State v. Bunn

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-15
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 12 CRS 52074
BRYAN RASHAD BUNN
Appeal by defendant from judgments entered 12 July 2013 by
Judge Paul C. Ridgeway in Durham County Superior Court. Heard
in the Court of Appeals 7 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Sarah Y. Meacham, for the State.
Law Office of Margaret C. Lumsden PLLC, by Margaret C.
Lumsden, for defendant-appellant.
McCULLOUGH, Judge.
Defendant Bryan Rashad Bunn appeals his convictions of two
counts of statutory sexual offense of a 13, 14, or 15 year old
and two counts of indecent liberties with a child. Based on the
reasons stated herein, we find no prejudicial error.
I. Background
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On 7 May 2012, defendant was indicted on the following
charges: two counts of statutory sexual offense of a person who
is 13, 14, or 15 years old in violation of N.C. Gen. Stat. § 14-
27.7A; two counts of indecent liberties with a child in
violation of N.C. Gen. Stat. § 14-202.1; one count of crime
against nature in violation of N.C. Gen. Stat. § 14-177; and one
count of contributing to the delinquency of a minor.
The State’s evidence tended to show that Adam1 was born on
24 January 1997 and resided with his mother in Chapel Hill,
North Carolina. While Adam was a fourth grade student at
Glenwood Elementary School, he met defendant through an after-
school program where defendant served as a group leader. Over
the course of several years, defendant and Adam developed a
close relationship – defendant would take Adam home after
school; defendant would pick up Adam at his mother’s house and
spend time at defendant’s mother’s house; defendant and Adam
would go shopping and go out to eat together; and Adam would
spend time at defendant’s home, including overnight visits three
to four times a week.
In the spring of 2010, when Adam was in the seventh grade,
Adam took a trip with defendant and defendant’s family to
1
A pseudonym has been used to protect the identity of the minor
victim.
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Washington, D.C. Adam was thirteen years old at the time and
defendant was twenty-seven years old. While in a hotel room,
defendant and Adam shared a bed. Adam testified that he was
partially asleep, when he felt defendant’s mouth on his penis.
He “didn’t know what to do” and did not say anything. Defendant
continued to perform oral sex on him for fifteen to twenty
minutes. The night they returned to North Carolina from the
trip, Adam spent the night at defendant’s apartment. Adam
testified that as he was lying on his right side, defendant was
behind him and “stuck his penis in my anus[.]” During the
summer of 2010, Adam stated that four to five times a week,
defendant would perform “[o]ral and sometimes anal, and then
sometimes, like, the hand.”
Adam also testified that he saw a video of defendant
masturbating on defendant’s cell phone and a video of two males
having sex on defendant’s laptop. While defendant was away at
work and Adam was alone in defendant’s apartment, Adam found and
watched a pornographic DVD.
Adam testified that he considered telling someone about
these incidents but “knew it would be hard to tell them, but – I
don’t know, I had to get it off my chest.” In September 2010,
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Adam told his mother that defendant had been molesting him and
Adam discontinued living with defendant.
Adam’s mother testified that she met defendant through the
after-school program offered at Adam’s school. At first,
defendant lived with his mother and then eventually got his own
apartment in Durham, North Carolina. Defendant and Adam’s
relationship started by spending time together on Wednesdays
while Adam’s mother attended meetings. Once defendant obtained
his own apartment, the amount of time spent between defendant
and Adam increased. Defendant told Adam’s mother that Adam
would have his own room at defendant’s apartment. Adam started
having overnight visits with defendant and for all practical
purposes, started living with defendant.
At some subsequent point in time, Adam told his mother, “I
don’t want to go back to stay the night at [defendant’s]
anymore[.]” Adam’s mother testified that she told him he did
not “have to go back.” Adam’s mother testified that she knew
something was “really wrong” when one day, Adam refused to go to
bed until defendant had left her house. Adam’s mother asked
Adam, “has [defendant] ever been inappropriate with you or did
something wrong that you knew was wrong[?]” and Adam responded
by saying, “mama, I don’t want you to go to jail.” Thereafter,
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Adam’s mother sent a text message to defendant stating the
following: “you are in no way, shape, or form to contact my son
again, whether it’s e-mail, text message, telephone. I know
what you did and I believe my son, and you’re to stay away from
us, and through therapy and stuff, you know, maybe we’ll get
through this.” Defendant responded by calling Adam’s mother
multiple times and requesting to talk to her. Adam’s mother
testified that:
[defendant] said I’m sorry[.] . . .
