State v. Clapp ( 2014 )

NO. COA13-785
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
Alamance County
v.
Nos. 11 CRS 51768, 51892
ROBERT ALFONZO CLAPP
Appeal by defendant from judgments entered 5 February 2013
by Judge Shannon Joseph in Alamance County Superior Court.
Heard in the Court of Appeals 6 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for Defendant.
ERVIN, Judge.
Defendant Robert Alfonzo Clapp appeals from judgments
entered based upon his convictions for committing a sexual
offense against a 13, 14, or 15 year old child and taking
indecent liberties with a student while acting as a first
responder. On appeal, Defendant argues that the trial court
erred by refusing to instruct the jury concerning the law of
accident, precluding Defendant from eliciting evidence tending
to show that Defendant did not have an unnatural lust or sexual
interest in children, and refusing to instruct the jury
-2-
concerning the use of evidence tending to show Defendant’s
character for honesty and trustworthiness for substantive
purposes. After careful consideration of Defendant’s challenges
to the trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgments
should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
On 23 March 2011, H.D.1 was a fifteen-year-old freshman at
Walter Williams High School. At that time, Defendant served as
a first responder at Walter Williams. Individuals acting as
first responders, who had previously been known as athletic
trainers, were supposed to be present at practices in order to
assess injuries, determine if additional medical services were
needed, and assist student athletes in addressing problems
associated with actual and potential injuries by performing such
functions as taping ankles, stretching sore muscles, and
providing ice. The compensation that Defendant received was
provided by funds supplied to the Alamance County schools and
the Walter Williams booster club.
1
H.D. will be referred to throughout the remainder of this
opinion as Hailey, a pseudonym used for ease of reading and to
protect H.D.’s privacy.
-3-
Hailey ran cross country during her freshman year and
participated in outdoor track during her freshman and sophomore
years. As a result of the fact that she had sustained injuries
during both the cross country and track seasons, Hailey sought
assistance from Defendant after her cross country and track
coach, Brian Smith, told her to be stretched by Defendant. In
accordance with that instruction, Defendant periodically
stretched Hailey in the field house.
On 23 March 2011, Defendant approached Hailey and inquired
about the status of her ankle injury. After Defendant asked
Hailey if she wanted to be stretched, Hailey agreed to allow
Defendant to stretch her ankle and followed Defendant to the
stretching room in the field house. At that time, Hailey was
wearing loose running shorts that included built-in underwear
and an additional pair of underwear.
After the two of them arrived in the field house, Defendant
asked Hailey to remove her socks and shoes and began bending
Hailey’s foot back and forth. During that process, Defendant
asked Hailey if she was still experiencing pain as the result of
an earlier hip injury. After Hailey stated that her hip
occasionally hurt when she ran, Defendant told Hailey that he
would stretch her hip in addition to her ankle.
-4-
As Hailey laid on her back, Defendant stretched Hailey’s
leg in two different ways. In one instance, Defendant lifted
Hailey’s leg up and pushed it towards her chest using her foot.
In the other instance, Defendant had Hailey curve her leg and
then pushed the leg to the side. While Defendant performed
these stretches, he massaged the inner portion of Hailey’s leg
at the point where her thigh met her torso using two or three
fingers while instructing Hailey to let him know if she
experienced pain. As he massaged Hailey’s leg, Defendant
mentioned that he had to leave shortly in order to sell tickets
to the baseball game.
At some point during the leg stretching process, Defendant
began massaging an area near her vagina underneath both of the
pairs of underwear that Hailey was wearing. As he did so,
Defendant inserted his finger or thumb into the area in or
around Hailey’s vagina on two different occasions. On the first
of these occasions, one of Defendant’s fingers went to the side
of the lips of Hailey’s vaginal opening. On the second of these
two occasions, Defendant’s finger penetrated Hailey’s vagina.
Defendant made no response after Hailey mumbled, “Watch your
fingers.” In light of Defendant’s silence, Hailey reiterated,
“Watch your fingers.” Although Defendant removed his fingers
from the area around Hailey’s vagina after the making of the
-5-
second statement, he continued to make massaging motions beneath
Hailey’s underwear.
