{ "id": 3822078, "name": "STATE OF NORTH CAROLINA v. GERALD L. CARTER, Defendant", "name_abbreviation": "State v. Carter", "decision_date": "2011-03-01", "docket_number": "No. COA10-648", "first_page": "156", "last_page": "169", "citations": [ { "type": "official", "cite": "210 N.C. App. 156" } ], "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": "651 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639564 ], "year": 2007, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0279-01" ] }, { "cite": "281 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "384", "parenthetical": "\"An accused in this jurisdiction has no right to obtain a transcript of the grand jury proceedings against him. Such proceedings are considered 'secret.' \"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575150 ], "year": 1981, "pin_cites": [ { "page": "689", "parenthetical": "\"An accused in this jurisdiction has no right to obtain a transcript of the grand jury proceedings against him. Such proceedings are considered 'secret.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0680-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "180" }, { "parenthetical": "emphasis added" }, { "page": "181" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "567" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "528 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "630" }, { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093990 ], "year": 2000, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0450-01" ] }, { "cite": "201 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "871" }, { "page": "872" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "284 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563527 ], "year": 1974, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0606-01" ] }, { "cite": "82 L. Ed. 2d 864", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "467 U.S. 1267", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6364245 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/467/1267-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "694" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "560 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220131, 219911, 219981, 219943 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0216-02", "/nc/355/0216-04", "/nc/355/0216-03", "/nc/355/0216-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] }, { "cite": "661 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150926 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0342-01" ] }, { "cite": "186 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8156410 ], "year": 2007, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0308-01" ] }, { "cite": "329 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "657", "parenthetical": "\"Defendant failed to object to most of these questions. The one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724129 ], "year": 1985, "pin_cites": [ { "page": "409", "parenthetical": "\"Defendant failed to object to most of these questions. The one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0404-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "573", "parenthetical": "\"In order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\"" }, { "page": "573-74", "parenthetical": "disapproving of earlier cases holding that prior statements, \"to the extent that they indicate that additional or 'new' information!] contained in the witness's prior statement but not referred to in his trial testimony, may never be admitted as corroborative evidence\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "324 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "312 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752281 ], "year": 1985, "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0580-01" ] }, { "cite": "501 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659968, 1659857, 1659819, 1659829 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0285-03", "/nc/348/0285-01", "/nc/348/0285-04", "/nc/348/0285-02" ] }, { "cite": "495 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656120 ], "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0592-01" ] }, { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "580" }, { "page": "580" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "104-05" }, { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1980, "pin_cites": [ { "page": "117" }, { "page": "117" }, { "parenthetical": "omission in original" }, { "parenthetical": "internal quotation marks omitted" }, { "page": "117" }, { "page": "117" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "98" }, { "page": "99" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "502 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "829-31" } ], "opinion_index": 