[Defendant] said, he got into bed with me
and I thought it was somebody else. And I
said if you think that I have answered this
phone to listen to you lie to me, that’s not
happening. I believe everything [Adam] said.
Adam’s mother testified that in March 2011, defendant sent her a
text message that read as follows:
Hey, I know I’m probably the last person you
want to hear from right now, but for some
reason I feel that you still care for me
deep down inside. I’m sorry about what
happened and I guess I will have three
months to think about all my wrongdoings.
Please just -- please just know that ever
since January 26th, I have . . . done one
thing but think of you and [Adam] from the
time I wake up in the morning until the time
I rest my head. I still love you both -- I
still love both of you guys to death and I
will be praying that you will forgive me and
accept – and accept me back as a changed
person. I hate myself for what happened,
but have asked for forgiveness and . . .
that’s all I can do at this point.
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Natalie Hawkins, a licensed marriage and family therapist,
testified that she met with defendant on 21 February 2011 and 2
March 2011 to conduct assessments for psychotherapy, family
therapy services. During the assessments, Hawkins testified
that defendant “was feeling distressed about a relationship he
had with – he called him his mentee, and he was a boy who had
been living with him” from March 2009 to September 2010.
Defendant later identified his mentee as Adam. Hawkins
testified that defendant “disclosed that it was something
similar – behavior that was similar to what [defendant] had
experienced himself when he was younger” and disclosed that “it
was inappropriate and sexual in nature.” Based on this
information, Hawkins was obligated to report the possible abuse
to the Department of Social Services.
Adam’s father also testified for the State. Adam’s father
testified that Adam’s behavior had changed to being scared to be
alone, “he locks the door to the bedroom, you can’t – he pulls
all the blinds, he’s scared, and especially at night. He has no
social life, he don’t [sic] know how to mingle with other
people, he alienates himself.”
Detective Ron Christie with the Durham County’s Sheriff’s
Office testified that in a September 2011 interview with Adam,
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Adam “described an oral –- an oral sexual relationship” with
defendant while they were living together. Detective Christie
conducted a follow-up interview of Adam in May 2012 and
testified that the details Adam provided in the interview were
consistent with the details Adam provided to the jury.
Janet Martin, a child protective services social worker
with Orange County Social Services, testified that on 2 March
2011, she received a report that defendant “had disclosed that
he had sexually abused a child who lived with him named [Adam].”
Upon meeting with Adam, Adam disclosed that defendant had
“messed with him,” “it was kind of sexual,” and “that it
happened often[.]”
Defendant testified in his own defense. He met Adam during
the 2005-2006 school year at Glenwood Elementary School where he
served as an after-school group leader and teacher’s assistant.
Their relationship began with defendant giving Adam rides home
from the after-school program. Every Wednesday, defendant would
go to Adam’s house and help him with homework while Adam’s
mother would attend meetings. Defendant would also take Adam to
the shopping mall, to restaurants, and to play basketball with
defendant’s family.
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Defendant testified that his motivation for developing a
friendship with Adam was that he “noticed that [Adam] needed
help. [Adam] was pretty much getting in trouble at [school] . .
. and I knew that he would listen to me because he always was
around me, as I was a group leader at [school.]” In March 2009,
defendant moved into his own apartment and Adam moved in with
him in May of that same year. Although Adam had his own room,
defendant testified that Adam chose to sleep in defendant’s room
because “he was afraid of the dark[.]”
In August 2009, defendant took Adam on a trip to
Washington, D.C. Defendant denied touching Adam inappropriately
and waking Adam up with inappropriate sexual contact on the
first night of the trip to Washington, D.C. Regarding the night
that they returned from the trip, defendant testified as
follows:
[Defense Counsel:] Did you touch [Adam]
inappropriately that night?
