State v Mann 

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NO. COA14-347 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 STATE OF NORTH CAROLINA v. Pitt County No. 12 CRS 050058 CHRISTOPHER ASHLEY MANN, Defendant. Appeal by defendant from judgment entered 15 August 2013 by Judge Alma L. Hinton in Pitt County Superior Court. Heard in the Court of Appeals 24 September 2014. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. The Robinson Law Firm, P.A., by Leslie S. Robinson, for defendant-appellant. BRYANT, Judge. An indictment which sets forth a clear statement of the offense for which the defendant has been charged is not fatally defective. Where a defendant presents one argument to the trial court and a different argument on appeal, defendant’s argument on appeal will be deemed waived. Where three questions asked by the prosecutor were not necessarily leading, and where defendant failed to show how the asking of those questions prejudiced him, -2the trial court did not abuse its discretion in allowing those questions to be asked of a witness. Defendant may not complain on appeal about the admission of testimony to which he opened the door before the trial court. On 29 May 2012, defendant Christopher Ashley indicted on one count of felony secret peeping. Mann was The charge came on for trial during the 13 August 2013 criminal session of Pitt County Superior presiding. Court, the Honorable Alma J. Hinton, Judge At trial, the State’s evidence tended to show the following. In August 2010, defendant and his wife Amy invited Amy’s friend, Barbara Dauberman, to stay with them at their home in Winterville. Barbara accepted the invitation since she needed a place to stay while her infant son was being treated for a heart defect at Pitt County Memorial Hospital. While staying at defendant’s home, Barbara lived in an upstairs bedroom which shared a bathroom with a second upstairs bedroom. Defendant and Amy’s bedroom was located downstairs. On 13 September 2010, Barbara spent the day at the hospital with her son, returning to defendant’s home at around 10:00 p.m. that evening. upstairs to fold After her returning laundry to and the use home, the Barbara bathroom. went Upon -3entering the bathroom, Barbara noticed a screw in the sink and some pink insulation in the toilet. Barbara then looked up and noticed that the air vent in the ceiling was missing a screw, that its slats had been bent, and that a neon blue light was visible inside the vent. After getting a chair to stand on so she could inspect the vent more closely, Barbara noticed a black surveillance camera inside the air vent. Barbara then went downstairs and asked Amy to come upstairs with her to see the camera. Upon seeing appeared to be “in shock” and “disgusted.” the camera, Amy Amy retrieved a screwdriver from downstairs to unscrew the air vent cover and attempted to pull out the camera, but she had to go into the attic to unplug the camera’s cables. When defendant came upstairs to see what Barbara and Amy were doing, Barbara accused defendant of installing the camera. After defendant denied having any involvement with the installation of the camera, both women told defendant to call the police. After defendant called the police, Barbara packed up her belongings, left the home, and called her husband to tell him about the camera. While on the phone with her husband, Barbara saw a police car pull up to defendant’s home and leave shortly after Amy ran out of the home and spoke to the police officer. -4Amy then called Barbara and asked her to return to the home. When she reached the driveway, Barbara stated that defendant began crying and apologizing to her for installing the camera. Amy removed the camera’s monitor from defendant’s truck and gave it to Barbara, who then left. Barbara testified that she spoke to Amy several times over the phone and in person after she moved out of defendant’s home. Barbara stated that Amy asked her not to call the police for the sake of Amy’s son and step-daughters. received defendant; a bouquet Barbara of flowers threw away At the hospital, Barbara and the an note apology and note gave away from the flowers. Barbara testified that Amy visited her several times at the hospital after Barbara moved out of Amy’s house, and that Amy attended the funeral of Barbara’s son in December. In January 2011, Barbara became concerned about her and her family’s safety after she learned that defendant becoming members of Barbara’s church. and Amy were considering In March, Barbara engaged the Kellum Law Firm to represent her because she wanted to keep defendant away from her and her family. Barbara stated that after she realized the Kellum Law Firm would require her to sign -5a confidentiality agreement, she ended the firm’s representation of her and contacted the Pitt County Sheriff’s Office. Barbara was interviewed by Detective Jeremy Monette of the Pitt County with a Sheriff’s written Office, statement and and provided the Detective surveillance Monette camera and monitor. Detective Monette identified the surveillance camera as having been purchased at Sam’s Club on 12 September 2010 by a person using defendant’s membership card; he also confirmed that defendant sent flowers Hospital