0 }, { "cite": "348 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659735 ], "year": 1998, "pin_cites": [ { "page": "605-09" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0588-01" ] }, { "cite": "324 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "year": 1985, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "333 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "742", "parenthetical": "stating that the trial judge's \"presence at the voir dire hearing allowed him to listen to the child's responses and to observe her demeanor first hand\"" }, { "page": "740" }, { "page": "742" } ], "opinion_index": 0 }, { "cite": "314 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691427 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "457", "parenthetical": "stating that the trial judge's \"presence at the voir dire hearing allowed him to listen to the child's responses and to observe her demeanor first hand\"" }, { "page": "453" }, { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0451-01" ] }, { "cite": "150 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "410" }, { "page": "410" } ], "opinion_index": 0 }, { "cite": "268 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561067 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "230" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0225-01" ] }, { "cite": "179 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "367" }, { "page": "367" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "278 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560186 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "290" }, { "page": "290" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0288-01" ] } ], "analysis": { "cardinality": 1229, "char_count": 31932, "ocr_confidence": 0.736, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3468976376615007 }, "sha256": "42a79be1786db7dc356a270e13dee1325f0ce9e56d80a6b0a9c7e865fcadea54", "simhash": "1:27aa5160243e8c4e", "word_count": 5342 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GERALD L. CARTER, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Gerald L. Carter was charged in true bills of indictment, in which B.R. was alleged to have been the victim, with first-degree statutory sexual offense with a child under the age of thirteen years, first-degree statutory rape of a child under the age of thirteen years, and taking indecent liberties with a child. The offenses were alleged to have occurred between 18 February 2008 and 27 February 2008. Defendant was also charged in true bills of indictment, in which H.S. was alleged to have been the victim, with first-degree statutory sexual offense with a child under the age of thirteen years and taking indecent liberties with a child. The offenses were alleged to have occurred between 1 November 2007 and 28 February 2008. The charge of first-degree statutory sexual offense with H.S. was dismissed at the close of all the evidence. A jury found defendant guilty of taking indecent liberties with each of the alleged victims, and not guilty of the remaining charges. He appeals from judgments entered upon the jury\u2019s verdicts.\nThe evidence at trial tended to show that defendant lived with his mother, Gladys Carter. Beginning in October 2004, Ms. Carter provided child care in her home for B.R., and, at some time thereafter, for B.R.\u2019s younger cousin, H.S. At the time of the events giving rise to the charges in these cases, B.R. was approximately four-and-a-half years old and H.S. was approximately two-and-a-half years old.\nB.R.\nOn the evening of 27 February 2008, B.R. reported to her mother and grandmother that defendant had touched her in her private area and \u201csticks his tail in my butt.\u201d Upon further questioning by her grandmother, B.R. reported that \u201c[h]e sticks his tail in my nonny,\u201d the word by which she referred to her vagina.\nThe following day, B.R. was seen at the pediatric clinic where she had been a patient since infancy. She was examined by Dr. Amy Suttle, a pediatrician who has received specialized training in evaluating child sexual maltreatment. Dr. Suttle found that B.R.\u2019s outer labia and inner labia were \u201cred and swollen.\u201d Four days later, B.R. returned to Dr. Suttle\u2019s office, where she said to Dr. Suttle, without hesitation, \u201cGerry sticked his tail in my butt where I go. He put his tail in my nonny, too. He did it.\u201d She told Dr. Suttle that she was alone with defendant in his room when he touched her, and that she and defendant \u201cwere watching some ugly pictures, some girls on the bed... [and t]hose boys putting their tails in their butt.