Opinion
No. 07-450.
Filed January 15, 2008.
Washington County Nos. 05 CRS 50554-55.
Appeal by defendant from judgment entered 7 November 2006 by Judge William C. Griffin, Jr., in Washington County Superior Court. Heard in the Court of Appeals 15 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State. Geoffrey W. Hosford for defendant appellant.
Donovan Hugh Berry ("defendant") was tried before a jury at the 6 November 2006 Mixed Session of Washington County Superior Court after being charged with two counts of engaging in a statutory sex offense. Prior to the trial, defendant sought a continuance of the trial on the grounds that defendant's counsel did not receive a trial calendar from the District Attorney until four days before the trial began, which was 2 November 2006. The court denied this motion.
At trial, the State's evidence tended to show the following: On or about 9 July 2005, W.W., fourteen years old, and his stepbrother, P.B., fifteen years old, made plans with defendant, forty-two years old, to go fishing and hunting the next day at BeerCan's Cabin at Lake Phelps. W.W. knew defendant through W.W.'s half-brother, Doug, who is defendant's son. W.W. and P.B. agreed to spend the night at defendant's home, a double-wide trailer where defendant's mother, father, and son, Doug, lived together.
When W.W. and P.B. arrived at defendant's home, neither Doug nor defendant's mother or father were home. Defendant took the boys outside to a barn, where they drank beer. Then the group went inside and, for about five minutes, watched a pornographic movie, during which time defendant masturbated. Defendant then went into his bedroom, removed his clothing, laid down on the bed, and summoned the boys to the room. At trial, W.W. testified that defendant instructed W.W. and P.B. to remove their clothing, which they did. W.W. testified that defendant instructed W.W. to engage in anal intercourse with defendant, while defendant performed fellatio on P.B. W.W. stated that he did not feel comfortable with the sexual activity, but since defendant kept a collection of guns and rifles locked in a gun rack inside of defendant's bedroom, he was afraid that defendant would kill him.
The sexual activity went on for about ten minutes, and then the group got dressed and watched television in the living room until defendant's parents arrived home. At that point, it was getting late. Defendant went to sleep in his own bedroom; W.W. and P.B. slept in Doug's room, which was separated from defendant's bedroom by a bathroom. Defendant's parents' slept in their bedroom, which was located on the opposite side of the trailer. At some point during the night, defendant came into the room where the boys were sleeping and ordered P.B. to go into defendant's bedroom and perform fellatio on defendant. P.B. later woke W.W. up to tell him about the second sexual encounter, and the boys then locked all of the bedroom doors.
The following morning, defendant, W.W., and P.B. went fishing at Lake Phelps. After a short time, W.W. told defendant that he needed to go home. Defendant fished for a while longer, and thereafter, brought W.W. and P.B. back to defendant's trailer, where W.W.'s mother picked the boys up.
Defendant's evidence tended to show the following: Sometime before 9 July 2005, W.W. and P.B. spent the night at defendant's house to go fishing and hunting with defendant. However, defendant's mother and father were home all day on 9 July 2005, and W.W. and P.B. were never in their home on that day. At about 8:30 p.m. on 9 July 2005, defendant and defendant's friend, Malcolm Lewis, headed to a VIP Club in Washington. Defendant did not return until 4:00 a.m. the next morning.
Although defendant runs his own bear hunting guide service, he is not allowed to own any guns. While there was a gun rack located in defendant's parents' bedroom and two guns stored in a locked gun cabinet located in Doug's bedroom, no guns were stored in defendant's bedroom, and defendant did not have the key to access any of the guns in the house.
At the close of all of the evidence, defendant's attorney made a motion to dismiss the charges against defendant due to insufficiency of the State's evidence. The court denied that motion.
Defendant was found guilty of two counts of statutory sex offense. Given defendant's Prior Record Level III, he was sentenced to concurrent terms of imprisonment of 336 to 413 months.
On appeal, defendant contends that the trial court erred by: (1) failing to instruct the jury with the complete pattern jury instruction on the credibility of witnesses; (2) denying defendant's motion to dismiss; (3) denying defendant's motion for a continuance; and (4) failing to impose a mitigated range sentence.
I. Jury Instruction
Defendant first contends that the trial court abused its discretion by failing to provide the requested pattern instruction on the credibility of witnesses. Because we find that the essence of the requested instruction was conveyed to the jury, we disagree.
In instructing the jury, the trial judge's duty is to declare and explain the law arising on the evidence in the case. State v. Leslie, 42 N.C. App. 81, 82, 255 S.E.2d 635, 636 (1979); N.C. Gen. Stat. § 15A-1232 (2005). If a request for a special instruction is made and is supported by the evidence, the court is not required to give the requested instruction in the exact language of the request; rather, it suffices if the requested instruction is given in substance. State v. Dodd, 330 N.C. 747, 753, 412 S.E.2d 46, 49 (1992); State v. Sledge, 297 N.C. 227, 234-35, 254 S.E.2d 579, 584 (1979); State v. Abernathy, 295 N.C. 147, 153, 244 S.E.2d 373, 378 (1978). Furthermore, "unless there is a reasonable probability that the alleged error in the instruction changed the result at trial, the verdict should not be disturbed on appeal." State v. Hunter, 48 N.C. App. 689, 693, 269 S.E.2d 736, 738 (1980). "The burden rests on the defendant to show he was prejudiced by the trial court's comments." State v. Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148 (2002), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002), cert. denied, 359 N.C. 855, 619 S.E.2d 859-60, cert. denied, 359 N.C. 855, 619 S.E.2d 860 (2005).
During the charge conference, defendant requested in writing the following special jury instruction based on N.C.P.I. — Crim. 101.15:
You are the sole judges of the credibility, that is the believability, of each witness.
