Heard September 9, 2014
Counsel Amended January 7, 2015.
N.C. Court of Appeals. No. 12-1377. Linda M. McGee, Judge.
Sherri Horner LawrenceMs., Primary Attorney, Assistant Attorney General, N.C. DEPARTMENT OF JUSTICE, Raleigh, NC for the Plaintiff-Appellant - State of North Carolina.
Mark MontgomeryMr., Primary Attorney, Attorney at Law, Durham, NC for Defendant-Appellee - Walston, Robert T. (Sr.).
[367 N.C. 722] On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 747 S.E.2d 720 (2013), finding prejudicial error in defendant's trial resulting in judgments entered on 17 February 2012 by Judge Cy A. Grant in Superior Court, Dare County, and ordering that defendant receive a new trial. Heard in the Supreme Court on 9 September 2014.
In this case we consider the admissibility of evidence of a pertinent character trait of a criminal defendant under North Carolina Rule of Evidence 404(a)(1). For character
evidence to be admissible at trial under Rule 404(a)(1), an accused must " tailor the evidence to a particular trait that is relevant to an issue in the case." State v. Squire, 321 N.C. 541, 546, 364 S.E.2d 354, 357 (1988). Defendant's proffered evidence of being respectful towards children was not sufficiently tailored to the State's charges of child sexual abuse and was thus inadmissible. Separately, we consider the extent to which, if at all, use of the word " victim" in a trial court's jury charge amounts to prejudicial error. Based on long-standing precedent, the trial court's use of the term " victim" was not impermissible commentary on a disputed issue of fact. Thus, the trial court did not err in denying defendant's request to use the words " alleged victim" instead of " victim" in its charge to the jury. Accordingly, on both issues we reverse the decision of the Court of Appeals.
[367 N.C. 723] This case arose from incidents that occurred in 1988 and 1989 between defendant and the prosecuting witnesses, E.C. and J.C., sisters who at the time of the incidents were about seven and four years old, respectively. During the relevant period, defendant's wife operated an at-home day care where she watched E.C., J.C., and their younger brother in addition to her own three children. According to the State's evidence, on several occasions defendant sexually abused the prosecuting witnesses individually, with each child being unaware that the other had been abused. Apparently, at some point several years later, J.C. and E.C.'s mother became concerned that her daughters had been abused. As a result, in 1994 E.C. and J.C. were interviewed by a social services worker and two sheriff's deputies. In those interviews both girls denied having been abused. No physical exams were conducted at that time, and the sheriff's office concluded that nothing in the interviews indicated any type of sexual assault.
In 2001, for the first time, E.C. and J.C. confided in each other and their parents that defendant had abused them. Seven years later, J.C. contacted law enforcement to report the incidents; officers subsequently reached E.C., who detailed similar incidents of her own. In January 2009 defendant was indicted on two counts of first-degree sex offense with a child, five counts of first-degree rape of a child, and seven counts of taking indecent liberties with a child. Superseding indictments were filed on 14 November 2011.
The State's evidence at trial relied almost exclusively on the testimony of E.C. and J.C. The State also called witness K.B., who testified under North Carolina Rule of Evidence 404(b) regarding alleged incidents of sexual abuse involving defendant when she was approximately ten and defendant was eighteen. Defendant took the stand in his own defense and also sought to introduce witness testimony regarding his good character. Defense counsel summarized the character witnesses' proposed testimony in a voir dire proffer, stating that each witness would testify to defendant's traits of (1) being law-abiding, (2) having good character, and (3) being respectful towards children. The trial court ruled that the testimony regarding defendant's law-abiding character trait would be admissible, but that testimony about the other two traits was prohibited as a matter of law.
At another point in the trial, defendant proffered Dr. Moira Artigues's voir dire expert testimony on repressed and suggested memories, which the trial court prohibited in all respects. During the jury instruction conference, defendant unsuccessfully sought to have [367 N.C. 724] the word " victim" changed to " alleged victim" in the pattern jury instructions used by the trial court. The jury found defendant guilty of one count of first-degree sexual offense, three counts of first-degree rape, and five counts of taking indecent liberties with a minor. Defendant appealed.
Defendant raised, inter alia, three issues on appeal. Defendant first argued that the trial court erred in prohibiting witness testimony about his character under Rule of Evidence 404(a)(1). State v. Walston, __ N.C.App. __, __, 747 S.E.2d 720, 724 (2013). The Court of Appeals agreed, concluding that the trait of being respectful towards children was relevant and admissible under the rule. Id. at __, 747 S.E.2d at 725-26. As to defendant's second issue on appeal, the ...