An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA13-1433 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
Iredell County v. Nos. 08 CRS 59811-15, 59892- 96; 09 CRS 7498-99, 7500; 12 CRS 51941-43 MARSHALL LEE ELLER
Appeal by Defendant from Judgments entered 22 March 2013 by
Judge Joe Crosswhite in Iredell County Superior Court. Heard in
the Court of Appeals 21 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State.
Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
On 12 October 2009, Defendant Marshall Lee Eller was
indicted on sixteen counts of indecent liberties with a child -2- and one count of first-degree sex offense.1
Prior to the trial, the State moved for joinder of all
charges. The trial court granted the motion and found that the
charges constituted a single scheme or plan, noting that the
same attorney represented Defendant on all charges, the facts
surrounding each charge were similar in scheme or plan, joinder
would not impair Defendant’s ability to present a defense, and
the charges were “not so separate in time and place or so
distinct in circumstance as to render their consolidation unjust
or prejudicial to . . . Defendant.” The case came on for trial
on 18 March 2013, and verdicts were rendered on 22 March 2013.
The State’s evidence tended to show the following:
Over the span of twenty-two years, Defendant engaged in
indecent liberties with three children: Defendant’s
stepdaughter, “Mary”; Mary’s childhood friend, “Brenda”; and
Defendant’s stepgranddaughter, “Alison.”2 The incidents involving
Mary took place between 1985 and 1992, beginning when she was
nine years old. The incidents involving Brenda took place
1 Neither the indictment nor the verdict for the charge of first- degree sex offense appears in the record. However, both the record and transcript indicate that Defendant was charged with and found not guilty of this offense. 2 Pseudonyms are used to protect the juveniles’ identities. -3- between August of 1987 and April of 1988, beginning when she was
eleven years old. The incidents involving Alison took place
between 2004 and 2008, beginning when she was eleven years old.
A. Mary (1985 to 1992)
Mary testified to two specific incidents between her and
Defendant as well as a series of reoccurring incidents that took
place from when she was nine years old until she was eighteen.
In addition, Mary testified to two other types of reoccurring
incidents, the first of which took place beginning when she was
ten years old until she was thirteen and the second of which
went on as she grew older. The first specific incident between
Defendant and Mary occurred when Mary was about nine years old.
Defendant took Mary, who lived with Defendant until she was
eighteen, into his bedroom, wrestled with her, lifted her shirt,
and kissed her on the stomach and chest. The second specific
incident occurred when Mary was approximately twelve years old.
Defendant instructed Mary to lie on the floor in his bedroom,
where he rubbed her back and bottom through her nightgown,
reached his hand underneath her underwear, and placed his finger
in her vagina.
The series of reoccurring incidents took place from the
time Mary was ten until she was eighteen. Defendant would -4- regularly instruct her to sit on his lap, raise her shirt,
fondle her, and put his mouth on her breasts for roughly fifteen
minutes at a time. About once a week, Defendant would also place
Mary’s hand “on the outside of his pants at his crotch area”
where she could feel his erect penis. About three times a week,
Defendant would come to Mary’s room at night and, as she lay on
her stomach, lift her nightgown, rub her back, pull down her
underwear slightly, and rub her bottom. During these bedtime
visits, Defendant would also attempt to roll Mary over or put
his hands underneath her in an attempt to touch her breasts.
These visits occurred “pretty often” and would last “[thirty]
minutes to an hour at times.”
The first other reoccurring incident took place when Mary
was between the ages of ten and thirteen. While staying at a
house he owned and rented to his sister, Defendant took Mary for
motorcycle rides and, in a secluded area, “would turn around and
. . . feel [Mary’s] breasts.” Second, as Mary got older,
Defendant “[attempted] to come into the bathroom whenever [Mary]
was in the shower.” Defendant would open the shower curtain,
peek at Mary, and touch her breasts.
Mary testified that “most of the time,” the incidents
occurred in the mobile home that Defendant shared with Mary’s -5- mother. Other times, the incidents occurred when Defendant and
Mary were in a car or in the house Defendant owned and rented to
his sister.
B. Brenda (1987 to 1988)
Brenda came to know Defendant through his stepdaughter,
Mary. The first incident between Defendant and Brenda occurred
when Defendant entered Mary’s room to tuck in both Mary and
Brenda during a sleepover. As Defendant tucked in the two girls,
he “went up [Brenda’s] shirt and [rubbed her] breasts.” He then
put “his hand . . . under [her] panties . . . [and rubbed] the
outside of [her] vagina.”