[Defendant:] No.
[Defense Counsel:] Have you ever performed
fellatio on [Adam?]
[Defendant:] To my knowledge, no.
[Defense Counsel:] And when you say “to my
knowledge,” what do you mean?
[Defendant:] Because I –- I mean, once I’m
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asleep, I’m asleep, and I don’t recall doing
anything to [Adam] while I was asleep.
[Defense Counsel:] Did you ever attempt to
penetrate him or penetrate him anally?
[Defendant:] No.
[Defense Counsel:] Did you ever touch him
inappropriately?
[Defendant:] [Adam] had a rash on him, so I
applied cream, because he didn’t want his
mom to do it. So, if that’s inappropriate, I
did do that; but otherwise, no, I didn’t.
Defendant described Adam’s rash as flea bites on his penis.
Defendant denied showing Adam pornographic material, but
admitted that he owned “a couple of pornographic CDs” and “was
not aware that [Adam] watched any pornographic material at my
house.” Defendant conceded that Adam had told him about seeing
pornographic material on defendant’s laptop, but denied putting
the pornographic video on his laptop. Defendant testified that
when Adam asked him about the video, defendant said, “I have no
clue, maybe somebody before you left it up there[.]”
Defendant testified that Adam stopped living with him in
September of 2010 after defendant was arrested for selling pills
to an undercover police officer in August 2010. Defendant
became aware of the allegations of sexual abuse against him
after he received a text message from Adam’s mother. He sent
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Adam’s mother a text message in response asking why she was
accusing him when she “didn’t even try to get my side of the
story.” Defendant testified that his mention of having regret
in a text message sent to Adam’s mother was in reference to
“selling pills and I knew that I had three months to sit in
jail.”
On 12 July 2013, the State dismissed the crime against
nature charge and the contributing to the delinquency of a minor
charge. On 12 July 2013, a jury found defendant guilty of the
remaining charges. The trial court found defendant to be a
prior record level II. On 12 July 2013, defendant was sentenced
to terms of 276 to 341 months and 190 to 225 months for each
count of statutory sexual offense, to be served consecutively,
and to terms of 19 to 23 months for each count of indecent
liberties with a child, also to be served consecutively.
From these judgment, defendant appeals.
II. Standard of Review
In criminal cases, an issue that was
not preserved by objection noted at trial
and that is not deemed preserved by rule or
law without any such action nevertheless may
be made the basis of an issue presented on
appeal when the judicial action questioned
is specifically and distinctly contended to
amount to plain error.
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N.C. R. App. P. Rule 10(a)(4) (2013). The North Carolina
Supreme Court “has elected to review unpreserved issues for
plain error when they involve either (1) errors in the judge’s
instructions to the jury, or (2) rulings on the admissibility of
evidence.” State v. Hoskins, __ N.C. App. __, __, 736 S.E.2d
631, 633 (2013) (citation omitted).
[T]he plain error rule . . . is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done[.]”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(citation omitted) (emphasis in original). “Under the plain
error rule, [a] defendant must convince this Court not only that
there was error, but that absent the error, the jury probably
would have reached a different result.” Hoskins, __ N.C. App.
at __, 736 S.E.2d at 633 (citing State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993)).
III. Discussion
Defendant argues that the trial court erred by (A)
admitting testimony from four of the State’s witnesses that
amounted to vouching for Adam’s credibility; (B) allowing a lay
witness to testify that Adam had symptoms of PTSD; (C) admitting
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evidence regarding defendant’s possession of pornography; and
(D) giving limiting instructions that were inadequate to protect
defendant’s right to a fair trial.
A. Witnesses and Credibility
In his first argument, defendant challenges portions of
testimony from four of the State’s witnesses – Nancy Berson, Dr.
Molly Berkoff, David Rademacher, and Adam’s mother. Defendant
contends that their testimony constituted improper vouching for
Adam’s credibility. Because defendant did not object to the
admission of the challenged testimony at trial, we conduct plain
error review.