You must decide for yourselves whether to believe the testimony of any witness. You may believe all, or any part, or none of what a witness has said on the stand.
In determining whether to believe any witness you should apply the same tests of truthfulness which you apply in your everyday affairs. These tests may include, among other things: the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which he testified; the manner and appearance of the witness; any interest, bias, or prejudice the witness may have; the apparent understanding and fairness of the witness; whether the testimony is reasonable; and whether the testimony is consistent with other believable evidence in the case.
Id. (emphasis added). The trial court agreed to give the instruction on the credibility of witnesses as requested, but in fact, omitted the last sentence of the above instruction, which lists examples of tests of truthfulness that would be used in everyday affairs.
Defendant contends that because the crux of the State's case rests upon the testimony of W.W. and P.B., as the State did not introduce any other corroborating physical evidence, defendant was prejudiced by this instruction. While we agree that the jury's assessment of the credibility of W.W. and P.B.'s testimony was likely decisive to the outcome of the case, we cannot agree that defendant was prejudiced by this instruction.
In State v. Lamb, 321 N.C. 633, 643-44, 365 S.E.2d 600, 605-06 (1988), the defendant made a request for a special instruction on prior inconsistent statements. Instead of directing the jury to consider a witness's prior inconsistent statements in assessing the credibility of a witness, the judge directed the jury to consider prior consistent statements in assessing the credibility of a witness. Despite the error in the special instruction, our Supreme Court concluded that it was "[d]oubtless [that] the jury understood their duty as fact-finders to consider consistencies and inconsistencies of prior statements in deciding the veracity of a particular witness." Id. at 644, 365 S.E.2d at 606. Likewise, we conclude that in determining whether a witness's testimony is credible, it is a matter of common sense to consider prior inconsistent statements made by that witness.
Here, the trial court's instruction, in substance, directed the jurors to assess the credibility of the witnesses by using the same common sense tests that they would use in everyday affairs. Throughout the trial, both in defendant's cross-examination of the boys and in cross-examination of Detective James Ross, much time was spent highlighting W.W. and P.B.'s prior inconsistent statements concerning exactly which sexual acts occurred on 9 July 2005 and whether defendant's parents were home at the time. While a more detailed instruction may have been preferable, in light of the circumstances of this case, we find that failure to include the sample tests set out in the pattern instructions did not affect the substance of the instruction or lessen the apparency of the contradictions highlighted on cross-examination. Therefore, had the trial court given defendant's instruction verbatim, it is not reasonably possible that such instruction would have caused a different result. N.C. Gen. Stat. § 15A-1443 (2005). Therefore, we find no error in the trial court's instruction.
II. Motion to Dismiss
Next, defendant contends that the trial court erred in denying defendant's motion to dismiss because inconsistencies in the State's evidence rendered it insufficient to support the charges against defendant. We disagree.
In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). Any contradictions in the evidence must be resolved in the State's favor. Id. The Court must find that there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. Id. "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id.
Under N.C. Gen. Stat. § 14-27.7A (a) (2005), a defendant is guilty of a statutory sexual offense if he: (1) engages in a sexual act, (2) with a person who is 13, 14, or 15 years old, (3) is at least six years older than such person, and (4) is not lawfully married to such person. The statute, in pertinent part, defines a "sexual act" to include fellatio or anal intercourse. N.C. Gen. Stat. § 14-27.1(4) (2005).
Resolving any contradictions in the testimony of the State's witnesses in favor of the State, the evidence tended to show that defendant: (1) engaged in sexual acts, including fellatio and anal intercourse, (2) with W.W., fourteen years of age, and P.B., fifteen years of age, (3) was more than six years older than W.W. and P.B., and (4) was not lawfully married to either of the boys. We agree with the State that there was substantial evidence for a reasonable mind to conclude that defendant committed two counts of the crime of statutory sexual offense. Therefore, the trial court properly denied defendant's motion to dismiss those charges.
III. Motion for Continuance
Next, defendant argues that because defense counsel was not faxed a trial calendar until four days prior to the trial date, defendant did not have adequate notice of the trial; therefore, defendant contends that the trial court abused its discretion in denying defendant's motion for a continuance. We disagree.
We note that defendant does not contend that the District Attorney failed to publish the trial calendar at least ten days prior to the date of trial, in violation of N.C. Gen. Stat. § 7A-49.4(e), but rather, defendant merely contends that the calendar was not faxed to counsel in time to provide him with adequate notice.
"A motion for a continuance is ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent a showing of abuse of discretion." State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). Denial of a motion to continue is grounds for a new trial "only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). The record reveals that defendant did in fact have notice of the trial prior to 2 November 2006, the date at which he received the fax of the trial calendar, as defendant filed the motion for the continuance on 30 October 2006. While defendant argues that by denying the motion, the trial court might have denied him the opportunity to elicit further alibi evidence, defendant has failed to show that denial of his motion to continue actually prejudiced his case or that the trial court abused its discretion. This assignment of error is overruled.
IV. Sentencing
Finally, defendant contends that the trial court abused its discretion in failing to impose a mitigated range sentence where defendant introduced evidence of his gainful employment as a bear hunting guide as well as evidence of a support system in the community. A trial court is not required to consider evidence of aggravation or mitigation unless it deviates from the presumptive range. See N.C. Gen. Stat. § 15A-1340.16(c) (2005); State v. Campbell, 133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Here, defendant was sentenced within the presumptive range of sentences. N.C. Gen. Stat. § 15A-1340.16(c). Accordingly, the trial court did not abuse its discretion in deciding not to make findings as to the existence of mitigating factors. This last assignment of error is, therefore, summarily overruled.
Based on the foregoing, we find no error in defendant's convictions of two counts of statutory sexual offense.
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).