STATE v. DOCKERY

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Court of Appeals of North Carolina.

STATE of North Carolina v. Doyle Hoyle DOCKERY, Defendant.

No. COA11–961.

Decided: March 20, 2012

Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. C. Gary Triggs, P.A., by C. Gary Triggs and H. Russell Neighbors, Jr., for defendant-appellant.

Appeal by defendant from judgments entered 8 March 2011 by Judge Laura J. Bridges in McDowell County Superior Court. Heard in the Court of Appeals 7 February 2012.

Defendant Doyle Hoyle Dockery appeals from judgments entered on 8 March 2011 after a jury found him guilty of indecent liberties with a child, first degree sexual offense, and assault on a child under 12. Defendant argues on appeal that: (1) the trial court erred in allowing witnesses to testify concerning prior alleged sexual acts perpetrated by defendant pursuant to Rule 404(b) of the North Carolina Rules of Evidence; (2) the trial court failed to give a proper limiting instruction regarding this 404(b) evidence; (3) the trial court improperly limited defense counsel's cross-examination of the State's witnesses; and (4) the trial court erred in denying defendant's motion to dismiss the charges. After careful review, we find no error in part and vacate and remand in part.

Background

M.T., the alleged victim in this case, was born on 12 February 1998.1 From 2005 to 2007, M.T., her brother, and her father, Michael, lived in a trailer owned by defendant and his wife. In 2007, Michael married his girlfriend and subsequently moved the family to Morganton, North Carolina. M.T. continued to visit the Dockerys on a regular basis.

In 2008, M.T. told her aunt, “Kathy,” that defendant assaulted her on several occasions in October of that year. M.T. reported that the first instance occurred at defendant's house when defendant pulled M.T. onto his lap and spanked her. The second instance occurred when defendant took M.T. into a barn, pulled her pants down, and touched her vaginal area. The third instance occurred in an Ingles parking lot when defendant attempted to unzip M.T.'s pants while simultaneously stimulating himself until he ejaculated.

After M.T. reported the abuse, she was taken to the Gingerbread House and physically examined. M.T. was diagnosed with labial adhesion (redness and irritation of the labia). The nurse reported that this diagnosis is normal in young girls; however, the nurse was unable to examine M.T.'s hymen for trauma due to the labial adhesion.

Defendant was arrested and charged in connection with the sexual assaults on M.T. At trial, “Sally” and “Tammy” were called to testify concerning sexual assaults perpetrated against them by defendant when they were young girls. Additionally, the nurse for another alleged victim, “Amy,” testified that Amy reported that defendant sexually assaulted her. Amy was unable to testify due to a mental disability. Kathy testified at trial that she saw defendant masturbating while watching children swim in his pool. Defendant objected to the testimony of these four woman. The trial court admitted the evidence pursuant to Rule 404(b).

On 8 March 2011, defendant was convicted of the crimes charged. He was sentenced to 16 to 20 months imprisonment for the indecent liberties conviction; 240 to 297 months imprisonment for the first degree sexual offense conviction; and 60 days imprisonment for the assault on a child conviction. Defendant gave oral notice of appeal.

Discussion

I.

First, defendant argues that the trial court erred in allowing Sally, Amy's nurse, Tammy, and Kathy to testify pursuant to Rule 404(b) concerning sexual acts allegedly perpetrated by defendant. Defendant claims that these acts were too remote in time and dissimilar to the acts perpetrated against M.T. We disagree.

“North Carolina courts have been consistently liberal in admitting evidence of similar sex offenses in trials on sexual crime charges.” State v. Jacob, 113 N.C.App. 605, 608, 439 S.E.2d 812, 813 (1994). Rule 404(b) is a

general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). Nevertheless, our courts must bear in mind that

[t]he use of evidence as permitted under Rule 404(b) is guided by two constraints: similarity and temporal proximity. When the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor.

State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), vacated and remanded on other grounds, 494 U.S. 1023, 108 L.Ed.2d 604 (1990). The trial court must examine, under Rule 403, whether the evidence, though probative to some extent, is too remote in time or dissimilar to be admitted. State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). “Whether to exclude evidence [under Rule 403] is a decision within the trial court's discretion.” State v. Al–Bayyinah, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005), cert. denied, 547 U.S. 1076, 164 L.Ed.2d 528 (2006).