Defendant relies on State v. Towe, 366 N.C. 56, 732 S.E.2d
564 (2012), for the contention that an expert witness may not
vouch for the credibility of the victim. In Towe, a doctor,
admitted as an expert in the field of pediatrics and child
sexual abuse, observed normal results after a physical
examination of the alleged victim of sexual abuse. The doctor
further testified that “[t]he lack of any findings would not be
inconsistent with sexual abuse” and, that the victim fell into a
category of “70 to 75 percent of the children who have been
sexually abused [and] have no abnormal findings, meaning that
the [physical] exams are either completely normal or very non-
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specific findings, such as redness.” Id. at 59-60, 732 S.E.2d
at 566. The Supreme Court noted that
[i]n a sexual offense prosecution involving
a child victim, the trial court should not
admit expert opinion that sexual abuse has
in fact occurred because, absent physical
evidence supporting a diagnosis of sexual
abuse, such testimony is an impermissible
opinion regarding the victim’s credibility.
. . . However, if a proper foundation has
been laid, an expert may testify about the
characteristics of sexually abused children
and whether an alleged victim exhibits such
characteristics.
Id. at 61-62, 732 S.E.2d at 567-68 (citing State v. Stancil, 355
N.C. 266, 266-67, 559 S.E.2d 788, 789 (2002)) (emphasis in
original). Because the doctor observed no injuries during the
victim’s physical examination, “the only bases for [the
doctor’s] conclusory assertion that the victim had been sexually
abused” were the victim’s history as relayed by the victim’s
mother and the victim’s statements made to a clinical social
worker that were observed by the doctor. Id. at 62, 732 S.E.2d
at 568. The Towe Court held that the challenged testimony was
improper and that because the case turned on the credibility of
the victim, “who provided the only direct evidence against [the]
defendant,” the error amounted to plain error. Id. at 63, 732
S.E.2d at 568.
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Defendant also cites to several other cases which stand for
the same principles as set out in Towe, that an expert witness
may not opine that sexual abuse has in fact occurred, absent
physical evidence supporting such a diagnosis. See State v.
Delsanto, 172 N.C. App. 42, 44-45, 615 S.E.2d 870, 872 (2005) (a
physician’s testimony that “although she did not observe any
physical manifestations of sexual abuse, the examination was
‘absolutely consistent’” with the alleged victim’s assertion
that the defendant touched her genital area amounted to an
impermissible opinion of the alleged victim’s credibility and
amounted to plain error); State v. Bush, 164 N.C. App. 254, 259,
595 S.E.2d 715, 718-19 (2004) (where the alleged victim’s
credibility was questionable, a physician’s diagnosis that the
alleged victim had been sexually abused by the defendant, absent
physical evidence of sexual abuse, added “tremendous
credibility” to the allegations of abuse and amounted to plain
error); and State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420(2004) (where a doctor testified that the results of a physical
examination of the victim were not specific to sexual abuse, but
that the diagnosis was probable sexual abuse by the defendant,
our Court found this was an impermissible opinion about the
victim’s credibility and amounted to plain error).
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Defendant attempts to analogize portions of Nancy Berson,
Dr. Molly Berkoff, David Rademacher, and Adam’s mother’s
testimonies to the aforementioned cases, arguing that although
“the State’s witnesses did not say outright that they believed
that [Adam] was telling the truth, . . . their testimony reveals
their assumption that he was in fact abused.” However, after
thorough review, we do not find his arguments persuasive.
We will first examine the testimonies of Nancy Berson and
Dr. Molly Berkoff. The State tendered Berson as an expert
witness in the evaluation and treatment of childhood trauma,
with an emphasis in childhood sexual abuse. Berson testified
that she met Adam and his family in April of 2011 to conduct a
child medical evaluation as requested by the Department of
Social Services. Counsel for the State asked Berson to describe
the typical anxieties of children who were known victims of
sexual abuse. Berson went on to testify that Adam’s reluctance
to disclose the alleged sexual abuse to his parents and his
concerns that the disclosure would cause discord in the family
and be hurtful to defendant were consistent with patterns of
disclosure of known victims of childhood sexual abuse. Berson
also testified that Adam’s mannerisms during the interview where
he disclosed the alleged abuse were “consistent with disclosures
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and mannerisms of known victims of childhood sexual abuse[.]”
