An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.
NO. COA13-230 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA Transylvania County v. Nos. 10 CRS 925 10 CRS 51997 ROY DENNING HUDSON, 10 CRS 51999 Defendant. 10 CRS 52000-01 10 CRS 52003-08 10 CRS 52010
Appeal by defendant from judgments entered 30 August 2012
by Judge Mark E. Powell in Transylvania County Superior Court.
Heard in the Court of Appeals 9 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General Natalie Whiteman Bacon, for the State.
Mark Montgomery for defendant-appellant.
GEER, Judge.
Defendant Roy Denning Hudson appeals from his convictions
of two counts of first degree sex offense with a child and 10
counts of indecent liberties with a child. On appeal, defendant
primarily argues that the trial court erred by failing to
intervene ex mero motu during the prosecutor's closing argument -2- when, defendant contends, the prosecutor expressed a personal
opinion that the alleged victim was telling the truth.
Based upon our review of the closing arguments, we find
that the prosecutor's argument was responsive to defense
counsel's closing argument attacking the alleged victim's
credibility as a witness, asserting that the sex abuse never
occurred, and suggesting the alleged child victim had been
coached to falsely report the abuse. The prosecutor's closing
argument presented the jury with reasons to believe the alleged
victim and then argued, based on those reasons, that the jury
should conclude that the victim was, in fact, telling the truth.
The prosecutor did not express her personal opinion that the
alleged victim was telling the truth, and, therefore, the trial
court was not required to intervene.
Facts
The State's evidence tended to show the following facts.
Defendant and his wife, Judy Hudson, adopted David1 when David
was eight years old. Along with David, defendant and Ms. Hudson
adopted five other children during their eight-year marriage,
including their older, adopted son Anthony and David's younger
1 Pseudonyms are used throughout this opinion in order to protect the identities of minor children and for ease of reading. -3- biological brother, Ricky. In addition, defendant and Ms.
Hudson served as foster parents for roughly 20 to 30 children.
David suffered from mental delays and had been enrolled in
special education classes since first grade. At 15 years old,
he read at a second grade level, and he struggled with the
concepts of numbers and math. He participated in the Special
Olympics.
Beginning at some point when David was 10 to 12 years old,
defendant began to sexually molest David. Defendant would bring
David into defendant's bedroom, lay David down on the bed facing
upward, pull off David's pants and underwear, and place David's
legs up in the air. Defendant would then remove his own pants,
touch David's penis, masturbate, and ejaculate onto David's
buttocks. Defendant would smear his semen around David's
buttocks, and then wipe David clean with a towel. This occurred
roughly 12 or 13 times over a two-year period, all while David
was 10 to 12 years old. On one occasion, David's oldest brother
Anthony was present and told David that he "had to do it to join
the boy's club." Defendant told David that "Anthony had to do
it too." Defendant also forced David to perform fellatio on
defendant five times.
Defendant told David that if David told anybody about the
abuse, defendant would kill David's brother Ricky. David had -4- witnessed Ricky being abused in a prior home placement, and
David had been unable to protect Ricky from that abuse despite
trying to do so. David, similarly, tried to protect Ricky from
defendant by not telling anyone about defendant's abuse.
Defendant and Ms. Hudson very rarely had sex. At some
point during their marriage, defendant told Ms. Hudson he was
not attracted to her, but he admitted that he masturbated on a
daily basis. Defendant and Ms. Hudson separated in March 2009
and, after living briefly with defendant, David lived with Ms.
Hudson. In September 2009, David disclosed to Ms. Hudson that
defendant had "hurt" him and indicated masturbation to Ms.
Hudson. Ms. Hudson reported the abuse and, in September 2010,
David described the abuse to Kenny McAbee, the supervisor for
Child Protective Services of the Transylvania County Department
of Social Services.