\u201d B.R. also told Dr. Suttle that another time, \u201coutside in the forest,\u201d defendant \u201cstuck his tail right up here\u201d and \u201cpointed to her crotch area.\u201d B.R. was also interviewed by Nydia Rolon, a forensic interviewer, on 13 March 2008, and repeated to her that defendant had touched her and \u201chad put his tail in her nonny.\u201d\nB.R. testified at the trial. At the time of her testimony, she was six years old. She testified that \u201cGerry stick his tail in my butt and he stuck his finger in my nonny and he made me lick his tail.\u201d B.R. said that \u201c[i]t hurted\u201d and that she told him to \u201cquit\u201d but that he did not. When asked what a \u201cnonny\u201d is, B.R. pointed to her genital area and said, \u201cIt\u2019s the part where ladies don\u2019t show.\u201d B.R. said that a \u201ctail\u201d is \u201cthe things that boys keep in their pants.\u201d B.R. said defendant told her to \u201cstick his tail in [her] mouth,\u201d and pointed to other places on her body where defendant put his \u201ctail.\u201d B.R. testified that she saw \u201c[s]ome white stuff\u2019 come out of defendant\u2019s \u201ctail\u201d when he \u201cwas moving it up and down.\u201d B.R. also testified that defendant \u201cmade [her] move [his tail] up and down and then he made [her] put [her] lips on it, and then he \u2014 he put his tail in [her] mouth and he said shake \u2014 put your feet onto the tail, and then started moving it up and down.\u201d B.R. said defendant showed her pictures on the computer of boys \u201csticked their tails in [a girl\u2019s] butt.\u201d B.R. also testified that defendant showed her a picture of \u201cthis girl who had her feet on this boy\u2019s tail and she had her mouth on it and going up and down\u201d and said the girl\u2019s \u201cfeet were slashing\u201d the boy\u2019s \u201ctail.\u201d B.R. then testified that \u201che did the same thing that the girl did. He did all those pictures [to B.R.]\u201d She also said that defendant had \u201creal\u201d swords and nunchucks on the walls of his room, and said that she \u201cwas scared of the swords\u201d because \u201cthey were sharp.\u201d When a search warrant was executed at defendant\u2019s residence, the officers found Samurai swords and nunchucks hanging along the walls of defendant\u2019s bedroom.\nH.S.\nWhen H.S.\u2019s mother learned of the allegations made by B.R., she did not question H.S. but stopped taking her to Ms. Carter\u2019s house for daycare. A few days later, however, H.S. became ill and her mother attempted to use a rectal thermometer to take H.S.\u2019s temperature. H.S. began kicking and screaming, \u201cDon\u2019t hurt me. That\u2019s what he did.\u201d H.S. said it had happened at Ms. Carter\u2019s house. H.S. testified at the trial that, when she had been at Ms. Carter\u2019s house, she had been touched. When asked by the prosecutor if she could point to \u201cwhere [she] got touched,\u201d H.S. stepped down from the witness stand, stood in front of the prosecutor\u2019s table, and pointed to her genital area for the jury and then again for the judge. H.S.\u2019s grandmother testified that H.S. had told her, more than a year after the alleged date of the offense, that \u201cGerry\u201d had touched her \u201cprivates.\u201d In addition, when interviewed by Kimberly F. Madden, a child therapist and forensic interviewer, H.S. talked about how she had hurt her knee in the waiting room, which prompted Ms. Madden to ask H.S. \u201cif any other part of her body ha[d] been hurt or ha[d] gotten hurt.\u201d H.S. began \u201cgesturing\u201d and \u201cpointing to her genital area\u201d and \u201csaid that Gerry had hurt her.\u201d H.S. also said that \u201cGerry had hurt her with his hands.\u201d Ms. Madden then gave H.S. anatomically detailed dolls and said that H.S. \u201cpulled down the anatomically detailed female child\u2019s pants down [sic] and pointed at the genital area.\u201d When Ms. Madden asked, \u201cwhat did Gerry hurt you with?,\u201d H.S. \u201cundid the doll\u2019s pants and exposed the penis and said . . . that Gerry has this.\u201d H.S. then picked up the male doll and \u201cbent the hands toward the penis.\u201d\nI.\nDefendant first contends the trial court abused its discretion by determining that four-year-old H.S. was competent to testify at trial. Defendant asserts that H.S. should have been found incompetent because she was two-and-a-half years old at the time of the \u201calleged incident,\u201d she was crying when she entered the courtroom and when she took the stand, and, during voir dire, she only stated her name \u201cafter much prodding\u201d and did not answer when asked her cousin\u2019s name or whether she had a cousin.\n\u201cThere is no age below which one is incompetent as a matter of law to testify.