Berson described Adam as having “an attitude of bravado that he
was okay” and that it was “very confusing” for Adam to keep the
alleged abuse a secret.
Dr. Berkoff was preferred as an expert in child sexual
abuse pediatrics. Dr. Berkoff met with Adam on 13 April 2011 in
order to complete a medical evaluation and to determine optimal
treatment. Dr. Berkoff testified that she met with Adam’s
parents and that it was important that Adam’s mother “had
reported being supportive of [Adam’s] disclosure and [had]
provided immediate protection and [had] not allow[ed] [Adam] to
have ongoing contact with [defendant.]” Dr. Berkoff explained
how Adam’s reaction of being “very worried” about and declining
anal swabs was “consistent with known victims of sexual abuse.”
Furthermore, Dr. Berkoff testified as follows:
[State:] Dr. Berkoff, in your experience and
training and knowledge of known victims of
sexual abuse, and known male victims of
sexual abuse, is [Adam’s] medical findings
consistent with known victims of sexual
abuse, and with the history that was
provided?
[Dr. Berkoff:] Yes.
We believe that the challenged portions of Berson and Dr.
Berkoff’s expert testimonies are distinguishable from the
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circumstances present in Towe, Delsanto, Bush, and Couser, and
do not constitute improper vouching. Rather, the facts of the
present case are controlled by the law set out in State v.
Kennedy, 320 N.C. 20, 357 S.E.2d 359 (1987). In Kennedy, the
North Carolina Supreme Court held that it was not improper to
allow two expert witnesses “to testify concerning the symptoms
and characteristics of sexually abused children and to state
their opinions that the symptoms exhibited by the victim were
consistent with sexual or physical abuse.” Id. at 31-32, 357
S.E.2d at 366. “The testimony of both of these witnesses, if
believed, could help the jury understand the behavior patterns
of sexually abused children and assist it in assessing the
credibility of the victim.” Id. at 32, 357 S.E.2d at 366. It
is well established that “[i]f scientific, technical or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion[.]” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2013). “Other
states have addressed this issue and held that testimony by
qualified experts about characteristics typically observed in
sexually abused children, such as secrecy, helplessness, delayed
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reporting, initial denial, depression, extreme fear, nightmares
with assaultive content, poor relationships and school
performance, is properly admissible under similar evidence
statutes.” Kennedy, 320 N.C. at 32, 357 S.E.2d at 366. “The
fact that this evidence may support the credibility of the
victim does not alone render it inadmissible. Most testimony,
expert or otherwise, tends to support the credibility of some
witness.” Id. at 32, 357 S.E.2d at 367 (emphasis added).
Therefore, we hold that it was not error, much less plain error,
for the trial court to admit testimony from Berson and Dr.
Berkoff because “it is permissible for an expert to testify that
a child exhibits ‘characteristics [consistent with] abused
children.’” State v. Ewell, 168 N.C. App. 98, 103, 606 S.E.2d
914, 918 (2005) (citation omitted).
Next, we examine the challenged testimonies of David
Rademacher and Adam’s mother, neither of whom were tendered as
expert witnesses. Rademacher testified that he was a
psychological associate and counselor working in Chatham and
Orange counties. In August of 2011, Adam was referred to
Rademacher for therapy. Rademacher testified that Adam “had
symptoms of post-traumatic stress disorder. He told me about
being sexually abused for some time; and he had symptoms such as
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nightmares, day flashbacks, paranoia, fear of the dark, fear of
being alone, he had some social anxiety that were . . . the
immediate symptoms.” Rademacher had seen significant
improvement through Adam’s therapy and because Adam did not have
“nightmares very often anymore” and “doesn’t have day flashbacks
much anymore,” Adam had “worked more on the other psychological
issues secondary to sexual abuse, such as, you know, self[-
]image, worrying about his own sexuality, things like that. Fear
that he would hurt somebody someday, things like this.”
Rademacher testified that these were “normal concerns” and “very
typical” in similar cases. In reference to Rademacher’s
testimony, the trial court gave a limiting instruction to the
jury that stated as follows:
You are not to consider any evidence of
post-traumatic stress disorder as evidence
of whether or not the offenses charged in
this case actually occurred, but, rather you
can receive and consider that evidence
solely for two purposes.