Sally, defendant's niece, testified that in the summer of 1979, she visited defendant's home on several occasions. After one such visit, defendant was driving Sally home when he suddenly pulled her onto his lap and told her to steer the car. Sally testified that she began crying and resisting, but defendant forced her to keep steering while he brushed his hands across her breasts, put his hands on her thigh, and pushed against her with his erect penis. Sally claimed that when they arrived at her home, defendant stated: “ ‘Remember what I told you, little girls disappear.’ “ Sally did not tell anyone about the incident until 1996 when she learned that defendant had sexually assaulted her cousin, Amy. Sally was 13 at the time of the alleged assault.

Nurse Lisa Queen testified at trial that defendant's niece Amy, who is mentally disabled, reported in January 1996 that defendant touched her breasts and kissed her in the back of a van. She further stated: “ ‘[H]e put his private thing inside my private thing and it hurt.’ “ The physician indicated in his report that he believed Amy was fondled, but not penetrated. Amy was 24 at the time of the alleged assault.

Tammy, defendant's neighbor, testified that in the summer of 2004 she would frequently swim in defendant's pool with his granddaughter “Kelly.” In July 2004, defendant told Tammy and Kelly that they could not go swimming until they received a spanking. He then pulled each girl onto his lap and gave them “love pats.” Tammy claimed that while she was on defendant's lap, he rubbed her thigh and vaginal area on the outside of her bathing suit. Tammy further testified that in 2005, she and Kelly were passengers in defendant's van and that defendant pulled her onto his lap and ordered her to steer the van. Defendant proceeded to rub Tammy's thigh, stomach, and breasts. Tammy was 13 at the time of these alleged assaults.

Kathy testified that in the summer of 2006, she was swimming in defendant's pool with Kelly and M.T. Kathy claimed that she saw defendant watching them in the pool while masturbating. Kathy was 13 at the time.

First, we will address defendant's claim that these incidents were too remote in time and were therefore not admissible under Rule 404(b). Defendant raised this argument before the trial court. The trial court disagreed and reasoned: “That the gap appeared in the time line when the opportunity was removed, as when [Sally] never returned to defendant's house, when [Amy] was placed in a facility in Morganton, when [Tammy's] parents moved back to Rockingham, and when [Kathy] moved with her mother to Morganton.” The trial court concluded that “the evidence shows intent, opportunity and a continuing plan over a period of 29 years to molest young girls, most of whom were related to him.” We agree with the trial court's reasoning and ultimate determination.

Our Supreme Court has previously stated that

[w]hile a lapse of time between instances of sexual misconduct slowly erodes the commonality between acts and makes the probability of an ongoing plan more tenuous, the continuous execution of similar acts throughout a period of time has the opposite effect. When similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan[.]

State v. Shamsid–Deen, 324 N.C. 437, 445, 379 S.E.2d 842, 847 (1989) (holding that the trial court did not err by admitting the testimony of the victim's sisters who testified that their father had sexually abused them during a 20–year period); State v. Gray, ––– N.C.App. ––––, ––––, 709 S.E.2d 477, 487 (“[W]hen the evidence challenged by a defendant suggests an ongoing and repetitive course of conduct by that defendant, a longer period of time in which the defendant has allegedly been continuing the similar conduct tends to make the evidence more relevant, not less, for proving a common scheme or plan.”), temp. stay allowed, 365 N.C. 205, 707 S.E.2d 635 (2011). Moreover, “[w]hen there is a period of time during which there is no evidence of sexual abuse, the lapse does not require exclusion of the evidence if the defendant did not have access to the victims during the lapse.” State v. Frazier, 121 N.C.App. 1, 11, 464 S.E.2d 490, 495 (1995) (holding that the trial court did not err in admitting the testimony of three victims who claimed they were abused during a 26–year time frame).

