{ "id": 11239129, "name": "STATE OF NORTH CAROLINA v. DANIEL M. TROGDEN", "name_abbreviation": "State v. Trogden", "decision_date": "1999-09-21", "docket_number": "No. COA98-1122", "first_page": "85", "last_page": "92", "citations": [ { "type": "official", "cite": "135 N.C. App. 85" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "336 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534822 ], "opinion_index": -1, "case_paths": [ "/nc/336/0001-01" ] }, { "cite": "406 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "820", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "329 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556019 ], "year": 1991, "pin_cites": [ { "page": "522", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0507-01" ] }, { "cite": "18 L. Ed. 2d 1377", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "388 U.S. 924", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194450, 6194707 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0924-01", "/us/388/0924-02" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] }, { "cite": "423 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "333 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546001 ], "year": 1992, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0067-01" ] }, { "cite": "442 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "40" }, { "page": "41" }, { "page": "40" } ], "opinion_index": 0 }, { "cite": "344 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "104", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, N.C.R. Civ. P. 61" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522057 ], "year": 1986, "pin_cites": [ { "page": "162", "parenthetical": "citing N.C. Gen. Stat. \u00a7 1A-1, N.C.R. Civ. P. 61" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0159-01" ] }, { "cite": "465 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "336" }, { "page": "335-36" }, { "page": "337" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916824 ], "year": 1996, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0306-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "year": 1999, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "336 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534822 ], "opinion_index": 0, "case_paths": [ "/nc/336/0001-01" ] } ], "analysis": { "cardinality": 652, "char_count": 12722, "ocr_confidence": 0.774, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7494597175356555 }, "sha256": "072ffd11eb8c584c8ce0312a65c73a70caee2bb1c3e9c8049dfed98676dd7a57", "simhash": "1:873cde0a5dbe8fc7", "word_count": 2070 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANIEL M. TROGDEN" ], "opinions": [ { "text": "LEWIS, Judge.\nFollowing indictment by a grand jury on twenty-seven counts, defendant was convicted on eight counts of taking indecent liberties with a child, four counts of first degree statutory sex offense, and two counts of sexual activity by a custodian in Wayne County Superior Court. We find ample evidence to support the findings of guilt by the jury on all charges. Defendant appeals, making three arguments.\nAt the outset we note that defendant attempted to file a supplemental brief more than nine months after the printed record on appeal was mailed, significantly in excess of the thirty days allowed by Rule 13(a) of the Rules of Appellate Procedure for filing an appellant\u2019s brief. Defendant did not timely seek an extension of time to file his brief and because this Court and the appellant are bound by the Rules of Appellate Procedure, Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999), the supplemental brief will not be considered.\nDefendant\u2019s first argument on appeal is that the trial court\u2019s exclusion of evidence concerning alleged prior sexual behavior of the victim was reversible error. Defendant sought to introduce evidence by \u201cT\u201d, a nine-year-old child, that six weeks prior to being placed in the Trogden home, T saw \u201cM\u201d, the victim in this case, performing fellatio on T\u2019s younger brother and forcing the child to reciprocate the act. The trial court denied defendant\u2019s motion after hearing argument that Rule 412 barred introduction of the evidence in question. N.C. Gen. Stat. \u00a7 8C-1, N.C.R. Evid. 412 (1992).\nRule 412 prohibits introduction of evidence of the complainant\u2019s sexual behavior during prosecution of a rape or sex offense unless such evidence is relevant. Sexual behavior is defined by Rule 412(a) as \u201csexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.\u201d The excluded testimony illustrates an instance of sexual behavior between M and another child, which was not the sexual act at issue in the indictment on trial.\nRelevant evidence is defined in Rule 412(b) as any evidence of sexual behavior which:\n(1) Was between the complainant and the defendant; or\n(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or\n(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant\u2019s version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or\n(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.