From Casetext: Smarter Legal Research

State v. Jackson

North Carolina Court of Appeals
Jul 1, 2011
714 S.E.2d 210 (N.C. Ct. App. 2011)

Opinion

No. COA10-1550

Filed 5 July 2011 This case not for publication

Appeal by defendant from judgments entered 18 May 2010 by Judge Steve A. Balog in Forsyth County Superior Court. Heard in the Court of Appeals 11 May 2011.

Attorney General Roy Cooper, by Assistant Attorney General Laura E. Crumpler, for the State. Richard E. Jester, for defendant-appellant.


Forsyth County Nos. 08 CRS 51657, 51658, 51659.


Where the defendant testified to a recorded telephone conversation as evidence, the trial court did not abuse its discretion in excluding the recording, where it found the recording to be unintelligible. The trial court did not abuse its discretion in overruling objections to the testimony of the alleged victim based on temporal imprecision as to the dates of the alleged offenses. The trial court did not abuse its discretion in excluding testimony concerning sexual activity of the alleged victim that occurred when she was an adult and at least seven years after the alleged abuse.

I. Factual and Procedural History

Defendant-appellant Michael Leon Jackson ("defendant") and his wife Trina ("Trina") were engaged in a heated custody dispute over their daughter, Faith. Following a hearing on 16 October 2007 in District Court, Trina's sister S.M. was in the courtroom, and felt compelled to report her sexual abuse by defendant more than 10 years previously.

For the protection of the victim, we will only refer to her by these initials.

During a break in the custody hearing, S.M. and Trina spoke to Forsyth County Sheriff Deputy Mike Snincsak ("Snincsak"), who took S.M.'s statement. S.M. asserted that the abuse occurred at Trina's house on Old Hollow Road, from the time she was nine until she turned thirteen. S.M. later told Detective Gary East ("East") that she had been molested between the ages of nine and thirteen, but did not give specific dates, years or months. S.M. had previously disclosed this abuse to her husband. S.M. had also told a childhood friend that defendant had "messed with her," during the time of the alleged abuse.

Defendant was charged with three counts of first-degree statutory rape, five counts of first-degree sex offense, and four counts of indecent liberties with a child.

At trial, defendant admitted that he had sex with S.M., but only on one occasion, in 2005. Defendant testified that the accusations were lies concocted by his wife to influence the outcome of the custody proceeding.

The jury found defendant guilty of two counts of first-degree rape, four counts of first-degree sex offense, and three counts of indecent liberties with a child. The trial court imposed an active sentence of 288 to 355 months for each of the rape and sex offense charges, these sentences to run concurrently. One of the indecent liberties judgments was to run concurrently, while the other two were to run consecutively to the 288 to 355 month sentence. Each of these sentences was 19-23 months in duration.

Defendant appeals.

II. Telephone Recording

In his first argument, defendant contends the trial court erred in refusing to allow the jury to hear a recording of a telephone call which was properly authentic and admissible. We disagree.

A. Standard of Review

"The decision to allow or exclude evidence under [Rule 403] is a matter within the sound discretion of the trial judge and may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." State v. Withers, 111 N.C. App. 340, 347, 432 S.E.2d 692, 697 (1993) (quoting State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988)).

B. Analysis

Defendant contends that the tape recording should have been admitted because it was properly authenticated, and because it was relevant evidence, in that it showed that the allegations were fabricated.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2010). Generally, relevant evidence is admissible. N.C. Gen. Stat. § 8C-1, Rule 402. However, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403. The decision to exclude evidence falls within the trial court's discretion. Withers, 111 N.C. App. at 347, 432 S.E.2d at 697.

In the instant case, the trial court admitted defendant's testimony as to the contents of the telephone conversation, but did not allow the recording of the conversation to be played for the jury. The trial court excluded the recording due to it being unintelligible, and thus not helpful to a jury. Since this Court does not have that recording before it, we can discern no abuse of discretion by the trial court in excluding the recording as evidence before the jury.

This argument is without merit.

III. Testimony Insufficient as to Date and Time

In his second argument, defendant contends that the trial court erred in allowing the witness, S.M., to testify without sufficient reference to the dates or times of the alleged offenses. We disagree.

A. Standard of Review

"[T]he control of examination of witnesses is a matter of discretion vested in the trial court, reviewable only for an abuse of discretion." State v. McNeil, 47 N.C. App. 30, 36, 266 S.E.2d 824, 827-828 (1980) (citing State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965)).

B. Analysis

Defendant alleges that S.M. testified as to defendant's sexual conduct, without pinpointing the specific dates or times that the conduct occurred. Defendant made a timely objection as to the first instance of S.M.'s failure to frame her response chronologically, and that objection was sustained. Subsequently, S.M. testified as to the events with reference to her age at the time. As to some of this testimony, defendant's objections were overruled. Defendant claims that the trial court erred in overruling his objections.

