Opinion
No. COA02-702
Filed 15 April 2003 This case not for publication
Appeal by defendant from judgment entered 16 November 2001 by Judge Kimberly S. Taylor in Cabarrus County Superior Court. Heard in the Court of Appeals 12 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State. Grace Holton Tisdale Clifton, P.A., by Christopher R. Clifton, for defendant-appellant.
Cabarrus County No. 00CRS4728.
I. Background
On 10 March 2000, a five-year-old female ("M.A.") was recovering from hip socket surgery and went to a church revival with her grandmother and sister. M.A.'s mother testified that M.A. was reluctant to go to the revival although she wanted to visit her grandmother.
After the service, the congregation moved to the fellowship hall for a meal. Sixteen-year-old Joshua Spruill, ("defendant") asked M.A.'s grandmother at the close of the service if he could help her by taking M.A., who had fallen asleep, over to the fellowship hall. The grandmother allowed defendant to carry M.A., but told M.A.'s sister, Jamie, to keep an eye on her. After entering the fellowship hall, defendant insisted upon holding M.A. Defendant's mother was preparing hot dogs, and asked defendant to run to the car and get her shoes. Defendant carried M.A. when he went to the car to pick up his mother's shoes.
On the way to the car, defendant encountered and talked to Dale Broadway about defendant's truck which was for sale. M.A. testified that defendant laid her down on the seat of the truck and kept the truck door open. Defendant pulled down M.A.'s pantyhose and proceeded to lick and touch her "private" area, defined by M.A. as the area from which she urinates. M.A. testified to where the truck was parked and the presence of a "for sale" sign in the truck window. M.A. testified that this incident was not the first time defendant had touched her private area. M.A. asked defendant to return her to her grandmother. Defendant told her that he would go "in just a minute." After defendant finished, he pulled up her pantyhose and carried her back into the fellowship hall.
M.A. refused to have anything to eat or drink after she returned to the fellowship hall and stated that she wanted to go home. Her grandmother sensed something was wrong. M.A. told her grandmother that defendant had pulled up her dress. The next day, M.A.'s mother asked M.A. if anything had happened at the revival. M.A. told her mother about the incident, similar to what M.A. described later at trial. M.A. also told her father the same story.
After M.A.'s mother and father discussed the matter, M.A. and her parents met with the pastor of her grandmother's church and the defendant's father. M.A. relayed the events as previously described. Defendant's father apologized to M.A. and agreed to get counseling for defendant. M.A.'s mother contacted the police a couple of days later, after not hearing whether defendant had sought counseling.
On 3 April 2000, a grand jury indicted defendant for first degree statutory sex offense and taking indecent liberties with a minor. On 28 August 2000, a jury trial was held. The jury returned a verdict of guilty to the indecent liberties charge, deadlocked on the first degree sexual offense charge, and a mistrial was declared on that charge. Defendant was retried for the sexual offense on 13 November 2001.
At the second trial, the State filed and was granted a motion in limine to exclude any reference to the prior mistrial. At retrial, defendant testified and denied the allegations of the sexual offense, but admitted to the indecent liberties conviction, both stemming from the original incident. Broadway testified for defendant and verified two conversations with defendant on the night of the alleged incident. John Shelton testified that defendant and M.A. were gone to the parking lot for only "four to five minutes". Defendant's father testified that the pastor had suggested counseling for defendant to M.A.'s parents and himself.
The jury found defendant guilty of committing first degree sexual offense on M.A. Defendant was sentenced to 173 to 217 months imprisonment. Defendant appeals.
II. Issues
Defendant assigns plain error to the following: (1) testimony of Julie Brafford ("Brafford") of the Children's Advocacy Center, (2) evidence of a purported agreement between defendant's parents and M.A.'s parents, (3) evidence of defendant's prior indecent liberties conviction, (4) inflammatory testimony of M.A.'s grandmother, (5) opinion testimony by officers as to the consistency of witness testimonies, and (6) admission of Rule 404(b) evidence which did not corroborate M.A.'s testimony.
III. Plain Error
Our review of defendant's arguments is limited to plain error due to trial counsel's failure to make specific objections to the admission of the contested evidence in order to preserve error pursuant to North Carolina Rule of Appellate Procedure 10(b)(1).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, 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," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
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. 1982)).
