{ "id": 8527741, "name": "STATE OF NORTH CAROLINA v. TEDDY DEWEY SLONE", "name_abbreviation": "State v. Slone", "decision_date": "1985-09-17", "docket_number": "No. 8422SC1262", "first_page": "628", "last_page": "634", "citations": [ { "type": "official", "cite": "76 N.C. App. 628" } ], "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": "259 S.E. 2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "298 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573920 ], "year": 1979, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0687-01" ] }, { "cite": "285 S.E. 2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527462 ], "year": 1982, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0443-01" ] }, { "cite": "276 S.E. 2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645332 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0418-01" ] }, { "cite": "237 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "293 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] } ], "analysis": { "cardinality": 551, "char_count": 13819, "ocr_confidence": 0.812, "pagerank": { "raw": 1.2935485833961113e-07, "percentile": 0.620463200750314 }, "sha256": "ac6bacd58d863ac154a9d810ebc2033cdc150acdd371ff9595ffc2d31142628b", "simhash": "1:2fef6c477fae8de7", "word_count": 2239 }, "last_updated": "2023-07-14T20:46:57.071049+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TEDDY DEWEY SLONE" ], "opinions": [ { "text": "COZORT, Judge.\nDefendant was convicted of taking indecent liberties with a child in violation of G.S. 14-202.1(a)(l). He appeals his conviction alleging, among other assignments of error, the trial court should have granted his motion to dismiss the charge against him because the State\u2019s evidence was insufficient to prove that he acted willfully and \u201cfor the purpose of arousing or gratifying sexual desire.\u201d G.S. 14-202.1(a)(l). We find no error.\nThe State\u2019s evidence tended to show that during the evening hours of 13 August 1982, Tammy Burkhart; her brother, Chad; the defendant; defendant\u2019s son, Wayne; and Wayne\u2019s friend, Lee, were playing hide-and-go-seek at the defendant\u2019s home. At defendant\u2019s suggestion, Tammy and Lee hid with the defendant in a dog shed. Once inside the dark dog shed defendant put his arm around Tammy, placed his hand between her legs and underneath her softball shorts and rubbed her vagina with his finger. When Tammy attempted to move away from the defendant, he pulled her closer to him and rubbed her vagina again. Tammy then quit playing hide-and-go-seek and returned to her home next door. At the time the incident occurred, Tammy was twelve years old and the defendant was thirty-two.\nDefendant was convicted under G.S. 14-202.1(a)(l) which provides, in pertinent part:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully 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 .... [Emphasis added.]\nDefendant argues that at most the State proved that he did the prohibited act but not that he did so willfully and \u201cfor the purpose of arousing or gratifying sexual desire.\u201d Id.\nUpon a motion to dismiss in a criminal action, \u201call of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom.\u201d State v. Witherspoon, 293 N.C. 321, 326, 237 S.E. 2d 822, 826 (1977).\nIn State v. Campbell, 51 N.C. App. 418, 276 S.E. 2d 726 (1981), the defendant challenged his conviction under G.S. 14-202.1(a)(l) on the grounds that there was no direct evidence that he acted \u201cfor the purpose of arousing or gratifying sexual desire.\u201d There we noted that \u201c[a] defendant\u2019s purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference.\u201d 51 N.C. App. at 421, 276 S.E. 2d at 729. Here there is evidence that the defendant led his victim, in the course of playing hide-and-go-seek, into a dark dog shed. While hiding there the defendant put his arm around the victim, placed his hand between her legs and underneath her softball shorts, and rubbed her vagina with his finger. When the victim tried to move away, defendant pulled her back to him and fondled her again. This evidence was sufficient to warrant the inference that the defendant willfully took indecent liberties with the child for the purpose of arousing or gratifying his sexual desire.\nDefendant\u2019s five remaining assignments of error concern the admission or exclusion of evidence.\nDefendant first alleges the trial court improperly allowed the prosecutrix, Tammy Burkhart, to testify whether the defendant had, on prior occasions, played hide-and-go-seek with the children of the neighborhood and whether the defendant had ever hidden with her before. Defendant contends that testimony was irrelevant. G.S. 8C-1, Rule 401 defines \u201crelevant evidence\u201d as \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d Here the fact that defendant had previously played hide-and-go-seek with the children serves to strengthen the evidence that defendant played hide-and-go-seek on the date in question. Similarly, the fact that the prosecutrix could not remember the defendant ever hiding with her before tended to explain why this was the first occasion defendant had fondled her. Thus, the testimony was relevant to the issues in this case and, therefore, was properly admitted into evidence.