State v. Macmoran ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-758
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 12 CRS 981
THADDEUS STEPHEN MACMORAN
Appeal by defendant from judgment entered 31 January 2013
by Judge Forrest D. Bridges in Mecklenburg County Superior
Court. Heard in the Court of Appeals 20 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Olga Vysotskaya, for the State.
Ryan McKaig, for defendant-appellant.
CALABRIA, Judge.
Thaddeus Stephen MacMoran (“defendant”) appeals from a
judgment entered upon jury verdicts finding him guilty of
statutory sexual offense against a person who is thirteen,
fourteen, or fifteen years old by a defendant who is at least
six years older than the victim (“statutory sexual offense”).
We find no error.
I. Background
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Defendant was employed as a youth pastor at a church in
Charlotte, North Carolina, where he met thirteen-year-old E.H.
(“Eric”)1 and his family. Defendant became friends with the
family. Eric’s mother regarded defendant as part of the family,
and trusted him with her children.
Defendant paid particular attention to Eric, taking him on
outings and playing video games and basketball with him.
Sometimes defendant slept on the floor of Eric’s bedroom when he
stayed overnight with Eric’s family. During the summer of 2010,
when Eric was fourteen years old, defendant spent three
consecutive nights with the family. On the first night,
defendant touched Eric’s penis with his hand as Eric was
attempting to fall asleep. The following night, defendant again
touched Eric’s genitals, stroking his penis. The third night,
defendant briefly performed fellatio on Eric and requested Eric
perform fellatio on him. When Eric refused, defendant “got mad,
disappointed.” The last time defendant had physical contact
with Eric was in November 2011.
In addition to physical contact, defendant also had sexual
conversations and exchanged explicit text messages with Eric.
In late November 2011, Eric’s mother discovered sexually
1
We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
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explicit text messages from defendant on Eric’s cell phone and
confronted her son about the nature of the messages. Eric told
his mother about defendant’s behavior toward him, and she
subsequently reported defendant’s behavior to law enforcement.
Defendant was arrested and indicted for statutory sexual
offense, committing a crime against nature, and four counts of
indecent liberties with a child (“indecent liberties”). At
trial, Eric testified that defendant had touched his genitals on
approximately ten to fifteen occasions. Eric also testified
that he had not told anyone, not even his parents, about the
occurrences because he was scared and embarrassed about
defendant’s sexual advances toward him.
On 31 January 2013, the jury returned verdicts finding
defendant guilty of all offenses. The jury also found the
aggravating factor that defendant took advantage of a position
of trust or confidence to commit the offenses. The trial court
arrested judgment for the indecent liberties and crime against
nature offenses, and sentenced defendant to a minimum of 222
months and a maximum of 276 months in the custody of the North
Carolina Division of Adult Correction for the statutory sexual
offense. The trial court also ordered defendant to enroll in
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satellite-based monitoring and register as a sex offender upon
his release from custody. Defendant appeals.
II. Mistrial
Defendant argues that the trial court should have declared
a mistrial ex mero motu after the district attorney asked Eric’s
mother her opinion regarding Eric’s honesty. He contends that
her answer amounted to an impermissible bolstering of Eric’s
testimony. We find no error.
Generally, the credibility of a witness may only be
supported after it has been attacked. N.C. Gen. Stat. § 8C-1,
Rule 608(a) (2011). However, “any error in admitting evidence
in violation of Rule 608 does not require a new trial unless
there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at trial.” State v. Moore, 103 N.C. App. 87, 99, 404
S.E.2d 695, 702 (1991) (citations and internal quotations
omitted). “Not every disruptive event which occurs during trial
automatically requires the court to declare a mistrial.” State
v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000).
Our Courts have previously considered the effect of a
mother’s testimony regarding her children’s truthfulness in
cases concerning child sexual abuse. Because “most jurors are
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likely to assume that a mother will believe accusations of
sexual abuse made by her own children, we cannot conclude that
the challenged portion of . . . testimony had any significant
impact on the jury’s decision to convict Defendant.” State v.
Dew, ___ N.C. App. ___, ___, 738 S.E.2d 215, 219 (2013) (citing
State v. Ramey, 318 N.C. 457, 466, 349 S.E.2d 566, 572 (1986)
(holding “[i]t is unlikely that the jury gave great weight to
the fact that a mother believed that her son was truthful.”)).
In addition, a trial court’s prompt corrective action can cure
the error caused by improper testimony. See State v. King, 343
N.C. 29, 44-45, 468 S.E.2d 232, 242 (1996) (trial court’s action
was sufficient to cure any prejudice when it sustained objection
to witness’s testimony, allowed motion to strike, and instructed
the jury not to consider the witness’s response); see State v.
Boyd, 321 N.C. 574, 578-79, 364 S.E.2d 118, 120-21 (1988) (trial
court took prompt and sufficient corrective action by sustaining
defendant’s objection, allowing motion to strike, and
instructing the jury not to consider witness’s response).