\nWithout a determination by the court that the sexual behavior is relevant under Rule 412(b), no such evidence may be introduced in any trial of a charge of rape or a sex offense. Id. \u00a7 412(d).\nDefendant sought to admit T\u2019s statements referencing M\u2019s past sexual behavior under Rule 412(b)(2) at trial. This'is not the type of evidence offered for the purpose of showing that the acts charged were not committed by defendant under Rule 412(b)(2). State v. Bass, 121 N.C. App. 306, 310, 465 S.E.2d 334, 336 (1996). As the trial court noted, since M testified at trial that defendant showed him how to perform sexual acts, defense counsel was not prohibited from cross-examining M concerning the way in which he learned to do such acts, so long as the cross-examination did not refer to specific acts.\nDefendant also argues that beyond the four categories of elevance listed under Rule 412, evidence of M\u2019s prior sexual behavior was relevant to show that M had prior knowledge of sexual matters and therefore had the ability to fabricate testimony regarding abuse by the defendant. This Court addressed a similar argument in Bass.\nIn Bass, the trial court excluded statements by a child victim indicating that she had been similarly abused by her uncle three years earlier. Id. at 308-09, 465 S.E.2d at 335-36. On appeal, defendant argued that the evidence was relevant to show that the child had requisite knowledge to fabricate testimony about her abuse by defendant. This Court stated in Bass:\nDefendant\u2019s contention is contrary to Rule 412 and unsupported by the law of this jurisdiction. To agree with defendant\u2019s contention would be to substantially restrict the effect of Rule 412, and allow admission of a wide variety of previous sexual activities over Rule 412 objection.\nId. at 311, 465 S.E.2d at 337. Accordingly, we conclude that M\u2019s testimony is not relevant and therefore inadmissible.\nEven if it was error to exclude this evidence, it was harmless. It is not sufficient for the defendant to merely allege error. He must show that absent the trial court\u2019s allegedly erroneous exclusion of evidence, a different result would have obtained. Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986) (citing N.C. Gen. Stat. \u00a7 1A-1, N.C.R. Civ. P. 61).\nThe State\u2019s evidence tended to show that M and seven other children testified as to some experience of sexual abuse by defendant; the testimony of eight adult witnesses corroborated the children\u2019s evidence. Defendant conceded at trial that there was substantial evidence as to every element of each crime charged. Furthermore, the jury heard testimony from defendant and from a social worker that M was sexually molested in earlier years by a babysitter. The evidence of M\u2019s prior sexual behavior was not necessary to establish that M had prior knowledge of sexual matters and hence the ability to fabricate allegations against defendant. We therefore find that a determination by the trial court to admit evidence of M\u2019s past sexual behavior would not have produced a different outcome and there was no reversible error.\nDefendant also argues that two aspects of the State\u2019s cross-examination constituted prosecutorial misconduct. The defendant first labels as prejudicial the following dialogue between the prosecutor and defendant\u2019s father:\nQ. How did you feel about [M]? Did you love him?\nA. Yes, ma\u2019am.\nQ. But you\u2019re willing to destroy him in order to save your son, aren\u2019t you? [Objection; overruled]\nA. [Witness does not answer]\nQ. You can go in and you can tell this jury that you saw him humping a dog, . . . you do not care about [M], you can trash him to save your son? [Objection; overruled]\nQ. I\u2019ll withdraw that. That\u2019s all. [Defense counsel asks to strike; denied]\nT. at 1120-21. Defendant principally relies on State v. Sanderson, 336 N.C. 1, 442 S.E.2d 33 (1994), to argue that the prosecutor degraded and brought the witness into ridicule or contempt. We disagree.\nIn Sanderson the court found that during the cross-examination of an expert witness, the prosecutor \u201cinsulted her, degraded her, and attempted to distort her testimony,\u201d id. at 11, 442 S.E.2d at 40, and \u201cmaligned, continually interrupted and bullied\u201d her, id. at 15, 442 S.E.2d at 41. The prosecutor in Sanderson attempted to distort the expert\u2019s testimony by \u201cinsist[ing] on yes or no answers to compound, convoluted questions, then cut[ting] her off before she could explain.\u201d Id. at 13, 442 S.E.2d at 40.\nThe prosecutor\u2019s statements in this case did not resemble those statements of the prosecutor in Sanderson, and did not rise to the levels of insult, degradation or pervasive badgering held to constitute prosecutorial misconduct in Sanderson. The cross-examination focused on the witness\u2019 credibility, given that he is the defendant\u2019s father. This assignment of error is dismissed.\nDefendant also complains that the trial court allowed the prosecutor to improperly question defendant during cross-examination. The allegedly improper questioning is as follows:\nQ. Now, Mr. Trogden, you used some notes before lunch to testify by. Could I see your notes, please?