State v. Huntley

411 S.E.2d 155, 104 N.C. App. 732, 1991 N.C. App. LEXIS 1108
CourtCourt of Appeals of North Carolina
DecidedDecember 17, 1991
DocketNo. 9120SC76
StatusPublished
Cited by1 cases

This text of 411 S.E.2d 155 (State v. Huntley) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Huntley, 411 S.E.2d 155, 104 N.C. App. 732, 1991 N.C. App. LEXIS 1108 (N.C. Ct. App. 1991).

Opinion

COZORT, Judge.

David Lee Huntley was convicted of first-degree sexual offense and sentenced to a term of life imprisonment. Defendant challenges the following on appeal: (1) the trial court’s denial of. defendant’s motion for a voir dire examination of the prosecuting witness and the court’s finding that the witness was competent to testify; (2) the trial court’s denial of defendant’s motion to dismiss the charges based on insufficiency of the evidence; (3) the trial court’s failure to instruct the jury as to the lesser included offense of attempted first-degree sexual offense; and (4) the trial court’s imposition of a.life sentence as constituting cruel and unusual punishment. We conclude that defendant received a fair trial free from prejudicial error.

[734]*734The State’s evidence tended to show that the six-year-old alleged victim occasionally stayed at the home of her godmother, who is the defendant’s sister. The child testified that on one such occasion, she was awakened when the defendant, David Lee “Lebo” Huntley came into the room. Lebo pulled down her shorts and underwear and “stuck his hand in my private part.” The child pointed to her vaginal area and used anatomically correct dolls to demonstrate what had occurred. She explained that it hurt when Lebo touched her and stated this touching had occurred on more than one occasion. She made an in-court identification of the defendant as the person who came into the room and touched her. The victim gave conflicting testimony regarding the exact date of the incident for which defendant was charged. At one point, she testified the incident took place prior to Christmas. She later testified that she had told the police the date was near Valentine’s Day.

Officer Ted Griffin of the Monroe Public Safety Department testified that he interviewed the child in May of 1990. He recalled the child showing him and telling him what defendant had done to her.

Officer Sonny Rogers of the Monroe Police Department testified that, on 22 May 1990, he was investigating unrelated sex abuse crimes at Benton Heights Elementary School. The guidance counselor at the school, Kathy Tomberlin, asked the officer to speak with the girl. Officer Rogers talked with her briefly, and then placed six photographs of black males in front of her. He told her that he was investigating a case and just because he was showing her the pictures did not mean a guilty party would be among the photos. The child immediately pointed to the defendant’s picture, whose photo was in the array by coincidence, and said, “That’s my Uncle Lebo. He does it to me all the time.” She also told the officer defendant had touched her “in her private area.”

Kathy Tomberlin testified that based on conversations with the child’s brother who also attended Benton Heights School, she knew someone had been sexually abusing the girl. Ms. Tomberlin corroborated Officer Rogers’ testimony relating to the photograph identification. She also indicated at the time of the interview in May 1990, the child was only in kindergarten, and had difficulty identifying what day of the week it was. She testified that the prosecutrix used anatomically correct dolls to demonstrate what happened in a way consistent with what she told the counselor.

[735]*735Neva Abbott, a public health physician, testified as an expert witness in the field of public health. She told the court that the hymen of a sexually, abused child would measure greater than four millimeters and the edges of the hymenal ring might be thickened. She explained how child victims of sex abuse often became upset or cried when specimens were obtained in an examination. Ms. Abbott had examined the prosecutrix and testified concerning the results of the examination. She found thickening around the edges of the hymen which indicated some trauma. She measured the girl’s hymenal opening and discovered it was six millimeters in width. She concluded some penetration had occurred. She also stated that the prosecutrix reacted negatively when Dr. Abbott barely touched her vaginal area with a cotton swab.

Defendant testified; he denied sexually abusing the victim. He stated he could not have seen the prosecutrix on 14 February 1990 because he was in jail. Defendant offered two alibi witnesses to corroborate his incarceration.

Defendant first contends the trial court erred in denying his motion for a voir dire examination of the prosecutrix and in eventually finding her competent to testify. Prior to the child’s taking the stand, defendant objected to her being sworn as a witness and requested a voir dire. The trial court denied the motion, and the girl was sworn as the State’s first witness. After preliminary questioning, the following exchange occurred:

[Mr. WILLIAMS]: And do you know the difference between telling the truth and not telling the truth?
[Prosecutrix]: Tell the truth.
Q: Do you know what a lie is?
A: [No answer.]
Q: If I said you were a boy, would that be the truth or riot the truth?
A: Not the truth?
Q: And what happens —what does your mother do when you don’t tell the truth?
A: [No answer.]
Q: Do you know what happens if you don’t tell the truth?
[736]*736A: No.
Q: Is it good to tell the truth?
A: Yeah.
Q: Are you going to tell the truth today?
A: Yeah.
Q: Do you promise to tell the truth about what happened, about what Lebo did?
A: Yeah.

The court found the prosecutrix to be a competent witness based on the preliminary information and the above testimony.

Generally, every person is competent to be a witness unless disqualified by the Rules of Evidence. State v. DeLeonardo, 315 N.C. 762, 766, 340 S.E.2d 350, 354 (1986); N.C. Gen. Stat. § 8C-1, Rule 601(a) (1988). Rule 601(b) states:

A person is disqualified to .testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.

The competency of any witness is a matter within the sound discretion of the trial court based upon its overall impression and observation of the witness. State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987). Such a finding will not be disturbed on appeal unless the decision could not have been the product of a reasoned decision. Id.

Defendant argues the trial court committed reversible error by refusing to allow defense counsel the opportunity to conduct a voir dire examination of the child witness. To support this contention, defendant cites State v. Fearing, 315 N.C. 167, 337 S.E.2d 551

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Related

State v. Beane
552 S.E.2d 193 (Court of Appeals of North Carolina, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
411 S.E.2d 155, 104 N.C. App. 732, 1991 N.C. App. LEXIS 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-huntley-ncctapp-1991.