On 15 September 2010, David also described the abuse to
Detective Michael Wade Abram of the Transylvania County
Sheriff's Office. Following his interview with David, Detective
Abram gave Anthony his card and asked Anthony to call him, but
Anthony never did. Prior to defendant's arrest, Detective Abram
called defendant and left a message, but defendant did not
return the detective's call. -5- On 21 September 2010, David described defendant's abuse to
Christine Nicholson, a social worker with the Child Medical
Evaluation program at Mission Children's Specialist in
Asheville, North Carolina. David began seeing Polly Penland, a
clinical social worker and child therapist, for treatment in
October 2010. David described defendant's abuse to Ms. Penland
and, during treatment, David exhibited symptoms consistent with
children who have been sexually abused. Ms. Penland diagnosed
David with post-traumatic stress disorder and treated him using
trauma-focused cognitive behavior therapy.
On 15 November 2010, defendant was indicted for two counts
of first degree sex offense with a child and 11 counts of
indecent liberties with a child. Defendant testified in his own
defense and denied engaging in any inappropriate sexual conduct.
According to defendant, he has been unable to obtain an erection
since having surgery in 2005. Defendant testified he worked
long hours and was never alone with David in the house.
Defendant believed that either Ms. Hudson or David's birth
mother had directed David to falsely report the abuse.
Defendant also presented the testimony of his son Anthony,
who denied ever witnessing defendant abuse David and testified
that defendant was a loving and supportive father. Anthony was
22 years old and lived with defendant at the time of trial. -6- Defendant's biological daughter Sally, who lived in the house
with David prior to defendant's and Ms. Hudson's separation,
testified that she could not remember a time that David was ever
alone with defendant at that house and that she had a good
relationship with defendant. Sally continued living with
defendant until a year or two prior to trial, at which point she
moved in with her biological mother because she was unsure how
defendant's trial would go.
Krissy Johnson, an investigator and assessor for the
Harnett County Department of Social Services, testified for the
defense that she made an unannounced visit to defendant's new
home in Harnett County on 10 September 2010, interviewed
defendant, Anthony, Sally, Ricky, and several of defendant's
family members who were visiting the home, and determined there
was no reason to remove any children from the home. The
children all reported being happy living with defendant.
Judy Jennings, the pastor of defendant's church in
Transylvania County, testified that defendant had been very
involved in the church, had served as the children's church
director for four or five years, and had performed background
checks on people who wanted to be involved with the children's
ministry. Ms. Jennings trusted defendant and had never received -7- any complaints about him. She thought defendant was a "great"
parent.
The jury found defendant guilty of all the charges. The
trial court arrested judgment on one count of indecent liberties
with a child. The court sentenced defendant to two concurrent
presumptive-range sentences of 192 to 240 months for the two
counts of first degree sex offense with a child. These
concurrent sentences were followed by three consecutive
presumptive-range sentences of 16 to 20 months imprisonment for
the indecent liberties with a child convictions.2 Defendant
timely appealed to this Court.
I
Defendant first argues that the trial court erred in
allowing the State to present rebuttal evidence of David's
character for truthfulness. Rule 608(a) of the North Carolina
Rules of Evidence provides: "The credibility of a witness may be
attacked or supported by evidence in the form of reputation or
opinion as provided in Rule 405(a), but subject to these
limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness 2 Eight of the indecent liberties convictions were consolidated into a single judgment, while the court entered two separate judgments for each of the two remaining indecent liberties convictions. -8- for truthfulness has been attacked by opinion or reputation
evidence or otherwise."
Following the close of defendant's evidence, the State
disclosed its intention to call a witness to testify regarding
David's character for truthfulness. Defendant objected, arguing
that David's character had not been called into question at
trial. The trial court overruled defendant's objection,
reasoning that "evidence ha[d] been presented that might tend to
show from at least one viewpoint that what [David] said [wa]s
not true" and that constituted an "indirect attack on his
credibility."
The State then called Charles "Mack" McKeller, David's
Special Olympics soccer coach, who testified as follows:
Q. And what is your opinion about [David's] characteristic for being truthful?
A. My opinion is he is extremely truthful. He is -- he is not one to make things up if --
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Move to strike.
THE COURT: Motion is allowed.
A. He is one who will ignore the question rather than say something that might not be true. -9- [DEFENSE COUNSEL]: Objection. Move to strike.
