State v. Bates

• Decision Date: 02 August 2005
• Docket Number: No. COA04-777.,COA04-777.
• Citation: 616 S.E.2d 280
• Parties: STATE of North Carolina v. Kenneth William BATES.
• Court: North Carolina Supreme Court

616 S.E.2d 280

STATE of North Carolina v. Kenneth William BATES.

No. COA04-777.

Court of Appeals of North Carolina.

August 2, 2005.

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Appeal by defendant from judgments entered 31 October 2003 and 4 November 2003 by Judge W. Allen Cobb, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 21 March 2005.

Roy Cooper, Attorney General, by Anita LeVeaux, Assistant Attorney General, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant-appellant.

MARTIN, Chief Judge.

Defendant was found guilty by a jury of six counts of first-degree statutory sexual offense, two counts of attempted first-degree statutory sexual offense, seven counts of taking indecent liberties with a minor, and six counts of lewd and lascivious conduct with a minor. Judgment was arrested as to the six counts of lewd and lascivious conduct with a minor. Defendant appeals from judgment imposing two consecutive sentences of not less than 192 months and not more than 240 months of imprisonment and a third consecutive sentence of not less than 125 months and not more than 159 months of imprisonment.

The evidence at defendant's trial tended to show that KG, a ten-year-old child, lived in Fremont, North Carolina in the same neighborhood as defendant, his wife, and her three children from previous marriages. KM, the youngest of defendant's stepchildren, was eight years old at the time of the alleged events, and she was "good friends" with KG. KG testified that she spent one night every other weekend at defendant's house between December, 2002 and March, 2003. In March, KG told another friend on the school bus that defendant had touched her inappropriately, and the friend informed a teacher at KG's school. The teacher contacted the school social worker, who notified the Wayne County Department of Social Services (DSS).

Roseanne Diorio, a social worker with DSS, interviewed defendant at his house with his wife present. Defendant said that KG followed him around, wrote him love letters, and always wanted to sit in his lap. He said she did not have a father figure in her life, and he believed she wanted him to play that role. He said KG had made such accusations before, but when he and his wife talked to her about it, she admitted she had lied. He denied all allegations of inappropriate activity. Ms. Diorio also interviewed defendant's wife and her two oldest children, each of whom stated that KG constantly followed defendant around and wrote him love letters. They said KG also wrote love letters to defendant's stepson.

At trial, KG testified that the second time she visited KM's home, defendant called her into the living room, put his hand down the front of her shirt, and touched her chest through her clothes. The following weekend, when she visited defendant's home again, she testified that "[h]e done the same thing. He went down my shirt again." That same weekend, KG said she and KM were playing in KM's room when defendant walked in and told KM to go talk to her mother. After KM left the room, KG said defendant "was about to pull my pants down," but he heard KM coming back so he stopped. KG said defendant's hands "almost" went inside her pants. Later, she testified that on that occasion he did actually touch her "private" with his hand.

On "another weekend," defendant told KG to go into the bathroom. Once there, KG testified defendant was "pull[ing] my pants down and trying to lick it, but he heard [KM] coming so he didn't get a chance to lick it." Later she testified defendant did actually "lick[] it" while they were in the bathroom. She also testified that one night, she and KM were sleeping on the living room floor. KM was asleep, but KG woke up and heard defendant walking into the living room. He came over to her and pulled her pants down to her knees. Then, according to KG, he "touched me in the inside." KG testified that defendant had touched her vagina with his hand "[l]ike four times" and with his mouth "[a]bout maybe two times."

KG also testified that she touched defendant's penis on two occasions. Once, KG said she was sitting on the couch when defendant "sat down next to me and ... took my hand and put it down his pants," touching his "private." Another time in KM's bedroom defendant "just took my hand and put it down his pants and he told me to squeeze." In all, KG said she had seen defendant's penis "[a]bout six times." When asked if she could say when any of the acts described occurred, KG could only say they happened during the time she was spending the night with KM between December and March.

