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State v. Earls

Court of Appeals of North Carolina

June 3, 2014

STATE OF NORTH CAROLINA
v.
MAX TRACY EARLS, Defendant

Heard in the Court of Appeals March 6, 2014.

Catawba County. Nos. 11CRS004534-36, 11CRS053827-30. Richard D. Boner, Judge.

Attorney General Roy A. Cooper III, by Special Deputy Attorney General Amar Majmundar, for the State.

M. Alexander Charns, for defendant-appellant.

STROUD, Judge. Judges CALABRIA and DAVIS concur.

OPINION

Page 655

Appeal by defendant from Judgments entered on or about 18 April 2013 by Judge Richard D. Boner in Superior Court, Catawba County.

STROUD, Judge.

Page 656

Max Earls (" defendant" ) appeals from judgments entered after a Catawba County jury found him guilty of three counts of taking indecent liberties with a child, two counts of incest, one count of statutory rape, and one count of rape of a child by an adult. We conclude that there was no error at defendant's trial or sentencing.

I. Background

On or about 11 July 2011, defendant was indicted on three counts of taking indecent liberties with a child, two counts of incest, one count of statutory rape, and one count of rape of a child by an adult. Defendant pled not guilty and was tried by jurythe week of 15 April 2013.

At trial, the State's evidence tended to show that in mid-to-late 2010, defendant was living with his wife and three daughters, Kate, Ellen, and Carol,[1] in Catawba County, NC. At the time, Kate was 13, Ellen was 11, and Carol was approximately 2. Kate and Ellen both testified at trial. Kate testified that defendant had sexually abused her by forcing her to engage in both vaginal and anal intercourse. Ellen testified that defendant made her take her clothes off and got into bed naked with her. She could not say aloud what he did to her after that, but while she was on the witness stand the prosecutor had her write down what happened. Ellen wrote that defendant had put his penis in her vagina. After the State rested, defendant presented his own evidence and testified on his own behalf. He denied that he ever touched his daughters inappropriately and claimed that they made up the story.

The jury found defendant guilty of all charges. The trial court then consolidated the charges into two judgments and sentenced defendant to 300 to 369 months imprisonment with a consecutive sentence of 240 to 297 months imprisonment. Defendant filed timely written notice of appeal on 22 April 2013.

II. Guilt Phase

Defendant argues that the trial court erred in four ways during the guilt phase of his trial: (1) that the trial court erred in allowing the prosecution to ask the 14-year-old Ellen leading questions, which violated his rights under the Sixth and Fourteenth Amendments; (2) that the trial court erred by allowing the prosecutor to read Ellen's written statement to the jury; (3) that the prosecutor improperly vouched for Ellen's credibility by reading her statement to the jury; and (4) that Ellen was not competent to testify. We conclude that all of defendant's arguments are meritless and that several of them have not been properly preserved.

A. Leading Questions

Defendant did object to one of the prosecutor's leading questions of Ellen on the basis of leading. We review the trial court's decision to overrule this objection for an abuse of discretion. See State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986) (" Rulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion." ).

The prosecutor and Ellen had the following exchange leading to defendant's objection:

[Prosecutor]: I'm going to show you what's marked as State's Exhibit 6. I'm going to ask you, when I was questioning you earlier and I asked you to write down what your father did to you, is this your writing?
[Ellen]: Yes.
[Prosecutor]: Okay. And you wrote that?
[Ellen]: Yes.
[Prosecutor]: And you wrote that while you were sitting on ...

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