State v. Petty

• Decision Date: 02 March 1999
• Docket Number: No. COA98-493.,COA98-493.
• Citation: 512 S.E.2d 428,132 NC App. 453
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dewey Leroy PETTY.

512 S.E.2d 428

132 NC App. 453

STATE of North Carolina v. Dewey Leroy PETTY.

No. COA98-493.

Court of Appeals of North Carolina.

March 2, 1999.

Attorney General Michael F. Easley, by Assistant Attorney General Jane Rankin Thompson, Winston-Salem, for the State.

Wyatt, Early, Harris & Wheeler, L.L.P., by Stanley F. Hammer, High Point, for dependant-appellant (Robert H. Edmunds, Jr., filed the record and appellant's brief). GREENE, Judge.

Dewey Leroy Petty (Defendant) appeals from his convictions for first-degree sexual offense and taking indecent liberties with a child.

J.F., the prosecuting witness, testified that Defendant, a friend of her father, began sexually molesting her following her tenth birthday. Defendant began giving J.F.'s father rides home from work, and J.F. saw Defendant "[a]lmost every day." J.F. testified that she often went to "the stores" with Defendant, and specifically named "Winn-Dixie, Food Lion, Crown, Eckerd, [and] Family Dollar." Sometimes Defendant would take her brothers and sisters as well, but "[s]ometimes" Defendant would take only J.F. She testified that it was "[s]cary" when she went to the stores by herself with Defendant, "[b]ecause every time we're alone, he would massage my private parts." J.F. testified that Defendant had often given her money, ice cream, and presents, and had given her a hundred dollars for her tenth birthday. Around the time of J.F.'s tenth birthday, Defendant took her to a carnival. On this occasion, Defendant "tried to hurt my—play with my body parts." J.F. testified that it was "a hot night," and that Defendant pulled down her skirt to "play with [her] private parts again." J.F. testified that Defendant touched her "[u]nderneath" her underwear and "[i]nside" her "private area." Defendant told J.F. "if [she] didn't let him do it that he was going to not be [her] dad's friend anymore." J.F. testified that on one occasion when it was "cold" outside, Defendant had kissed her on the lips with his mouth open, and that Defendant had kissed her "private parts" a few weeks after the carnival. This latter instance occurred in Defendant's car "behind Winn-Dixie." J.F. started screaming, but Defendant told her not to scream. J.F. pulled her pants down when Defendant told her to because "he was a grown-up and he was my father's friend." J.F. testified that Defendant never took any pictures of her, but had shown her a picture of a naked girl and had asked to take a picture of J.F.'s "private part." Eventually, J.F. told her mother about these incidents, and her parents immediately notified the police.

Elaine Whitman (Whitman) testified as an expert in the field of child sexual abuse. When Whitman began to testify as to statements made to her by J.F.'s mother, Defendant objected and the trial court gave the following instruction:

Members of the jury, this is being offered for the purpose of corroborating the testimony of the later [witness], and it is for you to determine whether it does so, in fact, corroborate that testimony.

It's not offered for the truth or the falsity of the statement [but] as to whether that statement was made on that occasion.

Whitman began to testify as to what J.F. had told her, and Defendant's counsel stated: "We object as far as substantive evidence that it should only be considered for corroboration or impeachment." The trial court informed the jury: "Again, it's not been offered for the truth or falsity of the statements made, it's for you to sit and determine that." Whitman then testified that J.F. had told her that Defendant "had tried to kiss her in her vaginal area, but she moved away quickly and he kissed the car seat." As Whitman continued, Defendant's counsel stated: "We just asked for an objection with the same instructions as far as anything—" and the trial court again reiterated to the jury that this testimony was "being offered for the purpose of corroborating the testimony of an earlier witness." Whitman continued to testify as to her interview with J.F., and subsequently was asked by the prosecutor whether J.F. had told her that Defendant had taken her picture. Defendant objected, but did not state the grounds for this objection. The objection was overruled, and Whitman testified that J.F. had told her that Defendant had tried to take a picture of her with "her pants below her knees," but she had pulled her pants up before he could.

Angela Jolene Stanley, M.D. (Dr. Stanley), who examined J.F., was questioned by the prosecutor as to her conversation with J.F.'s mother. Defendant objected "to substantive evidence." The trial court instructed the jury:

Again, members of the jury, this is being offered for the purpose of corroborating [an] earlier or a later witness, and it will be for you to say and determine whether it does in fact corroborate that witness's testimony. It is not being offered for the truth or falsity of the statement but the fact that the statement was made.

