State v. Tucker

• Decision Date: 04 February 2003
• Docket Number: No. COA02-156.,COA02-156.
• Citation: 575 S.E.2d 770,156 NC App. 53
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Rodney Jay TUCKER.

575 S.E.2d 770

156 NC App. 53

STATE of North Carolina v. Rodney Jay TUCKER.

No. COA02-156.

Court of Appeals of North Carolina.

February 4, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jane Rankin Thompson, for the State.

Brian Michael Aus, Durham, for defendant-appellant. McCULLOUGH, Judge.

Defendant Rodney Jay Tucker was tried before a jury at the 16 July 2001 Criminal Session of Forsyth County Superior Court. Defendant was indicted on 19 February 2001 with fourteen counts of statutory sexual offense of a person aged 13, 14 or 15 (N.C.Gen. Stat. § 14-27.7A(a)), seven counts of sexual offense by a person in parental role in the home of minor victim (N.C.Gen.Stat. § 14-27.7(a)), seven counts of taking indecent liberties with a minor (N.C.Gen.Stat. § 14-202.1), and one count of attempted statutory rape (N.C.Gen.Stat. § 14-27.7A(a)).

Defendant was born on 10 May 1960. He was over 30 years of age at the time of the alleged acts. The victim in this case was born 1 October 1984.

In this case, defendant was victim's stepfather. He met her mother in 1996 while he was in a drug and alcohol rehabilitation center, His Laboring Few Ministry. Defendant was employed as a long-distance truck driver and had a recurring drug problem.

The testimony at trial revealed disturbing facts about the shattered childhood of the victim. The victim testified that starting when she was 13 years old, defendant began sexually molesting her. On the first occasion when she was thirteen, defendant was driving his truck and picked up the victim from her father, who shortly before trial was proven not to be the victim's biological father, although she was born in wedlock. Defendant allegedly had intercourse with her in the sleeper cab of his truck. The victim testified to frequent sexual molestations including once when she got into bed with her mother and defendant when she was frightened by a storm. On that occasion, defendant digitally penetrated her without her mother's knowledge. Numerous such incidents of fondling, digital penetration, oral sex, and rape by defendant were recounted.

The victim suffered from behavioral disorders and depression, and even attempted suicide in December of 1998. The victim had kept her accusations quiet because defendant was paying for her flying lessons, which was something very important to her. However, the victim did intermittently inform various family members, even her mother at one point, about defendant's actions, but nothing was done about it. While her mother was apparently not convinced that the victim was telling the truth, it did eventually lead to her leaving defendant. Finally, the victim's stepsister turned defendant into the authorities in Georgia who investigated the accusations. Defendant turned himself into the Winston-Salem police once charges were filed.

Other testimony at trial revealed that the victim had sexual contact with several other persons, including a step-grandfather, a couple of cousins, and two other individuals that were her own age. The majority of these encounters were not of the consensual variety. However, the victim had consensual sex at least once.

Several family members and others involved in treating the victim testified to corroborate her story.

At trial, defendant testified and denied all inappropriate touching. Under cross-examination, defendant admitted he was discharged from the U.S. Navy for lying about his drug abuse. Defendant also testified about a letter that he received from the victim where she apologized for all the trouble she caused.

While the attempted statutory rape charge was dismissed, on 23 July 2001 the jury found defendant guilty on fourteen counts of statutory sexual offense of a person aged 13, 14 or 15, eight counts of sexual offense by a person in parental role in the home of minor victim, and six counts of taking indecent liberties with a minor. All these were consolidated into three different judgments: 00 CRS 54807, 00 CRS 54812, and 00 CRS 54815. Defendant had a prior record level of II, and was sentenced to a minimum of 334 months and a maximum of 410 months on each judgment, all to run consecutively.

Defendant makes the following assignments of error: The trial court (I) erred by permitting evidence of defendant's false answers regarding drug use prior to entering military service; (II) erred in denying defendant's motion to dismiss due to insufficiency of the evidence; (III) erred by submitting verdict sheets and accepting guilty verdicts where said verdict sheets presented crimes for which defendant had not been indicted; and (IV) erred in finding that defendant abused a position of trust or confidence and sentencing him in the aggravated range of punishment for his convictions of sexual activity with a person in his custody.