Here, defendant's prior bad acts occurred while he had access to the victims over a 29–year period. When he did not have access to a particular victim, the sexual assaults ceased until he gained access to a new victim. We agree with the trial court that the evidence tended to show a common plan or scheme in the mind of defendant to molest young girls with whom he had access and that the evidence was not barred due to the length of time between incidents.

Next, we address defendant's claim that the alleged acts were not sufficiently similar. A prior act or crime is similar if it “tend[s] to support a reasonable inference that the same person committed both the earlier and later acts.” State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). Here, defendant was either related to or had a close personal relationship with the victims; the victims were all 13 at the time of the acts, with the exception of Amy whose mental capacity is that of a child; and defendant gained access to the girls by having them come to his home. Additionally, defendant touched the girls in a similar manner. Both Tammy and M.T. testified that defendant spanked them. According to M.T., Tammy, and Amy, defendant touched their vaginas in some manner. In almost all instances, it appears that defendant touched or viewed the girls while masturbating or rubbing against the girls with his erect penis. In sum, the girls' testimonies revealed a similar manner of abuse that tended to establish that defendant committed the acts perpetrated against M.T. Defendant's argument that the evidence was inadmissible is without merit.

Defendant argues that even if the evidence was sufficiently similar and not too remote in time, the evidence was still unfairly prejudicial under Rule 403. “While all evidence offered against a party involves some prejudicial effect, the fact that evidence is prejudicial does not mean that it is necessarily unfairly prejudicial.” State v. Rainey, 198 N.C.App. 427, 433, 680 S.E .2d 760, 766, disc. review denied, 363 N.C. 661, 686 S.E.2d 903 (2009). The meaning of “unfair prejudice” in the context of Rule 403 is “ ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.’ “ State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986) (quoting Commentary, N.C. Gen.Stat. § 8C–1, Rule 403 (1985)). Defendant has failed to establish that the evidence offered was unfairly prejudicial. Clearly, the evidence was prejudicial to defendant as it showed a long history of sexual abuse against young girls; however, we fail to see how the probative value of this evidence was outweighed by its prejudicial effect, and, consequently, we find no abuse of discretion in the trial court's ruling.

II.

Defendant argues that the trial court erred by failing to give a proper limiting instruction pertaining to the 404(b) evidence and the trial court failed to properly instruct the jury regarding corroboration testimony. We disagree.

“It is the duty of the trial court to instruct the jury on all substantial features of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). “Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo.” State v. Barron, 202 N.C.App. 686, ––––, 690 S.E.2d 22, 29, disc. review denied, 364 N.C. 327, 700 S.E.2d 926 (2010). Defendant did not request a specific instruction in writing with regard to the 404(b) limiting instruction or the final instruction pertaining to corroborative testimony.

Here, after each witness testified about prior bad acts the trial court instructed the jury that the testimony was “received solely for the purpose of showing that there existed in the mind of the defendant a plan, intent, and opportunity, and for no other purpose.” With regard to corroborative evidence, the trial court instructed the jury in accordance with N.C.P.I.—Crim. 105.20. “[T]he preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.” State v. Tyson, 195 N.C.App. 327, 335, 672 S.E.2d 700, 706 (2009). Defendant does not specify in what way these instructions were erroneous, other than to say that they “confused” the jury, nor does he establish how he was prejudiced by the instructions given. Upon review of the trial court's instructions, we hold that the trial court properly instructed the jury regarding the applicable law in this case and that the instructions were not confusing or misleading in any way.

III.

Next, defendant claims that the trial court improperly limited his cross-examination of the witnesses. Defendant cites no relevant case law and merely states that the trial court's actions had a “cumulative prejudicial effect which prevented the Defendant[,] who did not offer evidence[,] from being able to challenge the evidence proffered by the State[.]”

“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” N.C. Gen.Stat. § 8C–1, Rule 611(b) (2009).

The long-standing rule in this jurisdiction is that the scope of cross-examination is largely within the discretion of the trial judge, and his rulings thereon will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination.

