State v. Lawrence, COA03-614.

• Decision Date: 03 August 2004
• Docket Number: No. COA03-614.,COA03-614.
• Citation: 599 S.E.2d 87,165 NC App. 548
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gary Lee LAWRENCE, Jr.

599 S.E.2d 87

165 NC App. 548

STATE of North Carolina v. Gary Lee LAWRENCE, Jr.

No. COA03-614.

Court of Appeals of North Carolina.

August 3, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Ellen B. Scouten, for the State.

Rudolf Maher Widenhouse & Fialko, by Andrew G. Schopler, Chapel Hill, for defendant-appellant.

LEVINSON, Judge.

On 9 July 2002 Gary Lawrence, Jr., (defendant) was convicted of four counts of second degree rape, ten counts of second degree sex offense, and two counts of indecent liberties. The alleged offenses were committed against three of defendant's four children: C.L., S.L., and G.L. Defendant was tried upon indictments returned by Camden, Currituck, and Pasquotank Counties, where the offenses were alleged to have occurred on various dates ranging from seven to ten years prior to trial.

Evidence presented by the State is summarized, in pertinent part, as follows: C.L. testified that she and her twin sister, S.L., were born in 1978 and were the oldest of defendant's four children. The Lawrence family lived in Currituck County, North Carolina, from the time C.L. was about two years old until she was fifteen. When she was about ten or eleven years old, the defendant started having explicit discussions with her about sex, and would touch her breasts and pubic area to see if she had started to develop. When she was eleven or twelve years old, defendant conducted a group session with his four children in which he taught them how to masturbate, rubbing each child's genitals and demonstrating on himself. In addition, defendant often masturbated in the living room, in front of his children.

C.L. lost her virginity to defendant when she was 12 1/2 years old. Defendant, who was a long distance truck driver, took C.L. with him on a truck trip of several weeks. While they were on the road, defendant gave C.L. wine coolers, told her he wanted to "take her innocence," then had oral sex and vaginal intercourse with her. After this, C.L. and her father had sex on many occasions over the next two years. She described several specific instances of sexual activity, including oral sex, digital penetration, penetration with objects, vaginal intercourse, and watching pornographic videos together. In time, C.L. fell in love with defendant, and felt that she, rather than her mother, "was his wife."

In 1993, when C.L. was in the ninth grade, her parents separated and the four children moved to Camden County with defendant. C.L., who was then 15 years old, decided to end the sexual relationship with her father. Although there were several more incidents that fall, C.L. was able to end the sexual activity between them before she was sixteen. During this period, defendant was drinking heavily and was aggressive and abusive towards his children. Following a family brawl resulting in the police and DSS being called, C.L. and S.L. moved out of their father's house. C.L. testified that she never lived with defendant after that, and had seen him only a few times since 1995.

C.L.'s twin sister, S.L., offered testimony that tended to corroborate that of C.L. S.L. also testified concerning the explicit sexual discussions with her father starting when she was 11 years old, his genital "inspections" to determine if the twins were still virgins, the group masturbation "lesson," and several occasions when defendant showered with S.L. and C.L. and washed their genitals. S.L. testified that she too had lost her virginity to her father while on a long distance truck trip. She described several incidents in which the defendant performed oral, anal, or vaginal sexual acts with her. Like C.L., S.L. succeeded in ending the sexual activity with defendant shortly before turning 16.

S. McKoy, the fourth of defendant's children, testified that she had been present at the group masturbation session, and had experienced inappropriate touching by defendant, ostensibly to check her "development." However, she testified that defendant had not engaged in any other sexual activity with her, and defendant was not charged with any sexual offenses against S. McKoy.

G.L., defendant's only son, corroborated his siblings' testimony regarding defendant's masturbation in the living room in view of other family members, the group masturbation session, and defendant's inappropriate touching of his daughters' genitals. G.L. heard defendant say on several occasions that if anyone was going to "take" C.L.'s and S.L.'s virginity, it would be him. G.L. also testified that when he and his sisters lived with defendant in Camden County, defendant was often drunk and abusive, and that on at least one occasion he heard S.L. crying in defendant's bedroom.

