Opinion
No. COA12–1473.
2013-07-2
STATE of North Carolina v. Matthew Kevin YOW.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. William D. Spence, for Defendant.
Appeal by Defendant from judgments entered 12 March 2012 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 21 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. William D. Spence, for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
On 22 September 2008, Defendant Matthew Kevin Yow (“Defendant”) was charged with two counts of statutory rape or sexual offense, four counts of felony disseminating obscenity, and two counts of indecent liberties with a child. Defendant was tried in Brunswick County Superior Court beginning 20 February 2012. The evidence presented at trial tended to show the following:
Defendant's son, Andrew, was born on 21 July 1993 and was an 18–year–old senior in high school at the time of the trial. Andrew has been diagnosed with attention deficit hyperactivity disorder, Asperger's disorder, post-traumatic stress disorder, mood disorder, oppositional defiant disorder, intermittent explosive disorder, and anxiety disorder. Andrew's medical and psychiatric history traces back to when he was a small child. On cross-examination, Andrew assented to having a hard time remembering things and to the fact that it is difficult for him to “know what the truth is.” He also stated, however, that “for quite some time now,” he has had a “firm grasp on reality.”
“Andrew” is a pseudonym.
Andrew lived with his paternal grandmother (“Carol”) in Stanly County from the time he was three months old until he was twelve. His aunt lived nearby. Andrew was legally adopted by Carol when he was four years old. Until he turned twelve, Andrew had little contact with his biological father, who “would appear occasionally, but only for a short time.” After Andrew turned twelve, however, Defendant re-initiated contact, and Andrew moved to Brunswick County to live with Defendant and his wife—Andrew's stepmother. At that time, Defendant was employed as a full-time correctional officer with the Columbus County Correctional Institute. The stepmother worked during the days and Defendant worked at night. As a result, Defendant and Andrew spent a portion of their time home alone. Though Andrew had received therapy and medical treatment while living with Carol, he was not enrolled in therapy and did not take his medications when he moved in with Defendant.
After Andrew turned thirteen, his father initiated a number of sexual events. The first event occurred in the middle of the day while Defendant was watching a movie at home. The stepmother was not at home. In the movie, a man and a woman were having sex, and Andrew asked his father “what sex was.” Defendant went into his office to his computer and showed Andrew a website with “naked women mostly.” According to Andrew, the women “were just standing there in kind of weird positions. Others were having intercourse. Others were [having oral sex].” While the video was playing, Defendant “told” Andrew to pull down his pants. Defendant then touched Andrew's penis with his hand and mouth until Andrew ejaculated, telling him “[this is] what it feels like to be with a girl” and making other sexual remarks. On another occasion, after Andrew turned fourteen, Defendant tried to penetrate Andrew anally, but Andrew refused.
Defendant told Andrew to “keep [the sexual events] a secret[ ] because [they are] our special time .... or else[.]” Defendant also convinced Andrew that the events were acceptable, informing him that “it's just a way a father bonds with his kid.” Andrew did not tell anyone else what was going on. The events between Andrew and Defendant occurred several times and continued through Andrew's fourteenth birthday. The events always occurred in Defendant's office, and there was “always some type of [pornographic] website or video ... or something on the computer .” Defendant would consistently touch Andrew's penis and make Andrew put his mouth on Defendant's penis. This would occur when the stepmother was away.
At some point during the sexual events, Andrew told Carol that Defendant “had shown him some pornography.” When Carol questioned Defendant about this, he responded that Andrew had asked a question about sex and explained that he had shown Andrew pictures of some naked women on the computer. Carol became upset and confronted Defendant, but no information about the sexual events occurring between Defendant and Andrew was revealed.
Andrew informed one of his psychologists that, specifically, “there were at least ten incidents where his dad had forced him to engage in fellatio.”