\u201d State v. Cooke, 278 N.C. 288, 290, 179 S.E.2d 365, 367 (1971); State v. Turner, 268 N.C. 225, 230, 150 S.E.2d 406, 410 (1966). \u201cThe test of competency is the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide.\u201d Cooke, 278 N.C. at 290, 179 S.E.2d at 367; see Turner, 268 N.C. at 230, 150 S.E.2d at 410; see also N.C. Gen. Stat. \u00a7 8C-1, Rule 601(b) (2009) (\u201cA person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.\u201d). \u201cCompetency is to be determined at the time the witness is called to testify and rests mainly, if not entirely, in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.\u201d Cooke, 278 N.C. at 290, 179 S.E.2d at 367; see also State v. McNeely, 314 N.C. 451, 457, 333 S.E.2d 738, 742 (1985) (stating that the trial judge\u2019s \u201cpresence at the voir dire hearing allowed him to listen to the child\u2019s responses and to observe her demeanor first hand\u201d). \u201cA ruling committed to a trial court\u2019s discretion may be upset only when it is shown that it could not have been the result of a reasoned decision.\u201d McNeely, 314 N.C. at 453, 333 S.E.2d at 740.\nIn the present case, after considering H.S.\u2019s voir dire testimony, the court made the following findings:\nOne, the witness is four years of age; two the witness was able to answer the following questions asked by the District Attorney. Was the District Attorney Santa Claus, would that be a truth or a lie. The witness answered a lie. If I ask you \u2014 the District Attorney further asked, if I was on fire would that be the truth or a lie, the witness answered lie. The District Attorney \u2014 the witness then said that people who lie get in trouble. The witness then replied that she would tell the truth in court. The witness was able to demonstrate her age by holding up four fingers when the District Attorney asked her age.\nThe Court finds that the District Attorney \u2014 that the witness is reticent, her voice is very faltering and weak and she appears to be very shy about her testimony, but that she has demonstrated the rudimentary elements of qualifying for being competent as a witness, and that is demonstrating and understanding the difference between truth and fiction and demonstrating an ability to discern the importance of telling the truth. Therefore, the Court will find her competent to testify at this time.\nNow, the Court further finds that the child is testifying from the lap of her mother. The Court further finds that when the questioning initially began, that the mother, as parents of four-year-old children are wont to do when they understand that a child knows the answer to a question but will not answer it, was nodding her head affirmatively to at least two questions. These questions were not the questions asked concerning her competence to testify, but were earlier introductory questions.\nThe Court again cautions Mother that if Mother, by signal, gesture or by words, gives any type of clue to the child as to an answer, the Court will disqualify the child as a witness and rule her testimony inadmissible.\nDefendant concedes that H.S. demonstrated her ability to distinguish between truthful statements and lies, that H.S. said that people who tell lies \u201cget in trouble,\u201d and that H.S. promised to tell the truth. Although defendant directs our attention to some questions asked during voir dire to which H.S. was non-responsive or gave seemingly contradictory answers, our Supreme Court has recognized that \u201csomewhat vague and self-contradictory\u201d answers given during voir dire by a child \u201cmight be expected of a little child of such tender years,\u201d and do not require a determination that a witness is incompetent to testify. See McNeely, 314 N.C. at 457-58, 333 S.E.2d at 742.\nDefendant further asserts that H.S. was similarly non-responsive and gave contradictory responses to some of the questions asked when she testified in front of the jury, and suggests that this demonstrated H.S.\u2019s inability to \u201crelate facts\u201d and established that the court should have found H.S. was incompetent to testify. While the contradictions and nonresponsiveness to which defendant refers \u201cmay have been an appropriate subject for cross examination or a jury argument, it in no way alters [H.S.\u2019s] competence as a witness.\u201d See State v. Higginbottom, 312 N.C. 760, 766, 324 S.E.2d 834, 839 (1985), superceded on other grounds by statute as recognized in State v. Green, 348 N.C. 588, 605-09, 502 S.E.2d 819, 829-31 (1998). Accordingly, defendant has failed to show that the trial court abused its discretion by determining that H.S. was competent to testify at trial.\nII.\nDefendant next contends the trial court erred by denying his motion to dismiss the charge of taking indecent liberties with H.S. We find no error.