State v. Brice

357 S.E.2d 353, 320 N.C. 119, 1987 N.C. LEXIS 2158
CourtSupreme Court of North Carolina
DecidedJuly 7, 1987
DocketNo. 523A86
StatusPublished
Cited by2 cases

This text of 357 S.E.2d 353 (State v. Brice) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brice, 357 S.E.2d 353, 320 N.C. 119, 1987 N.C. LEXIS 2158 (N.C. 1987).

Opinion

MITCHELL, Justice.

The defendant presents various assignments of error. These include several contentions that the prosecutor improperly asked leading questions of the victim and another witness. Another contention is that the prosecutor assumed facts not in evidence in one question to the victim. Also, the defendant asserts that the trial court should have granted his motion to dismiss all charges for insufficient evidence. Finally, the defendant argues that the trial court should have sustained his objection to a statement made in the prosecutor’s closing argument because it was incompetent, prejudicial and an assertion of opinion. We find no merit in any of these assignments of error.

The State’s evidence tended to show that the eight-year-old victim lived with her aunt and grandfather, whom she refers to as “Tune,” until November 1985. Her mother occasionally stayed with them. The victim said that on Halloween — Thursday, 31 October 1985 — she was alone with her grandfather, the defendant Lawrence T. Brice. He entered her bedroom and touched her between the legs when her panties were off. He hurt her “inside” with his finger and threatened to hit her with a shoe if she told anyone. She had blood in her underwear later.

A social worker gave corroborative testimony that the victim had réported the defendant had “messed” with her previously by sitting on one of her legs to hold her down and placing his index finger “in her private area.” The defendant had hit the victim in the face with a “flip-flop” (rubber shoe) before, and her nose had bled.

On 4 November 1985, the victim showed signs of an object having entered her vagina. She had blood tinged mucus at her vaginal opening, redness around her hymen, pus at the lower end of her hymen, black and blue spots on her hymen, and a laceration of her vaginal lining.

The defendant did not testify, but presented witnesses who said he was extensively involved in raising his granddaughter. Others said that the child’s mother and the defendant had argued and the victim had stated that her mother told her to say the defendant had sexually abused her.

[122]*122The defendant’s first assignment of error concerns the following exchange during the direct examination of the victim by the prosecutor:

Q. And did anything happen to wake you up that evening?
A. Yes.
Q. Could you tell us what happened to you, . . .?
A. (No response.) . . .
Q. That night when you went to sleep and something woke you up, who was in your room? Who was in your bedroom?
[Objection overruled.]
Q. You may answer that, .... When you woke up that night after going to sleep, who was in your room?
[Objection overruled.]
A. Tune.

The defendant contends this question was improper in that it was leading and assumed facts not in evidence. We hold that the trial court did not abuse its discretion by allowing this question. The question was not leading. It was not susceptible to a “yes” or “no” answer, nor did it suggest that the child should identify the defendant as the person in her bedroom. State v. Thompson, 306 N.C. 526, 529, 294 S.E. 2d 314, 316-17 (1982); see also State v. Young, 291 N.C. 562, 570, 231 S.E. 2d 577, 582 (1977) (examiner may direct attention to the matter at hand without suggesting answers). Furthermore, the prosecutor was questioning a child concerning a “delicate” topic. See State v. Higgenbottom, 312 N.C. 760, 767, 324 S.E. 2d 834, 840 (1985); State v. Stanley, 310 N.C. 353, 312 S.E. 2d 482 (1984).

The question, however, did assume facts not in evidence, since at that point in the trial there was no evidence that anyone had entered the victim’s bedroom. The victim was the State’s first witness, and she had only testified as to her age, residence, and other matters unrelated to the challenged evidence. Nonetheless, the question did not exceed the bounds of permissible direct examination, given the age of the witness and the subject matter [123]*123of her anticipated testimony. The trial court properly may depart from the regular order of presentation of evidence so as to make that presentation more effective for the ascertainment of the truth, and will be reversed only for abuse of discretion. State v. Britt, 291 N.C. 528, 231 S.E. 2d 644 (1977); N.C.G.S. § 8C-1, Rule 611(a) (1986). Given the age of the witness and the nature of the inquiry in this case, the trial court did not abuse its discretion. See State v. Lewis, 298 N.C. 771, 259 S.E. 2d 876 (1979); State v. Lyles, 298 N.C. 179, 257 S.E. 2d 410 (1979).

Next, the defendant contends that the trial court should have sustained his objections to two leading questions posed during redirect examination of a Department of Social Services worker who was present during defense counsel’s interview of the victim. The questions at issue are: “And so basically your testimony is that this appears to be an accurate transcript ... of. what was done?” and “You couldn’t say for sure whether this . . . question was asked and this answer was given or not, could you?” Both these questions were leading in that they suggested the answer desired, and were susceptible of a “yes” or “no” response. However, the social worker had already given testimony of similar import without objection during the defendant’s cross-examination of her. The defendant, therefore, was not prejudiced and has shown no abuse of the trial court’s discretionary power to allow leading questions. State v. Manuel, 291 N.C. 705, 231 S.E. 2d 588 (1977); N.C.G.S. § 8C-1, Rule 611(c) (1986). The contention is without merit.

The defendant further contends that the trial court erred by denying his motion to dismiss for insufficient evidence at the close of all of the evidence. We disagree. Taking the evidence in the light most favorable to it, the State introduced substantial evidence of each element of the crimes charged, and that the defendant was the perpetrator. See N.C.G.S. § 14-27.4(a) (1986) (first degree sexual offense); § 14-202.1 (1986) (indecent liberties with a child). No more was required to withstand the motion to dismiss. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980).

The defendant also contends that the evidence was insufficient because the victim was unable to testify on her own, without leading questions, concerning the offenses charged. Be this as it may, the victim did testify to each element of the charged of[124]*124fenses. She testified that her grandfather touched her with his finger between her legs and hurt her “inside.” Even if the victim’s testimony had been improperly admitted, that fact would not have entitled the defendant to have his motion to dismiss allowed. In reviewing the denial of such a motion to dismiss, we must consider all the evidence of record, both competent and incompetent. State v. Brown, 310 N.C. 563, 313 S.E. 2d 585 (1984).

Finally, the defendant assigns as error the trial court’s failure to sustain his objection to the following portion of the prosecutor’s closing argument:

And then I brought in Officer Anton just to show you that it was the early morning hours of Thursday, the 31st, instead of what Miss Bryant was testifying under oath to.

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Related

Matter of Stradford
460 S.E.2d 173 (Court of Appeals of North Carolina, 1995)

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Bluebook (online)
357 S.E.2d 353, 320 N.C. 119, 1987 N.C. LEXIS 2158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brice-nc-1987.