In October of 2007—when Andrew was still fourteen years old—he told his guidance counselor that he was feeling stress from Reserve Officers' Training Corps and was feeling “so low on my life—down low” that “I wanted to hurt myself.” When the guidance counselor informed Defendant about Andrew's feelings, Defendant took his gun out in front of Andrew and put it on the floor. He said: “It's loaded. If you want to kill yourself, go ahead and do it.” When Andrew attempted to clarify that he only wanted to hurt himself, not kill himself, Defendant said, “Well, shoot yourself in the foot, I don't care.” At that point, Andrew said that he wanted to go back to live with Carol. In response, Defendant “gave [Andrew] an ultimatum[:] Either ... go back to school and try harder, or just go home and live ... with [your] grandmother [, Carol].” Andrew chose to return to Carol.
When Defendant discussed this interaction with the aunt, he denied that the gun was actually loaded.
Andrew said “[he] felt some sort of relief” when he was packing up to go home because he did not enjoy living with Defendant and found the Brunswick County high school to be too stressful. He also felt upset and angry because Defendant did not allow him to bring some of his money and the majority of his video games with him to Carol's house. When Andrew returned to Carol's house, he resumed mental health treatment. According to Carol, Andrew felt deserted by Defendant, but expressed no desire to go back. Andrew's behavior also changed—“[h]e was hyper vigilant, which means that he got one of [Carol's] little kitchen knives out of the drawer[,] and he would sleep with that under his pillow.” When Carol asked why Andrew felt that way, he informed her that he was “afraid that his daddy would come after him.”
Periodically, Andrew would have “meltdown[s]” and “just lose control.” Before he left to live with Defendant, these outbursts involved slapping Carol on the arm or throwing objects. Afterward, however, “they escalated,” and it was difficult for Carol to calm Andrew down. When she asked Andrew why he reacted so badly, he said “the reason he had the outburst was because of something [Carol] did or said inadvertently that made him flash[ ]back to when he lived with his dad.” It was during this time that Andrew was the most violent. On two occasions, Carol and the aunt were forced to call the police because of Andrew's behavior.
At the first police intervention, Andrew was kicking, banging, and denting a metal trash can as well as “shoving things off [of] the table.” He also “knocked a hole in the wall.” On 5 March 2008, Andrew had another “flashback of something that [Carol] did that reminded [him] of [Defendant].” He got into a fight with Carol, and the police were called again. While officers were talking with Andrew, he told them about the sexual events that had occurred between him and Defendant, beginning when he was twelve. Afterward, Andrew described those events to the following individuals: (1) his grandmother, Carol; (2) Dr. Robert Custrini, the psychologist who was treating him ; (3) Officers Laurie Watson and Candi West of the Brunswick County Sheriff's Department; (4) Investigator David Crocker of the Brunswick County District Attorney's office; (5) a therapist at a psychiatric residential treatment facility where Andrew stayed for approximately one year ; and (6) a therapist who treated Andrew after he was released from the facility. Andrew's interview statements are consistent with his trial testimony.
According to Dr. Custrini, Andrew appeared anxious, fidgety, and nervous during this interview.
While Andrew was at the facility, he would sometimes “dissociate”— i.e., appear as if he “was not there at that moment”—and “scream[ ]” out “[p]lease stop, please don't touch [me], please don't rape [me], don't hold [me] down and hurt [me],” requiring the staff to restrain him for certain procedures.
One of the investigating officers testified that Defendant denied showing Andrew any pornography or intentionally exposing himself to his son. In his brief, Defendant also points out that “a search of [his] house by law enforcement officers ... revealed no pornographic material of any type.” We note, however, that the same investigating officer testified to Defendant's statement that he sold his computer on e-bay before the investigation began.