\n\u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \u201cThe trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.\u201d Id. at 99, 261 S.E.2d at 117. \u201cThe trial court\u2019s function is to test whether a reasonable inference of the defendant\u2019s guilt of the crime charged may be drawn from the evidence.\u201d Id. \u201cThe test of the sufficiency of the evidence to withstand the motion is the same whether the evidence is direct, circumstantial or both.\u201d Id. \u201cWhen the motion . . . calls into question the sufficiency of circumstantial evidence, the question for the Court is whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances.\u201d Id. (omission in original) (internal quotation marks omitted). \u201cIf so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.\u201d Id. (internal quotation marks omitted).\n\u201cThe evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom . . . .\"Id. \u201cThe defendant\u2019s evidence, unless favorable to the State, is not to be taken into consideration.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). \u201c[C]ontradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.\u201d Powell, 299 N.C. at 99, 261 S.E.2d at 117.\n\u201cIf the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.\u201d Id. at 98, 261 S.E.2d at 117. \u201cThis is true even though the suspicion so aroused by the evidence is strong.\u201d Id.\nN.C.G.S. \u00a7 14-202.1(a)(l) provides that aperson is guilty of taking indecent liberties with a child if,\nbeing 16 years of age or more and at least five years older than the child in question, he . . . [w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire ....\nN.C. Gen. Stat. \u00a7 14-202.1(a)(1) (2009); see State v. Rhodes, 321 N.C. 102, 104-05, 361 S.E.2d 578, 580 (1987). Here, defendant does not dispute that there was sufficient evidence to establish that, on the date of the charged offense, his age and H.S.\u2019s age satisfied the age elements of N.C.G.S. \u00a7 14-202.1(a)(l). Defendant also concedes that \u201cH.S. answered \u2018yes\u2019 when asked if she was touched at [Ms. Carter\u2019s],\u201d and further admits that H.S. pointed to her genital area when she was asked at trial where she had been touched when she was at Ms. Carter\u2019s house. He also acknowledges that substantive evidence was presented through the testimony of H.S.\u2019s mother that H.S. screamed, \u201cDon\u2019t hurt me[; t]hat\u2019s what he did,\u201d when she attempted to take H.S.\u2019s temperature with a rectal thermometer, and that H.S. said she was at Ms. Carter\u2019s house when this happened. H.S.\u2019s mother also testified that she and her husband found H.S. alone with defendant on different occasions when they picked H.S. up from Ms. Carter\u2019s house. The testimony of H.S.\u2019s grandmother and Kimberly Madden was corroborative of H.S.\u2019s testimony.\nDefendant suggests there was no evidence that he committed any act \u201cconducted for the purpose of sexual gratification.\u201d Nevertheless, \u201ca defendant\u2019s purpose in committing the act in an indecent liberties case is seldom provable by direct evidence and must ordinarily be proven by inference.\u201d State v. Creech, 128 N.C. App. 592, 598, 495 S.E.2d 752, 756 (internal quotation marks omitted), disc. review denied, 348 N.C. 285, 501 S.E.2d 921 (1998); see also Rhodes, 321 N.C. at 105, 361 S.E.2d at 580 (\u201cThe fifth element [of N.C.G.S. \u00a7 14-202.1(a)(1)], that the action was for the purpose of arousing or gratifying sexual desire, may be inferred from the evidence of the defendant\u2019s actions [, and is] . . . sufficient evidence to withstand a motion to dismiss the charge of taking indecent liberties with a child.\u201d). Viewing the evidence in the light most favorable to the State, we are not persuaded by defendant\u2019s suggestion that the evidence presented \u201cdid no more than\u201d \u201cliterally convey[] that a man inserted a rectal thermometer\u201d into H.S. Testimony from H.S. and from her mother indicated that H.S. reported being touched in her genital and rectal area at Ms. Carter\u2019s house by a male, and H.S.\u2019s mother testified that she had found H.S. alone with defendant on several occasions at Ms. Carter\u2019s house. Further, even though \u201c[t]he uncorroborated testimony of a victim is sufficient to convict a defendant under N.C.G.S. 14-202.1 if his or her testimony suffices to establish all of the elemerits of the offense,\u201d see State v. Graven, 312 N.C. 580, 590, 324 S.E.2d 599, 605 (1985), the corroborative testimony from H.S.\u2019s grandmother and Ms. Madden offered by the State \u2014 in which H.S. said defendant was the person who had touched her in her genital area and \u201churt\u201d her- \u2014 added further weight and credibility to H.S.