for Barbara. and a note to Pitt County Memorial Defendant declined to be interviewed. When interviewed by Detective Monette, Amy stated that she had installed the surveillance camera in Barbara’s bathroom as part of a sexual role-playing game between herself and defendant, and denied that defendant had any knowledge of the camera. On 15 August 2013, a jury convicted defendant of felony secret peeping. Defendant was sentenced to six to eight months imprisonment, with the trial court suspending that sentence and placing defendant on thirty-six months supervised probation. Defendant appeals. _____________________________ On appeal, defendant contends: (I) the indictment was insufficient to charge felony secret peeping; and (II) the trial -6court erred in denying defendant’s motion to dismiss the charge due to insufficient evidence. trial court abused its Defendant further argues that the discretion and committed prejudicial error in (III) allowing the prosecutor to ask leading questions; and (IV) admitting statements as corroborative evidence. I. Defendant first argues that the indictment was insufficient to charge felony peeping. This Court We disagree. reviews the sufficiency of an indictment de novo. State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009) (citation omitted). Defendant contends the trial court erred in denying his motion to dismiss Specifically, defective the defendant because it indictment contends did not the allege as fatally indictment all of defective. was the fatally elements of indictment is felony secret peeping. “It essential is to elementary the that jurisdiction accused for a felony.” a valid of the bill trial of court to try an State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citations omitted). It is well established that “[a]n indictment is fatally defective if it wholly fails to charge some offense . . . or fails to state some -7essential and necessary element of the offense of which the defendant is found guilty.” State v. Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399 (2003) (citation and quotation omitted). As a general rule[,] [an indictment] following substantially the words of the statute is sufficient when it charges the essentials of the offense in a plain, intelligible, and explicit manner. . . . [unless] the statutory language fails to set forth the essentials of the offense, [in which case] the statutory language must be supplemented by other allegations which plainly, intelligibly, and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the defendant and the court as to the offense intended to be charged. State v. Barneycastle, 61 N.C. App. 694, 697, 301 S.E.2d 711, 713 (1983) (citations omitted). The indictment against defendant, returned pursuant to N.C. Gen. Stat. § 14-202, stated that: The jurors for the State upon their oath present that on or about the date of offense shown and in the County named above the defendant named above unlawfully, willfully and feloniously did secretly and surreptitiously install a wireless camera/device capable of creating a photographic image in the guest bathroom located at 562 Shadow Ridge Dr, Winterville, NC, to look at the victim, Barbara Dauberman, with the intent to capture an image for arousal and gratifying the sexual desire of himself or any person. -8During the trial, defendant asked the State to clarify which section of N.C.G.S. § 14-202 the State wished to proceed under. Upon the State indicating that it would proceed under N.C.G.S. § 14-202(f), defendant made a motion pursuant to N.C. Gen. Stat. § 15A-924 to dismiss the indictment because the indictment lacked the element of consent as required by N.C.G.S. § 14-202(f). See N.C.G.S. § 14-202(f) (2013) (“Any person who, for the purpose of arousing or gratifying the sexual desire of any person, secretly or surreptitiously uses or installs in a room any device that can be used to create a photographic image with the intent to capture the image of another without their consent shall be guilty of defendant’s a Class motion I felony.”). on grounds that The trial the court language denied of the indictment was sufficient. North Carolina General Statutes, section 15A-924, requires that every criminal pleading contain: A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation. N.C.G.S. § 15A-924(5) (2013). -9We disagree with defendant’s contention that the indictment was fatally conjunction defective, with since N.C.G.S. a § review 14-202 of the indictment indicates that in the indictment, as returned, was sufficient to charge felony secret peeping. Although defendant is correct in his assertion that N.C.G.S. § 14-202(f) includes the language “without their consent,” it is well-established by this Court that any charge brought under N.C.G.S. § 14-202 denotes an act by which the defendant has spied upon another without that person’s consent. See In re Banks, 295 N.C. 236, 242, 244 S.E.2d 386, 390 (1978) (“This Court has, therefore, indicated that the word ‘secretly’ as used in G.S. 14-202 conveys the definite idea of spying upon another with the intention of invading her privacy. Hence, giving the language of the statute its meaning as interpreted by this Court, G.S. 14-202 prohibits the wrongful spying into a room upon