The stretching and massaging process involving Defendant
and Hailey lasted for approximately thirty to forty-five
minutes. During that time, a number of other people entered the
field house in order to ask Defendant to provide them with tape
or ice. At such times, Defendant would hold brief conversations
with the new arrivals while moving his hand from beneath
Hailey’s underwear to a location on Hailey’s thigh or knee. The
stretching and massaging process ended when Defendant was
summoned to help sell tickets to the baseball game.
After she left the field house, Hailey told her friend,
T.H.,2 that Defendant had touched her “in places” and moved his
fingers beneath her underwear. Although Teresa insisted that
the incident be reported to Mr. Smith, Hailey was too
embarrassed to tell Mr. Smith what had happened. As a result of
the fact that Mr. Smith was involved in a romantic relationship
with the mother of another student named R.B.,3 Teresa and Hailey
decided to ask Rachel to speak with Mr. Smith instead. After
2
T.H. will be referred to throughout the remainder of this
opinion as Teresa, a pseudonym used for ease of reading and to
protect T.H.’s privacy.
3
R.B. will be referred to throughout the remainder of this
opinion as Rachel, a pseudonym used for ease of reading and to
protect R.B.’s privacy.
-6-
Rachel spoke with Mr. Smith, Hailey told him that Defendant had
touched her vagina.
After returning home, Hailey met with investigating
officers, told them what had happened, and stated that another
girl on the track team, whom she identified as A.B.,4 had had a
similar experience with Defendant. On the same evening,
Detective Steven Reed of the Alamance County Sheriff’s
Department interviewed Defendant, who denied having engaged in
the conduct that Hailey had described and asserted that any
contact that he might have had with Hailey’s vagina would have
been the result of an accident.
In the fall of 2010, Amy was a sixteen-year-old junior at
Walter Williams who was experiencing pain as the result of an
earlier groin injury. For that reason, Amy asked Defendant to
stretch her. At the time that Defendant and Amy went to the
field house in order to complete the stretching process, Amy was
wearing yoga shorts and underwear. After the two of them
reached the field house, Defendant stretched Amy’s leg in three
different ways. First, Defendant lifted Amy’s leg. Secondly,
Defendant had Amy push back with her lifted leg while the other
4
A.B. will be referred to throughout the remainder of this
opinion as Amy, a pseudonym used for ease of reading and to
protect A.B.’s privacy.
-7-
leg remained on the table. Finally, as Amy remained seated,
Defendant pushed her knee towards her chest.
While Defendant stretched Amy’s leg, he used his hand to
massage the muscles in that appendage. As he did so,
Defendant’s fingers went beneath Amy’s underwear. Although
Defendant’s fingers touched the interior of the lips of Amy’s
vaginal opening, he did not touch the vicinity of Amy’s vagina
in any other way. As she left the training room, Amy told a
member of the coaching staff that Defendant was a “creep”
without describing what he had just done to her. Amy did not
report the details of Defendant’s conduct to anyone because she
was embarrassed about what had happened.
In addition, M.A.5 testified that she had participated in
soccer and volleyball during her years as a Walter Williams
student. After sustaining a groin injury during her senior
year, Mandy asked Defendant for advice about stretches and other
exercises that she could perform. In response to this request,
Defendant told Mandy to meet him in the gym on the following
day. At the appointed time, Defendant took Mandy to the
athletic training room instead of the gym at a time when no one
else was there.
5
M.A. will be referred to throughout the remainder of this
opinion as Mandy, a pseudonym used for ease of reading and to
protect M.A.’s privacy.
-8-
After asking Mandy to lie down on a table, Defendant
stretched Mandy’s groin by lifting her leg, which was in a bent
position, and pushing it to the side. Subsequently, Defendant
massaged Mandy’s groin area while using some sort of oil. As he
did so, Defendant’s hands were near Mandy’s “bikini line,” which
she described as the area in which her thigh met her torso.
After massaging Mandy’s groin for five or ten minutes, Defendant
asked Mandy to flip over and lie on her stomach. Once she had
done as he requested, Defendant massaged Mandy’s lower back and
upper buttocks area. As he did this, Defendant’s hands went
beneath Mandy’s underwear.
At approximately the same time that Mandy flipped over in
order to lie on her back a second time, a loud bang was heard in
the locker room immediately adjacent to the athletic training
room. After telling Mandy to stay in the training room,
Defendant went outside to check on the origin of the noise.