\u2019s testimony. See State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986) (\u201cIn order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness\u2019s testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony.\u201d); see also id. at 469, 349 S.E.2d at 573-74 (disapproving of earlier cases holding that prior statements, \u201cto the extent that they indicate that additional or \u2018new\u2019 information!] contained in the witness\u2019s prior statement but not referred to in his trial testimony, may never be admitted as corroborative evidence\u201d). We conclude that the evidence presented by the State was not merely \u201csufficient only to raise a suspicion or conjecture,\u201d see Powell, 299 N.C. at 98, 261 S.E.2d at 117, but established a reasonable inference of defendant\u2019s guilt of the crime of taking indecent liberties with H.S. Accordingly, the trial court did not err by denying defendant\u2019s motion to dismiss this charge.\nIII.\nDefendant next contends the trial court erred by overruling defendant\u2019s objection to the question, \u201c[H.S.], can you point to where Gerry touched you?,\u201d because defendant argues that H.S. had not identified him as the man who touched her at Ms. Carter\u2019s house at that time she was asked the question by the prosecutor. Nevertheless, defendant did not lodge his objection to the question until after H.S. had already responded, and made no motion to strike her answer. Moreover, defendant failed to object to similar questions asked of H.S., including, \u201cDo you remember telling [your Grandma] about the things you and Gerry did?,\u201d and \u201c[D]o you remember anything else about what happened between you and Gerry?\u201d Accordingly, we conclude that defendant waived this objection and overrule this assignment of error. See, e.g., State v. Burgin, 313 N.C. 404, 409, 329 S.E.2d 653, 657 (1985) (\u201cDefendant failed to object to most of these questions. The one objection made was lodged after the witness responded to the question. Defendant made no motion to strike the answer, and therefore waived the objection.\u201d).\nIV.\nDefendant next contends the trial court erred by allowing forensic interviewer Nydia Rolon to offer the following testimony about B.R.: \u201cA child \u2014 you know, a child her age with that much sexual knowledge indicates that something happened.\u201d Specifically, defendant argues that Ms. Rolon\u2019s statement, admitted without objection, was \u201cnon-responsive\u201d to defense counsel\u2019s question and should have been stricken \u201csince the case rested on the jury\u2019s assessment of B.R.\u2019s credibility.\u201d Because the statement was admitted without objection, defendant (A) asserts plain error and, in the alternative, (B) claims he was deprived of effective assistance of counsel.\nA.\n\u201cStatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\u201d State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008); see also N.C. Gen. Stat. \u00a7 15A-1443(c) (2009) (\u201cA defendant is not prejudiced by . . . error resulting from his own conduct.\u201d). In the present case, the following testimony was elicited from Ms. Rolon by defense counsel:\nQ. I understand. But my question is, if you don\u2019t mind, did you think it was unimportant that [B.R.] basically turned around and denied Gerry doing anything to her?\nA. No.\nQ. Then why didn\u2019t you put it in your summary?\nA. Because I\u2019m stating all the information that the child wrote. And, again, this is a summary of the DVD.\nQ. I know, but she put on her \u2014 she stated very clearly to you Gerry didn\u2019t do it. He didn\u2019t do nothing, nothing, nothing. Why didn\u2019t you put that in your summary?\nA. Children \u2014 again, she was feeling like that \u2014 the trauma was resurfacing. She was making \u2014 trying to make decisions of her answers. A child \u2014 you know, a child her age with that much sexual knowledge indicates that something happened.\nQ. So you \u2014 you were thinking something must have happened.\nA. Yes.\nQ. Okay. . . .\n(Emphasis added.) Even assuming arguendo that Ms. Rolon\u2019s statement that \u201csomething happened\u201d was erroneously admitted, immediately following her statement, defense counsel repeated her testimony, thereby inviting Ms. Rolon to again give her opinion that she thought \u201csomething must have happened.\u201d Since \u201ca defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review,\u201d State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), supersedeas denied and disc, reviews denied and dismissed as moot, 355 N.C. 216, 560 S.E.2d 141-42 (2002), defendant\u2019s contention that it was plain error for the court to fail to strike Ms. Rolon\u2019s statement sua sponte is meritless.