State Of North Carolina v. Register, COA09-629.

• Decision Date: 07 September 2010
• Docket Number: No. COA09-629.,COA09-629.
• Citation: 698 S.E.2d 464
• Parties: STATE of North Carolinav.James Tilton REGISTER, Defendant.
• Court: North Carolina Court of Appeals

698 S.E.2d 464

STATE of North Carolinav.James Tilton REGISTER, Defendant.

No. COA09-629.

Court of Appeals of North Carolina.

Sept. 7, 2010.

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Appeal by defendant from judgments entered 15 January 2009 by Judge James F. Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 28 October 2009.

Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Calloway-Durham, for the State.

Geoffrey W. Hosford, Wilmington, for defendant-appellant.

GEER, Judge.

Defendant James Tilton Register appeals from judgments convicting him of one count of attempted first degree rape, three counts of first degree statutory sex offense, five counts of taking indecent liberties with a child, one count of sexual offense by a substitute parent, and one count of crime against nature. Although defendant argues that the trial court erred in excluding defendant's family members from the courtroom during the alleged victim's testimony, we hold that the trial court, acting pursuant to its authority under N.C. Gen.Stat. § 15-166 and § 15A-1034(a) (2009), did not abuse its discretion when it decided to exclude family members of both the alleged victim and defendant with the exception of the alleged victim's mother and step-father.

Defendant also contends that the court erred in allowing the testimony of four witnesses who asserted that defendant had sexually abused them when they were children. Because this evidence tended to show that defendant had engaged in strikingly similar conduct whenever he had access to young relatives of a wife, we hold that the testimony was properly admitted under Rule 404(b) of the Rules of Evidence even though it involved conduct extending over a very substantial period of time. We agree with defendant, however, that the trial court erred in admitting testimony from the State's expert witness that the alleged victim was “believable.” Nonetheless, given the extensive evidence of guilt, we must conclude that this error was harmless. Accordingly, we uphold the judgments entered below.

Facts

At trial, the State's evidence tended to establish the following facts. Catherine ¹ was just starting third grade when her mother began dating defendant. He moved in with Catherine and her mother shortly afterwards, in October 2003. Catherine considered defendant to be her “real dad” because he was “the only thing [she] had close to a father because [her] father was not there.”

Not long after defendant moved in, he began engaging in sexual acts with Catherine. After Catherine came home from school, defendant would have her sit in his lap, and he would put his hands on her hips and move her bottom around on his lap. As time progressed, defendant started “doing more things,” including approximately 20 to 25 instances of cunnilingus, 15 to 20 instances of his rubbing his penis against her vagina, one instance of his rubbing his penis against her bottom, occasional times when defendant made her rub his penis with her hands, and one “tongue-kiss[ ].” These incidents occurred when defendant and Catherine were home alone while Catherine's mother was away at work and almost always in Catherine's mother's bedroom.

Sometime in the summer of 2005, following an argument with Catherine's mother, defendant moved out of the house and into a trailer about 15 minutes away. Catherine visited defendant at the trailer on some weekends. Defendant performed cunnilingus on her approximately five to 10 times during the visits. Additionally, defendant rubbed his penis on her vagina once while the two of them were staying at a hotel when defendant took Catherine on an overnight trip to visit the zoo.

Defendant and Catherine's mother eventually reconciled and were married in June 2006, after which defendant moved back into the house and continued to engage in sexual conduct with Catherine. Five to 10 more incidents occurred, mostly involving cunnilingus. Once, however, defendant made Catherine perform fellatio on him.

On the evening of 24 January 2007, defendant had been rubbing his penis on Catherine's vagina for a few minutes when a friend of Catherine's called to tell her it was time to go to their dance class. Defendant answered the phone, and after the call, he continued to rub his penis on Catherine for a couple more minutes. Afterwards, according to Catherine, “there was stuff down there, sperm, down on [her] vagina” that “felt like slime, like grease” and “looked like slime, like gooey ... like snot.” Catherine cleaned herself up, changed clothes, and went to dance class.