A second incident occurred in spring 1988 when Defendant
invited Brenda on a motorcycle ride with him. Defendant stopped
his motorcycle in the woods and “took his hand and put it on
[Brenda’s] . . . vagina outside of [her] clothes and started
rubbing [her].”
C. Alison (2004 to 2008)
In 1995, Defendant sold his rental property and purchased a
house. In 2004, Defendant installed a pool at that residence. -6- Alison and her family3 spent almost every weekend at Defendant’s
house between 2004 and 2008. Defendant also visited Alison at
her home.
According to Alison, the first incident with Defendant
occurred in August of 2004 when Alison was about eleven years
old. In his garage, Defendant “put his hands up [Alison’s] skirt
on the outside of [her] panties, and [Defendant] rubbed [her]
butt.”
A second incident occurred when Alison was about twelve.
Defendant gave her a piggyback ride in the pool at his
residence. During the piggyback ride, Defendant rubbed and
squeezed Alison’s buttocks and thighs. He then “told [her] that
he was sorry that he made [her] feel uncomfortable and that if
he ever made [her] feel uncomfortable again that [she] should
tell [Defendant], and he wouldn’t do it anymore.”
A third incident occurred in 2008 when Alison was about
fifteen. Defendant and Alison were alone in Defendant’s basement
when he “put his hand on [her] thigh and was rubbing it and then
moved [his hand] down towards [her] vagina” and touched Alison’s
vagina through her clothing.
Although Alison did not cite specific dates, she testified
3 Alison’s father, Michael, is Mary’s brother. -7- to two additional incidents involving Defendant. First, she
testified that Defendant visited her and her brother at her
home. After sending Alison’s brother to take a shower, Defendant
approached Alison and rubbed and squeezed her breasts through
her shirt as she sat at her computer. Second, after Defendant’s
wife went to bed, Defendant attempted to kiss Alison on the
mouth.
Alison also testified to reoccurring incidents of
misconduct. “There were several times that [Alison] would be in
the basement, and [Defendant] would come down and just rub [her]
on the butt from behind, and he would take [her] hands and put
them on his penis.” Additionally, “[a] few times in the car,
[Defendant] would . . . rub [Alison’s] leg while he was
driving.” Besides these few times in the car, the touching
occurred “[n]owhere else besides [Alison’s and Defendant’s]
houses.”
At the close of the State’s evidence, Defendant moved to
dismiss the charges against him. The trial court denied the
motion. Thereafter, Defendant testified, denied all the
allegations, and again moved to dismiss the charges. Again, the
trial court denied the motion.
The jury returned guilty verdicts on sixteen counts of -8- indecent liberties with a child. The jury found Defendant not
guilty on one count of first-degree sex offense. Defendant gave
notice of appeal in open court.
Discussion
On appeal, Defendant contends the trial court erred by (1)
joining the charges arising from the incidents occurring between
1985 and 1992 with those arising from the incidents occurring
between 2004 and 2008 and (2) denying Defendant’s motion to
dismiss one of the three charges of indecent liberties with
Brenda. We hold that the trial court committed harmless error in
joining all the charges for trial. We vacate one of the three
convictions of indecent liberties with Brenda and remand for
resentencing.
I. Joinder of Charges
A. Transactional Relationship
As noted above, the trial court joined the 1985–1992
charges with the 2004–2008 charges on the grounds that “the
transactions are connected together and . . . constitute a
single scheme or plan.”
On appeal, Defendant argues that joinder of all the charges
was improper. According to Defendant, the fact that all the
charges may have been committed “under the same general modus -9- operandi is not enough to supply the required transactional
connection [and, therefore, is] not enough to make [the charges]
a series of connected acts which constitute a single plan or
scheme.” Defendant further argues that “sexually abus[ing]
adolescent girls that were in . . . [D]efendant’s home or to
whom [Defendant] had access” does not constitute a common scheme
or plan. In addition, Defendant points out that the twelve years
separating the 2004–2008 charges from the 1985–1992 charges is a
far greater gap in time than in previous cases where this Court
has found joinder of charges to be proper.
When determining whether offenses should be joined for
trial, N.C. Gen. Stat. § 15A-926(a) “requires a two-step
analysis: (1) a determination of whether the offenses have a
transactional connection, and (2) if there is such a connection,
consideration then must be given as to whether the accused can
receive a fair hearing on more than one charge at the same
trial.” State v. Perry, 142 N.C. App. 177, 180-81, 541 S.E.2d
746, 748–49 (2001) (citation and internal quotation marks
omitted). “The [legal] determination of whether a group of
offenses are [sic] transactionally related so that they may be
joined for trial is a question of law fully reviewable on
appeal.” State v. Guarascio, 205 N.C. App. 548, 553, 696 S.E.2d -10- 704, 709 (2010) (citation and internal quotation marks omitted).