\nB.\n\u201cWhen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness.\u201d State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). \u201cThe fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings.\u201d Id. at 563, 324 S.E.2d at 248. \u201cA reasonable probability, is a probability sufficient to undermine confidence in the outcome.\u201d Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, reh\u2019g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). The general rule is \u201cthat the incompetency (or one of its many synonyms) of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney\u2019s representation is so lacking that the trial has become a farce and a mockery of justice.\u201d State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867, 871 (1974). Since \u201cthere can be no precise or \u2018yardstick\u2019 approach in applying the recognized rules of law in this area,\u201d \u201ceach case must be approached upon an ad hoc basis, viewing circumstances as a whole, in order to determine whether an accused has been deprived of effective assistance of counsel.\u201d Id. at 613, 201 S.E.2d at 872.\nHere, defendant suggests that, but for his counsel\u2019s failure to move to strike Ms. Rolon\u2019s statement, there is a \u201creasonable probability\u201d that the jury would not have returned a guilty verdict on the charge of taking indecent liberties with B.R. Defendant does not argue that his counsel erred by repeating Ms. Rolon\u2019s statement; in fact, defendant does not even acknowledge that his counsel repeated Ms. Rolon\u2019s statement. Instead, defendant asserts only that Ms. Rolon\u2019s statement \u201cvouch[ed] for the credibility of a child witness [and] improperly resolve[d] the only factual issue before the jury.\u201d After careful review of the substantive and corroborative testimony from all of the witnesses included in the record, much of which has been recounted in this opinion, we are not persuaded that defense counsel\u2019s failure to move to strike Ms. Rolon\u2019s singular comment amounted to a representation that was \u201cso lacking\u201d as to turn defendant\u2019s trial into \u201ca farce and a mockery of justice.\u201d See id. at 612, 201 S.E.2d at 871. Accordingly, we overrule this error.\nV.\nFinally, defendant contends the trial court erred by denying his motion to dismiss the charge of taking indecent liberties with B.R. because he argues that the \u201cimmoral, improper, or indecent libert[y]\u201d identified in the court\u2019s instruction to the jury- \u2014 \u201cplacing his penis between the feet of [B.R.]\u201d \u2014 fatally varied from the indictment. Again, we find no error.\n\u201c[A]n indictment which charges a statutory offense, such as taking indecent liberties with a minor in violation of G.S. \u00a7 14-202.1, by using the language of the statute is sufficient, and need not allege the evidentiary basis for the charge.\u201d State v. Miller, 137 N.C. App. 450, 457, 528 S.E.2d 626, 630 (2000). In other words, \u201c[t]he indictment need not allege specifically which of defendant\u2019s acts constituted the immoral, improper and indecent liberty.\u201d Id. (internal quotation marks omitted).\nFurther, \u201c[a]s the statute indicates, the crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts.\u201d State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990). \u201cThe evil the legislature sought to prevent in this context was the defendant\u2019s performance of any immoral, improper, or indecent act in the presence of a child for the purpose of arousing or gratifying sexual desire.\u201d Id. (emphasis added) (internal quotation marks omitted). \u201cDefendant\u2019s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.\u201d Id.\nIn the present case, the indictment returned by the grand jury charging defendant with the offense of taking indecent liberties with B.R. used the language of N.C.G.S. \u00a7 14-202.1(a) and (b) to describe the elements of the alleged offense. Thus, the language used by the State in the indictment to charge defendant with the offense of violating N.C.G.S. \u00a7 14-202.1 strictly adhered to the enabling language of the statute. Consequently, the State was not required to allege an evidentiary basis for the charged offense. Additionally, the trial judge\u2019s instruction regarding what constitutes an indecent liberty in this case \u201cwas not derived from the statute, but was rather a clarification of the evidence presented for the jury\u2019s benefit.