Although Mandy remained in the athletic training room after
Defendant’s departure, she got dressed. When Defendant
returned, Mandy told Defendant that she needed to go to practice
and left. Mandy never told anyone about Defendant’s conduct due
to embarrassment.
2. Defendant’s Evidence
-9-
At the time of trial, Defendant was forty-seven years old.
Defendant had become involved with the sports program at Walter
Williams because his two sons wanted to play football at that
institution. For that reason, Defendant began helping the
football team in the summer of 2007 by filling the water cooler.
After his volunteer efforts were noticed, Defendant was asked to
join the staff and help the football team. Subsequently,
Defendant worked with the basketball, wrestling, track,
lacrosse, and cross country teams as well as the football team.
During the first year in which Defendant was compensated
for his services, his title was assistant trainer. However,
Defendant’s job title was changed to first responder, rather
than a trainer, because he did not have a four-year college
degree and because the Alamance County school system did not
want people who lacked four-year degrees to be referred to as
assistant trainers. As a part of the process by which he served
as a member of the Walter Williams athletic staff, Defendant
attended injury management classes for three consecutive years,
which is the maximum amount of training available to individuals
in his position. Defendant served as a member of the Walter
Williams athletic staff for four consecutive years.
In the autumn, Defendant’s primary responsibility was to
assist the football team. However, volleyball and cross country
-10-
students would ask for Defendant’s assistance during that time
of year as well. Although Defendant assisted student athletes
both outdoors and in the field house, he generally elected to
take student athletes to the field house if he needed to plug in
a massaging instrument or use equipment located in that
building. The door to the field house was always propped open
with a steel pole in order to prevent the door from slamming on
windy days. People freely entered and exited the field house
during times when Defendant was assisting student athletes.
On 23 March 2011, Defendant approached a group of students
to ask about their injuries. As part of that process, Defendant
asked Hailey, who was standing nearby, about her ankle, which
had been swollen the previous week. After Hailey indicated that
she had hurt her other ankle, Defendant asked Hailey if she
wanted him to stretch her ankle. After Hailey agreed, the two
of them went to the field house.
Initially, Defendant checked both of Hailey’s ankles and
twisted and flexed the recently injured ankle for the purpose of
determining the extent to which it was tight or loose. Next,
Defendant spent five or ten minutes stretching Hailey’s ankles.
As Defendant worked, various individuals entered and exited the
field house for the purpose of obtaining ice, wraps, or
assistance with various injuries.
-11-
After he finished stretching Hailey’s ankles, Defendant
asked Hailey if she had any other injuries. In response, Hailey
stated that an old right hip flexor injury had begun hurting her
again. Upon receiving this information, Defendant stretched
Hailey’s hip by taking her right leg and pushing it towards her
chest and across her left leg and body. Although Defendant
placed two fingers on Hailey’s right hip, Defendant kept those
two fingers at the spot at which Hailey said that she was
experiencing pain and never moved them from that spot.
In view of the fact that he had been trained to treat both
sides of an injured student athlete’s body, Defendant stretched
Hailey on the left as well as on the right. After stretching
the left side of her body, Defendant returned to the right side
to eliminate any remaining soreness before stretching Hailey’s
ankles further. Defendant spent about ten to fifteen minutes
stretching each of Hailey’s legs. Defendant denied having ever
put his fingers or thumbs into Hailey’s vagina.
At the time that he received a phone call asking for help
in selling baseball tickets, Defendant ended his treatment
session with Hailey. As Defendant was exiting the field house,
two other female student athletes asked Defendant for
assistance. After assisting the two female student athletes,
Defendant left to help with the baseball ticket sales.
-12-
According to Defendant, Amy was a dedicated runner who
would not stop to rest even when advised to do so. Defendant
acknowledged that he had assisted Amy on a couple of occasions
during her freshman year. During her sophomore year, Amy
suffered numerous injuries, including shin splints, a sore knee,
and a recurring hip injury. As a result of the fact that Amy
had sustained a hip injury, Defendant stretched her leg on
occasion and saw her more than once a week. On those occasions,
Defendant iced and stretched Amy and used a massaging instrument
in order to relieve the effects of muscle strains and pulls.
