Opinion
No. 06-507.
Filed 1 May 2007.
Pasquotank County No. 04 CRS 1539-1544.
Appeal by defendant from judgment entered 16 June 2005 by Judge Milton F. Fitch, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 8 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General Margaret A. Force, for the State. Mark D. Montgomery, for defendant.
Kevin Askew (defendant) appeals from judgment entered upon his convictions of six counts of taking indecent liberties with children. We find no error.
In June 2004 defendant was indicted on six counts of taking indecent liberties, in violation of N.C. Gen. Stat. § 14-202.1. The victim named in three of the counts was his daughter, R.A.; the victim named in the other three was his girlfriend's daughter, S.B. The case came to trial before a Pasquotank County jury in June 2005. The State's evidence tended to show, in relevant part, the following: S.B. was the child of Stacy and William Boseman. Her brothers and sisters included M.; J.; and H. Mr. Boseman had older children from an earlier relationship, including William Boseman, Jr., known as "Buddy"; and Steven Boseman. Mr. Boseman died in April 2003, and Ms. Boseman began dating the defendant about three months later. Defendant then lived with his son Fletcher, who was about sixteen years old; his daughter R.A.; and defendant's female friend, Barbara Sawyer. In August or September of 2003 Ms. Boseman, defendant, and Barbara Sawyer rented a two bedroom house, along with Ms. Boseman's children (including S.B.); and defendant's children, Fletcher and R.A. The adults improvised downstairs bedrooms in the house's dining room and den, and the six children slept in the upstairs bedrooms, boys in one and girls in the other.
S.B. testified at trial that when her father died she was fifteen years old, and in the ninth grade at Pasquotank High School. When her mother started living with defendant, S.B. thought defendant was "weird" because he hit his daughter R.A., and she tried to avoid defendant because "he always abused [R.A.] and [she] was scared[.]" S.B. was also uncomfortable with defendant because his nickname for the girls was "sweet a-."
Every night defendant and Ms. Boseman would tuck the children in and kiss them goodnight. S.B. testified that, on various occasions between December 2003 and her sixteenth birthday, defendant had rubbed her breasts while saying goodnight. He did this when S.B.'s mother had her back turned saying goodnight to her sister. S.B. tried to avoid defendant by pulling blankets up to her chin, but her mother made her "pull [the] covers down so he could give [her] a hug." S.B. described three specific instances when defendant touched her breasts while saying goodnight, and testified that he had done the same thing on other occasions, in addition to those she testified about in detail. In January 2004 S.B. told her mother about defendant's behavior, but even after she told her mother there were more occasions when defendant "came to tuck [her] in and then he rubbed [her] breast." S.B. and her sister M. again confronted Ms. Boseman about defendant's behavior, and "she said she would make him stop but she didn't."
In the spring of 2004, S.B. told numerous individuals at her high school, including a teacher and guidance counselor, about defendant's touching her. The next day, S.B. spoke with a social worker from the Pasquotank Department of Social Services (DSS). Ms. Boseman was angry at S.B. for telling people outside the family what defendant had done, and called a "family meeting" at which she accused S.B. of "tearing the family apart[.]" During the family meeting, S.B. refused to talk about the incidents involving defendant, and defendant sat without participating in the discussion. After that day, Ms. Boseman started calling S.B. "b[-], ho, and liar."
Following S.B.'s disclosure, a DSS protection plan was established that included a prohibition on defendant's living with Ms. Boseman and her children. However, when DSS learned that defendant was still at the house, S.B., M., J., H., and R.A. all began to spend the night with Buddy and Brenda Boseman, S.B.'s older stepbrother and his wife. When school ended for the year, the five children began living with Buddy and Brenda on a permanent basis.