"In cases of sexual assaults on children, temporal specificity requisites diminish." State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991). The children in such cases are afforded considerable tolerance, especially in cases where the instances of abuse occurred many years earlier. State v. Norris, 101 N.C. App. 144, 150, 398 S.E.2d 652, 656 (1990). In such cases, therefore, children are not required to recall those instances with total precision. State v. Young, 103 N.C. App. 415, 420 (1991). This leniency applies unless the victim's failure to specify dates and times robs a defendant of his ability to mount a defense. State v. Hicks, 319 N.C. 84, 91, 352 S.E.2d 424, 428 (1987).

S.M. testified as to when the abuses happened in terms of her age and location. Defendant argues that the family was not living at the location identified by S.M. during the time frames that she asserted that the sexual abuse occurred.

As noted above, testimony as to child sex offenses is viewed under a more lenient standard. The trial court did not abuse its discretion in overruling defendant's objections.

With regard to conflicts between the testimony of S.M. and that of defendant, these were matters of credibility and weight to be determined by the jury. See State v. Whitman, ___ N.C. App. ___, 635 S.E.2d 906, 914 (2006).

This argument is without merit.

IV. Admissibility of Victim's Sexual Activity

In his third argument, defendant contends the trial court erred in holding that the State had not opened the door so as to allow defendant to cross examine S.M. concerning her sexual activity. We disagree.

A. Standard of Review

"[T]he control of examination of witnesses is a matter of discretion vested in the trial court, reviewable only for an abuse of discretion." State v. McNeil, 47 N.C. App. 30, 36, 266 S.E.2d 824, 827-828 (1980) (citing State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965)).

B. Analysis

During the State's direct examination of S.M., the District Attorney asked her about the effect that the defendant's sexual abuse had upon her. She testified that it had robbed her of her sexual desire. Defendant contends that this testimony opened the door to evidence regarding her more recent sexual activity.

The trial judge conducted a voir dire hearing, during which defense counsel offered a medical report from 2005. Defense counsel argued that this report revealed that S.M. had been sexually active with another brother-in-law as an adult. The judge determined that this incident, at least seven years after the defendant's alleged sexual abuses had ended, was not relevant, and sustained the State's objection. We hold that the trial court properly determined that S.M.'s later sexual activity was not relevant to the cases being tried which involved whether she had been sexually abused by the defendant at least seven years earlier.

Under the Rape Shield Law, introduction of evidence concerning a rape victim's sexual behavior is irrelevant unless that evidence falls under one of four specific exceptions. N.C. Gen. Stat. § 8C-1, Rule 412(b) (2010). These exceptions are limited to (1) sexual conduct between the victim and the defendant, (2) specific instances of sexual conduct to demonstrate that the alleged acts were performed by someone other than the defendant, (3) sexual conduct which forms a pattern to suggest that the victim consented to the sexual contact, or (4) sexual behavior offered to support a psychiatric opinion that the alleged acts were fantasized. Id. Defendant is required to specify the exception applicable to the proffered evidence. N.C. Gen. Stat. § 8C-1, Rule 412(d). The trial court is required to "conduct an in camera hearing . . . to consider the proponent's offer of proof and the argument of counsel. . ." State v. Black, 111 N.C. App. 284, 289, 432 S.E.2d 710, 714 (1993) (quoting N.C. Gen. Stat. § 8C-1, Rule 412(d)). The defendant "bears the burden of `establish[ing] the basis of admissibility of such evidence.'" State v. Cook, 195 N.C. App. 230, 237, 672 S.E.2d 25, 30 (2009) (quoting N.C. Gen. Stat. § 8C-1, Rule 412(d)).

One of the purposes of the Rape Shield law is to prevent cases of sexual abuse from turning into vicious attacks on the victim and his or her reputation. Here, the instance of sexual activity defendant sought to introduce was at least seven years removed from the alleged sexual abuse by defendant.

Furthermore, this evidence pertained to S.M.'s consensual sexual activity as an adult.

The trial court did not abuse its discretion in ruling that this evidence did not fall under one of the exceptions in Rule 412(b) and should be excluded.

This argument is without merit.

V. Conclusion

We hold that defendant received a fair trial, free of error as to his convictions for first-rape, first-degree sex offense, and indecent liberties with a child.

NO ERROR.

Judges STEPHENS and HUNTER, Jr., ROBERT N. concur.

Report per Rule 30(e).


Summaries of

State v. Jackson

North Carolina Court of Appeals
Jul 1, 2011
714 S.E.2d 210 (N.C. Ct. App. 2011)
Case details for

State v. Jackson

Case Details

Full title:STATE OF NORTH CAROLINA v. MICHAEL LEON JACKSON

Court:North Carolina Court of Appeals

Date published: Jul 1, 2011

Citations

714 S.E.2d 210 (N.C. Ct. App. 2011)