Dr. Stanley was then allowed to testify as to what J.F.'s mother told her J.F. had said. Defendant repeatedly made general objections, which were overruled. Defendant did not object on hearsay grounds, nor did Defendant seek a ruling from the trial court as to whether this evidence was corroborative.

Officer Wayne Redford (Officer Redford) testified that during his interview of J.F., she told him that on one occasion she pulled away from Defendant and he "grabbed her and pulled her back over under him and made her pull her panties down again" and continued to fondle her. Defendant moved to strike this testimony, and the trial court denied this motion.

At the close of the evidence, Defendant's counsel made the following statements during his closing argument to the jury:

A lot that we've talked about is burden of proof, proof beyond a reasonable doubt, and if you would, if you'd imagine a scale, let's say from zero to ten, zero would be innocence and ten would be guilty, and if you went to that scale, you went up to maybe 5.1 or 5.2 on a scale of ten, that certainly wouldn't be proof beyond a reasonable doubt. We'd say you have to get maybe to 9.7 or 9.8 on that scale, and [the trial court] will talk about that.

I think [the trial court will] tell you that proof beyond a reasonable doubt is proof that fully satisfies and entirely convinces. Basically, you have to be sure.

During the State's closing argument, the prosecutor stated:

One of the things that the judge will talk to you about and [Defendant's counsel] talked to you about and I argue and contend to you, that this case isn't about boulders or scales from one to ten.

You're not going to hear the judge tell you anything about number one to ten.

But if you think of it in those terms, I would argue to you that about all the State has to do is show you a real strong seven. We're not talking about 90.8 or 90.9, and we're not talking about scales at all.

Defendant did not object to these statements. The trial court subsequently charged the jury as to reasonable doubt as follows:

The State must prove to you that [D]efendant is guilty beyond a reasonable doubt.

A reasonable doubt is a doubt based on reason and common sense arising out of some or all the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be.

Proof beyond a reasonable doubt is proof that, if you will, sits nice or entirely convinces you of [D]efendant's guilt.

The trial court instructed the jury that for the charge of first-degree sexual offense which allegedly occurred in November of 1994, "the State must satisfy you beyond a reasonable doubt that there was penetration, however slight, with an object into the genital opening of a person's body." For the first-degree sexual offense which allegedly occurred in January of 1995, "the State would have to show you beyond a reasonable doubt that [Defendant] engaged in a sexual act which was cunnilingus, with—or any penetration, however slight, by an object into the genital area of a person's body." After instructing the jury as to the remaining elements of the charged offenses, the trial court instructed the jury that "a verdict is not a verdict until all 12 jurors are unanimous as to what your decisions are. You may not render a verdict by a majority opinion."

After the jury began its deliberation, they asked the trial court to clarify the elements of each offense. In its clarification, the trial court instructed the jury concerning the first element of first-degree sexual offense as follows:

[T]hat [D]efendant engaged in a sexual act with the victim. A sexual act means cunnilingus, which is any touching, however slight, by the lips or the tongue of one person to any part of the female sex organ of another, or any penetration, however slight, by an object into the genital opening of a person's body.

The jury found Defendant guilty of taking indecent liberties with J.F. in November of 1994 and in January of 1995. The jury also found Defendant guilty of attempted first-degree sexual offense in November of 1994 and of first-degree sexual offense in January of 1995.

The issues are whether: (I) noncorroborative testimony was improperly admitted; (II) the disjunctive jury instructions on first-degree sexual offense created a risk of a nonunanimous verdict; and (III) the prosecutor's closing argument impermissibly lowered the burden of proof such that the trial court should have intervened ex mero motu.

I

Corroborative evidence is evidence that tends "to strengthen, confirm, or make more certain the testimony of another witness." State v. Adams, 331 N.C. 317, 328-29, 416 S.E.2d 380, 386 (1992). "Prior consistent statements of a witness are admissible as corroborative evidence, even when the witness has not been impeached." State v. Burton, 322 N.C. 447, 449-50, 368 S.E.2d 630, 632 (1988); see 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §§ 164-65 (5th ed.1998) (noting that North Carolina allows wide latitude in the...