State v. Tysinger

853 S.E.2d 189

STATE of North Carolina

v.Marvin Lee TYSINGER, Defendant.

No. COA19-6

Court of Appeals of North Carolina.

Filed: December 15, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Sherri Horner Lawrence, for the State.

Glover and Petersen, P.A., Chapel Hill, by Ann B. Petersen, for defendant-appellant.

STROUD, Judge.

Marvin Lee Tysinger (Defendant) appeals judgments convicting him of multiple sexual offenses against a child. We conclude there was no error.

I. BACKGROUND

In 2012, Davidson County DSS began an investigation into the homelife of approximately ten-year-old Isabel¹ following reports of her acting out sexually with other children. Isabel was living with her mother, in her grandparents’ home. Isabel's mother had been sexually abused by Isabel's grandfather as a child as well as in her adult life. Her physical examination raised some concerns but did not show any clear physical evidence of sexual abuse, but due to the overall health concerns of the living environment, Isabel and her brother were placed outside the grandparents’ home into a nearby friends’ home.

In 2014, Davidson County DSS discovered Isabel and her brother had been sleeping in the bed with their grandfather. During a second physical examination, the doctor discovered changes consistent with penetrating trauma and suspected Isabel had been sexually abused. Isabel admitted to DSS she had been sexually abused by Marvin Tysinger (Defendant). Isabel stated her mother had taken her to Defendant's home and allowed him to touch her inappropriately in exchange for drugs. This abuse occurred on two occasions: first, sometime between 23 January 2011 and 22 January 2012 when Isabel was ten, and second, in September 2014, when she was thirteen.

For the first alleged incident of abuse, Defendant was charged with: (1) rape of a child by adult; (2) sexual offense with a child by an adult; and (3) indecent liberties with a child. For the second alleged incident of abuse, Defendant was charged with: (1) statutory rape of a thirteen to fifteen year-old; (2) statutory sexual offense with a thirteen to fifteen year old; and (3) indecent liberties with a child.

At trial, Isabel's mother testified she had been using drugs and got them from Defendant. She testified she paid for the drugs by doing household chores, having sex with Defendant, and bringing Isabel to Defendant to have sex with him. Isabel's mother further testified that she had initially lied to the DSS during its investigation of Isabel's sexual abuse to protect both Defendant and herself, but she later admitted her knowledge of what Defendant had done. She also testified she had been charged with felony child abuse and pled guilty to attempted felony child abuse in exchange for her truthful testimony at Defendant's trial.

On cross-examination of Isabel's mother, Defendant's attorney questioned her extensively regarding her plea deal. After she was asked if she "actually plead guilty," she answered, "No[,]" and the State objected and asked to be heard. The trial court excused the jury, and then heard the State's objection to further questioning regarding "new aspects of the terms of the guilty plea[,]" specifically that Isabel's mother entered an Alford plea.² The State argued that the aspects of the plea related to the meaning of an Alford plea are not relevant and will be confusing to the jury. The trial court heard the arguments of both sides and excluded the evidence, finding "that it is not relevant to this testimony. Rather I would find it wouldn't survive the balancing test. I think the nuances of what an Alford plea is, why someone would do that, as far as all that detail, I would sustain that objection." Shortly thereafter, the trial court clarified that the "sustaining of the objection is two part. First, I don't find it's relevant. And, second, to the extent it is relevant, I find it does not survive the [Rule 403] balancing test."

Defendant was found guilty on all six charges, with the trial court combining the six verdicts into four judgments: (1) rape of a child; (2) felony statutory rape of a person 13-15 years old; (3) consolidation of statutory sexual offense with a person 13-15 years old and indecent liberties with a child, and (4) consolidation of sexual offense with a child with indecent liberties with a child. Defendant was sentenced to an active sentence of 300 to 420 months for each judgment, with the four sentences to run consecutively.

Following the guilty verdicts, the trial court asked, "does anybody wish to be heard further on [sex offender registration and satellite-based monitoring]?" The State responded, "No, other than the premarked findings I believe the Court should find[;]" and Defendant neither objected nor commented on sex offender registration or satellite-based monitoring at any point in the proceedings. Defendant was ordered to enroll in the sex offender registry and submit to SBM for life without a hearing. Following Defendant's sentencing, he gave oral notice of appeal in open court from the judgments. Defendant has also filed a Petition for Writ of Certiorari asking this Court to consider the SBM order.