\nA. Sure.\nQ. Now, let me see. Your mother used notes when she testified too; is that correct?\nA. To dates.\nQ. Yeah. And how about your father? Did he use notes when he testified?\nA. I don\u2019t believe so.\nQ. Who all did you go over this information with?\nA. I did that last night myself.\nQ. Okay. You didn\u2019t go over this with your lawyers; is that what you\u2019re telling us?\nA. I said [I] was in my cell when I did it.\nQ. Well, did you go over the information \u2014 [Objection; overruled]\nQ. You did not go over this information with your lawyers?\nA. That\u2019s correct. . .\nQ. Okay. Have you gotten together with your lawyers and your family back there to talk about what everybody was going to say?\nA. No. We had talked about all the plea bargains you had to offer.\nT. at 1224-26. Defendant contends that the prosecutor\u2019s questions seriously undermined defendant\u2019s credibility and \u201cdenigrate [d] in front of the jury that right to fully discuss and prepare defendant\u2019s case.\u201d We disagree.\nThe State\u2019s cross-examination did not suggest that defendant improperly discussed his case with counsel or family members to prepare for trial. We note that the scope of cross-examination is a matter within the sound discretion of the trial judge, State v. Bronson, 333 N.C. 67, 79, 423 S.E.2d 772, 779 (1992), and conclude the court committed no prejudicial error in allowing this cross-examination. N.C. Gen. Stat. \u00a7 15A-1443(a) (1997). This assignment of error is dismissed.\nThe defendant next asks us to review the record pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh\u2019g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967), to determine whether any error occurred which would require a new trial. Generally, an appellant\u2019s attorney should ask this Court to search the record for error pursuant to Anders \u201conly where counsel believes the whole appeal is without merit.\u201d State v. Wynne, 329 N.C. 507, 522, 406 S.E.2d 812, 820 (1991) (emphasis added). Counsel for defendant, however, has argued four assignments of error, indicating his belief that defendant\u2019s appeal is not wholly without merit. An Anders review is inappropriate in this case. Otherwise, counsel could make assignments of error and perfunctorily tack on a request for an Anders review.\nNo error.\nJudges MARTIN and HUNTER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for the State.", "Adrian M. Lapas for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANIEL M. TROGDEN\nNo. COA98-1122\n(Filed 21 September 1999)\n1. Appeal and Error\u2014 supplemental brief \u2014 not timely\nA supplemental brief was not considered where it was filed more than nine months after the printed record was mailed and defendant did not timely seek an extension of time.\n2. Evidence\u2014 prior sexual behavior of victim \u2014 child\u2019s sexual acts\nThe trial court did not err in a prosecution for indecent liberties, first-degree statutory sexual offense, and sexual activity by a custodian by excluding testimony relating an instance of sexual behavior by the victim. Rule 412 prohibits introduction of evidence of a complainants\u2019s sexual behavior during prosecution of a rape or sexual offense unless such evidence is relevant; moreover, any error was harmless because other children testified to sexual abuse by defendant and there was other evidence establishing that the victim had prior knowledge of sexual matters and the ability to fabric allegations.\n3. Witnesses\u2014 cross-examination \u2014 no prosecutorial misconduct\nThe State\u2019s cross-examination of defendant\u2019s father in a prosecution for indecent liberties, first-degree statutory sexual offense, and sexual activity by a custodian did not constitute prosecutorial misconduct where the prosecutor\u2019s statements did not rise to the levels of insult, degradation or pervasive badgering held to constitute prosecutorial misconduct in State v. Sanderson, 336 N.C. 1.\n4. Witnesses\u2014 cross-examination \u2014 defendant conferring with attorney \u2014 no prosecutorial misconduct\nThere was no prejudicial error in a prosecution for indecent liberties, first-degree statutory sexual offense, and sexual activity by a custodian in the State\u2019s cross-examination of defendant concerning whether defendant\u2019s family had gone over information with their lawyers. The State\u2019s cross-examination did not suggest that defendant improperly discussed the case with counsel or family members.\n5. Criminal Law \u2014 Anders appeal \u2014 inappropriate\nAn Anders appeal was inappropriate where defendant argued four assignments of error, indicating a belief that the appeal was not wholly without merit.\nAppeal by defendant from judgment entered 10 October 1997 by Judge Carl L. Tilghman in Wayne County Superior Court. Heard in the Court of Appeals 18 August 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for the State.\nAdrian M. Lapas for defendant-appellant." }, "file_name": "0085-01", "first_page_order": 119, "last_page_order": 126 }