However, the decision regarding whether to join offenses
pursuant to that relationship is within the sound discretion of
the trial court. State v. Miller, 61 N.C. App. 1, 5, 300 S.E.2d
431, 435 (1983) (citations omitted). Therefore, the
determination of whether the offenses have a transactional
connection is reviewed de novo, and the determination of whether
the defendant can receive a fear hearing if the offenses are
joined is reviewed for abuse of discretion. See Perry, 142 N.C.
App. at 180-81, 541 S.E.2d at 748–49.
Joinder of charges in a criminal case is proper when the
charges are “based on the same act or transaction or on a series
of acts or transactions connected together or constituting parts
of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a)
(2013). Joinder is improper when “the offenses are so separate
in time and place and so distinct in circumstances as to render
consolidation unjust and prejudicial [to the defendant].” State
v. Chandler, 324 N.C. 172, 188, 376 S.E.2d 728, 738 (1989)
(citation and internal quotation marks omitted). “[O]ffenses
that are committed on separate dates cannot be joined for trial,
even when they are of like character, unless the circumstances
of each offense are so distinctly similar that they serve almost -11- as a fingerprint.” State v. Williams, 74 N.C. App. 695, 697, 329
S.E.2d 705, 707 (1985).
This Court has allowed joinder of charges involving the
sexual abuse of minors when that abuse was separated by five
months. State v. Street, 45 N.C. App. 1, 5-6, 262 S.E.2d 365,
368 (1980) (“[W]e think that even though the time period [of
five months] between some of the acts was substantial, the acts
were nonetheless so similar in circumstance and place as not to
render the [joinder] of the offenses prejudicial to the
defendant.”). We have declined, however, to join charges
involving the sexual abuse of minors when that abuse was
separated by as many as seven years. See generally State v.
Bowen, 139 N.C. App. 18, 29, 533 S.E.2d 248, 255 (2000) (holding
that the seven years between offenses and the non-uniform nature
of the individual acts meant that the defendant did not have a
single scheme or plan); State v. Owens, 135 N.C. App. 456, 459–
60, 520 S.E.2d 590, 593 (1999) (“[I]n light of (1) the extended
interval of as much as [seven] years between some of these
offenses and (2) the lack of a consistent pattern in [the]
defendant’s molesting behavior, we hold that . . . all of the
charged acts did not constitute part of a single scheme[.]”).
In Owens, this Court determined that certain sex-based -12- offenses separated by at least one year and at most seven years
were not transactionally related. Id. According to the Court,
the following actions were not sufficiently uniform: “[s]ome
molestations took place when [the defendant] was alone in the
house with a single child. On other occasions, he would isolate
a child in his bedroom while others were in the house. [The
d]efendant twice took indecent liberties while all three girls
were present.” Id. Due to the separation of time and the lack of
uniformity in the defendant’s conduct, this Court concluded that
joinder was improper. See id.
In Bowen, this Court was unwilling to permit joinder of
charges of alleged sexual crimes against children when the
charges occurred over twelve years, were separated by a maximum
of seven years, involved three different victims, and the
individual acts were of differing natures. Bowen, 139 N.C. App.
at 30, 533 S.E.2d at 255. There, the first victim testified that
in May of 1996, the defendant forced her onto a bed, pinned her
down, and inserted his fingers into her vagina. Id. at 21, 533
S.E.2d at 250. She also testified that the defendant “had
inappropriately touched her on a regular basis.” Id. at 21, 533
S.E.2d at 250–51. The second victim testified that “in the
summer of 1996, [the] defendant forcibly touched her private -13- parts[.]” Id. The third victim, nineteen years old at the time
of trial, testified that the defendant had abused her since she
was a young child, including forcing her to perform oral sex on
the defendant multiple times. Id. at 21, 533 S.E.2d at 251.
By contrast, in Street, this Court found joinder of alleged
sexual crimes involving three victims to be proper when the
incidents were separated by five months. 45 N.C. App. at 6, 262
S.E.2d at 368. There, each alleged incident “occurred at the
same place and under the same circumstances.” Id. at 5-6, 262
S.E.2d at 368. In that case, the victims were siblings; all the
incidents occurred for a long period of time; every time the
defendant was given access, he abused his stepchildren; and, in
each incident, the defendant used his authority as a parent to
coerce his victims. Id. at 6, 262 S.E.2d at 368.
