State v. Sneed, 110519 NCCA, COA18-1061

Docket Nº:COA18-1061
Opinion Judge:Inman, Judge.
Attorney:Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State. Joseph P. Lattimore for Defendant-Appellant.
Judge Panel:Judge BERGER concurs Judge MURPHY concurs in the result only by separate opinion. MURPHY, Judge, concurring in result only.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina




No. COA18-1061

Court of Appeals of North Carolina

November 5, 2019

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 4 September 2019.

Appeal by Defendant from judgments entered 22 March 2018 by Judge Gregory R. Hayes in Mecklenburg County Nos. 17CRS222943-944, 17CRS25631 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State.

Joseph P. Lattimore for Defendant-Appellant.

Inman, Judge.

Defendant Richard Padre Sneed, Jr., ("Defendant") appeals from judgments entered following a jury trial convicting him of two counts of taking indecent liberties with a child and the entry of a guilty plea to attaining habitual felon status. Defendant argues that the trial court erred in failing to dismiss one of the indecent liberty charges for insufficiency of the evidence, and assigns plain error to the admission of certain witness testimony and evidence of prior bad acts. After careful review, we hold that Defendant has failed to demonstrate error.


The State's evidence tends to show the following:

In spring of 2017, ten-year old I.J. ("Isabell")1 lived with her mother and maternal grandmother at her grandmother's home. That June, Isabell's mother moved into an apartment in Charlotte, North Carolina with her then-boyfriend, B.S. ("Benjamin"), and his uncle, Defendant. Isabelle remained with her grandmother.

On 15 June 2017, Isabell spent the night with her mother at Benjamin's apartment. The next day, Isabell's mother left for work around 4:00 p.m. and arranged for Benjamin to watch Isabell when he returned from work around 5:00 p.m. When her mother called the house around 5:00 p.m., Isabell told her that Benjamin was not there but that Defendant was alone with her. Defendant left the apartment shortly thereafter to get groceries and, when he returned, saw that Isabell was playing in Benjamin's room on her phone. Defendant sat down on the couch to watch T.V. and was joined by Isabell a few moments later. When Defendant turned off the T.V., Isabell got up, went to the bathroom, and returned to Benjamin's bedroom.

Defendant followed Isabell into Benjamin's bedroom and repeatedly asked if she loved him. When Isabell responded by telling him she just wanted to watch a video, Defendant told her to come over to him; once she did, Defendant pulled up her dress, put his hand inside her underwear, pulled her underwear down, and began touching her "private part" with his hand while he put his tongue inside her mouth. Defendant told Isabell to keep the encounter between the two of them. Isabell managed to push Defendant off of her, grab her phone, pull up her underwear, and run out of the apartment. Isabell attempted to call her mother once she was outside and, when her mother didn't answer, she called 9-1-1.

The 9-1-1 operator who received Isabell's call dispatched Officer Edward Levins of the Charlotte-Mecklenburg Police Department. Officer Levins arrived on the scene, found Isabell, and had her sit in his patrol vehicle. Isabell was then able to contact her mother and describe the incident to her. When Isabell's mother arrived, Isabell recounted the abuse again; she also described the incident to Officer Levins once more later that evening.

Isabell met with a forensic interviewer, Kelli Wood, the following day. As part of that interview, Isabell told Ms. Wood what Defendant had done and described where he touched her.

Defendant was indicted on two counts of taking indecent liberties with a child and one count of attaining habitual felon status on 26 June 2017 and 11 September 2017, respectively. Prior to trial, Defendant filed a motion in limine to exclude evidence of a prior allegation of indecent liberties that was dismissed in 2013. The case came on for trial on 19 March 2018; in dispensing with pre-trial motions, the trial court reserved any hearing on Defendant's motion in limine until the State sought to introduce that evidence during trial.

At trial, the State called Isabell, her mother, and Ms. Wood as witnesses, all of whom testified consistent with the above recitation of the facts.2 Specifically, Isabell testified that Defendant put his hand inside her underwear, touched her "private part" that she "use[d to go to] the rest room[, ]" and kissed her with his tongue. Officer Levins testified that Isabell told him that Defendant "put . . . his hand down her pants, but did not put his fingers inside of her[, ]" while Isabell's mother testified that Isabell told her Defendant "was touching [Isabell] in [her] private parts."

The State began Ms. Wood's direct examination by having her explain her general process for interviewing child-victims, which included describing the guidelines she asks children to abide by in her interviews. She also testified to the purposes behind forensic interviews generally, followed by testimony specific to her observations and interview of Isabell. The State concluded its direct examination of Ms. Wood by introducing into evidence and playing for the jury a video recording of that interview.

The State then sought to call A.S. ("Alice") as a witness to testify to the 2013 incident that was the subject of Defendant's motion in limine. The trial court held a voir dire hearing, during which Alice testified concerning her alleged abuse by Defendant. Following that testimony and argument from the parties, the trial court denied Defendant's motion in limine and held that evidence of the 2013 event could be admitted to show intent, modus operandi, common scheme or plan, and preparation.

The jury returned to the courtroom following the voir dire hearing and the trial court gave a limiting instruction consistent with its ruling under Rule 404(b) of the North Carolina Rules of Evidence. Alice then testified without further objection before the jury. The State then called additional witnesses to corroborate Alice's testimony and rested its case.

Defendant moved to dismiss all counts for insufficiency of the evidence at the close of the State's evidence. The trial court denied the motion and Defendant declined to present evidence. Defendant renewed his motion to dismiss, which was again denied. Following closing arguments, instruction, and deliberation, the jury returned guilty verdicts on both counts of taking indecent liberties with a child. Defendant pled guilty to the charge of attaining habitual felon status and was sentenced to consecutive terms of 96 to 128 months and 77 to 105 months imprisonment. He entered oral notice of...

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