State v. Treadway

702 S.E.2d 335

STATE of North Carolina

v.James Patrick TREADWAY, Defendant.

No. COA10-287.

Court of Appeals of North Carolina.

Dec. 7, 2010.

Appeal by defendant from judgment entered 30 July 2009 by Judge Christopher M. Collier in Alexander County Superior Court. Heard in the Court of Appeals 14 September 2010.

Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.

Kimberly P. Hoppin, Chapel Hill, for defendant-appellant.

HUNTER, ROBERT C., Judge.

James Patrick Treadway ("defendant") appeals from a judgment entered pursuant to a jury verdict finding him guilty of one count of first degree sexual offense. After careful review, we reverse and remand in part and find no prejudicial error in part.

Background

The evidence at trial tended to show that defendant and his girlfriend, Sally, moved in together in the fall of 2004, along with Lucy, Sally's six-year-old daughter, and the couple's son, Calvin.¹ Several months later, Sally's uncle, John, his girlfriend, Judy, and their five-year-old daughter, Amber, moved into the trailer. The sleeping arrangements were as follows: defendant and Sally shared a bedroom at one end of the trailer; Calvin had his own bedroom; Lucy and Amber shared a bedroom at the other end of the trailer; and John and Judy slept on a futon in the den approximately two to three feet outside of Lucy and Amber's bedroom.

At trial, Lane, Amber's step-grandmother, testified that on 22 January 2005, Amber told her that defendant "tr[ied] to put his pee pee in [her] pee pee," put his finger in her vagina, licked her vagina, and kissed her on the mouth. Lane then informed her husband, as well as John and Judy, of Amber's allegations. Amber's parents took her to the local hospital, but the hospital did not perform examinations to ascertain potential sexual abuse. The hospital did report the allegations to the Department of Social Services ("DSS"). Detective Mark St. Clair ("Detective St. Clair"), with the Alexander CountySheriff's office, investigated Amber's allegations. Detective St. Clair did not personally interview Amber, but he set up an interview through DSS. No charges were brought against defendant at that time.

In July 2005, Lucy made allegations that defendant sexually abused her as well. Detective St. Clair testified that when he interviewed Lucy, she pointed to the vaginal area on a diagram of a female child and stated that defendant touched her there with his fingers. Lucy claimed that the touching occurred at least four times when she was in bed at night. Lucy told Detective Donna Clanton ("Detective Clanton") that defendant touched her "pee pee" with his fingers and "kissed her pee pee."

Defendant was indicted on four counts of first degree sexual offense—two counts against Amber (one count alleging digital penetration and one count alleging cunnilingus), and two counts against Lucy (one count alleging digital penetration and one count alleging cunnilingus). At trial, both Amber and Lucy testified that defendant digitally penetrated them when they lived with him. Neither girl testified that defendant had engaged in cunnilingus, although several witnesses testified that the girls previously alleged cunnilingus. Defendant testified that he never sexually molested the two girls.

After the close of the State's evidence, defense counsel moved to dismiss the charges and the trial court granted the motion as to the two indictments alleging cunnilingus because the State failed to present sufficient evidence to support those charges. On 30 July 2009, the jury found defendant guilty of first degree sexual offense against Amber and not guilty of first degree sexual offense against Lucy. The trial court determined that defendant was a Prior Record Level II for sentencing purposes and sentenced defendant to 260 to 321 months imprisonment. The trial court then entered written findings of fact and ordered defendant to submit to satellite based monitoring ("SBM") for the remainder of his natural life. Defendant timely appealed to this Court.

Discussion

I. Hearsay

Defendant argues that the trial court erred in allowing inadmissible hearsay to be entered into evidence. Defendant did not object to the testimony, but has requested plain error review. "[P]lain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence." State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001). "The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (internal citation and quotation marks omitted).

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen.Stat. § 8C-1, Rule 801 (2009). Rule 802 of the North Carolina Rules of Evidence provides that "[h]earsay is not admissible except as provided by statute or by these rules." N.C. Gen.Stat. § 8C-1, Rule 802 (2009).

First, defendant points to Lane's testimony that Amber told her that defendant "liked to have sex with her[,]" that "he tries to put his pee pee in [her] pee pee[,]" that "he would put his finger in her pee pee[,]" "lick her pee pee[,]" and "kiss[ ] her in the mouth." Lane further testified that Amber claimed defendant would follow her into the bathroom, make her take her clothes off, and sexually molest her. Upon review of the transcript, we hold that Lane's testimony was offered for the non-hearsay purpose of explaining Lane's subsequent conduct. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (noting that statements are not hearsay if they are admitted for the purpose of explaining the subsequent conduct of the person to whom the statement was directed); State v. Tate, 307 N.C. 242, 244, 297 S.E.2d 581, 583 (1982) ("The statements of one person to another are admissible to explain thesubsequent conduct of the person to whom the statements were made."). Here, Lane was describing Amber's original allegations against defendant, which prompted her to relay that information to Amber's parents so medical treatment could be obtained. Accordingly, Lane's statements were intended to establish why investigative action was originally taken, not to prove that defendant engaged in the conduct alleged.

Additionally, these prior statements made by Amber to Lane served to corroborate Amber's trial testimony. "A prior consistent statement may be admissible as non-hearsay even when it contains new or additional information when such information tends to strengthen or add credibility to the testimony which it corroborates." State v. Levan, 326 N.C. 155, 167, 388 S.E.2d 429, 435 (1990). Out-of-court statements offered to corroborate a child's testimony regarding sexual abuse have been held to be non-hearsay. Id.; State v. Gilbert, 96 N.C.App. 363, 365, 385 S.E.2d 815, 816 (1989). "The trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay purposes." State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998). "When the statements are generally consistent with the witness' testimony, slight variations will not render them inadmissible. Such variations affect only the weight of the evidence which is for the jury to determine." State v. Moore, 300 N.C. 694, 697, 268 S.E.2d 196, 199 (1980) (internal citation omitted), disapproved on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). Although Lane's testimony provided statements about which Amber did not testify concerning cunnilingus and attempted penile penetration, we hold that Lane's testimony was sufficiently similar to Amber's testimony and served to corroborate Amber's testimony regarding the abuse, particularly the act of digital penetration. The portions of Lane's testimony that varied from Amber's account at trial affected only the weight of the evidence. Id.

Second, defendant takes issue with the testimony of Tammy Mumford ("Ms. Mumford"), an expert in the area of clinical social work. Ms. Mumford, in relaying Amber's statements to her, testified as follows:

[Defendant] had sex with her and that upon questioning what that meant, she told me that [defendant] had touched her private part and forced her to touch his. That she was forced to put her mouth on his penis and that he put his fingers inside her.

As with Lane's testimony, we hold that Ms. Mumford's testimony served to corroborate Amber's trial testimony. Although Ms. Mumford's testimony provided "new or additional information[,]" her testimony tended to "strengthen" Amber's testimony that she had been sexually abused by defendant. State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001); see also State v. Horton, 200 N.C.App. 74, 682 S.E.2d 754, 759 (2009) (holding that child abuse counselor's testimony that child told her that, among other things, the defendant tickled her and gave her cigarettes did not constitute inadmissible hearsay).

We note that the jury was instructed as to the proper method of evaluating prior out-of-court statements by a testifying witness. The trial court stated:

When evidence has been received tending to show that at an earlier time a witness made a statement which may be consistent with or may conflict with the witness' testimony at this trial, you must not consider such earlier statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made and that it was consistent with or does conflict with the testimony of the witness at this trial, then you may consider this

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