a female with the intent of violating the female's legitimate expectation of privacy. This is sufficient to inform a person of ordinary intelligence, with reasonable precision, of those acts the statute intends to prohibit, so that he may know what acts he should avoid in order that he may not bring himself within its provisions.”). -10Moreover, it is also clear from the language used in the indictment that the omission of the words “without their consent” did not render the indictment fatally defective. The indictment and states that defendant “unlawfully, willfully feloniously did secretly and surreptitiously” attempt to capture photographic images of “the victim, [Barbara].” Such strong language indicates that defendant intended to capture images of Barbara without her consent, since terms such as “feloniously,” “unlawfully,” that “surreptitiously,” defendant has done and something “victim” to another Barbara) without that person’s consent. 1582, 1703 “unauthorized (9th ed. and 2009) allege person (here, See BLACK’S LAW DICTIONARY (defining clandestine; clearly “surreptitious” stealthily and as usu[ally] fraudulently done”; defining “victim” as “[a] person harmed by a crime, tort, or other wrong”). that the element of “without Further, this Court has held consent” has been adequately alleged in an indictment that indicates the defendant committed an act unlawfully, willfully, and feloniously. See State v. McCormick, 204 N.C. App. 105, 112, 693 S.E.2d 195, 198—99 (2010) (holding that the element of “without consent” did not need to be specifically pled in a burglary indictment where it was clear that the language of the indictment, stating that defendant -11“unlawfully, defendant willfully acted and without feloniously,” consent or indicated welcome in that entering his estranged wife’s house); State v. Pennell, 54 N.C. App. 252, 259—60, 283 S.E.2d 397, 402 (1981) (the element of “without consent” was presumed to exist within the indictment where “the language in the indictment, that the defendant ‘unlawfully and wil[l]fully Forsyth did feloniously Technical break Institute, and belonging enter to a building the Board of of Trustees,’ implies that defendant did not have the consent of the Board of Trustees [to enter their building].”). Therefore, the indictment was sufficient to charge felony secret peeping so that defendant’s argument is, accordingly, overruled. II. Defendant next argues that the trial court erred in denying defendant’s motion to dismiss evidence. Specifically, the defendant charge for insufficient contends the trial court erred in denying his motion to dismiss because the State did not present sufficient evidence to satisfy the corpus delicti rule. Defendant’s argument cannot be reached on appeal, however, since defendant did not raise this argument before the trial court. It is well-established by this Court that “where a theory argued on appeal was not raised before the trial court, the law -12does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and quotations omitted). When, as here, a party changes theories between the trial court and an appellate court, the argument is waived. deemed not properly preserved and is, thus, Id. at 123—24, 573 S.E.2d at 685. In his argument before the trial court, defendant made a general motion to dismiss the charge for insufficiency of the evidence, arguing that pursuant to the indictment, the State failed to demonstrate each element of N.C.G.S. § 14-202(f). trial court denied the motion. The The following day, defendant renewed his motion to dismiss for insufficiency of the evidence, this time arguing that under N.C.G.S. § 14-202(f) the State had failed to show how the surveillance camera met the statutory requirements for capturing an image; this motion was also denied. On appeal, defendant now attempts to raise a new argument by contending delicti rule. that the However, State as failed to defendant satisfy never the corpus presented any argument concerning the corpus delicti rule to the trial court, his argument has not been properly preserved for appeal. See -13State v. Shelly, 181 N.C. App. 196, 206, 638 S.E.2d 516, 524 (2007) (holding that where defendant made a motion to dismiss before the trial court for lack of premeditation and deliberation and on appeal argued a theory of corpus delicti, defendant had waived his argument on appeal).1 Accordingly, defendant’s argument is dismissed. III. Defendant discretion next and argues committed that the trial prejudicial prosecutor to ask leading questions. court error its allowing in abused the We disagree. “Rulings by the trial judge on the use of leading questions are discretionary discretion.” 