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    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DOUGLAS MITCHELL, Dependant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nDefendant was indicted upon twelve counts of various sexual offenses upon his minor granddaughters, S.S.M. and T.M., occurring at various times from 1997 until 2002. He appeals from judgment imposing active terms of imprisonment entered upon his conviction by a jury of two counts of first-degree statutory sex offense, two counts of indecent liberties, one count of sexual activity by a substitute parent, one count of felony child abuse and one count of first-degree statutory rape.\nThe evidence at trial tended to show that defendant is a sixty-five-year-old man, who is the father of five children. In 1997, defendant and his wife, Brenda, obtained custody of two of his son Michael\u2019s children, T.M. and her brother. S.S.M., Michael\u2019s oldest child, lived with her mother but occasionally visited defendant and Brenda in Goldsboro.\nS.S.M. testified that in July 1998, she went riding with defendant on a four-wheeler. During the ride, he talked to her about sexual matters and stopped the four-wheeler, rubbed her leg and put his hand up her shorts, penetrating her vagina with his finger. In March 1999, S.S.M. told her mother that defendant had touched her inappropriately the previous summer. Neither S.S.M. nor her mother reported the incident to the authorities until after her sister, T.M., made similar allegations in 2002, but S.S.M. refused to stay with her grandparents after the incident.\nT.M., who was born in 1992, testified that when she was four or five years old, she fell asleep in her grandfather\u2019s bed watching television and when she woke up, he was licking her ear and his \u201cprivate\u201d was sticking out of his pants. She described other incidents which included riding on the four-wheeler with defendant, when he stopped and exposed his \u201cprivate\u201d and asked her to \u201csuck it like a lollipop;\u201d that he made her \u201cgo up and down on his private\u201d with her hand; that he had licked her breasts and tried to lick her \u201cprivate;\u201d and that he had, on multiple occasions, tried \u201cto stick his private inside\u201d her.\nOn 17 March 2002, after hearing her grandmother complain about S.S.M.\u2019s accusations that her grandfather had sexually abused her, T.M. told her grandmother what her grandfather had done to her. After T.M. accused defendant, she moved to her aunt\u2019s home and then later moved to her father\u2019s home. Eventually, she moved to her mother\u2019s home in South Carolina.\nDefendant\u2019s son, Michael Mitchell (Michael), was called as a defense witness. Michael was asked on direct examination if he had made a comment to Steven Potter (Potter), a case manager with the Wayne County Department of Social Services, about defendant\u2019s inappropriate behavior with his sister, Cathy. Michael responded that he understood he \u201cwas supposed to have said something when [he] was drunk, but [he] [didn\u2019t] remember saying nothing like that, so you\u2019d have to ask Cathy and Tina that.\u201d On cross-examination, the prosecutor asked Michael if he had stated to Potter that he once observed his father on top of his sister, Cathy. Michael responded that he never said that to Potter.\nDefendant\u2019s daughter, Cathy Beasley (Beasley), was also called as a witness for the defense. On direct examination, Beasley testified that defendant had never \u201cimproperly, physically or emotionally or sexually,\u201d abused her. The prosecutor asked Beasley, on cross-examination, if she had told Tammy Odom (Odom), a detective sergeant at the Wayne County Sheriff\u2019s office, that her \u201cfather had done something sexual to both [her] and [her] sister Phyllis and that [they] had gotten over it and these two young ladies need to do the same.\u201d Beasley denied ever telling Odom this information.\nDefendant\u2019s youngest daughter, Kelly Belt (Kelly), a witness for the defense, was not questioned on direct examination about her conversation with Potter or about her half-sisters, Cathy and Phyllis. On cross-examination, however, in response to a question from the prosecutor, Kelly testified, \u201c[my father] had told me that there had been inappropriate behavior, but he never elaborated. My sisters, I point-blank asked my sister and she said nothing ever happened.\u201d The prosecutor then asked Kelly if she had made the following two statements to Potter during his investigation: \u201c[my] two older sisters, Cathy and Phyllis, have told [me] that incidents did occur to them,\u201d and \u201c[my] father may have had a problem when he was younger and now no longer has one.\u201d In each case, Kelly denied making the statements to Potter.\nDuring the State\u2019s rebuttal evidence, the prosecutor called Odom to testify about her conversation with Beasley. The trial court, over defendant\u2019s objection, allowed Odom to testify as follows:\n[Beasley] said that she and her sister both had been sexually assaulted as a child by [defendant],... She and her sister had got along well in life. They had gotten over it. They had put the past behind them and she suggested that the two children do the same thing also.\nThe State then called Potter and inquired about his conversation with Michael. Potter replied that Michael told him that \u201che had seen his father on top of his sister and that his father had made him leave the room.\u201d The prosecutor then asked Potter about his conversation with Kelly. He testified that Kelly had told him:\nshe had spoken to her oldest sisters . . . and . . . something had occurred between them and their father of a sexual nature, but that she had not asked for specifics, and did not want to know specifics, and that she had hoped that he might have had a problem when he was younger but that he did not now.\nDefendant testified on his own behalf that he did not sexually abuse either of the girls in any way.\nThe dispositive issue, raised by defendant\u2019s thirteenth and twenty-fifth assignments of error, is whether the trial court erred by permitting the State to impeach Michael Mitchell, Cathy Beasley and Kelly Belt by extrinsic evidence. Defendant contends the testimony of Detective Odom and Steven Potter, which was offered to impeach the three witnesses\u2019 denials they had made the statements about which they had been cross-examined, was inadmissible and prejudicial. It is well established that a witness\u2019s character or propensity for telling the truth is subject to impeachment through cross-examination about prior inconsistent statements; however, the answers of the witness are conclusive and may not be contradicted by extrinsic evidence. State v. Shane, 304 N.C. 643, 652-53, 285 S.E.2d 813, 819 (1981), cert. denied, 465 U.S. 1104, 80 L. Ed. 2d 134, 104 S. Ct. 1604 (1984).