In 1995, at a time when C.L., S.L, and S. McKoy were living with their mother, G.L. and defendant lived on a sailboat which was docked in Pasquotank County. G.L. was 14 years old at this time. He testified that during the months they lived on the sailboat together defendant repeatedly engaged him in acts of oral and anal sex. He described several incidents in detail, in each of which defendant had provided him with alcohol, played a pornographic video, and then secured G.L.'s acquiescence in particular acts of anal or oral sex.

Defendant testified on his own behalf. He acknowledged having explicit sexual conversations with his children, and having sex toys and pornographic videos at home. He also admitted taking C.L. and S.L. on overnight truck trips, and conducting a group masturbation "lesson" with his children, although he denied touching them or stimulating himself during this session. Defendant further admitted that, while living in Camden County, he was depressed and drank to excess, and that during the fight that led to C.L. and S.L. moving out he had "backhanded" S.L., and had "popped" C.L. Defendant testified that he had evicted S.L. and C.L. from the house after this incident because they were beyond his control.

However, defendant denied ever having sex with any of his children, showering with them, touching their genitals, showing them pornographic videos, giving them alcohol, masturbating in front of them, stating that he would "be the one" to take the twins' virginity, or engaging in any sexual activity with C.L., S.L., or G.L. He testified that he believed S.L. had organized the State's witnesses to offer false testimony as part of a conspiracy to "get even" with him for evicting her and C.L. from the house in 1995, seven years earlier.

Following trial, defendant was convicted of all charges and was sentenced to consecutive prison terms totaling 308 to 324 years. From these convictions and judgments, defendant appeals.

Defendant argues first that the trial court erred by excluding evidence pertaining to certain incidents occurring between C.L., S.L., or G.L. and persons other than the defendant. He argues that, because he was charged with offenses alleged to have occurred between seven and eleven years before trial, "the crux of [his] defense was that his children's years of silence as to these charges indicated that the allegations were the result of fantasy or fabrication." On this basis, defendant contends the court erred by excluding evidence that the complaining witnesses "had made timely accusations or reports against a host of alleged offenders." He further asserts that the trial court's error was compounded by the prosecutor's closing argument that the complainants had delayed reporting the alleged incidents for years out of shame and embarrassment. Defendant argues that the trial court's exclusion of this evidence effectively prevented him from exercising his constitutional right to present a defense, and constitutes reversible error. We disagree.

Defendant is correct that a criminal defendant's right "to present to the jury his version of the facts is a fundamental element of due process of law, guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution and by Article I, Sections 19 and 23 of the North Carolina Constitution." State v. Miller, 344 N.C. 658, 673, 477 S.E.2d 915, 924 (1996) (citation omitted). However, "[l]ike all evidence offered at trial, ... evidence offered to support a defense must be relevant to be admissible. N.C.G.S. § 8C-1, Rule 402 [(2003)]." State v. Fair, 354 N.C. 131, 150, 557 S.E.2d 500, 515 (2001).

N.C.G.S. § 8C-1, Rule 401 (2003) defines relevant evidence as "evidence having 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." "Although `[the] trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard ... such rulings are given great deference on appeal.'" Dunn v. Custer, 162 N.C.App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104 N.C.App. 498, 502, 410 S.E.2d 226, 228 (1991)). Further, even if relevant, evidence may be excluded if the trial court determines that "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.G.S. § 8C-1, Rule 403 (2003). "Whether to exclude relevant evidence pursuant to Rule 403 is a decision within the trial court's discretion and will remain undisturbed on appeal absent a showing that an abuse of discretion occurred." State v. Ward, 354 N.C. 231, 264, 555 S.E.2d 251, 272 (2001) (citation omitted).

In the instant case, the record shows that both the State and defendant offered evidence of earlier investigations, allegations, and accusations by the complainants. Evidence was offered regarding numerous reports to DSS between 1982 and 1997, alleging abuse and neglect, and of the subsequent DSS investigations. In addition, the State and defendant stipulated that between 1982...