THE COURT: Overruled.
Q. And he has been reliable that way?
A. Very reliable that way.
Defendant argues that the trial court erred in allowing Mr.
McKeller to testify to David's character for truthfulness
because David's character for truthfulness "was never 'attacked'
within the meaning of" Rule 608(a). As an initial matter, the
State contends that defendant's argument is not preserved for
appeal since defendant failed to object to Mr. McKeller's
testimony that David had been "[v]ery reliable that way."
However, defendant's objection outside the presence of the jury
on this matter, along with defendant's objections to the two
immediately preceding questions during direct examination of Mr.
McKeller, was sufficient to preserve his argument for appeal.
See State v. Lawson, 173 N.C. App. 270, 275, 619 S.E.2d 410, 413
(2005) (when defendant objected to two of three of State's
questions prior to question eliciting challenged testimony,
holding "defendant's pattern of objections to the hearsay
testimony constituted a continuing objection to the line of
questioning and therefore all of the hearsay testimony may be
considered on appeal, although only part of the testimony was
objected to at trial"). -10- This Court has explained that a witness' character for
truthfulness is sufficiently attacked for purposes of Rule
608(a) when the opposing party introduces evidence contrary to
the witness' testimony. State v. Marecek, 152 N.C. App. 479,
506, 568 S.E.2d 237, 255 (2002) (holding that witness' character
for truth was attacked for purposes of Rule 608(a) when witness
did not testify but his pretrial statement was admitted into
evidence and opposing party introduced evidence contrary to
witness' statement).
In this case, defendant testified and expressly denied
engaging in any inappropriate sexual conduct with David.
Anthony, the brother who David testified was present during one
instance of abuse, testified for the defense that the alleged
incident never occurred. Sally, defendant's daughter, testified
for the defense that she could not recall David and defendant
ever having been alone in the house together. Accordingly,
defendant's evidence contradicted David's testimony, and the
trial court properly ruled that the State was permitted to
introduce, on rebuttal, evidence of David's character for
truthfulness.
Defendant further argues that the trial court erred in
admitting the testimony because the substance of Mr. McKeller's
testimony -- that David "is one who will ignore the question -11- rather than say something that might not be true" -- constituted
evidence of specific instances of David's truthfulness since it
concerned "how [David] did or might act when asked to lie." We
disagree with defendant's characterization of the testimony.
Mr. McKeller did not provide evidence of any specific prior
incident involving David's truthfulness, but rather the
testimony expressed Mr. McKeller's opinion that David generally
either tells the truth or does not respond to questions at all.
We, therefore, hold the trial court did not err in admitting the
challenged evidence.
II
Defendant next argues that the trial court erred in failing
to intervene ex mero motu in response to various portions of the
State's closing argument. "'The standard of review for
assessing alleged improper closing arguments that fail to
provoke timely objection from opposing counsel is whether the
remarks were so grossly improper that the trial court committed
reversible error by failing to intervene ex mero motu.'" State
v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008)
(quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329,
338 (2006)). "'Under this standard, only an extreme impropriety
on the part of the prosecutor will compel this Court to hold
that the trial judge abused his discretion in not recognizing -12- and correcting ex mero motu an argument that defense counsel
apparently did not believe was prejudicial when originally
spoken.'" Id. (quoting State v. Anthony, 354 N.C. 372, 427, 555
S.E.2d 557, 592 (2001)).
Defendant first contends that the prosecutor expressed her
personal opinion that David was telling the truth and that
defendant was guilty when the prosecutor argued:
[Child molesters] are everywhere. It could be anybody.
It's him. It's him. The man that wants you to believe that he is such a big family man, the man with the big houses . . . .
. . . .
They don't make up something like this. They don't know about sexual activity. . . .
He is sexually aroused by children, not adult women. All right? That's why he is not aroused and had trouble with Ms. Hudson. . . .
It's not a fantasy, ladies and gentlemen. It's not just a story that he's rehearsed over and over. . . .
