State v. McCanless , 234 N.C. App. 260 ( 2014 )

NO. COA13-1292
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 11 CRS 57933, 12 CRS 000043
STEVEN RIGIL MCCANLESS
Appeal by defendant from judgments entered 20 May 2013 by
Judge Mark E. Powell in Buncombe County Superior Court. Heard
in the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Amy Kunstling Irene, for the State.
Paul Louis Bidwell and Douglas A. Ruley, for defendant.
ELMORE, Judge.
On 17 May 2013, a jury found Stephen Rigil McCanless
(defendant) guilty of attempted sexual offense by an adult with
a child and indecent liberties with a child. Judge Mark E.
Powell sentenced defendant to consecutive terms of 157-198
months and 13-16 months active imprisonment. Defendant appeals.
After careful consideration, we find no prejudicial error.
I. Facts
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The State indicted defendant for offenses that allegedly
occurred on 3 September 2010 and 1 July 2011. The State alleged
that on 3 September 2010, defendant, who was fifty-seven-years-
old at the time, “expose[d] his private parts in a public place,
the Goodwill Store . . . in the presence of another person,
[M.S.,]” and committed indecent liberties with her. The State
also charged defendant with the sexual offense of a child
occurring on 1 July 2011 by “engag[ing] in a sexual act with
[K.C.][,]” first degree kidnapping, and another count of
indecent liberties.
Before trial, both parties filed motions with the trial
court. The State made a motion to join the September and July
offenses for trial pursuant to N.C. Gen. Stat. § 15A-926(a).
Defendant filed a motion in limine to exclude “almost comic book
form” Japanese anime images that depicted sexually suggestive
pictures of a young girl. The images were found on a computer
that was seized by law enforcement officers from defendant’s
home during the criminal investigation. Defendant also filed a
motion to suppress statements made by him to officers of the
Asheville Police Department on 6 July 2011. Defendant told
officers that he was at a Salvation Army Store on 1 July 2011,
interacted with a young girl, pulled her pants down, touched her
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leg and vagina, and “motorboated” (blowing air from a person’s
mouth on to the skin of another) the girl in her buttock area.
He also divulged facts implicating his involvement with M.S. at
the Goodwill Store in September 2010 by stating that he may have
“flashed” someone. The trial court granted the State’s motion
to join and denied both defendant’s motion in limine and motion
to suppress.
II. Analysis
a.) Admission of Images
Defendant first argues that the trial court committed
prejudicial error by admitting evidence of seven anime images
taken from defendant’s computer. We disagree.
Pursuant to N.C. Gen. Stat. § 15A-1443 (2013):
[a] defendant is prejudiced by errors
relating to rights arising other than under
the Constitution of the United States when
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 arises.
The burden of showing such prejudice under
this subsection is upon the defendant.
Thus, our standard of review is “whether a reasonable
possibility exists that the evidence, if excluded, would have
altered the result of the trial.” State v. Anderson, 177 N.C.
App. 54, 62, 627 S.E.2d 501, 505 (2006). Important to our
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analysis is our Supreme Court’s holding that “the presence of
[other] overwhelming evidence of guilt” can render the erroneous
admission of evidence harmless. State v. Autry, 321 N.C. 392,
400, 364 S.E.2d 341, 346 (1988) (citation omitted).
We need not answer the question of whether the trial court
erred in admitting this evidence in order to dispose of this
issue on appeal. Even assuming arguendo that the trial court
erred in admitting the images, we conclude that the error was
not prejudicial as to defendant’s convictions of attempted
sexual offense and indecent liberties with a child against K.C.
on 1 July 2011.
At trial, the State offered evidence that on 1 July 2011,
seven-year-old K.C., K.C.’s mother, and K.C.’s adult sister
arrived at the Salvation Army Store. K.C. testified that she
walked into the furniture room alone, sat down in a lawn chair,
defendant approached her, and he used his finger to touch the
inside of her “pee-pee” or “front part[,]” which were words used
to describe her vagina. Thereafter, defendant took K.C. behind
a grill, and she stated that defendant pulled her pants and
underwear down, “put his tongue on my butt and started licking
the inside of my butt.” K.C.’s version of events remained
consistent when she subsequently told her mother, Detective John
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Rikard, Nurse Alicia Eifler and Dr. Cindy Brown. Cassie York, a
customer at the store, testified that she observed defendant
with one knee on the ground as he stood next to K.C. Another
customer, Wenona Rogers, testified that she saw K.C. with her
pants partially down as defendant had his tongue on K.C.’s butt
while “fondling” her. Two store employees, Gary King and Sharon
Brown, heard K.C. say that defendant licked her buttock.