Defendant neither testified nor presented evidence at trial. At the close of the State's evidence, Defendant moved to dismiss the charges against him. The trial court denied that motion as to the charges of sexual offense and indecent liberties with a child, but granted the motion as to two of the four counts of disseminating obscenity. Defendant was found guilty of two counts of taking indecent liberties with a child and two counts of disseminating obscenity. Defendant was also found not guilty of two counts of statutory sexual offense. The sentences for taking indecent liberties with a child and disseminating obscenity were consolidated into two consecutive sentences of 16 to 20 months imprisonment. Defendant gave notice of appeal in open court.
Discussion
On appeal, Defendant argues that the trial court erred by denying his motion to dismiss the charges of indecent liberties and disseminating obscenity and by instructing the jury on at least one “theory of guilt” as to disseminating obscenity that was not supported by the evidence. We find no error.
I. Defendant's Motions to Dismiss
A. Indecent Liberties
Defendant argues that the trial court erred in denying his motion to dismiss the charges of indecent liberties with a child because the State did not provide sufficient evidence that Defendant “committed any immoral, improper, or indecent act for the purpose of arousing or gratifying sexual desire.” Before reviewing this argument on appeal, we address the State's contention that Defendant did not properly preserve this issue at trial.
At the close of the State's evidence, Defendant moved to dismiss all the charges against him. When the trial judge requested Defendant's specific argument on his motion to dismiss the charges of indecent liberties with a child, he responded: “Judge, I don't think I can—[.]” Defendant made no other argument regarding his motion, and the trial court denied it.
As a general rule, “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1). That is to say, “[a] party may not present arguments on appeal that were not presented before the trial court.” Dalenko v. Peden Gen. Contractors, Inc., 197 N.C.App. 115, 124, 676 S.E.2d 625, 632 (2009) (citing N.C.R.App. P. 10), appeal dismissed,363 N.C. 801, 690 S.E.2d 534,cert. denied,364 N.C. 854, 694 S.E.2d 202 (2010).
Though Defendant moved to dismiss the charges of indecent liberties at the close of the State's evidence, he failed to make an argument in support of that motion before the trial court. Further, no specific grounds in support of the motion are apparent from the context in which it was made. Accordingly, Defendant's first argument was not properly preserved for appellate review.
B. Disseminating Obscenity
Defendant next asserts that the trial court erred in denying his motion to dismiss the remaining two counts of disseminating obscenity on grounds that the State did not provide sufficient evidence “that the material [D]efendant allegedly disseminated was ... obscene.”
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon [the] defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
“In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, 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 (1995).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of [the] defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of [the] defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and quotation marks omitted; emphasis in original).
Defendant argues that “[t]he jury was not provided with sufficient ... evidence to determine exactly what was disseminated to [Andrew] on [Defendant's] computer” because Andrew's “brief description of what the alleged obscene images/material contained, standing alone, is insufficient” evidence for the jury to consider when determining whether the material was obscene. (Emphasis in original). In support of his argument, Defendant contrasts this case with State v. Mueller, 184 N.C.App. 553, 647 S.E.2d 440,cert. denied,362 N.C. 91, 657 S.E.2d 24 (2007). There we determined that the trial court did not err in denying the defendant's motion to dismiss the charge of disseminating obscene material to his daughter when the daughter testified regarding the nature of the material the defendant showed her and the State illustrated her testimony with photographs. Id. at 564–67,647 S.E.2d at 449–51.
Relying on Mueller, Defendant argues that the State should have admitted either the original material Defendant allegedly showed Andrew or elicited more detailed testimony about the material he viewed. As the original material is not available in this case, Defendant asserts that the State should have used approximations of that material to illustrate Andrew's testimony. We disagree.
As noted above, Defendant sold his computer before law enforcement was able to search his home.
Section 14–190.1 states that “[i]t shall be unlawful for any person ... to intentionally disseminate obscenity.” N.C. Gen.Stat. § 14–190.1(a) (2011). Material is obscene if:
(1) The material depicts or describes in a patently offensive way sexual conduct [ ] ...; and
“Sexual conduct” means:
(1) Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or
(2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or
(3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
N.C. Gen.Stat. § 14–190.1(c).
