State v. Sparks

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-659
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Rockingham County
Nos. 10 CRS 50917-18
12 CRS 1601
JERRY MICHAEL SPARKS
Appeal by defendant from judgments entered 29 August 2012
by Judge Judson D. DeRamus in Rockingham County Superior Court.
Heard in the Court of Appeals 23 October 2013.
Roy Cooper, Attorney General, by Belinda A. Smith, Special
Deputy Attorney General, for the State.
Glenn Gerding for defendant-appellant.
DAVIS, Judge.
Defendant Jerry Michael Sparks (“Defendant”) appeals from
his convictions of various sex offenses. On appeal, he contends
the trial court erred in excluding evidence of third–party
guilt. After careful review, we conclude that Defendant
received a fair trial free from error.
Factual Background
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The State presented evidence at trial tending to establish
the following facts: Defendant and Sherri Smith (“Ms. Smith”),
who were not married, had a daughter, Heather,1 in 2001. After a
tumultuous relationship, the couple separated and entered into a
custody dispute involving Heather. Between 2006 and 2009,
Defendant had an “off and on” relationship with Krystal Ellison
(“Ms. Ellison”), who had a son, Jeff, from a previous
relationship. While Defendant and Ms. Ellison were dating, Ms.
Ellison lived with Defendant at his trailer, and Jeff lived with
his grandmother and step-grandfather, John Clarke (“Mr.
Clarke”).
During this time, Defendant had a tent in his backyard.
Jeff testified at trial about an incident in which he, Heather,
and Defendant were present in the tent together and Defendant
made Jeff and Heather remove their clothes and “hump” each other
while Defendant “humped” Jeff from behind. Jeff further
testified after they left the tent, they went inside the trailer
and that once inside, Defendant touched Jeff’s “butt” with his
penis and then made Jeff retrieve soap from the bathroom. Jeff
gave Defendant the bathroom soap, and Defendant proceeded to
1
Pseudonyms are used throughout this opinion to protect the
privacy of the juveniles mentioned herein.
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place the soap on his genitals. After doing so, he began to
“hump” Jeff again.
Heather also testified about the incident that occurred
inside Defendant’s tent. She stated that Defendant put his
fingers “up [her] bottom” while she was standing in the tent
with Jeff and that afterward, they all went inside the trailer
and “got into bed.”
Jeff also testified as to other instances in which
Defendant “humped” him. On one such occasion, Defendant woke
him up and “told [him] to go into the bedroom.” Once they were
in the bedroom, Defendant placed his hands on Jeff’s genitals
and “humped” him again.
Defendant was charged with two counts of sexual act with a
child and two counts of indecent liberties. This matter came on
for trial during the 20 August 2012 Criminal Session of
Rockingham County Superior Court. The jury found Defendant
guilty of one count of sexual act with a child and two counts of
indecent liberties. The trial court consolidated the sexual act
with a child offense and one count of indecent liberties and
sentenced Defendant to a presumptive range term of 336 to 413
months imprisonment. The trial court also sentenced Defendant
to a presumptive range term of 21 to 26 months for the remaining
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indecent liberties conviction and a concurrent sentence of 30
days imprisonment for direct criminal contempt with these
sentences beginning to run at the expiration of the first
sentence. In addition, Defendant was ordered to register as a
sex offender and be subject to satellite-based monitoring for
life. Defendant gave notice of appeal in open court.
Analysis
Defendant argues that the trial court erred in excluding
evidence that (1) Jeff’s step-grandfather, Mr. Clarke, had
previously been convicted of molesting a nine-year-old boy,
seven-year-old girl, and five-year-old girl; and (2) Jeff told
Defendant that Mr. Clarke was “doing stuff to him.” Defendant
argues that this evidence was relevant to show either that Mr.
Clarke, rather than Defendant, committed the crimes for which
Defendant was convicted, or that, in the alternative, Jeff’s
family — knowing Mr. Clarke’s history as a sexual offender —
created a similar story for Jeff to allege against Defendant.
Defendant asserts that the exclusion of this evidence deprived
him of his right to present a defense, which includes the right
to present relevant evidence tending to show that someone else
might have committed the crime with which the Defendant was
charged.
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The admissibility of evidence suggesting the potential
guilt of a third party is governed by the general principle of
relevancy set out in Rule 401 of the North Carolina Rules of
Evidence. State v. Bullock, 154 N.C. App. 234, 241, 574 S.E.2d
17, 22 (2002).