R.A. testified that defendant "used to throw me on the ground and stuff. And he touched me places that I don't want to get touched at." On one occasion she was sleeping on the couch and awoke to find her father "poking [her] in [her] private part." Later that night defendant, seated at his computer in the nude, asked R.A. to "massage" his penis. On another occasion, while they lived with defendant's friend Barbara Sawyer, R.A. was asleep on the living room floor. When she woke up, defendant was "massaging" her genital area through her clothes. When he unbuttoned her pants and tried to put his hand down her pants, R.A. started screaming and Barbara Sawyer appeared. She told Ms. Sawyer what had happened, but Ms. Sawyer told her "to go to the boys and girls club and tell no one about what happened." R.A. also testified about an incident that took place when she was in the shower. Defendant came in the bathroom, pulled aside the shower curtain, and told her to get out of the shower. When she did, he "was looking at [her] vagina the whole time. Then he touched it and said that [she] had soap on it[.]" She did not tell anyone about this because Ms. Sawyer had not believed her the first time, so she "didn't think no one else would believe [her]."
R.A. testified that when her family and the Bosemans lived together, the defendant stopped molesting her but continued to hit her, and even threw her down a flight of stairs on one occasion. She corroborated S.B.'s testimony that defendant addressed the girls in the household using vulgarities, and S.B.'s account of the "family meeting" at which defendant remained silent and S.B. refused to talk about the incidents of alleged abuse in front of her whole family.
R.A. spoke with a DSS social worker after S.B. told the guidance counselor about defendant's conduct. The first time R.A. was interviewed she denied that defendant had ever abused her because she was afraid that defendant would find out and hurt her, and also because defendant had told her that DSS would send her to "a bad foster home where they would kill [her]." However, when R.A. began living with Brenda and Buddy Boseman, she felt comfortable to disclose to Brenda what defendant had done to her. Brandy S. testified that in February 1999, when she was eleven years old, she stayed overnight with defendant's stepdaughter, who was a friend of hers. While she was visiting, defendant entered a bedroom where Brandy was folding laundry. He told his son Fletcher to leave the room, leaving no one in the bedroom but defendant, Brandy, and another child who was just a toddler. Defendant then "laid [her] down on the bed," unzipped her pants, and touched her private parts.
The defendant called two witnesses, Barbara Sawyer and Stacy Boseman. Ms. Sawyer testified that she met defendant in 2003 when her landlord hired him to work on the plumbing in her apartment. When defendant was evicted from his home, she allowed defendant, Fletcher, and R.A. to stay with her. She testified to being present during the incident when defendant was "tickling" R.A. and R.A. started screaming. Ms. Sawyer was sitting nearby and observed nothing inappropriate in the way defendant tickled his daughter. When Ms. Sawyer asked R.A. why she was upset, R.A. told her about the incident in which defendant, who was naked and sitting by a computer, asked her to touch his privates. R.A. was upset and crying when she told Ms. Sawyer about this. Ms. Sawyer conceded that she "might have told" R.A. not to tell anyone else about her allegations. Later that day Ms. Sawyer questioned R.A. again, and R.A. said it had not really happened.
Ms. Sawyer did not observe any inappropriate touching conduct by defendant while he and his children lived with her, but did testify that defendant sometimes slapped R.A. too hard. When Ms. Sawyer, defendant, and defendant's children rented a house with Ms. Boseman and her children, Ms. Sawyer observed defendant "pop [R.A.] on the head" or "hit her with the belt" to discipline her.
Ms. Boseman testified that about three months after her husband died, she started dating the defendant. They dated for about "six weeks" before moving in together. Ms. Boseman and her four children rented a two bedroom house with defendant, his children, and Ms. Sawyer. Ms. Boseman corroborated the testimony of earlier witnesses about the nightly ritual wherein defendant and Ms. Boseman would tuck in their children and kiss them goodnight.
Regarding the charged offenses, Ms. Boseman testified that she never asked S.B. to pull down her blankets so defendant could kiss her goodnight, and never saw defendant touching any of the children inappropriately. She first heard allegations that defendant had molested S.B. and R.A. in April 2004, when S.B. reported it to the school guidance counselor. She recalled the family meeting, but denied confronting S.B. with the accusations she had made. Ms. Boseman testified that after S.B. spoke with the guidance counselor, "Social Services intervened" and required defendant to "stay out of the house." When DSS received reports of defendant's being present at the house, a social services employee told Ms. Boseman that the children "would have to go live with somebody else." Thereafter, S.B. and R.A. moved in with Buddy and Brenda Boseman. Ms. Boseman denied ever seeing defendant hit or punch R.A.