State v. Woods, 307 N.C. 213, 220–21, 297 S.E.2d 574, 579 (1982). While defendant references instances in the transcript where the trial court sustained objections by the State, defendant does not set out how his right to cross-examination was limited. In his argument, defendant only points to one specific instance in which he claims he was not permitted to impeach Kathy on cross-examination, though he does not provide a transcript citation. During cross-examination, defendant asked Kathy if she and her friend were texting defendant's grandson “explicit sexual statements.” The State objected and the trial court sustained the objection. We fail to see how this subject matter was relevant to the witness' credibility.2 We hold that defendant's right to cross-examine Kathy was not violated at trial.

IV.

Finally, defendant argues that the trial court erred in denying his motion to dismiss the charges at the close of evidence. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995).

Defendant makes a blanket statement that all charges should have been dismissed; however, defendant only specifically argues that the State failed to prove the element of penetration for purposes of a first degree sexual offense conviction. A sexual act under N.C. Gen.Stat. § 14–27.4 (2009) includes “the penetration, however slight, by any object into the genital or anal opening of another person's body.” DeLeonardo, 315 N.C. at 764, 340 S.E.2d at 353. Here, M .T. testified that defendant put his fingers on the skin of her “private area.” M.T.'s step-grandmother, Joan, testified that M.T. had previously explained to her that defendant “put his hands or one of his hands on her buttocks and moved them forward to the vaginal area to the labia, the lips. He was running his hand back and forth on her.” When asked to clarify whether M.T. had stated that penetration had occurred, Joan testified that M.T. said: “ ‘No, he just touched the outside.’ “ When asked to distinguish between the “vaginal canal” and the labia, Joan stated that it was her understanding that defendant touched “the outside of the vagina, not pushed in.”

It is clear that M.T. did not report that defendant inserted his finger into her vagina. Nevertheless, the State argues there was evidence that penetration of the labia occurred. This Court has held that penetration of the labia region of the vagina is sufficient to satisfy the penetration element for first degree sexual offense, State v. Bellamy, 172 N.C.App. 649, 617 S.E.2d 81 (2005), appeal dismissed and disc. review denied, 360 N.C. 290, 628 S.E.2d 384 (2006); however, the State's evidence in this case failed to show that defendant penetrated the labia. M.T.'s and Joan's testimony tended to establish that defendant touched the outside of M.T.'s vagina, but that no penetration occurred. Based on this testimony, we hold that the State failed to present substantial evidence of vaginal penetration, and, therefore, the trial court erred in denying defendant's motion to dismiss the first degree sexual offense charge. Consequently, we vacate the judgment in this case and remand to the trial court for further proceedings not inconsistent with this opinion.

No error in part; vacated and remanded in part.

Report per Rule 30(e).

FOOTNOTES

1.  The initials of the child are used throughout this opinion to protect the child's identity. We note that defendant's appellate counsel did not comply with Rule 3.1 of the North Carolina Rules of Appellate Procedure, which states in pertinent part: “For appeals filed pursuant to this rule and for extraordinary writs filed in cases to which this rule applies, the identity of involved persons under the age of eighteen at the time of the proceedings in the trial division (covered juveniles) shall be referenced only by the use of initials or pseudonyms in briefs, petitions, and all other filings, and shall be similarly redacted from all documents, exhibits, appendixes, or arguments submitted with such filings.” If the record on appeal contains the name of the juvenile, the record must either be redacted or it must contain a statement that the record is subject to public inspection only by order of the appellate courts so that the record is not made available on the Court's public filing website. Id. Here, appellate counsel stated the victim's full name in the brief and did not redact the victim's name in the record on appeal or provide a notice that the record was not subject to public inspection. We remind attorneys that Rule 3.1 serves a significant purpose—to protect the privacy of juvenile victims—and we caution attorneys that violation of our appellate rules may result in sanctions.

2.  In the background section of his brief, defendant mentions that the trial court limited his ability to cross-examine Kathy during voir dire. Defendant asked Kathy if she had experience with men masturbating and she said that she did. Defense counsel asked her for specific examples. The State objected to that line of questioning and the trial court sustained the objection. Again, we fail to see how defendant's right to impeach the witness or engage in effective cross-examination was hampered.

HUNTER, ROBERT C., Judge.

Judges THIGPEN and McCULLOUGH concur.

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