his hands under her blouse and started rubbing
her, then locked back door and took her into bedroom, but stopped
rubbing her when her brother attempted to enter locked back door),
disc. review denied
, 323 N.C. 367, 373 S.E.2d 549 (1988).
Although defendant argues that the evidence was insufficient
because the State relied only upon Beth's testimony and there was
no corroborating physical evidence, the testimony of a single
witness is adequate to withstand a motion to dismiss. See
,State v. Lester
, 294 N.C. 220, 225-26, 240 S.E.2d 391, 396 (1978)
("The unsupported testimony of an accomplice, if believed, is
sufficient to support a conviction."); State v. Whitman
, ___ N.C.
App. ___, ___, 635 S.E.2d 906, 914 (2006) ("It is equally well-
settled that the testimony of a single witness is adequate to
withstand a motion to dismiss when that witness has testified as to
all the required elements of the crimes at issue."). Any issues
relating to Beth's credibility _ such as those urged on appeal _
were for the jury to decide. State v. Begley
, 72 N.C. App. 37, 43,
323 S.E.2d 56, 60 (1984). The trial court, therefore, properly
denied defendant's motion to dismiss.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).