Here, the offenses concerning Alison took place, at a
minimum, twelve years after the offenses concerning Mary and
Brenda. In addition, the incidents involving Alison were not
sufficiently similar to the incidents involving Mary and Brenda.
Alison testified that she was abused in Defendant’s home, in her
home, and in Defendant’s car. Defendant gained access to Alison
through family gatherings and his relationship with Alison’s
brother. In contrast, Mary testified that the abuse occurred on -14- a motorcycle, in her bedroom in Defendant’s house, in
Defendant’s bedroom, and in Defendant’s bathroom when Mary would
shower. Notably, Defendant would often visit Mary in her bedroom
at night. Defendant had access to Mary because she lived in his
home whereas Alison never lived with Defendant. Brenda’s abuse
occurred in Mary’s bedroom and on a motorcycle. Because
Defendant’s access to Mary was of a different character than his
access to Alison, the crimes against Mary and Alison are no more
uniform than the conduct in Owens. See 135 N.C. App. at 459-60,
520 S.E.2d at 593. As in Owens, the incidents in this case took
place in a number of different ways and places. Defendant would
isolate Alison by instructing her brother to take a shower,
leaving Defendant alone with his victim; he would molest his
victims when he was alone in the victim’s house; he would molest
his victims when the victim was alone in Defendant’s house; and,
once, he took indecent liberties with two victims while both
were present. Moreover, the abuse occurred on a motorcycle, in
several bedrooms, in a pool, and in a basement.
“North Carolina appellate courts have been willing to find
a transactional connection in cases involving sexual abuse of
children.” Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255
(citation and internal quotation marks omitted). However, we are -15- not aware of any cases allowing joinder of offenses separated by
a period of time longer than two years. See, e.g., State v.
Estes, 99 N.C. App 312, 317, 393 S.E.2d 158, 161 (1990). Here,
the incidents involving Alison took place twelve years after the
incidents involving Mary and Brenda. The State cites Street, 45
N.C. App. at 1, 262 S.E.2d at 365, to support its position that
the time between the 1985–1992 charges and the 2004–2008 charges
is not too long to make joinder improper. That case, however,
held only that incidents occurring “at the same place and under
the same circumstances,” five months apart, may be joined.
Street, 45 N.C. App. at 5–6, 262 S.E.2d at 368. Street is not
controlling where the charges are separated by twelve years, as
here. Therefore, because the incidents are separated by twelve
years and the conduct is no more uniform than the conduct in
Owens, we hold that the trial court erred in determining that
the abuse concerning Alison from 2004 to 2008 was so
transactionally linked to the abuse concerning Brenda and Mary
from 1985 to 1992 that joinder of all the charges was proper.
B. Unfair Prejudice
Even though the charges were improperly joined, Defendant
does not articulate any meaningful prejudice resulting from that
joinder, nor do we perceive any. On appeal, Defendant merely -16- asserts that “joinder would prejudice . . . [his] ability to
receive a fair trial.” At trial, Defendant argued that joinder
was improper because “any arguments made by the [d]efense would
be clouded by these other allegations . . . hanging over
[Defendant’s] head.” We note, however, that “evidence of other
molestations would have been admissible pursuant to . . . Rule
404(b) [of the North Carolina Rules of Evidence] to show intent,
plan, or design” even if the charges had not been joined. See
Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255 (“[S]hould the
trial court allow joinder, and on appeal that joinder be deemed
error, this Court should review any resulting prejudice with
reference to Rule 404(b).”) (citation and internal quotation
marks omitted).
Under Rule 404(b), intent, plan, or design may be
established using a “lower threshold of proof than that needed
to establish the ‘series of acts or transactions connected
together or constituting parts of a single scheme or plan,’
which must be shown for joinder of offenses for trial under
section 15A-926(a).” Id. “The very terms used in section 15A-
926(a) requiring a ‘single scheme or plan,’ are more exacting
than the term ‘plan’ used in Rule 404(b).” Owens, 135 N.C. App.
at 460, 520 S.E.2d at 593. Therefore, even if joinder is -17- improper, additional victims may still testify about similar
incidents under Rule 404(b). As a result, the jury would still
be aware of the existence of allegations from multiple victims
and give that fact weight in their deliberations. See N.C. Gen.