Defendant denied having ever touched Amy’s genital area.
According to Defendant, Mandy approached him in order to
obtain treatment for a groin injury. Prior to the date upon
which this request was made, Defendant had treated Mandy for
wrist, shoulder, and groin injuries. As a result of the fact
that Mandy was not available for treatment at the time that she
made this request, Defendant suggested that the two of them get
together on the following day.
Although Mandy met with Defendant according to the agreed-
upon schedule, she was in a hurry to go to practice. Even so,
Defendant and Mandy went to the training room beneath the gym,
where Defendant treated Mandy using a massage instrument,
putting pressure where Mandy’s upper thigh met her torso, and
-13-
applying ice. Mandy did not say anything to him or appear to be
upset during the treatment process.
After hearing a heavy weight dropping in another room,
Defendant left Mandy alone while he investigated what he had
heard. Upon Defendant’s return, Mandy stated she needed to get
to practice and departed. When Defendant saw Mandy, Mandy
thanked Defendant for his assistance. Defendant denied having
ever touched Mandy’s vagina.
A number of individuals associated with the athletic
program at Walter Williams testified that Defendant was
trustworthy and had a good reputation for honesty and
truthfulness. Similarly, four female students who participated
in the Walter Williams athletic program testified that Defendant
was honest and truthful, with several of them also asserting
that he was trustworthy.
B. Procedural History
On 24 March 2011, a warrant for arrest charging Defendant
with committing a statutory sexual offense against a 13, 14, or
15 year old child and committing a sexual offense against Hailey
while acting as a coach was issued. On 31 March 2011, a warrant
for arrest charging Defendant with taking indecent liberties
with Amy while acting as a coach was issued. On 8 August 2011,
the Alamance County grand jury returned bills of indictment
-14-
charging Defendant with committing a statutory sexual offense
against a 13, 14, or 15 year old child, committing a sexual
offense against Hailey while acting as a coach, and taking
indecent liberties with Amy while acting as a coach.
Although the case was called for trial before Judge G.
Wayne Abernathy and a jury at the 29 May 2012 criminal session
of the Alamance County Superior Court, the jury was unable to
reach a unanimous verdict, resulting in the declaration of a
mistrial on 5 June 2012. On 11 June 2012, the Alamance County
grand jury returned superseding bills of indictment charging
Defendant with committing a statutory sexual offense against a
13, 14, or 15 year old child, committing a sexual offense
against Hailey while acting as a coach, and committing a sexual
offense against Hailey while acting as a first responder, taking
indecent liberties with Amy while acting as a coach, and taking
indecent liberties with Amy while acting as a first responder.
The charges against Defendant came on for trial before the
trial court and a jury at the 28 January 2013 criminal session
of the Alamance County Superior Court. At the beginning of
Defendant’s second trial, the State announced that it had
elected not to proceed against Defendant on the charges alleging
that he had committed a sexual offense against Hailey and had
taken indecent liberties with Amy while acting as a coach. On 5
-15-
February 2013, the jury returned a verdict convicting Defendant
of committing a statutory sexual offense against a 13, 14, or 15
year old child, committing a sexual offense against Hailey while
acting as a first responder, and taking indecent liberties with
Amy while acting as a first responder. At the conclusion of the
ensuing sentencing hearing, the trial court arrested judgment in
the case in which Defendant was convicted of committing a sexual
offense against Hailey while acting as a first responder and
entered judgments sentencing Defendant to a term of 192 to 240
months imprisonment based upon his conviction for committing a
sexual offense against a child of 13, 14, or 15 years of age and
to a consecutive term of 6 to 8 months imprisonment based upon
his conviction for taking indecent liberties with Amy while
acting as a first responder, with this sentence being suspended
and with Defendant being placed on supervised probation for 24
months on the condition that he pay attorney’s fees and costs,
obtain a mental health assessment, have no contact with Amy, and
comply with the usual terms and conditions of probation.
Defendant noted an appeal to this Court from the trial court’s
judgments.
II. Substantive Legal Analysis
A. Accident Instruction
-16-
In his first challenge to the trial court’s judgments,
Defendant contends that the trial court erred by failing to
instruct the jury concerning the law of accident in accordance
with Defendant’s request. More specifically, Defendant contends
that the trial court was required to submit the accident
instruction that he requested given that the record contained
evidence that would have supported a jury determination that
Defendant had not penetrated Hailey’s vagina intentionally.