Detective Tammy Odom of the Wayne County Sheriff's Department investigated the allegations against defendant. During an interview with KG, Detective Odom wrote out a statement for KG in which KG said that on one occasion, defendant "reached up and put his hand down my shirt and inside my bra. He started feeling of my chest." KG stated that on another occasion, defendant "stuck his hand down my pants and rubbed my private part. He did this for about a minute. After that he pulled his private part out. He grabbed my hand and put it on his private part. He told me to squeeze it." She also stated that the following morning defendant "pulled my sweat pants down and my panties. He was bending down to lick my privates when [KM] walked in." In all, KG said in her statement, defendant "touched my private part about six times and he has licked my private part about six times. He has made me touch and squeeze his private part about four times ... [and he] touched my chest one time...."

Detective Odom also interviewed defendant regarding the allegations. Defendant gave a statement, written by Detective Odom and signed and initialed by defendant, in which he said, in pertinent part,

While [KG] was spending the night on three different times I pulled the head of my penis out and [KG] squeezed it. On three different times I touched [KG] on her vagina, on the inside of her clothes, with my fingers. One of these times I stuck my fingers inside of her vagina because she told me to. I tried to stop once and she wouldn't let me. This happened one time in the living room, one time in [KM]'s room, and one time in the children's bathroom. I have licked [KG]'s vagina three times. This has happened once in the living room, one time in [KM]'s room, and one time in the children's bathroom.

Defendant was subsequently arrested.

While defendant was in jail, Roseanne Diorio interviewed him a second time regarding the allegations. Defendant claimed that Detective Odom tricked him into confessing and had "mixed his words up." He stated, however, that KG had once "tried to stick her hands down his pants to touch his penis." On another occasion, he said, KG "called him into the bathroom and when he got in there she had her pants and underwear pulled down to her knees." When Ms. Diorio asked if he had ever performed oral sex on KG, he stated that "it had only happened once and he was really sorry about it."

Defendant was charged, in true bills of indictment, with eleven counts of first-degree sexual offense, two counts of attempted first-degree sexual offense, ten counts of taking indecent liberties with a minor, and ten counts of lewd and lascivious conduct with a minor. A jury found him guilty of six counts of first-degree sexual offense, two counts of attempted first-degree sexual offense, seven counts of taking indecent liberties with a minor, and six counts of lewd and lascivious conduct. Judgment was arrested on the six counts of lewd and lascivious conduct. The remaining convictions were consolidated into three judgments for which defendant received two consecutive sentences of not less than 192 months and not more than 240 months of imprisonment and a third consecutive sentence of not less than 125 months and not more than 159 months of imprisonment. Defendant appeals.

Defendant makes the following arguments on appeal: (1) the trial court erred in allowing the State to ask KG leading questions on direct examination; (2) the trial court committed plain error by not dismissing one of the jurors when she disclosed during trial she knew one of the witnesses for the State; (3) the trial court erred by "denying the defendant's motion to dismiss all or some of the charges against him at the close of the State's evidence and at the close of all the evidence, due to the insufficiency of the evidence;" (4) the trial court committed plain error by not distinguishing for the jury the charges against the defendant, thereby denying the defendant a unanimous jury verdict; and (5) the trial court committed plain error by entering judgments and other dispositions which were inconsistent with the court's rulings and the jury's verdicts.

We first address whether or not the trial court erred by allowing the State to ask KG leading questions on direct examination. Although leading questions are not generally admitted on direct examination, N.C. Gen.Stat. § 8C-1, Rule 611(c) (2003), "[i]t is within the discretionary power of the trial court to allow leading questions on direct examination, and rulings on the use of such questions are reversible only for an abuse of discretion." State v. Dalton, 96 N.C.App. 65, 70, 384 S.E.2d 573, 576 (1989) (citing State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986)). It is well settled that where "the witness has difficulty in understanding the question because of age or immaturity or where inquiry is made into a subject of delicate nature such as sexual matters, leading questions are necessary to develop the witness's testimony." State v. Oliver, 85 N.C.App. 1, 9, 354 S.E.2d 527, 532, disc. rev. denied, 320 N.C. 174, 358 S.E.2d 64 (1987); see also State v. Wilson, 322 N.C. 91, 96, 366 S.E.2d 701, 704 (1988). In Dalton, this Court found no abuse of discretion where the prosecuting witness was fifteen years...