Stat. § 8C-1, Rule 404(b) (2013).
In a criminal case, evidence of other crimes, wrongs, or
acts is admissible under Rule 404(b) as long as it is relevant
for some purpose other than to show that the defendant has a
propensity for the type of conduct for which he is being tried
and as long as it is not too remote. See, e.g., State v.
Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (holding
that prior acts of sexual abuse alleged to have occurred over a
time period of seven to twenty-seven years before trial were
admissible to show a common plan or scheme); State v.
DeLeonardo, 315 N.C. 762, 771, 340 S.E.2d 350, 357 (1986)
(holding that testimony of the defendant’s three-year-old
daughter regarding his sexual conduct toward her was admissible
to establish a common plan or scheme in the defendant’s trial
for molesting his two sons); State v. Goforth, 59 N.C. App. 504,
506, 297 S.E.2d 128, 129 (1982) (affirming the trial court’s
admission of two sisters’ testimony regarding the defendant’s
sexual abuse to show a pattern of conduct in the defendant’s -18- trial for sexual abuse of his stepdaughter), reversed on other
grounds, 307 N.C. 699, 307 S.E.2d 162 (1983).
While the admissibility of evidence is not dispositive of
the absence of prejudice, admissibility “may be considered in
determining whether the consolidation [of charges for purposes
of joinder] was unjust and prejudicial to the defendant.” State
v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983). When
examining the prejudicial impact of joining offenses, this Court
“must look to whether [the] defendant was hindered or deprived
of his ability to defend one or more of the charges.” Id. at
389, 307 S.E.2d at 144. Although the trial court erred in
joining the charges in this case, neither the record nor
Defendant’s arguments support the conclusion that Defendant was
prejudicially hindered or deprived of his ability to defend one
or more of the charges. Accordingly, Defendant’s first argument
is overruled.
II. Motion to Dismiss
“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) (citation omitted).
Upon [the] 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 -19- of a lesser offense included therein, and (2) of [the] 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
(citation and internal quotation marks omitted), 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, 192–93, 451 S.E.2d 211, 223 (1994)
(citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d
818 (1995).
On appeal, Defendant argues that the trial court erred in
denying his motion to dismiss one of the charges of indecent
liberties concerning Brenda because “[t]ouching two parts of a
child’s body in the course of a single incident is one crime,
not two.” The State offers no objection and concedes that it “is
unable to distinguish the cases cited by [D]efendant from the
case at bar.” We find Defendant’s argument persuasive. -20- When examining acts prosecuted under the statute governing
the taking of indecent liberties with children under N.C. Gen
Stat. § 14-202.1(a)(1),
our Supreme Court has stated that the evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child for the purpose of arousing or gratifying sexual desire. [The d]efendant’s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
State v. Jones, 172 N.C. App 308, 315, 616 S.E.2d 15, 20 (2005)
(citation and internal quotation marks omitted). “[A]lthough
[N.C. Gen. Stat § 14-202.1] sets out alternative acts that might
establish an element of the offense, a single act can support
only one conviction.” Id.
As Defendant notes in his brief, this case is
indistinguishable from State v. Laney, 178 N.C. App. 337, 631
S.E.2d 522 (2006). There we found that “[the] defendant’s acts
of touching the victim’s breasts and putting his hands inside
the waistband of her pants were part of one transaction that
occurred the night [in question]. The sole act involved was
touching — not two distinct sexual acts.” Id. at 341, 631 S.E.2d
at 524. Here, Defendant was indicted for and convicted of three
acts of indecent liberties against Brenda. However, Brenda’s -21- testimony proved only two occasions on which Defendant touched
her inappropriately. The first occasion occurred when Brenda
spent the night with Mary in her bed. The second occasion
occurred when Defendant took Brenda on a motorcycle ride. The
three indictments concerning indecent liberties against Brenda
lay out no specifics other than a date range, and all three
indictments are identical. Accordingly, we conclude that the
trial court erred in denying the motion to dismiss one of the
three indecent liberties charges concerning Brenda, and we
vacate the corresponding conviction.
Defendant’s three convictions for indecent liberties
against Brenda were consolidated into one judgment. When one
such conviction is vacated, “the better procedure is to remand
for resentencing . . . .” State v. Wortham, 318 N.C. 669, 674,
351 S.E.2d 294, 297 (1987). Accordingly, we remand judgment
number 12 CRS 51941 to the trial court for resentencing
consistent with this opinion.
NO PREJUDICIAL ERROR in part; VACATED AND REMANDED in part.
Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).