Defendant’s contention lacks merit.
1. Standard of Review
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009). “‘Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment’ for that of
the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,
Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“[A]n error in jury instructions is prejudicial and requires a
new trial only if ‘there is a reasonable possibility that, had
the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
-17-
arises.’” State v. Castaneda, 196 N.C. App. 109, 116, 674
S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A-1443(a)).
2. Appropriateness of Accident Instruction
“‘[W]hen a defendant requests a special instruction which
is correct in law and supported by the evidence, the trial court
must give the requested instruction, at least in substance.’”
State v. Thompson, 118 N.C. App. 33, 36, 454 S.E. 2d 271, 273
(quoting State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d
922, 924 (1993)), disc. review denied, 340 N.C. 262, 456 S.E.2d
837 (1995). “If a requested instruction is refused, defendant
on appeal must show the proposed instruction was not given in
substance, and that substantial evidence supported the omitted
instruction,” with “‘[s]ubstantial evidence’ [being] that amount
of relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” Id. (internal quotation
marks omitted) (quoting State v. White, 77 N.C. App. 45, 52, 334
S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864(1985), and State v. Gray, 337 N.C. 772, 777-78, 448 S.E.2d 794,
798 (1994)).
At the jury instruction conference, Defendant requested
that the trial court instruct the jury concerning the law of
accident in accordance with N.C.P.J.I. 307.11, which begins by
stating that “the defendant asserts the victim’s injury was the
-18-
result of an accident” and indicates that, if the State failed
to satisfy the members of the jury that “the injury was in fact
accidental, the defendant would not be guilty of any crime even
though his acts were responsible for the victim’s injury.”
After the trial court refused to deliver the requested
instruction, Defendant made no further request for the delivery
of an accident instruction. During its deliberations, the jury
inquired about what it should do “if there is proof beyond a
reasonable doubt that penetration however slight by an object
into the genital opening of a person’s body occurred but the
State has not proven beyond a reasonable doubt that the
penetration was ‘willful’ and of a sexual nature.” In response,
the trial court instructed the jury that “[t]he words [‘]of a
sexual nature[’] have not appeared in your instruction and you
are to apply the instruction that the Court has given you”;
that, “[w]ith respect to the willful[ness] question, that word
doesn’t appear in the instructions”; and that “the defendant’s
conduct must be intentional and not accidental.”
Although the trial court did refuse to deliver the
requested accident instruction based on the inclusion of
language in N.C.P.J.I. 307.11 to the effect that “the defendant
asserts” that the victim’s injury was accidental in nature,
Defendant’s contention that the trial court’s action was not
-19-
motivated by the absence of sufficient record support for the
proposed accident instruction is not consistent with our reading
of the record. Instead, we read the record to reflect that the
trial court refused to deliver the requested accident
instruction given the complete absence of any evidence tending
to show that he digitally penetrated Hailey’s vagina with his
fingers in an accidental manner, a determination that we believe
to have been correct.
At trial, Defendant explicitly denied having inserted his
finger into Hailey’s vagina or touching Amy’s genital area in
any way. Even so, Defendant asserts that he was entitled to the
delivery of an accident instruction given the presence of other
evidence contained in the record, including Detective Reed’s
statement that Defendant, at one point, said, “I f I did touch
her in any way it was innocent and I didn’t mean to do it,” and
Hailey’s statement that “I didn’t say anything though because I
thought that he wasn’t thinking about it like that or he didn’t
realize it and was only doing his job.” In spite of Defendant’s
assertions to the contrary, neither of these statements provide
any basis for a jury determination that Defendant accidentally
penetrated Hailey’s vagina with his finger. On the contrary,
Defendant’s statement to Detective Reed was hypothetical in
nature and immediately preceded a renewed denial that Hailey’s
-20-
allegations were true. Similarly, Hailey’s assertion that
Defendant might not have known what he was doing amounted to
mere speculation about Defendant’s mental state and provides no
basis for a determination that Defendant accidentally penetrated
Hailey’s vagina with his finger. As a result, we have no
hesitancy in concluding that the record simply did not support
the delivery of the requested accident instruction.