\nDefendant\u2019s second assignment of error is that the trial court erred in allowing witnesses Vicki Thompson and Jean Joyce to testify that Tammy\u2019s story about the fondling shocked them. Defendant contends such testimony was irrelevant and prejudicial. First, we note that the record reveals that even though the prosecutor\u2019s questions to witnesses Thompson and Joyce indicated the desired answer, the defendant did not object until after the witnesses had answered. The objections were not timely, thus defendant has waived this assignment of error. State v. Burgess, 55 N.C. App. 443, 447, 285 S.E. 2d 868, 871 (1982); G.S. 8C-1, Rule 103(a)(1).\nAssuming, however, that this assignment of error is properly before us and that the evidence was irrelevant; it was not prejudicial. The defendant, on cross-examination of the prosecutrix, had already elicited from her that her mother, Jean Joyce, became upset when she told her that defendant had fondled her. Therefore, there was no prejudice in the State showing that Tammy\u2019s mother and Vicki Thompson were both shocked by what Tammy told them.\nDefendant\u2019s next assignment of error is that the trial court improperly admitted into evidence certain testimony of Jean Joyce, the prosecutrix\u2019s mother. On cross-examination of the prosecutrix, defendant attempted to discredit her by asking her about a prior altercation between her and the defendant. Defendant asked the prosecutrix if, in fact, she had not admitted lying to her parents that the defendant cursed her. The prosecutrix denied admitting to her parents that she had lied because she said the defendant had in fact cursed her. On direct examination of Jean Joyce, the prosecutor asked her about the prior altercation between her daughter and the defendant, which had occurred some two weeks prior to the incident in question. The prosecutor asked Ms. Joyce whether, to her knowledge, the cursing incident had anything to do with the subject charge against the defendant. Ms. Joyce replied that it did not. Defendant objects to this question and argues that the question was improper because it required the witness to state her personal opinion in a conclusory manner. We hold the questioning was permissible to counter the inference by the defendant that the victim was a liar and that the charge made by her was motivated by the cursing incident. To the extent that Jean Joyce\u2019s testimony on this point constituted opinion testimony, such testimony was permissible under G.S. 8C-1, Rule 701 which allows a layman to testify in the form of an opinion when such \u201copinions . . . are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of [her] testimony or the determination of a fact in issue.\u201d\nBy his fourth assignment of error defendant argues that the trial court erred by sustaining the State\u2019s objections to defendant\u2019s questions to Jean Joyce concerning what effect, if any, the divorce of Tammy\u2019s parents and her mother\u2019s marital difficulties had on Tammy. We find no prejudicial error. No sufficient offer of proof of the excluded evidence was made. Defendant has the burden of establishing that the exclusion of evidence was prejudicial to his case. Therefore, \u201canswers the [witness] would have given must be placed in the record in order to determine the alleged error was prejudicial.\u201d State v. Boykin, 298 N.C. 687, 699, 259 S.E. 2d 883, 890 (1979).\nFinally, defendant contends the trial court erred by allowing Chad Burkhart to testify about the 13 August 1982 incident because he allegedly had no personal knowledge of the events in question. Defendant further argues that the trial court\u2019s asking two questions of Chad Burkhart constituted an opinion on the believability of the witness. These contentions are without merit. Chad Burkhart testified concerning playing hide-and-go-seek with his sister, Tammy, the defendant, and several other children in August of 1982. He testified that while he did not see the defendant, Lee, and Tammy go into the shed, he and Wayne found them there. While Chad Burkhart could not recall the exact date in August when this game of hide-and-go-seek occurred, his inability to recall the specific date goes to the weight of his testimony and not its admissibility. As to the two questions asked by the trial court, the record shows that the trial court sought only to clarify the time frame of the event about which the witness was testifying. These questions were permissible because they in no way suggested an opinion as to the witness\u2019s credibility or the defendant\u2019s guilt or innocence. G.S. 15A-1222.\nIn sum, we find the evidence sufficient to go to the jury and the trial court\u2019s evidentiary rulings without prejudicial error.