On cross-examination, Ms. Boseman said that when she became involved with Mr. Boseman she was fifteen years old and he was forty. She acknowledged that several people warned her not to become involved with the defendant. She never heard defendant call the girls "sweet a." S.B. never told her that defendant was touching her breasts at night.
Following the presentation of evidence, the jury returned a verdict of guilty on all counts. The defendant was sentenced to four consecutive prison terms of twenty-one to twenty-six months, to be followed by two concurrent sentences suspended and the defendant placed on supervised probation for thirty-six months. From these judgments and convictions, defendant has appealed.
Standard of Review
Defendant was convicted of six counts of taking indecent liberties, in violation of N.C. Gen. Stat. § 14-202.1(a)(2) (2005), which provides, in pertinent part, that:
A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either? . . . [w]illfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
"Indecent liberties are defined as such liberties as the common sense of society would regard as indecent and improper." State v. Every, 157 N.C. App. 200, 205, 578 S.E.2d 642, 647 (2003) (internal quotation marks omitted). Further:
This Court has defined the words lewd and lascivious according to their plain meaning in ordinary usage. Hence, lewd has been defined as inciting to sensual desire or imagination while lascivious has been defined as tending to arouse sexual desire.
State v. Hammett, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (COA05-377-2, filed 20 March 2007) (internal quotation marks and citation omitted).
Defendant has assigned error to the admission of certain evidence. "We review a trial court's determination to admit evidence under N.C. R. Evid. 404(b) and 403, for an abuse of discretion." State v. Summers, ___ N.C. App. ___, ___, 629 S.E.2d 902, 907, disc. review denied, ___ N.C. ___, ___, 637 S.E.2d 192 (2006)) (citations omitted). "This Court will find an abuse of discretion only where a trial court's ruling `is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Theer, ___ N.C. App. ___, 639 S.E.2d 655, 662-63 (2007) (quoting State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)).
"A trial court's ruling on an evidentiary point will be presumed to be correct unless the complaining party can demonstrate that the particular ruling was in fact incorrect." State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988) (citing State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981)). And, "[e]ven if the complaining party can show that the trial court erred in its ruling, relief ordinarily will not be granted absent a showing of prejudice." Id. "A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant." N.C. Gen. Stat. § 15A-1443 (a) (2005).
Prior Bad Acts
Defendant first argues that the trial court erred and committed plain error by admitting the following evidence:
Testimony by S.B. that, the first time defendant touched her breasts, she "thought it wasn't an accident but it could have been because he was a child molester in the past."
Testimony by defendant's daughter, R.S., that DSS had visited their home because she had "bruises on [her] face and [her] arms."
Testimony by Stacy Boseman that several friends and relatives had warned her not to get involved with defendant.
Defendant characterizes this as evidence "suggesting that the defendant engaged in unspecified former acts of sexual and physical abuse" and argues that its admission requires a new trial. We disagree, and conclude that even assuming, arguendo, that the challenged evidence was inadmissible, its admission does not require a new trial.
Defendant asserts that a new trial is required as a result of S.B.'s mentioning that defendant had been a "child molester in the past." On direct examination, S.B. testified that the first time defendant touched her breasts she "thought it was really nasty but I thought maybe he was like not meaning to do it." On cross-examination defendant pressed her to concede that she had first thought it might be an accident. On redirect, the prosecutor questioned S.B. as follows:
PROSECUTOR: You testified — [Defense counsel] was asking you about the first time, he asked you did you think it could have been an accident. Did you think it was an accident or did you think it wasn't an accident, even that first time?
S.B.: I thought it wasn't an accident but it could have been because he was a child molester in the past.