Furthermore, K.C.’s adult sister testified that she went to
locate K.C. and saw defendant “kneeling” in front of K.C. and
pulling her pants up.
After K.C.’s sister confronted defendant to ask him what he
was doing, he ran out of the store and drove away in a truck.
During his interview with police, defendant admitted to patting
K.C. on the leg, pulling her pants down, touching her buttock
and vagina, and said that “I’m not looking for sex from a child.
. . . I’m pretty sure I’m not, but I -- I’d like to find out for
sure.” This overwhelming evidence of defendant’s guilt
presented by the State defeats defendant’s contention that a
reasonable possibility exists that a different result would have
been reached at trial had the trial court barred admission of
the anime images from the jury. Accordingly, any error, if any,
was not prejudicial to defendant.
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b.) Joinder of Offenses
Defendant also argues that the trial court erred in joining
the 3 September 2010 offenses and the 1 July 2011 offenses for
trial because “[t]here [w]as [i]nsufficient [t]ransactional
[c]onnection [b]etween [t]hese [o]ffenses.” We disagree.
“[T]he trial judge’s decision to consolidate for trial
cases having a transactional connection is within the discretion
of the trial court and, absent a showing of abuse of discretion,
will not be disturbed on appeal.” State v. Williams, 355 N.C.
501, 529-30, 565 S.E.2d 609, 626 (2002) (citation and quotation
omitted). “Abuse of discretion results where the court’s ruling
is manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision.” State
v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see
also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985) (“A trial court may be reversed for abuse of discretion
only upon a showing that its actions are manifestly unsupported
by reason . . . [or] upon a showing that [the trial court’s
decision] was so arbitrary that it could not have been the
result of a reasoned decision.”). “[T]he test on review is are
the offenses so separate in time and place and so distinct in
circumstances as to render consolidation unjust and prejudicial
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to the defendant.” State v. Peterson, 205 N.C. App. 668, 672,
695 S.E.2d 835, 839 (2010) (citation and quotation omitted).
Under N.C. Gen. Stat. § 15A-926 (2013), “[t]wo or more
offenses may be joined in one pleading or for trial when the
offenses, whether felonies or misdemeanors or both, 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.” In ruling on a motion to join, the
trial court “must first determine if the statutory requirement
of a transactional connection is met.” Williams at 529, 565
S.E.2d at 626 (citation omitted). The presence or absence of a
transactional connection “is a fully reviewable question of
law.” Id. (citation omitted). The trial court “should consider
(1) the nature of the offenses charged; (2) any commonality of
facts between the offenses; (3) the lapse of time between the
offenses; and (4) the unique circumstances of each case.”
Peterson at 672, 695 S.E.2d at 839 (citation and quotation
omitted). Joinder “is made prior to trial; the nature of the
decision and its timing indicate that the correctness of the
joinder must be determined as of the time of the trial court’s
decision and not with the benefit of hindsight.” State v.
Silva, 304 N.C. 122, 127, 282 S.E.2d 449, 453 (1981).
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We first note that although the trial court dismissed the
charge of indecent liberties with a child against M.S. at the
close of the State’s evidence and the jury found defendant not
guilty of felony indecent exposure against M.S., those facts are
irrelevant in analyzing whether the trial court abused its
discretion at the time it entered the order for joinder of the
offenses. See id. at 127, 282 S.E.2d at 452 (“Although the
conspiracy charge, the actual link connecting the armed robbery
and larceny charges, was dismissed at the close of the evidence,
that fact . . . cannot enter into our consideration of whether
[the trial judge] abused his discretion in allowing joinder.”).
The evidence in the two cases show resemblances in victim,
location, motive, and modus operandi. Just like the
circumstances surrounding the acts against K.C. on 1 July 2011
as described above, the alleged acts against M.S. on 3 September
2010 were similar. Four-year-old M.S. and her mother were
inside a Goodwill store. M.S. and her mother became separated
by a clothing rack, and M.S. testified that a man showed her his
“bummy.” By the time M.S. told her mother what happened, the
alleged perpetrator had already left the store. In sum, the
State’s theory alleged that in each case defendant’s victim was
a prepubescent young girl, the acts occurred within months of
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one another in a donation store while the girl was momentarily
alone, defendant immediately fled the store after committing the
act, and defendant exerted acts of sexual misconduct. This
evidence was sufficient to constitute a transactional connection
between the acts such that joinder of the offenses was not an
abuse of discretion.
c.) Motion to Suppress
In his last argument on appeal, defendant contends that the
trial court erred in denying his motion to suppress statements
made by him to law enforcement officers because they were not
voluntary. Again, we disagree.