IV. Brafford's Testimony
Defendant assigns plain error to State's witness Brafford's testimony. Defendant argues that Brafford's statement regarding M.A.'s detailed recount of the incident was inadmissible. At trial, the following conversation regarding the details given to Brafford by M.A. took place.
Q: Now, when you say you made special note of that [referring to the detail], you said you've interviewed over 300 children? A: Yes. Q: Why does that mean something to you? A: When children are detailed like that, that's just, when they know that much detail, it's not something that they can make up.
Defendant contends that Brafford's statement impermissibly bolstered M.A.'s credibility by, in effect, opining that M.A. was telling the truth.
N.C.G.S. § 8C-1, Rule 701 governs the testimony of Brafford as lay witness.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C.G.S. § 8C-1, Rule 701 (2001).
Although Brafford was not tendered as an expert witness, her opinion was based upon her perception of the witness in light of her experiences gained from interviewing other children. Brafford is a registered pediatric nurse and coordinates the Children's Advocacy Center. She interviewed M.A. after the incident. Brafford had previously interviewed approximately 300 children through her work. As coordinator at the Children's Advocacy Center, Brafford's perception might be different from that of another person, but her opinion was rationally based upon her perception as required by Rule 701.
N.C.G.S. § 8C-1, Rule 608(a) sets forth the instances when the credibility of a witness may be attacked or supported.
(a) Opinion and reputation evidence of character. — The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
N.C.G.S. § 8C-1, Rule 608(a) (2001). Defendant cites cases for the proposition that an expert witness cannot testify to the credibility of a victim. See State v. Jackson, 320 N.C. 452, 358 S.E.2d 679 (1987); State v. Kim, 318 N.C. 614, 350 S.E.2d 347 (1986). Brafford was not offered or admitted as an expert witness. Her testimony does not come within N.C.G.S. § 8C-1, Rule 405(a), which states, "[e]xpert testimony on character or a trait of character is not admissible as circumstantial evidence of behavior" nor under the holdings of cases cited by defendant. As a lay witness, Brafford could give her opinion as rationally based on her perception.
Regardless of Brafford's classification as a lay or expert witness, Brafford's testimony that children could not make up detailed stories like M.A.'s story, was within the permissible scope. Her "opinion" was drawn through Brafford's experiences. Her testimony did not violate Rule 608(a) because it did not express an opinion on M.A.'s truthfulness. Brafford merely stated that in her experience, children did not make up such detailed stories as the one M.A. related to her. Brafford's opinion concerned the credibility of children in general where they provide detailed stories of events that would otherwise be generally unknown to a child of M.A.'s age.
The jury may have given Brafford's testimony weight in accessing the credibility of M.A., but Brafford did not impermissibly provide her opinion on M.A.'s credibility. We find no error in the admission of her testimony.
V. Parental Agreement
Defendant assigns reversible error to the admission of testimony by M.A.'s mother concerning an agreement between M.A.'s parents and defendant's father. The standard of review is more properly for plain error because defendant's trial counsel only made a general objection to the evidence. Following defendant's objection, a bench conference was held concerning the agreement. The record does not reflect a specific basis for exclusion. A general objection does not properly preserve errors for review on appeal. N.C. R.App.P. 10(b)(1) (2002).
We find no plain error in the trial court's decision to allow testimony concerning the agreement between defendant's father and M.A.'s parents. Statements concerning the agreement explain M.A.'smother's decision not to contact authorities earlier than she did. The evidence is relevant as it has a "tendency to make the existence of [a] fact . . . of consequence to the determination of the action more probable or less probable than it would [have been] without the evidence." N.C.G.S. § 8C-1, Rule 401 (2001). Its probative value is not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." N.C.G.S. § 8C-1, Rule 403 (2001).
Any possible harm from the testimony was subsequently cured during the testimony of defendant's father, a party to the agreement. The evidence did not imply defendant's acknowledgment or admission of guilt. We find no error.
VI. Prior Indecent Liberties Conviction
Defendant argues that the trial court erred in allowing into evidence his prior indecent liberties conviction arising out of the same incident. The prosecutor initially asked defendant whether he had been convicted of taking indecent liberties with a child. The prosecutor then asked defendant whether he had sexually assaulted M.A. on 10 March 2000 to which defendant responded that he "was convicted for touching." Defense counsel did not renew his objections to these questions during the cross-examination.