(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
(3) The material lacks serious literary, artistic, political, or scientific value; and
(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.
N.C. Gen.Stat. § 14–190.1(b).
Andrew testified that, whenever the sexual events with Defendant occurred, Defendant would show him websites with naked women who were “just standing there in kind of weird positions,” “having intercourse,” and participating in “oral sex.” Andrew attested that this sort of thing happened “several times” for approximately two years. When Defendant would touch Andrew or “place[ ] his mouth on [Andrew's penis] .... [there was] always some type of website or video ... or something on the computer.” The website or video would include “the same stuff but [with] different people” engaging in sexual acts, including intercourse.
As a preliminary matter, we note that “[n]othing in section 14–190.1 requires the State to produce the precise material alleged to be obscene [.]” Mueller, 184 N.C.App. at 566, 647 S.E.2d at 450. Though Andrew's testimony may have been “brief,” as Defendant puts it, it was sufficient on its own to support a conclusion that the material presented on the website and video was obscene. When the source material is absent, illustrative material—while not impermissible—is not required for the State to prove obscenity. See generally State v. McCluney, 11 N.C.App. 11, 12–13, 180 S.E.2d 419, 420 (1971) (holding that the testimony presented at trial was, alone, sufficient to permit the jury to make a determination that the material at issue was obscene), reversed on other grounds, 280 N.C. 404, 185 S.E.2d 870 (1972). Accordingly, we rely on Andrew's testimony alone.
Interpreting that testimony in the light most favorable to the State, we conclude that the State produced sufficient evidence to support the jury's verdict that the material Defendant displayed on his computer during the sexual events constituted obscenity. First, Andrew explicitly stated that oral intercourse and “intercourse” generally were depicted in the videos. This constitutes substantial evidence of “sexual conduct.” Second, the fact that Defendant played these videos when he was touching Andrew, along with Andrew's description of the videos, indicates that “the material ... appeal[ed] to the prurient interest in sex.” Indeed, it is unlikely that Defendant would have played the videos during these events unless they were meant to arouse an “inordinate or unusual sexual desire.” See Black's Law Dictionary 1347 (9th ed.2009) (defining “prurient” as “[c]haracterized by or arousing inordinate or unusual sexual desire”). Third, based on Andrew's testimony, we conclude that nothing in the record or transcript indicates that a reasonable person would have found the multimedia displayed on Defendant's computer to have had serious literary, artistic, political, or scientific value. See State v. Anderson, 322 N.C. 22, 41, 366 S.E.2d 459, 471 (“[T]he literary, artistic, political, or scientific value of material is to be determined based upon whether ‘a reasonable person’ would find such value in the material, taken as a whole.”), cert. denied,488 U .S. 975, 102 L.Ed.2d 548 (1988). Rather, Andrew's description of naked women in “weird positions” who were having intercourse and oral sex, coupled with the fact that similar videos were played at each and every sexual event, indicates that their content was strictly limited to a pornographic depiction of erotic behavior—not artistic expression. Fourth, we note that there is nothing in the record to suggest—and Defendant does not argue—that the display of these videos brought Defendant's actions within the purview of constitutional protection. See generally Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498 (“[O]bscenity is not within the area of constitutionally protected speech or press.”), rehearing denied, 355 U.S. 852, 2 L.Ed. 25 60 (1955).
Accordingly, we hold that the trial court did not err in denying Defendant's motion to dismiss the remaining counts of disseminating obscenity.
II. Jury Instruction on Disseminating Obscenity
Lastly, Defendant argues that the trial court committed plain error in its jury instructions by submitting alternative, unsupported theories of guilt on the question of whether “sexual conduct,” which must be found for the material to be considered obscene, was depicted on Defendant's computer. Defendant did not object to this instruction at trial.
“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires ....“ N.C.R.App. P. 10(a)(2).