I.

In his first assignment of error, defendant contends that the trial court erred by allowing testimony about his false answers to the military regarding his past drug use into evidence.

Detective Kelly Wilkinson of the Winston-Salem Police Department testified during the State's case-in-chief that on 31 July 2000, she interviewed defendant at the Winston-Salem Police Station. Defendant's attorney was present at the interview. Exploring his personal history, defendant informed the detective that he had been given a general discharge from the U.S. Navy in 1981. The discharge was based on the fact that he lied about his past drug use and the Navy found out about it. Defendant objected to this testimony, but the trial court allowed the testimony as relevant under Rule 402 because defendant had his attorney present when he made the statement and evidence of his drug use was already in evidence without objection, and admissible under Rule 403 because its probative value outweighed any prejudicial effect. Later in the trial, defendant testified that he was in the U.S. Navy for 4 months before being discharged for lying about the drug use. Defendant argues that this testimony was an impermissible attack on the character of defendant.

Evidence of an accused's character is not admissible for any purpose if the accused has neither testified nor introduced evidence of his character in his own behalf. However, the State may produce evidence relevant for some other purpose which incidentally bears upon the character of the accused.

State v. Oxendine, 303 N.C. 235, 241, 278 S.E.2d 200, 204 (1981) (citations omitted); see also N.C. Gen.Stat. § 8C-1, Rule 404 (2001).

While this testimony was presumably admissible as to defendant's drug use, its secondary effect was that defendant was untruthful. The State, as noted by the trial court, already had ample testimony in evidence that defendant had an extensive drug problem via the testimony of the victim's mother. Thus, this evidence was cumulative as to the drug use point. It could be inferred then that the State wanted this evidence to be heard by the jury to show that he had lied to the U.S. military. Such does not incidentally bear upon his character, and therefore it was impermissible character evidence, as this testimony came out in the State's case-in-chief before defendant had put his character in issue. See State v. Freeman, 313 N.C. 539, 548, 330 S.E.2d 465, 473 (1985); State v. Morgan, 111 N.C.App. 662, 668, 432 S.E.2d 877, 881 (1993).

Although the admission of this evidence was error, we hold that this error alone does not entitle defendant to a new trial. Defendant was not placed in a position in which he could have felt compelled to testify to rebut this character statement. While the jury did hear evidence that he was untruthful before he put on evidence, it did not undermine the fairness of the trial. See Freeman, 313 N.C. 539, 330 S.E.2d 465. We see no reasonable probability that, in the absence of this evidence, the jury would have said differently.

This assignment of error is overruled.

II.

In his second assignment of error, defendant contends that the trial court erred by not dismissing all the charges for lack of substantial evidence that any kind of sexual assault occurred.

The trial court must determine whether the State presented substantial evidence on every essential element and that defendant is the perpetrator. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982); State v. Munoz, 141 N.C.App. 675, 682, 541 S.E.2d 218, 222,cert. denied,353 N.C. 454, 548 S.E.2d 534 (2001). Evidence is to be viewed in the light most favorable to the State. State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 588 (1997). All contradictions are to be resolved in favor of the State, and all reasonable inferences based upon the evidence are to be indulged in. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The question for the Court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998).

Defendant acknowledges the case against him was based on the victim's testimony, and most all other testimony was to corroborate such. He points out that the victim did not disclose the alleged sexual assaults until shortly before trial, and that she did not inform her clinical social worker until she had convinced her mother. Defendant highlights the social worker's acknowledgment that children can "purposefully lie" in these situations. Further, no physical evidence was offered to substantiate the allegations of sexual assault.

Testimony of a prosecuting witness alone is sufficient to support a charge as the jury must weigh any contradictions or discrepancies in that testimony. State v. Guffey, 265 N.C. 331, 332, 144 S.E.2d 14, 16 (1965); see also State v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993). There was sufficient evidence at trial on each element of the crimes charged. Evidence, shown in the light most favorable to the State, showed that defendant had the opportunity to commit the acts alleged. It was for the...