. . . So these aren't inconsistencies, ladies and gentlemen. This is further bolstering support that it happened. That's what that means, it happened. . . . How could he pull something over like that on that many -- that many professional people? -13- How could he do that? He is not that savvy, ladies and gentlemen. Okay? He is not that good. He can't do that. That's because it happened. It's the truth. What he told you is the truth what happened to him.
. . . But this wasn't some witch hunt, this wasn't some conspiracy. Judy Hudson, [David], Wade Abram, myself, Christine Nicholson, Kenny McAbee, all of these people in some conspiracy here to convict an innocent man? Absolutely not. Absolutely not. Because what [David] is saying is the truth. He is telling the truth.
N.C. Gen. Stat. § 15A-1230(a) (2013) provides: "During a
closing argument to the jury an attorney may not become abusive,
inject his personal experiences, express his personal belief as
to the truth or falsity of the evidence or as to the guilt or
innocence of the defendant, or make arguments on the basis of
matters outside the record except for matters concerning which
the court may take judicial notice." The statute specifies
further, however, that "[a]n attorney may, . . . on the basis of
his analysis of the evidence, argue any position or conclusion
with respect to a matter in issue." Id.
Our Supreme Court has also explained that "'it is improper
for the prosecuting attorney to express his personal opinion or
belief in the guilt of the accused, unless it is apparent that
such opinion is based solely on the evidence, and not on any
reasons or information outside the evidence.'" State v. Britt, -14- 291 N.C. 528, 538, 231 S.E.2d 644, 651 (1977) (quoting 23A
C.J.S. Criminal Law § 1104).
We first address the propriety of the prosecutor's
arguments that (1) defendant was a child molester, (2) David
could not "make up" his story in this case, (3) defendant was
aroused by children and not adult women, and (4) David would not
be able to fool so many professional people because he was not
sufficiently savvy. Each of these arguments were based on the
evidence, including (1) David's testimony and his prior
consistent statements when he was 13 years old that defendant
molested him; (2) testimony regarding David's mental delays; (3)
Ms. Hudson's testimony that defendant told her he was not
attracted to her; and (4) evidence of the professional
credentials of Ms. Penland, Ms. Nicholson, and Mr. McAbee, to
whom David described the abuse.
Thus, even assuming, without deciding, that these
statements expressed the prosecutor's personal opinion regarding
David's truthfulness, each of these arguments was based on the
evidence at trial and reasonable inferences drawn from that
evidence. The trial court, therefore, did not err in failing to
intervene ex mero motu in these portions of the State's closing
argument. See id. at 537-38, 231 S.E.2d at 651 (holding
prosecutor's argument that defendant was "'guilty as sin'" and -15- "'cold-blooded, deliberate murderer, regardless of what your
decision in this case is'" was proper since it was "based solely
upon evidence from which his inferences and conclusions could
legitimately be inferred").
Defendant also challenges the prosecutor's assertions that
David was telling the truth and that David's story was not a
fantasy. In State v. Wilkerson, 363 N.C. 382, 424, 683 S.E.2d
174, 200 (2009) (emphasis omitted), our Supreme Court addressed
the defendant's contention that the prosecutor's closing
arguments were improper when the prosecutor stated that one
witness "'told the truth, and what she said is corroborated'"
and, with respect to a second witness, that the prosecutor
called her as a witness "because I think she's telling the truth
. . . .'" The Supreme Court held that the prosecutor's argument
with respect to the first witness was not improper since "the
prosecutor did not personally vouch for her veracity but instead
provided jurors reason to believe [the witness] by arguing that
her testimony was truthful because it was corroborated." Id. at
425, 683 S.E.2d at 200. However, the Court held that "the
prosecutor's passing comment that he believed [the second
witness] was telling the truth violated section 15A–1230(a)."