In criminal cases, [however, ]an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4). Defendant has made that contention here. Accordingly, we review the trial court's instructions for plain error.
Plain error arises when the trial court's mistake is “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) (citation and quotation marks omitted). When plain error is alleged, the defendant bears the burden of showing “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Defendant argues that, in this case, the trial court's instruction amounted to plain error because “the jury returned general verdicts which did not specify what theory of guilt it relied upon” and “at least two of the submitted theories were not supported by the evidence.” Specifically, Defendant contests the trial court's instruction that “[s]exual conduct is defined as vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted, or masturbation or lewd exhibition of uncovered genitals.”
Defendant draws support for this argument from an opinion of this Court in State v. Hughes, 114 N.C.App. 742, 443 S.E.2d 76,disc. review denied, 337 N.C. 697, 448 S.E.2d 536 (1994). There we granted the defendant a new trial on grounds that the court erred by instructing the jury that it could find the defendant guilty of first-degree sexual offense on alternative definitions of the element “sexual act” when the latter definition was not supported by the evidence. Id. at 746, 442 S.E.2d at 79. The court defined a “sexual act” as either “fellatio and/or any penetration, however slight, by any object into the genital opening of a person's body.” Id. (ellipsis omitted). Because there was “ no evidence of penetration by an object” in that case, we held that “the trial court erred in instructing that the jury could base a conviction of sexual offense on either fellatio or penetration by an object” as a violation of the defendant's constitutional right to a unanimous jury verdict. Id. (emphasis added). In so holding, we noted that:
Where the trial court instructs on alternative theories, one of which is not supported by the evidence and the other which is, and it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict, the error entitles [the] defendant to a new trial.
Id. at 746, 442 S.E.2d at 79 (emphasis added). Relying on that decision, Defendant argues that the trial court's jury instruction constituted plain error because “there was certainly no evidence of obscene material depicting anal intercourse, nor of masturbation or lewd exhibition of uncovered genitals,' “ and, therefore, the court's charge “erroneously tilted the scales against ... Defendant.” We disagree.
Andrew testified that the material on the website included “naked women” who were “just standing there in kind of weird positions. Others were having intercourse. Others were [having oral sex].” He further testified that, when the sexual events occurred, the website or video on Defendant's computer would always be playing and would include “the same stuff but yet it was different people .... engaging in different types of sexual acts [,]” including intercourse. (Emphasis added).
That testimony distinguishes the present case from Hughes. There we determined that there was no evidence of penetration to support the trial court's instruction that “penetration, however slight, by any object into the genital opening of a person's body” could constitute a “sexual act” because the victim unequivocally stated that she was only touched on the outside of her genital region. Id. Here, however, Andrew's testimony is broad and provides some evidence that the material on Defendant's computer depicted “[s]exual conduct defined as vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted, or masturbation or lewd exhibition of uncovered genitals.” Indeed, Andrew explicitly mentioned “intercourse” and “oral sex” occurring in the presence of “naked women” who were in “weird positions” and who, over the course of a number of videos and websites, engaged in “different types of sexual acts.” This is clear evidence of “vaginal, anal, or oral intercourse” and “lewd exhibition of uncovered genitals.”
Further, though Andrew did not specifically describe masturbation, his testimony provides some evidence from which it may be reasonably inferred. Masturbation is defined as “[e]xcitation of one's own or another's genital organs, usu[ally] to orgasm, by manual contact or means other than sexual intercourse.” American Heritage College Dictionary 836 (3d ed.1997). Andrew's testimony that he saw naked women in weird positions who were engaged in different types of sexual acts serves as some evidence that masturbation could have been present in the videos. Because there must be no evidence in support of the trial court's jury instructions to conflict with the constitutional requirement of a unanimous jury verdict under Hughes, the trial court in this case did not err in instructing on masturbation as an alternate aspect of “sexual conduct.” Accordingly, Defendant's final argument is overruled.
NO ERROR. Judges McGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).