In the instant case, after Eric’s mother testified
regarding Eric’s reaction to her discovery of defendant’s text
messages, the prosecutor asked whether she “[had] always known
[Eric] to be an honest kid[.]” Defendant immediately objected
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and made a motion to strike. Although defendant failed to
request a mistrial and did not request a curative instruction,
the trial court provided detailed instructions to the jury at
the onset of trial regarding, inter alia, the significance of
the court granting defendant’s motion to strike. In those
instructions the trial court indicated that a motion to strike
is actually a motion to strike that answer
from your memory. . . . [S]o if I grant a
motion to strike . . . that is my signal to
you simply disregard what you have just
heard, the last answer. In other words,
when you go back into the jury room to
deliberate and you consider that collection
of evidence that has been presented, there
should not be included in that collection of
evidence anything on which I granted a
motion to strike. And if your fellow jurors
start talking about an answer that was given
but was stricken, please remember that,
point that out to your fellow jurors and
say, wait, we should not consider that,
because that’s not part of the competent
evidence in the case.
The trial court properly sustained defendant’s objection,
granted defendant’s motion to strike, and instructed the jury on
the meaning of a motion to strike. “Jurors are presumed to
follow a trial judge’s instructions.” State v. Phillips, 171
N.C. App. 622, 629, 615 S.E.2d 382, 386 (2005) (quoting State v.
Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)). Therefore,
since defendant failed to refute this presumption on appeal, and
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the trial judge instructed the jury that stricken testimony was
not to be considered as competent evidence in the case, the
trial court did not err by not declaring a mistrial.
Defendant argues in the alternative that his trial counsel
committed ineffective assistance of counsel by failing to move
for mistrial. To prevail on such a claim, defendant must show
that his trial counsel’s performance was “deficient,” and that
“the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).
Although defendant claims his trial counsel’s failure to move
for mistrial was prejudicial, he fails to explain how this
performance was prejudicial enough for the court to declare a
mistrial. Defendant’s claim is without merit.
III. Age Testimony
Defendant argues that the trial court committed plain error
by allowing Eric and his mother to testify regarding defendant’s
age, and erred in denying defendant’s motion to dismiss the
charges against him. We disagree.
Defendant did not object to Eric’s or his mother’s
testimonies about defendant’s age. Therefore, that testimony
may only be reviewed for plain error. See State v. Odom, 307
N.C. 655, 660, 300 S.E.2d 375, 378 (1983). “Because plain error
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is to be applied cautiously and only in the exceptional case,
the error will often be one that seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012) (citations omitted).
Upon defendant’s motion to dismiss, “the trial court must
determine whether there is substantial evidence (1) of each
essential element of the offense charged and (2) that the
defendant is the perpetrator of the offense.” State v.
Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citations
omitted). “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).
To prove that a defendant is guilty of a statutory sexual
offense, the State must show, inter alia, that a person engaged
in a sexual act with a victim who is thirteen, fourteen, or
fifteen years old, and that the defendant is at least six years
older than the victim. N.C. Gen. Stat. § 14-27.7A(a) (2010).
The State is not required to offer the birth certificates of
defendant and victim to establish the ages of the parties, but
testimony is sufficient. State v. Cortes-Serrano, 195 N.C. App.
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644, 652-53, 673 S.E.2d 756, 761-62 (2009). However, a witness
may not testify to a matter unless there is evidence sufficient
to support a finding that he has personal knowledge of the
matter. N.C. Gen. Stat. § 8C-1, Rule 602 (2011).
As an initial matter, there is no dispute that defendant
was the perpetrator. Defendant’s dispute focuses on the State’s
failure to provide substantial evidence that defendant was at
least six years older than Eric. Defendant contends that the
testimony offered at trial was foundationless.
This Court has held that the jury may rely on their in-
court observations, supplemented by other direct or
circumstantial evidence, in determining a defendant’s age.
State v. Ackerman, 144 N.C. App. 452, 461-62, 551 S.E.2d 139,
145-46 (2001). In addition, “[t]he credibility of the witnesses
and the weight to be given their testimony is exclusively a
matter for the jury.” State v. Scott, 323 N.C. 350, 353, 372
S.E.2d 572, 575 (1988) (citation omitted).
In the instant case, the evidence showed that defendant was
a gainfully employed adult when he first came into contact with
Eric’s family, and was on friendly terms with the family for
about a year before he began seeing them socially outside the
church environment. At the time of trial in January 2013, Eric
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was sixteen years old. Both Eric and his mother testified,
without objection, that defendant was approximately twenty-six
or twenty-seven years old at the time of trial. Both Eric and
his mother also testified from their personal knowledge
regarding defendant’s age, based upon their close friendly
relationship for over a year. The evidence showed the age
difference between defendant and Eric to be approximately ten
years, which satisfies the requirements of N.C. Gen. Stat. § 14-
27.7A(a). Since the jurors’ in-court observations were
supplemented by circumstantial evidence of the approximate age
difference between defendant and Eric, the State presented
substantial evidence sufficient to support a finding that
defendant was at least six years older than Eric at the time of
the offenses. It was for the jury to determine “[t]he
credibility of the witnesses and the weight to be given their
testimony[.]” Scott, 323 N.C. at 353, 372 S.E.2d at 575.
IV. Conclusion
The trial court took immediate action to cure any error
regarding the disputed testimony of Eric’s mother. Neither
defense counsel’s failure to move for nor the trial court’s
failure to declare a mistrial ex mero motu prejudiced the
defendant. Defendant also fails to demonstrate that the
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testimony regarding his age constitutes plain error. Because
jurors are assumed to follow the trial court’s instructions, and
the jury is the ultimate judge of the credibility and weight of
witness testimony, defendant received a fair trial, free from
error. Id.; Phillips, 171 N.C. App. at 629, 615 S.E.2d at 386.
No error.
Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).