Moreover, even if the trial court’s decision to refrain
from instructing the jury in accordance with N.C.P.J.I. 307.11
was erroneous, any such error was rendered harmless by the trial
court’s subsequent decision to instruct the jury with respect to
the issue of accident. During its deliberations, the jury asked
the trial court, among other things, what it should do if “the
State has not proven beyond a reasonable doubt that the
penetration was ‘willful’ and of a sexual nature must we still
rule guilty in Count One?” Upon reviewing this inquiry, the
trial court proposed that the jury be instructed that, in order
to support of a finding of guilt, “the conduct -- defendant’s
conduct at issue must be intentional, not accidental.” After
Defendant indicated that he did not object to the trial court’s
proposal, the trial court instructed the jury that a finding
that the defendant acted intentionally, rather than
accidentally, was necessary in order for the jury to return a
-21-
guilty verdict. In view of the fact that the trial court
explicitly told the jury during the course of its deliberations
that Defendant could not be convicted if his conduct was
accidental, we are unable to see how the trial court’s initial
refusal to instruct the jury in accordance with N.C.P.J.I. in
any way prejudiced Defendant. State v. Rogers, 299 N.C. 597,
603-05, 264 S.E.2d 89, 93-94 (1980) (holding that any error in
the trial court’s initial jury instructions was cured by a
correct instruction given in response to a jury inquiry). As a
result, for both of these reasons, Defendant is not entitled to
relief from the trial court’s judgments based upon the trial
court’s refusal to instruct the jury with respect to the law of
accident.
B. Excluded Witness Testimony
Secondly, Defendant contends that the trial court erred by
refusing to allow Scott Frazier, a former member of the Walter
Williams coaching staff, to testify that he possessed the
character trait of working well with children and not having an
unnatural lust or desire to have sexual relations with children.
More specifically, Defendant contends that the excluded evidence
should have been admitted since it related to a pertinent
character trait that had a special relationship to the crimes
-22-
with which he had been charged. We do not find Defendant’s
argument persuasive.
1. Standard of Review
The essential issue raised by Defendant’s second challenge
to the trial court’s judgments is whether the testimony in
question tended to show that Defendant possessed a character
trait that is relevant to the matters at issue in this case. In
other words, the inquiry that we are required to conduct in this
instance is relevance-based in nature. Although “a trial
court’s rulings on relevancy technically are not discretionary
and therefore are not reviewed under the abuse of discretion
standard applicable to [N.C. Gen. Stat. § 8C-1,] Rule 403, such
rulings are given great deference on appeal.” State v. Wallace,
104 N.C. App. 498, 502, 410 S.E.2d 226, 228, appeal dismissed,
331 N.C. 290, 416 S.E.2d 398 (1991), cert. denied, 506 U.S. 915,
121 S.E.2d 321, 121 L. Ed. 2d 241 (1992). As a result, we will
review Defendant’s challenge to the exclusion of Mr. Frazier’s
testimony using the loose de novo standard of review utilized in
addressing relevance-related issues.
2. Admissibility of Proposed Character Evidence
According to N.C. Gen. Stat. § 8C-1, Rule 404(a)(1),
“[e]vidence of a pertinent trait of [the accused’s] character
offered by an accused” is admissible. “The exception allowing
-23-
evidence of a ‘pertinent’ trait should be ‘restrictively
construed,’ [however,] since such evidence is excluded as a
general rule.” State v. Wagoner, 131 N.C. App. 285, 293, 506
S.E.2d 738, 743 (1998) (quoting State v. Sexton, 336 N.C. 321,
359-60, 444 S.E.2d 879, 901, cert. denied, 513 U.S. 1006, 115 S.
Ct. 525, 130 L. Ed. 2d 429 (1994)), disc. review denied, 350
N.C. 105, 533 S.E.2d 476 (1999). As a result, “an accused may
only introduce character evidence of ‘pertinent’ traits of his
character and not evidence of overall ‘good character.’” Id.(quoting State v. Mustafa, 113 N.C. App. 240, 245-46, 437 S.E.2d
906, 909, cert. denied, 336 N.C. 613, 447 S.E.2d 409 (1994)).