Evidence that another committed the crime
for which the defendant is charged generally
is relevant and admissible as long as it
does more than create an inference or
conjecture in this regard. It must point
directly to the guilt of the other party.
Under Rule 401 such evidence must tend both
to implicate another and be inconsistent
with the guilt of the defendant.
State v. Cotton, 318 N.C. 663, 667, 351 S.E.2d 277, 279-80
(1987) (internal citations omitted). However,
evidence which tends to show nothing more
than that someone other than the accused had
an opportunity to commit the offense,
without tending to show that such person
actually did commit the offense and that
therefore the defendant did not do so, is
too remote to be relevant and should be
excluded.
State v. Brewer, 325 N.C. 550, 564, 386 S.E.2d 569, 576 (1989)
(citation and quotation marks omitted), cert. denied, 495 U.S.
951, 109 L.Ed.2d 541 (1990).
Our decision in State v. Couser, 163 N.C. App. 727, 594
S.E.2d 420 (2004), is instructive. In Couser, the defendant was
charged with attempted statutory rape of a minor and taking
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indecent liberties with a child. At trial, the defendant sought
to introduce evidence that the victim’s father had previously
been convicted of sexually abusing the victim’s sister and that
this evidence tended to show that the victim's father, not the
defendant, had committed the crime. Couser, 163 N.C. App. at
732, 594 S.E.2d at 424 (2004). This Court held that evidence
regarding the prior conviction of the victim’s father was
properly excluded, as it was insufficient to implicate him in
the sexual assault for which the defendant had been convicted.
Id. at 733, 594 S.E.2d at 424.
Similarly, we conclude in the present case that the trial
court did not err in ruling that Mr. Clarke’s previous
convictions were not relevant because this evidence did not
directly implicate him in the sexual acts against Jeff.
Moreover, we believe that such evidence would not have been
inconsistent with Defendant’s own guilt. Evidence that Mr.
Clarke may have also sexually abused Jeff would not necessarily
be inconsistent with Defendant also abusing him. This is
particularly so in light of Jeff’s testimony that Defendant (1)
made Jeff and Heather “hump” each other; (2) “humped” Jeff from
behind; (3) touched Jeff’s “butt” with his penis; and (4) made
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Jeff get soap from the bathroom, which Defendant placed on his
penis and then “humped” Jeff again.
Evidence that Mr. Clarke has prior convictions of sexual
offenses does no more than establish conjecture that (1) Mr.
Clarke committed sexual assaults against Jeff; or (2) Jeff’s
family concocted a fictitious story of sexual abuse concerning
Defendant. Therefore, the trial court did not err in excluding
this evidence.
Defendant also contends that the trial court erred in not
allowing Defendant to testify that Jeff “reported” to Defendant
that his “Papa”2 was “doing stuff to him.” Defendant argues that
this is direct evidence against Mr. Clarke that points “directly
to another’s guilt” and was, therefore, admissible. However, in
addition to the fact that neither Jeff nor Heather testified
that Mr. Clarke ever touched them inappropriately, the fact
that, according to Defendant, Jeff may have reported to
Defendant on one occasion that Mr. Clarke was “doing stuff to
him” does not exculpate Defendant; such an allegation, even if
true, could have meant that Jeff was sexually abused by both
Defendant and Mr. Clarke. Therefore, we cannot say that the
2
Testimony was offered at trial to the effect that “Papa” was
the name that Jeff used for Mr. Clarke.
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trial court committed reversible error in excluding this
evidence.
Defendant also asserts that his rights under the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution were violated by the trial court’s denial of his
request to introduce evidence regarding the third-party guilt of
Mr. Clarke. Although Defendant asserted at trial a violation of
his Sixth Amendment right to confront witnesses, he has failed
to make a specific argument on this issue in his brief, and – as
such – this argument is deemed abandoned. See N.C.R. App.
P.28(b)(6) (“Issues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken
as abandoned.”).
Defendant concedes that his remaining constitutional
arguments were not raised at trial. “Constitutional issues not
raised and passed upon at trial will not be considered for the
first time on appeal, not even for plain error.” State v.
Jones, 216 N.C. App. 225, 230, 715 S.E.2d 896, 900-01 (2011)
(citation and quotations marks omitted). Therefore, these
issues are not properly before us.
Conclusion
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For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).