One purpose is to corroborate testimony of
witnesses that you have previously heard
testify in this case; and the second reason
is to explain, if you so find, conduct or
behavior of the alleged victim, . . . while
he was in the care and being observed by
[Rademacher].
After reviewing the record, we hold that Rademacher’s
testimony did not constitute vouching for Adam’s credibility.
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At no point in Rademacher’s testimony did he testify regarding
the merits of Adam’s alleged sexual abuse. Assuming arguendo
that it was error for the trial court to admit Rademacher’s
testimony, we hold that it does not amount to plain error based
on the trial court’s limiting instruction given to the jury,
which we assume the jurors followed, that it not consider the
challenged testimony as evidence of whether or not the offenses
charged in this case actually occurred. See State v. Glover, 77
N.C. App. 418, 421, 335 S.E.2d 86, 88 (1985) (“[O]ur legal
system through trial by jury operates on the assumption that a
jury is composed of men and women of sufficient intelligence to
comply with the court’s instructions and they are presumed to
have done so.”).
Adam’s mother, a lay witness, testified to the following:
[State:] Tell me a little bit about [Adam]
and his character for truthfulness.
[Adam’s mother:] I’ve tried to raise him . .
. . –- I’m not this real religious person,
but . . . I have faith; . . . And I told
him, when you walk in truth, that it does
not get any better than that. . . .
[State:] And is he truthful?
[Adam’s mother:] Except when I go to
GameStop and he said this game’s only going
to cost $15, and then $35 later, yeah,
that’s the biggest thing.
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We disagree with defendant that the testimony of Adam’s
mother was equivalent to improper vouching. Pursuant to Rule
608(a) of the North Carolina Rules of Evidence, “[t]he
credibility of a witness may be attacked or supported by
evidence in the form of reputation or opinion” so long as the
evidence refers “only to character for truthfulness or
untruthfulness” and only after “the character of the witness for
truthfulness has been attacked by opinion or reputation evidence
or otherwise.” N.C. Gen. Stat. § 8C-1, Rule 608(a) (2013).
Moreover, assuming arguendo that this portion of testimony was
inadmissible, defendant has failed to show a reasonable
possibility that the jury would have reached a different result
absent the alleged error. See N.C. Gen. Stat. § 15A-1443 (2013)
(stating that “[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”).
Based on the preceding reasons, we overrule defendant’s
arguments that the State’s four witnesses improperly vouched for
defendant’s credibility.
B. PTSD
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Defendant’s next argument, which we review for plain error,
is that the trial court erred by allowing Rademacher, a lay
witness, to testify that Adam displayed symptoms of post-
traumatic stress disorder. Defendant, relying on State v. Hall,
330 N.C. 808, 412 S.E.2d 883 (1992), argues that only an expert
in the field may testify on the profiles of sexually abused
children and “whether a particular complainant has symptoms or
characteristics consistent with this profile.” Hall, 330 N.C.
at 818, 412 S.E.2d at 888.
Assuming without deciding that it was error for the trial
court to admit this evidence since Rademacher was not tendered
as an expert witness who had particularized training or
experience related to post-traumatic stress disorder, defendant
has not shown that it amounted to prejudicial error.
Rademacher’s testimony that Adam displayed symptoms was not
admitted as substantive evidence that the alleged sexual abuse
had in fact occurred. Furthermore, the trial court’s limiting
instruction to the jury regarding the application of evidence of
post-traumatic stress disorder was sufficient to cure any
possible prejudice to defendant resulting from its admission.
Accordingly, defendant’s arguments fail.
C. Defendant’s Possession of Pornography
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In his third argument, defendant asserts that the trial
court erred by admitting evidence regarding defendant’s
possession of pornography. Defendant did not object to the
admission of this testimony at trial and, therefore, we conduct
plain error review.
Defendant relies on our holding in State v. Smith, 152 N.C.