It is this statement that defendant contends was prejudicial. However, R.A. and Brandy each testified that defendant had molested her at a time before the incidents involving S.B. Thus, the State presented competent first-person testimony which, if believed, would establish that defendant was, in fact, "a child molester in the past." Given the presence of firsthand evidence from defendant's earlier victims, we conclude that S.B.'s passing reference to defendant's prior acts of misconduct likely was of minimal significance to the jury.
Defendant also asserts prejudice from R.A.'s testimony that DSS had visited her home to investigate bruises on her face and arms. We disagree for several reasons. First, several other witnesses testified about defendant's excessive and inappropriate discipline of R.A. Whatever significance that testimony had for the jury would not likely be affected by the additional information that DSS visited as a result of this discipline. Secondly, R.A.'s credibility as to the charged offenses, not whether defendant also beat her, was the central question for the jury. R.A. testified about specific incidents in which defendant touched her private parts or asked her to touch his penis, acts that were clearly a violation of G.S. § 14-202.1. Defendant's conviction of these offenses depended largely on the jury believing R.A.'s testimony that defendant had committed the asserted acts of sexual impropriety.
We observe that the State's case against defendant was strong. S.B. and R.A. each described specific instances of sexual abuse in detail. They corroborated each other's testimony about defendant's use of vulgarities and his excessive discipline of R.A. S.B.'s testimony was also corroborated by her friend, Sterling Ulch; Mr. Cowell, a teacher; Ms. Goodman, a guidance counselor; and Steven Boseman. Both girls' testimony was corroborated by that of Midge Hudyma, the DSS social worker assigned to their case; and by Brenda Boseman. In addition, Brandy's testimony, that defendant engaged in similar misconduct with her, served both to bolster the State's case and to weaken defendant's suggestion that S.B. had misunderstood accidental touching. In this context, we conclude the challenged testimony, considered collectively or independently, did not impact the outcome of the trial. The relevant assignments of error are overruled.
Bad Character Evidence
Defendant next argues that the trial court erred or committed plain error by admitting evidence that: (1) Ms. Boseman became involved with her husband when she was fifteen years old and he was about forty; (2) when Ms. Boseman started dating the defendant, she was pregnant with a child fathered by a different man; and (3) defendant sometimes called Ms. Boseman his "little girl." Defendant characterizes this as "bad character" evidence about Ms. Boseman, and asserts that its admission requires a new trial. We disagree.
We first note that the defendant elicited testimony from Ms. Boseman that she bore three children out of wedlock before marrying the father of her children. In that context, evidence that she was only in middle school when she became involved with her husband tended to show that Ms. Boseman was herself a victim of statutory rape. Likewise, inasmuch as defendant presented Ms. Boseman's reproductive history on direct examination, further testimony about another illegitimate pregnancy would not be likely to have a strong effect on the jury. And evidence that defendant occasionally called Ms. Boseman his "little girl" is of minimal importance, given the detailed firsthand testimony of three girls that defendant had molested them. We conclude that defendant has not shown how admission of this testimony changed the outcome of the trial. This assignment of error is overruled.
We have considered defendant's arguments about jury unanimity and find them to be without merit. "Moreover, defendant did not object at trial regarding unanimity or regarding jury instructions on this ground; the judge properly charged the jury that it must be unanimous in its verdict; separate verdict sheets were submitted for each charge; [and] the jury never questioned or exhibited any confusion about the requirement of unanimity[.]" State v. Reber, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (COA06-594, filed 20 March 2007) (citing State v. Lawrence, 360 N.C. 368, 376, 627 S.E.2d 609, 613, disc. review denied, 361 N.C. 175, 640 S.E.2d 58 (2006)). This assignment of error is overruled.
Finally, we observe that on appeal defendant several times makes the perfunctory and conclusory statement that "to the extent" that this Court denies him relief on the grounds that he failed to properly preserve an issue for review, we must hold that he was deprived of his right to the effective assistance of counsel. However, we are not denying relief on this basis but on the grounds that the errors asserted, if any, were not prejudicial. For the reasons discussed above, we conclude that defendant received a fair trial, free of prejudicial error.
No error.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).