Our review of a trial court’s denial of a motion to
suppress is “strictly limited to determining whether the trial
judge’s underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). If a finding of fact is
not challenged on appeal, it is “presumed to be supported by
competent evidence and is binding on appeal.” State v. Taylor,
178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation and
quotation omitted). “The trial court’s conclusions of law . . .
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are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
The voluntary nature of a statement is determined by the
“totality of the circumstances[.]” State v. Greene, 332 N.C.
565, 579, 422 S.E.2d 730, 738 (1992) (citation omitted). We
consider the following factors, none of which is determinative:
“the defendant’s mental capacity; whether the defendant was in
custody at the time the confession was made; and the presence of
psychological coercion, physical torture, threats, or promises.”
Id. (citation omitted).
We initially note that defendant does not challenge any of
the trial court’s findings of fact as being unsupported by
competent evidence. Instead, he merely states that the findings
only addressed “some of the statements made by the detectives”
and were “undermined” by other testimony. However, “the trial
court’s findings of fact are conclusive on appeal if supported
by competent evidence, even if the evidence is conflicting.”
State v. McArn, 159 N.C. App. 209, 211, 582 S.E.2d 371, 373
(2003) (citation and quotation omitted). Thus, in the case sub
judice, the trial court’s findings of fact are binding on
appeal, and our sole task is to determine whether these findings
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support the trial court’s legal conclusion that defendant’s
statements to law enforcement officers were voluntary.
While defendant argues that “[t]he detectives’ lies,
deceptions, and implantation of fear and hope established a
coercive atmosphere[,]” the trial court’s findings indicate the
contrary:
23. Information was given to the Defendant
regarding several topics including the Child
Medical Examination (CME) performed on the
minor child following the incident of July
1, 2011 and the Sexual Assault Kit involving
saliva residue and DNA upon the minor child.
Rikard wanted the Defendant to believe that
DNA testing implicated the Defendant however
the detective never lied to the Defendant by
stating that the officer had received DNA
testing implicating the Defendant with the
minor child. Officer Rikard informed the
Defendant that the CME was performed on the
minor child but did not tell the Defendant
that the test results of the CME had not
been received by the officers[.]
. . .
24. Officer Loveland informed the Defendant
that there was a video of the incident,
without indicating exactly what information
the video revealed[.]
. . .
29. Detective Rikard followed standard
interrogation procedure with the Defendant
which included sharing some information with
the Defendant to elicit a response and
withholding other information thereby
allowing the Defendant to speak if he wished
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to do so on the topic being discussed.
30. The profanity used by Rikard was not
continuous, ongoing or in a manner which was
used to intimidate the Defendant over an
extended period of time. The profanity used
by Rikard did not appear to have a
significant effect upon the Defendant and
his statements to the officers.
. . .
35. The officers did not tell the Defendant
the entire contents of the Goodwill Store
video nor were they obligated to do so.
Moreover, the trial court found that:
Defendant arriv[ed] at the police department
on his own volition, [was] under no
compulsion to remain in the interview room,
[was] not being restrained in any manner,
was not intimidated by a show of force of
the officers, display of any type of
weapons, promise of reward, leniency or any
other inducement. In addition the interview
room was open, the Defendant was left alone,
departed the police department alone when
the interview was completed, and was offered
amenities such as drinking water and
bathroom facilities. The interview was not
excessively long in duration and there is no
indication the Defendant was incommunicado
from friends or family. . . . There is no
evidence that the Defendant was under any
physical or mental impairment nor was he
under the influence of controlled
substances, medications, or alcohol during
this interview[.]
These findings are sufficient to conclude that defendant’s
statements were voluntary. See State v. Barden, 356 N.C. 316,
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339, 572 S.E.2d 108, 125 (2002) (holding that defendant’s
statements to police were voluntary where defendant was offered
cigarettes and refreshments, had the freedom to use the rest
room without being accompanied by an officer, was never
restrained or handcuffed during questioning, did not remain in
the interview for a prolonged period of time, and did not
receive threats or pressure to give a statement). Thus, the
trial court did not err in denying defendant’s motion to
suppress and admitting his statements at trial.
III. Conclusion
In sum, we expressly decline to address whether or not the
trial court actually erred by denying defendant’s motion in
limine to preclude the State from presenting jurors with the
anime images found on defendant’s computer. Even assuming
arguendo that the trial court erred, the images did not
prejudice defendant due to other overwhelming evidence of his
guilt. Furthermore, the trial court did not err in joining the
September and July offenses for trial because a transactional
connection was present between the acts. Finally, the trial
court’s denial of defendant’s motion to suppress and subsequent
admission of defendant’s statements was free of error as his
statements were voluntary.
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No prejudicial error.
Judges McCULLOUGH and DAVIS concur.