II. ANALYSIS

A. Criminal Judgments

Defendant first contends "the trial court erred by sustaining the State's objection to evidence that ... [Isabel's] mother, would not admit guilt when she entered her guilty plea." (Original in all caps.) Isabel's mother testified on direct examination regarding the plea deal, and defendant's counsel extensively cross-examined her:

Q. And you and Mr. Taylor talked about you pled guilty to an attempted felony child abuse, right?

A. Yeah.

Q. When you came before the Court you had counsel, right, an attorney?

A. Yes.

Q. Who helped you with the case and talked to you all about the nature of the charges against you, right?

A. Yes.

Q. And you were aware of the prison time exposure on that charge, right?

A. Yes.

Q. Thank you. And when you pled guilty to the attempted child abuse that was part of a plea deal, wasn't it?

A. Yes.

Q. ... The original charge was not attempted felony child abuse, right, it was just felony child abuse, correct?

A. Correct.

Q. And under our laws that was a Class D felony, does that sound right, it was a higher level felony?

A. Yes.

....

Q. The charge you pled guilty to was different from the original charge in that it was a lower level offense, right?

A. Yes.

Q. You were aware that if convicted of the original charge, the minimum exposure even for a first time offender would have been no less than 38 months or three years in prison, right?

A. Yes.

Q. But pleading to the reduced charge you knew limited your exposure on a lower level felony where a sympathetic judge could give you as little as 15 months in terms of punishment, right?

A. Yes.

Q. So it greatly reduced by more than a year the time of exposure you were facing, right?

A. Yeah.

Q. And you knew that if you were convicted of the original charge that it was mandatory prison time, right?

A. Yes.

Q. And you knew that when you pled down to the lower charge there was an opportunity for a nonprison sentence or probation, right?

A. Right.

Q. So you got that benefit in exchange for your plea, right?

A. Yes.

Q. ... You are still awaiting sentencing on that case with an understanding there is no guarantees from the DA's office, the sentencing is totally at the discretion of the sentencing judge later, right?

A. Right.

Q. The only strings attached with your plea arrangement were that you had to testify truthfully and consistently with your previous statements and your affidavit today, right?

A. Yes.

Q. If you don't do that they can pull this deal and it's voidable, right?

A. Yes.

Q. So in that sense you have an extra motivation to stick to your story, right?

A. Yes.

Q. When you went in front of the judge in this case September 14th of last year, you didn't actually plead guilty, did you?

A. No.

At this point, as noted in the Background, the State objected. After hearing from both parties, the trial court sustained the State's objection on the basis of Rules of Evidence 401 and 403. When the jury returned, the trial court gave the following instruction:

There is evidence which tends to show that a witness testified or is testifying under an agreement with the prosecutor for a charge reduction in exchange for testimony. If you find that the witness testified for this reason in whole or in part, you should examine this testimony with great care and caution. If, after doing so, you believe the testimony in whole or in part, you will treat what you believe the same as any other believable evidence.

1. Offer of Proof

Before we consider Defendant's issue, we note that the State contends Defendant failed to make an offer of proof to preserve appellate review.

This Court has previously held that to prevail on a contention that evidence was improperly excluded, either a defendant must make an offer of proof as to what the evidence would have shown or the relevance and content of the answer must be obvious from the context of the questioning. Further,

this Court has explained that the reason for such a rule is that the essential content or substance of the witness’ testimony must be shown before we can ascertain whether prejudicial error occurred. In the absence of an adequate offer of proof, we can only speculate as to what the witness’ answer would have been.

State v. McCravey , 203 N.C. App. 627, 635-36, 692 S.E.2d 409, 417 (2010) (citations, quotation marks, and brackets omitted).

While it is correct that Defendant did not question Isabel's mother on voir dire , her plea transcript is part of the record on appeal and marked as "DEFENDANT'S EXHIBIT POST VERDICT 1[.]" Even assuming that Defendant did not admit the plea transcript at the time of the trial court's ruling on the evidence, it is in the record and was an exhibit before the trial court, and the State has stipulated and agreed to the settlement of the record.³ Further, given the extensive line of questions and answers on...