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg by Assistant Attorney General Daniel C. Higgins for the State.", "Wilson, Biesecker, Tripp & Sink by Joe E. Biesecker and Charles E. Frye III for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TEDDY DEWEY SLONE\nNo. 8422SC1262\n(Filed 17 September 1985)\n1. Rape and Allied Offenses \u00a7 19\u2014 taking indecent liberties with a child \u2014 evidence sufficient\nThe State\u2019s evidence was sufficient to warrant the inference that defendant willfully took indecent liberties with a child for the purpose of arousing or gratifying his sexual desire where there was evidence that the defendant led his victim, in the course of playing hide-and-go-seek, into a dark dog shed; while hiding there the defendant put his arm around the victim, placed his hand between her legs and underneath her softball shorts, and rubbed her vagina with his finger; and, when the victim tried to move away, defendant pulled her back to him and fondled her again. G.S. 14-202.1(a)(l).\n2. Rape and Allied Offenses \u00a7 19\u2014 taking indecent liberties with a child \u2014 evidence relevant\nIn a prosecution for taking indecent liberties with a twelve-year-old girl, the court did not err by allowing the prosecutrix to testify about whether the defendant had on prior occasions played hide-and-go-seek with the children in the neighborhood and whether the defendant had ever hidden with her before. The fact that defendant had previously played hide-and-go-seek with the children served to strengthen the evidence that defendant played hide-and-go-seek on the date in question, and the fact that the prosecutrix could not remember the defendant ever hiding with her before tended to explain why this was the first occasion defendant had fondled her. G.S. 8C-1, Rule 401.\n3. Rape and Allied Offenses \u00a7 19\u2014 taking indecent liberties with a child \u2014 evidence that witnesses shocked \u2014 no prejudice\nThere was no prejudice in a prosecution for taking indecent liberties with a twelve-year-old girl in permitting the prosecutrix\u2019s mother and another witness to testify that the prosecutrix\u2019s story about the fondling shocked them where defendant did not make timely objections and where the defendant elicited from the prosecutrix on cross-examination that her mother had become upset when told that defendant had fondled her. G.S. 8C-1, Rule 103(a)(1).\n4. Rape and Allied Offenses \u00a7 19; Criminal Law \u00a7 50.2\u2014 taking indecent liberties with a child \u2014 opinion of mother \u2014admissible\nThe court did not err in a prosecution for taking indecent liberties with a twelve-year-old girl by admitting into evidence testimony of the prosecutrix\u2019s mother that a prior incident in which defendant allegedly cursed the prosecu-trix had nothing to do with the subject charge against defendant. The questioning was permissible to counter the inference by the defendant that the victim was a liar and that the charge made by her was motivated by the cursing incident. G.S. 8C-1, Rule 701.\n5. Criminal Law \u00a7 162\u2014 taking indecent liberties with minor \u2014 objections sustained-failure to place answers in record \u2014 no prejudicial error\nIn a prosecution for taking indecent liberties with a twelve-year-old girl, there was no prejudicial error in sustaining the State\u2019s objections to defendant\u2019s questions concerning what effect the divorce of the prosecutrix\u2019s parents and her mother\u2019s marital difficulties had on the prosecutrix where no sufficient offer of proof of the excluded evidence was made.\n6. Rape and Allied Offenses \u00a7 19\u2014 indecent liberties with child \u2014witness with no personal knowledge \u2014testimony admissible\nIn a prosecution for taking indecent liberties with a twelve-year-old girl in a dog shed while playing hide-and-go-seek, the trial court did not err in allowing the prosecutrix\u2019s brother to testify about the incident even though he had no personal knowledge of the events in question and did not err in asking two questions of the brother. The brother testified that while he did not see the defendant, the prosecutrix, and another child go into the shed, he and another child found them there. The two questions asked by the trial court sought only to clarify the time frame of the event about which the witness was testifying and the brother\u2019s inability to recall the exact date in August when the game of hide-and-go-seek occurred went to the weight of his testimony and not to its admissibility. G.S. 15A-1222.\nAppeal by defendant from Davis, Judge. Judgment entered 11 July 1984 in Superior Court, DAVIDSON County. Heard in the Court of Appeals 28 August 1985.\nAttorney General Lacy H. Thornburg by Assistant Attorney General Daniel C. Higgins for the State.\nWilson, Biesecker, Tripp & Sink by Joe E. Biesecker and Charles E. Frye III for defendant appellant." }, "file_name": "0628-01", "first_page_order": 662, "last_page_order": 668 }