After class, Catherine came home and told her mother that defendant “had been doing nasty stuff” to her. Her mother then took Catherine to Cape Fear Valley Hospital, where a rape examination was performed, and the police were contacted.

On 29 October 2007, defendant was indicted for one count of attempted first degree rape, one count of attempted first degree statutory sex offense, four counts of first degree statutory sex offense, seven counts of taking indecent liberties with a child, two counts of sexual activity by a substitute parent, two counts of crime against nature, and two counts of first degree statutory rape.

The case came on for trial on 12 January 2009, when Catherine was 13 years old. After the State rested, defendant moved to dismiss all charges based on insufficiency of the evidence. The trial court dismissed one count of attempted first degree statutory sex offense, one count of first degree statutory sex offense, one count of sexual offense by a substitute parent, two counts of indecent liberties with a child, one count of crime against nature, and two counts of first degree statutory rape. The court denied the motion as to one count of attempted first degree rape, three counts of first degree statutory sex offense, five counts of taking indecent liberties with a child, one count of sexual offense by a substitute parent, and one count of crime against nature.

The jury convicted defendant of all the remaining charges. The court sentenced defendant to concurrent presumptive-range terms of (1) 189 to 236 months for one count of attempted first degree rape and one count of taking indecent liberties with a child; (2) 19 to 23 months for one count of taking indecent liberties with a child; and (3) six to eight months for one count of crime against nature. The trial court also sentenced defendant to a presumptive-range term of 288 to 355 months for one count of first degree statutory sexual offense and one count of indecent liberties to run consecutive to the attempted first degree rape sentence. Following that sentence is a consecutive presumptive-range term of 288 to 355 months for one count of first degree statutory sexual offense and one count of indecent liberties, which in turn is followed by a consecutive presumptive-range sentence of 288 to 355 months for one count of first degree statutory sexual offense, sexual offense by a substitute parent and one count of indecent liberties. Defendant timely appealed to this Court.

I

Defendant first argues that when, “[u]nder the auspices of sequestering witnesses, the trial court excluded all of the members of [defendant's] family” during Catherine's testimony, the court denied defendant a “fair trial because, during this crucial testimony, he had no one there on his behalf as support.” At trial, the State requested that a “sequestration order apply to all those with the exception of [the] investigator” and possibly Catherine's mother. The State explained to the trial court that Catherine was only 13, she had been even younger when the abuse occurred, and the State was “trying to ... prevent her from having to have to testify in a hostile environment with [defendant's] family sitting behind him.” In response, defense counsel offered, “I think you could keep it from being a hostile environment.... I expect ... my client's family to-to act appropriately in the courthouse towards this witness.”

The trial court then ruled that it would allow no one in the courtroom during Catherine's testimony except for her mother, her step-father, and an investigator for each side. On the day of Catherine's testimony, defendant repeated his objection, but the trial court left its “ruling in effect.” The court, however, permitted a high school class of juniors and seniors to observe the proceedings, including Catherine's testimony. Defendant argues that the trial court's decision to permit a high school class to observe Catherine's testimony further “illustrates the lack of a reasoned basis for the court's decision.”

At the outset, we note that the State, in making its motion, misidentified the relief it was seeking as “sequestration.” Sequestration refers to the exclusion of witnesses from the courtroom until they testify. See N.C. Gen.Stat. § 15A-1225 (2009) (“Upon motion of a party the judge may order all or some of the witnesses other than the defendant to remain outside of the courtroom until called to testify, except when a minor child is called as a witness the parent or guardian may be present while the child is testifying even though his parent or guardian is to be called subsequently.”). Here, the trial court did not just exclude witnesses, but rather excluded everyone except certain designated individuals and the high school class. The trial court's ruling was actually pursuant to the court's authority under N.C. Gen.Stat. § 15-166 and N.C. Gen.Stat. § 15A-1034(a).

N.C. Gen.Stat. § 15-166 provides that “[i]n the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.” N.C. Gen.Stat. § 15A-1034(a) also gives the trial court the authority to “impose reasonable limitations on access to the courtroom when necessary to ensure...