The thrust of defendant's argument appears to be that the trial court erred by allowing the prosecutor to question the defendant as she did. The prosecutor's initial question concerning defendant's indecent liberties conviction was not connected by the prosecutor to the sexual assault at issue. The question of whether defendant was convicted of indecent liberties complied with N.C.G.S. § 8C-1, Rule 609(a) which states "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter." The conviction had occurred within the last ten years, easily meeting the test in Rule 609(b).
The permissible scope of inquiry into prior convictions for impeachment purposes is restricted to the type of crime, time, place of conviction, and punishment imposed. State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993). Here, the prosecutor did not ask about details concerning the conviction although defendant opened the door to providing them when he answered that he was convicted for touching. A factual link in the question concerning the conviction and the alleged sexual assault was only known to the defendant and prosecutor, not the jury, at the time of questioning.
We find no error in the prosecutor's questioning and the admission of evidence of the prior conviction.
VII. Grandmother's Testimony
Defendant argues that the trial court erred in not striking inflammatory and prejudicial testimony of M.A.'s grandmother ex mero motu. The contested testimony is: (1) that M.A. "[h]ad the hurt look, because the trust she had in Joshua she lost. We all did." and (2) that she felt the presence of "[a]n evil spirit" that night.
While admittedly prejudicial, we do not believe the trial court committed plain error by failing to strike the statements on its own motion. The trial court sustained defense counsel's objection to the first statement, but did not strike the testimony. Had defense counsel wanted the words stricken, a motion to that effect should have been presented to the trial court. The second statement concerning the "evil spirit" was actually elicited on cross-examination during questioning by defense counsel.
VIII. Comparisons of Testimony by Officers
Defendant assigns plain error to the trial court's admission of (1) testimony by Officer Kelly Hunsucker that the testimonies of M.A. and her mother at trial mirrored that of their statements given during the investigation and (2) testimony by SBI Agent L.W. Blume that "Officer Hunsucker had covered very thoroughly prior to my involvement and did not find any inconsistencies with the statements that had been taken." Defendant contends that these statements were offered to essentially "rubber stamp" the testimonies, and improperly gave them more weight.
Defendant relies upon State v. Norman, 76 N.C. App. 623, 334 S.E.2d 247, disc. review denied, 315 N.C. 188, 337 S.E.2d 863 (1985). In Norman, this Court found error when an officer-witness was asked to give his opinion whether what was said by another witness before trial was "essentially what he testified to." Norman, 76 N.C. App. at 626-27, 334 S.E.2d at 249-50. We stated that "this carries the liberality of the consistent statement rule too far." Id. at 627, 334 S.E.2d at 250. The officer should have been "put to the test of recalling for the jury what [the witness] had told him before trial before giving his opinion as to whether [the witness] had been consistent in his pre-trial statements and trial testimony." Id.
The statement by Hunsucker was corroborated by further testimony of Hunsucker regarding the specific details of what M.A. and her mother told her before the trial. While the challenged testimony more properly should have been admitted prior to the general statement regarding the consistency, its admission subsequently corrected any error. Blume's statement that the statements he received when interviewing the witnesses were consistent with those taken by Hunsucker is conclusory. However, its admission, like the statement of Hunsucker, does not rise to the standard of plain error. Blume could not testify to what he was told because he did not take notes during his interviews. His opinion of M.A. and her mother's statements is cumulative aside from its corroboration of Hunsucker. This assignment of error is overruled.
IX. Rule 404(b) Evidence
Defendant argues that the trial court committed plain error in allowing M.A.'s mother to testify to other incidents of molestation by defendant upon M.A. when M.A. did not testify to these things. The testimony of M.A.'s mother about what M.A. told her about other incidents was hearsay. The court admitted them for the purpose of corroborating M.A.'s in-court testimony. Allowance of the testimony was error to the extent that it may have exceeded what was necessary to corroborate M.A.'s testimony. We overrule this error in light of the plain error standard of review and other substantial evidence of defendant's guilt.
X. Conclusion
Defendant alludes that all of the alleged errors had a cumulative effect of prejudicing him. We find no plain error in any or all of defendant's arguments.
No error.
Judges MCCULLOUGH and CALABRIA concur.
Report per Rule 30(e).