This Court addressed the admissibility of similar evidence
in Wagoner, in which we held that the trial court properly
excluded evidence tending to show the defendant’s “psychological
make-up,” including testimony that he was not a high-risk sexual
offender, on the theory that such evidence, which amounted to
proof of the defendant’s normality, did not tend to show the
existence or non-existence of a pertinent character trait. Id.
at 292-93, 506 S.E.2d at 743. Similarly, the evidence at issue
in this case, which consisted of testimony from Mr. Frazier to
the effect that he saw no indication that Defendant had an
unnatural lust for or sexual interest in young girls,
constituted nothing more than an attestation to Defendant’s
-24-
normalcy. As a result, given that the excluded testimony did
not tend to show the existence or non-existence of a pertinent
trait of character, the trial court did not err by excluding Mr.
Frazier’s testimony concerning Defendant’s lack of unnatural
lust for or sexual interest in young girls.
C. Instruction Concerning Defendant’s Character
for Honesty and Trustworthiness
Finally, Defendant contends that the trial court erred by
refusing to instruct the jury that it could consider evidence
concerning his character for honesty and trustworthiness as
substantive evidence of his guilt or innocence. According to
Defendant, the trial court was required to deliver the requested
instruction given that it constituted an accurate statement of
the law arising from the evidence. We do not find Defendant’s
argument persuasive.
1. Standard of Review
As we have previously noted, arguments “challenging the
trial court’s decisions regarding jury instructions are reviewed
de novo by this Court.” Osorio, 196 N.C. App. at 466, 675
S.E.2d at 149. Thus, we will review Defendant’s challenge to
the trial court’s refusal to instruct the jury that it was
entitled to consider the evidence tending to show that Defendant
was honest and trustworthy as substantive evidence of his guilt
or innocence using a de novo standard of review.
-25-
2. Appropriateness of Honesty and Trustworthiness Instruction
At trial, five witnesses testified, in essence, that
Defendant was honest and trustworthy. During the jury
instruction conference, Defendant requested that the trial court
instruct the jury in accordance with N.C.P.J.I. 105.60, which
informs the jury that a person having a particular character
trait “may be less likely to commit the alleged crime(s) than
one who lacks the character trait” and tells the jury that, if
it “believe[d] from the evidence [that the defendant] possessed
the character trait” in question, it “may consider this in [its]
determination of [Defendant’s} guilt or innocence[.]” The trial
court rejected Defendant’s request.
As we have already noted, “when a request is made for a
specific instruction that is supported by the evidence and is a
correct statement of the law, the court, although not required
to give the requested instruction verbatim, must charge the jury
in substantial conformity therewith.” State v. Holder, 331 N.C.
462, 474, 418 S.E.2d 197, 203 (1992). For that reason, the
trial court would have been required to deliver the requested
instruction in the event that the jury could reasonably find
that an honest and trustworthy person was less likely to commit
the crimes at issue in this case than a person who lacked those
character traits. As the Supreme Court noted in State v. Bogle,
-26-
“a person is ‘truthful’ if she speaks the truth” and “is
‘honest’ if his conduct, including his speech, is free from
fraud or deception.” 324 N.C. 190, 202, 376 S.E.2d 745, 752
(1989). Similarly, a person is “trustworthy” if he or she is
“worthy of trust; dependable, reliable.” Webster’s New World
College Dictionary 1537 (4th ed. 2006). Although an
individual’s honesty and trustworthiness are certainly relevant
to an individual’s credibility, we are unable to say that a
person exhibiting those character traits is less likely than
others to commit a sexual offense against a child of 13, 14, or
15 years of age or to take indecent liberties with a student
while acting as a first responder. Bogle, 324 N.C. at 202, 376
S.E.2d at 752 (stating that, since “[n]either trafficking by
possession nor by transporting marijuana necessarily involves
being untruthful or engaging in fraud or deception,” “we hold
that the traits of truthfulness and honesty are not ‘pertinent’
character traits to the crime of trafficking in marijuana by
possession or transportation”). As a result, the trial court
did not err by refusing to instruct the jury that it could
consider the evidence tending to show that Defendant was an
honest and trustworthy individual as substantive evidence of his
guilt or innocence.
III. Conclusion
-27-
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Chief Judge MARTIN concurred in this opinion prior to 1
August 2014.