App. 514, 568 S.E.2d 289 (2002). In Smith, our Court noted that
[T]he only evidence that [the] defendant
attempted to expose [the victim] to
pornographic materials was [the victim’s]
testimony that [the] defendant once asked
her to watch a video but would not tell her
what the video was about. [The victim] then
speculated that she thought the video was a
pornographic movie.
Id. at 522, 568 S.E.2d at 294 (emphasis in original). Our Court
stated that evidence of the defendant’s possession of
pornographic materials, without any evidence that the defendant
viewed the pornographic materials with the victim or any
evidence that the defendant asked the victim to look at
pornographic materials, was not relevant to proving defendant
committed the alleged offenses of taking indecent liberties with
a child and first degree sex offense with a female child under
the age of 13. Id. at 523, 568 S.E.2d at 295. Nevertheless,
our Court held that the error was not prejudicial in light of
other evidence presented at trial – the victim’s testimony; the
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victim’s mother’s testimony that the victim’s statements to her
concerning the alleged offenses were consistent with the
victim’s testimony at trial; a psychiatrist’s testimony that the
victim’s statements made to her concerning the alleged sexual
abuse were consistent with the victim’s statements at trial; and
evidence that the defendant had made sexually graphic and
suggestive comments about the victim to two of his co-workers.
Id. at 523-24, 568 S.E.2d at 295.
In the case sub judice, Adam testified that he found a
video on defendant’s phone of defendant masturbating. Defendant
thereafter told Adam, “you better not look at my phone again.”
Adam also testified that he opened defendant’s laptop in the
car, while defendant was driving, and saw a pornographic picture
of two men engaging in sexual intercourse. Adam asked, “what is
this” and defendant replied “I don’t know, just one of my
friends probably been looking at that.” Adam also found
pornographic videos in defendant’s apartment while defendant was
away at work and testified that he watched them because he “was
bored.” Defendant requested a limiting instruction regarding
the introduction of this evidence. The trial court stated that
this evidence was relevant to the contributing to the
delinquency of a minor charge and that there was sufficient
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evidence from which a reasonable jury could find that
pornography was shown or made available to Adam. The trial
court declined to give a limiting instruction, instead allowing
the parties to argue the implications of the evidence or lack
thereof in closing arguments. Subsequently, the State dismissed
the charge of contributing to the delinquency of a minor.
Similar to our reasoning in Smith, we hold that the
admission of evidence regarding defendant’s possession of
pornography did not rise to the level of prejudicial error. The
State presented Adam’s testimony of the history of sexual abuse
by defendant. Hawkins testified that defendant reported to her
that he had had an inappropriate, sexual relationship with Adam.
Detective Christie testified that Adam’s testimony at trial was
consistent with the details he provided in interviews with him
in 2011 and 2012. Berson and Dr. Berkoff also provided expert
testimony that Adam’s mannerisms during an interview, patterns
of disclosure, anxieties, and reactions to a medical examination
were consistent with known victims of childhood sexual abuse.
In light of the foregoing evidence, we hold that defendant has
failed to establish a reasonable possibility that the jury would
have reached a different result.
D. Limiting Instructions
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In his last argument, defendant contends that the trial
court’s limiting instructions were inadequate to protect his
right to a fair trial. Defendant argues that he faced a
“barrage of inadmissible evidence” which includes the following:
the State’s witnesses vouching for the victim’s credibility;
allegations that the victim had suffered psychological problems
attributed to defendant’s alleged abuse; and a suggestion that
defendant’s possession of pornography made it more likely that
defendant abused victim. However, because defendant did not
object to the form of the limiting instructions at trial and
because he does not specifically and distinctly allege plain
error on appeal, we dismiss his argument. See N.C. R. App. P.
10(a)(4) (2013); see also State v. Davis, 202 N.C. App. 490,
497, 688 S.E.2d 829, 834 (2010) (stating that “because
[D]efendant did not ‘specifically and distinctly’ allege plain
error as required by [N.C. R. App. P. 10(a)(4)], [D]efendant is
not entitled to plain error review of this issue”).
IV. Conclusion
Based on the foregoing, we conclude that defendant received
a fair trial, free of prejudicial error.
No prejudicial error.
Judges STEPHENS and STROUD concur.
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Report per Rule 30(e).