Id., 683 S.E.2d at 201 (emphasis added). -16- Here, the prosecutor did not either say she believed David
or otherwise personally vouch for David's veracity. Rather,
like the first portion of the prosecutor's argument in
Wilkerson, the State's references to David's telling the truth
followed the State's identification of reasons that the jury
should find David and his story credible. The trial court was
not, therefore, required to intervene in the State's closing
argument ex mero motu. See also State v. Zuniga, 320 N.C. 233,
256, 357 S.E.2d 898, 913 (1987) (finding "nothing improper" in
prosecutor's argument -- "'I submit to you that those witnesses
who testified on behalf of the State were telling you the truth
and, yes, that includes the taxi driver, Mr. Call'" -- when
argument was supported by evidence and defendant had full
opportunity on cross-examination to bring out discrepancies in
State's evidence).
Further, a prosecutor "'is allowed to respond to arguments
made by defense counsel and restore the credibility of a witness
who has been attacked in defendant's closing argument.'" State
v. Worthy, 341 N.C. 707, 711, 462 S.E.2d 482, 484 (1995)
(quoting State v. Perdue, 320 N.C. 51, 62, 357 S.E.2d 345, 352
(1987)). Here, the prosecutor's argument that David had told
the truth was in response to defense counsel's closing argument,
which was aimed in large part at discrediting David's trial -17- testimony and prior statements by pointing out inconsistencies
between his prior statements and his trial testimony;
highlighting implausible aspects of David's story; and noting
all the details of the events that David was unable to provide.
Defendant also argued in closing that someone had prompted David
to falsely report the abuse, and David was unable to provide
many specific details because those details were not given to
him by the person who manufactured the story: "Perhaps . . .
[David] couldn't remember the details because the events never
happened at all." The prosecutor's argument was, therefore,
largely responsive to defendant's closing argument and was aimed
at restoring David's credibility.
Defendant nonetheless points to State v. Smith, 279 N.C.
163, 181 S.E.2d 458 (1971), and State v. Locklear, 294 N.C. 210,
241 S.E.2d 65 (1978), as establishing that the trial court, in
this case, erred. In Smith, however, the improper arguments
involved expressions of the prosecutor's personal beliefs about
the evidence and the defendant's guilt, 279 N.C. at 165, 166,
181 S.E.2d at 459, 460, whereas, here, the arguments merely set
forth a conclusion that the jury could reach from the evidence -
- the conclusion that David was, in fact, telling the truth.
Likewise, Locklear did not involve an argument regarding why a
jury should, based on the evidence, find a witness was credible, -18- but rather addressed the prosecutor's question to a witness that
"'you are lying through your teeth and you know you are playing
with a perjury count; don't you?'" 294 N.C. at 214, 241 S.E.2d
at 68. The State's argument in this case, because it argued the
evidence, was, in contrast to Smith and Locklear, proper.
Defendant next points to the prosecutor's argument that
"[defendant's] own daughter has doubts. She is living with
somebody else. She doubts him too. Or maybe she knows more
than she is telling." Defendant contends that this argument
went outside of the evidence presented at trial.
Sally, who was 16 years old at the time of trial, testified
that she had lived with defendant her entire life, but she went
to live with her biological mother roughly a year or two prior
to the August 2012 trial -- that is, around or after the time
David first reported defendant's sex abuse in September 2010.
Sally further testified as follows:
Q. Why are you not with your dad now?
A. I'm not with my dad right now -- honestly?
Q. Yes.
A. Because I didn't know how the court was going to go, so I was going to move in with -- I was planning on moving in with dad this summer, but then I had my own doubts because I know how [Ms. Hudson] is with everybody -- -19- [PROSECUTOR]: Objection.
A. -- in Transylvania County.
Q. You and your dad have a good relationship?
A. We have an amazing relationship.
Q. Would you characterize your father as a loving father?
A. Very much.
Q. Has he always been there for you?
A. He has.
Q. Do you know he will always be there for you regardless?
A. All the time. I do.
Q. Do you have any doubts at all about that?
A. Not at all.
(Emphasis added.)