\nThe State argues that extrinsic evidence is admissible if the evidence is not collateral, and contends that in this case, the rebuttal testimony was properly admitted because the evidence was material, not collateral. We disagree. \u201c \u2018 [Collateral matters\u2019 are those which are irrelevant to the issues in the case; they involve immaterial matters and irrelevant facts inquired about to test observation and memory.\u201d State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). In State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757 (1989), reconsideration denied, 339 N.C. 741, 457 S.E.2d 304 (1995), the Supreme Court stated that \u201ctestimony contradicting a witness\u2019s denial that he made a prior statement when that testimony purports to reiterate the substance of the statement\u201d is collateral. Therefore, \u201conce a witness denies having made a prior inconsistent statement, the State may not introduce the prior statement in an attempt to discredit the witness; the prior statement concerns only a collateral matter, i.e., whether the'statement was ever made.\u201d Najewicz, 112 N.C. App. at 289, 436 S.E.2d at 138.\nIn each of the above referenced instances; the witness denied having made the prior statement inquired about during his or her own testimony. Their denials were conclusive for impeachment purposes; the testimony elicited from Detective Odom and Mr. Potter during the State\u2019s rebuttal case was collateral and therefore, could not be used to impeach these witnesses.\nIn addition, the testimony of Odom and Potter in these instances was inadmissible for substantive purposes because the statements were hearsay that were not admissible under any of the hearsay exceptions. The State argues that although evidence of prior acts is generally not admissible, evidence of prior acts of sexual misconduct may be admissible to show defendant\u2019s intent, motive or plan to commit the crime charged. State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988); N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2003). However, in the first situation, the testimony in dispute is not Cathy\u2019s testimony about her father\u2019s alleged sexual abuse, but Odom\u2019s testimony about conversations she had with Cathy. In the second and third situations, the testimony in question is Potter\u2019s testimony regarding conversations with Michael and Kelly about their father\u2019s alleged sexual abuse of Cathy and Phyllis. Cathy, during her own testimony, repeatedly denied under oath that her father had sexually abused her. These statements regarding defendant\u2019s prior sexual misconduct are therefore inadmissible to show defendant\u2019s intent, motive or plan to commit the crime because they are hearsay statements.\nThe State also argues that if the admission of Odom\u2019s statement was error, it was not prejudicial, and therefore, defendant is not enti-tied to a new trial. Again, we disagree. N.C. Gen. Stat. \u00a7 15A-1443(a) (2003) provides that prejudicial error exists where \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.\u201d During Odom\u2019s testimony, evidence was admitted, over defendant\u2019s objection and without any limiting instruction, that defendant sexually assaulted his own daughters when they were young. This evidence was highly prejudicial and there is a reasonable probability that without this evidence, the outcome of the trial may have been different.\nDefendant did not object to Potter\u2019s rebuttal testimony regarding the statements made to him by Michael and Kelly; he contends the trial court committed plain error in admitting Potter\u2019s rebuttal testimony. \u201cUnder a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.\u201d State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). The evidence at trial was contested and inconsistencies existed between the testimony of T.M. and Kelly. The admission of Potter\u2019s testimony, in conjunction with Odom\u2019s testimony, was so highly prejudicial as to have had a probable impact in the jury\u2019s verdict. Therefore, we hold that defendant is entitled to a new trial.\nIn light of our decision that the error entitles defendant to a new trial, we deem it unnecessary to address defendant\u2019s remaining arguments since they are not likely to occur in a new trial. Defendant\u2019s remaining assignments of error were not brought forward in his brief and are, therefore, deemed abandoned. N.C. R. App. P. 28(a).\nNew trial.\nJudges CALABRIA and GEER concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DOUGLAS MITCHELL, Dependant\nNo. COA04-284\n(Filed 5 April 2005)\nEvidence\u2014 witnesses\u2019 denial of prior statements \u2014 impeachment \u2014 extrinsic evidence\nThe trial court erred in a first-degree statutory sex offense, indecent liberties, sexual activity by a substitute parent, felony child abuse, and first-degree statutory rape case by permitting the State to impeach three witnesses who denied making prior allegations about defendant\u2019s prior sexual abuse of his own children when they were younger with extrinsic evidence, because: (1) once a witness denies having made a prior inconsistent statement, the State may not introduce the prior statement in an attempt to discredit the witness since the prior statement concerns only the collateral matter of whether the statement was ever made; (2) their denials were conclusive for impeachment purposes, and the testimony elicited from a detective and a DSS case manager during the State\u2019s rebuttal case was collateral and therefore could not be used to impeach those witnesses; (3) the pertinent statements regarding defendant\u2019s prior sexual misconduct were inadmissible to show defendant\u2019s intent, motive or plan to commit the crimes since they were hearsay statements; and (4) the evidence that defendant sexually assaulted his own daughters when they were young was highly prejudicial and there was a reasonable probability that without this evidence, the outcome of the trial may have been different.\nAppeal by defendant from judgment entered 25 September 2003 by Judge W. Allen Cobb, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 6 December 2004.\nAttorney General Roy Cooper, by Assistant Attorney General R. Kirk Randleman, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant."
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