\u201d Hartness, 326 N.C. at 567, 391 S.E.2d at 181. Therefore, the trial court\u2019s instruction to the jury providing an evidentiary basis for the charge of indecent liberties with the specific act of \u201cplacing [defedant\u2019s] penis between the feet of [B.R.]\u201d did not vary from the indictment and does not require a reversal of defendant\u2019s conviction on this charge.\nEven so, defendant urges this Court to find error based on his assertion that there was a fatal variance between the specific act identified in the jury instruction as the \u201cimmoral, improper, or indecent libert[y]\u201d taken with B.R. and the evidence which defendant speculates was presented to the grand jury. See N.C. Gen. Stat. \u00a7 15A-623(e) (2009) (\u201cGrand jury proceedings are secret and, except as expressly provided in [Article 31 of the General Statutes], members of the grand jury and all persons present during its sessions shall keep its secrets and refrain from disclosing anything which transpires during any of its sessions.\u201d); State v. Porter, 303 N.C. 680, 689, 281 S.E.2d 377, 384 (1981) (\u201cAn accused in this jurisdiction has no right to obtain a transcript of the grand jury proceedings against him. Such proceedings are considered \u2018secret.\u2019 \u201d). Since defendant fails to direct our attention to any relevant law to support his assertion that this Court must find error based on evidence that may or may not have been presented in the grand jury proceeding, we decline to address defendant\u2019s meritless assertion further.\nNo Error.\nJudges McGEE and ERVIN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Jennie Wilhelm Hauser, Special Deputy Attorney General, for the State.", "Staples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GERALD L. CARTER, Defendant\nNo. COA10-648\n(Filed 1 March 2011)\n1. Witnesses\u2014 four-year-old child \u2014 competent\nThe trial court did not abuse its discretion in an indecent liberties prosecution by finding that a four-year-old child was competent to testify where defendant argued that the witness had not responded or gave seemingly contradictory answers to some questions. While contradictions and nonresponsive answers may have been appropriate for cross-examination or jury argument, it did not alter the witness\u2019s competence.\n2. Indecent Liberties\u2014 purpose of sexual gratification \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of taking indecent liberties where defendant argued that there was no evidence that he committed any act for the purpose of sexual gratification. The evidence presented by the State established a reasonable inference of defendant\u2019s guilt.\n3. Evidence\u2014 objection after question answered \u2014 no motion to strike answer \u2014 other testimony\nThe defendant in an indecent liberties prosecution waived his objection to a question about where the victim had been touched by defendant when the victim had not yet identified defendant as the man by whom she was touched. Defendant objected only after the question was answered and made no motion to strike, nor did he object to similar questions.\n4. Evidence\u2014 invited error \u2014 cross-examination question\u2014 answer repeated by counsel\nThere was no plain error in an indecent liberties prosecution where defense counsel on cross-examination elicited an answer that \u201csomething must have happened\u201d and then repeated the testimony and invited the witness to give her opinion again.\n5. Constitutional Law\u2014 effective assistance of counsel \u2014 not moving to strike statement by witness\nDefendant\u2019s counsel was not ineffective in an indecent liberties prosecution when he did not move to strike a statement by a witness that \u201csomething must have happened.\u201d\n6. Indictment and Information\u2014 indecent liberties \u2014 immoral, improper, indecent act not specifically identified\nAlthough an indecent liberties defendant argued that his indictment did not specifically allege which of his acts was the immoral, improper and indecent liberty, the indictment used the language of the statute and the State was not required to allege an evidentiary basis for the charged offense. Nor did the instruction vary from the indictment.\n7. Grand Juries\u2014 information presented to grand jury \u2014 variance from instruction\nThere was not a fatal variance in an indecent liberties prosecution between the specific act identified in the jury instruction and the evidence defendant speculated was presented to the grand jury.\nAppeal by defendant from judgments entered 13 August 2009 by Judge V. Bradford Long in Randolph County Superior Court. Heard in the Court of Appeals 1 December 2010.\nRoy Cooper, Attorney General, by Jennie Wilhelm Hauser, Special Deputy Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0156-01", "first_page_order": 164, "last_page_order": 177 }