In Worthy, while reviewing the prosecutor's closing
argument, our Supreme Court rejected the defendant's contention
that the record was "devoid of any evidence from which it could
be reasonably inferred that [a witness] had thoughts concerning
his future safety." 341 N.C. at 711, 462 S.E.2d at 484. The
Court observed that the witness "testified that prior to the
murder, he had intended to spend the night with defendant," but -20- "after witnessing defendant shoot a man in the manner he
described, [the witness] decided to go home to his mother
instead." Id. The Court reasoned that, based on that evidence,
it was "certainly a reasonable inference that [the witness], who
at the time of trial was eleven years old, was afraid of the
prospects of facing defendant and giving testimony against him."
Id.
Similarly, here, Sally's testimony -- that she lived with
defendant her entire life, including after defendant's
separation from Ms. Hudson, but that she went to live with her
biological mother roughly at or after the time David first
reported defendant's sex abuse -- permits a reasonable inference
that she doubted defendant's innocence for some reason.
Although defendant points to Sally's testimony that her doubts
about moving in with defendant were related to Ms. Hudson, the
jury could reasonably have concluded that this testimony was not
credible and that Sally's change of plans were actually related
to the sex abuse allegations -- the prosecutor was entitled to
argue that the jury should draw that inference. As in Worthy,
the prosecutor did not argue facts outside of the evidence
presented at trial.
In his final argument related to the closing argument,
defendant asserts that the trial court erred in overruling his -21- objection to the following portion of the prosecutor's closing
argument:
One thing [defendant] never answered, was never asked during his examination by his attorney, was why did you not return Detective Abram's phone call? Why did you not call him back? If you were so innocent of this crime, wouldn't the first thing you want to do is [sic] set it straight? Say, hey, that's right --
[DEFENSE COUNSEL]: Objection, Your Honor.
[PROSECUTOR]: -- I'm going to call him up and I'm going to set this straight.
Defendant argues that this portion of the closing argument
violated his right to remain silent under the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.
However, defendant did not raise this constitutional argument
before the trial court and, generally, "constitutional error
will not be considered for the first time on appeal." State v.
Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005).
Even assuming, without deciding, that defendant's
constitutional argument were properly before us, this Court has
previously held that "if the defendant is not yet under arrest,
the State may use the defendant's pre-arrest silence for
impeachment purposes at trial." State v. Boston, 191 N.C. App.
637, 648, 663 S.E.2d 886, 894 (2008). Here, the prosecutor's -22- argument was based upon Detective Abram's testimony that his
call to defendant was made before defendant was arrested: "I
attempted to reach [defendant] at that number before this case
even came to the attention [sic] or the court had knowledge of
it." Consequently, if the argument was directed at impeaching
defendant's testimony, it did not violate his constitutional
right to silence.
Defendant testified at trial that the alleged sex abuse
never occurred, that he was never interviewed by law enforcement
in connection with this case, and that, prior to trial, he never
had a chance to tell his story. In his closing argument,
defense counsel argued to the jury: "This was [defendant's]
first time [to] tell his story. . . . Because prior to that
nobody had asked his story. Nobody had wanted to know his side
of the story. Not law enforcement . . . ."
Given defendant's trial testimony and his closing argument
emphasizing that testimony, it is apparent that the State's
closing argument was responding to counsel's argument and
impeaching defendant's testimony that defendant had never had a
chance to tell his side of the story. The State was simply
pointing out that defendant, prior to being arrested, had been
given an opportunity to talk with the police, but had chosen not
to do so. The State's argument was, therefore, proper. -23- III
Lastly, defendant contends that the trial court erred in
referring to David as "the victim" when instructing the jury
regarding first degree sexual offense. Although the trial court
simply gave the pattern jury instruction, defendant argues that
references to "the victim" improperly suggested to the jury that
the trial court believed David to be the victim of a crime.
Defendant did not object to the instructions at trial, and
we, therefore, review this issue for plain error. This Court
has, however, previously held that "it is clear from case law
that the use of the term 'victim' in reference to prosecuting
witnesses does not constitute plain error when used in
instructions . . . ." State v. Henderson, 155 N.C. App. 719,
722, 574 S.E.2d 700, 703 (2003). We are bound by Henderson.
Defendant has, therefore, failed to show that the trial court's
instruction constituted plain error.
No error.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).