55, 59 (1986) and reversible only for an abuse of State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d (citation omitted). “A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been 1 the result of a reasoned decision.” Id. (citations We further note that defendant’s corpus delicti rule argument could not be sustained on appeal even if it were properly before this Court. The corpus delicti rule would only apply if defendant’s admission had been the only evidence of his commission of the crime. See State v. Parker, 315 N.C. 222, 229, 337 S.E.2d 487, 491 (1985) (holding that “an extrajudicial confession, standing alone, is not sufficient to sustain a conviction of a crime.”). Here, there was additional evidence before the jury of defendant’s guilt such that the application of the corpus delicti rule would have been inappropriate. -14omitted). permit “[T]he trial court has discretionary authority to leading questions in proper instances, and absent a showing of prejudice the discretionary rulings of the court will not be disturbed. If the testimony is competent and there is no abuse of discretion, defendant's exceptions thereto will not be sustained.” State v. Hunt, 297 N.C. 258, 263, 254 S.E.2d 591, 595 (1979) (citations omitted). Defendant contends the trial court erred in allowing the prosecutor to ask leading questions of Barbara. During the State’s asked examination of Barbara, the prosecutor following three questions defendant now argues were leading: [THE STATE:] Do you feel an expectation of privacy in that bathroom? [DEFENDANT]: Objection to the form of question. his THE COURT: Overruled. [BARBARA:] Yes. [THE STATE]: If I can have one brief second, Your Honor. THE COURT: Yes. [THE STATE:] Did you ever give anyone permission to place a camera in the bathroom at the Mann's house that you-[DEFENDANT]: Objection. Form of his question again. the -15[BARBARA:] No. [THE STATE]: Your Honor. I'll re-form that question, [THE STATE:] Did you consent to ever being filmed at the Mann's house? [BARBARA:] Absolutely not. [DEFENDANT]: Objection to the form of his question. THE COURT: Overruled. “A leading question is generally defined as one which suggests the desired response and may frequently be answered yes or no.” (1977) State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (citations omitted). However, a question cannot be deemed leading simply because it calls for a yes or no answer. State v. White, 349 N.C. 535, 557, 508 S.E.2d 253, 267 (1998) (citation omitted). Questions which direct a witness towards a specific topic of discussion without suggesting any particular answer are not leading. Defendant’s prosecutor record were indicates Id. (citations omitted). argument leading that that these three questions by the lacks merit, since a of the these questions were review part of the prosecutor’s more general questioning of Barbara regarding who typically used that bathroom and might have known about the existence of the surveillance camera. The specific questions -16challenged by defendant merely directed the witness’s attention to the subject at hand without suggesting an answer. Further, assuming arguendo that these questions were in fact leading, defendant has not demonstrated how allowing these questions constituted prejudiced him. an Prior abuse to of asking discretion the or challenged otherwise questions, Barbara had already testified to being shocked and disgusted upon discovering the hidden camera. This and other evidence presented at trial clearly showed that Barbara had not given anyone consent to film her (especially in the bathroom where she had an expectation of privacy). Defendant’s argument is, therefore, overruled. IV. In his final argument on appeal, defendant contends the trial court abused its discretion and committed prejudicial error in admitting statements as corroborative evidence. We disagree. “The abuse of discretion standard applies to decisions by a trial court that a statement is admissible for corroborative purposes.” State v. Tellez, 200 N.C. App. 517, 526, 684 S.E.2d 733, 739 (2009) (citations omitted). -17Defendant argues that the trial court erred in admitting prior statements corroborative made by to However, purposes. Barbara a Detective review Monette of the for trial transcript indicates that defendant himself opened the door to admission of these statements. Defendant asked Barbara on cross-examination about her interview with Detective Monette and the typed statement Detective Monette requested she make and give to him regarding the events of 13 September 2010. A defendant cannot on appeal complain when he opened the door to the admission of this evidence in the trial court below. State v. Moore, 103 N.C. App. 87, 96, 404 S.E.2d 695, 700 (1991) (holding that where the defendant introduced evidence on crossexamination of a witness, “the defendant ha[d] ‘opened the door’ to this testimony and [could] not be heard to complain [on appeal].” (citation omitted)). Moreover, even if defendant had not opened the door to Barbara’s prior statements, these statements were admissible as corroborative evidence. [C]orroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. In order to be admissible as corroborative evidence, a witness'[] prior consistent statements merely must tend to add weight or credibility to the witness's testimony. Further, it is well established that such -18corroborative evidence may contain new or additional facts when it tends to strengthen and add credibility to the testimony which it corroborates. If the previous statements are generally consistent with the witness' testimony, slight variations will not render the statements inadmissible, but such variations . . . affect [only] the credibility of the statement. A trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, non[-]hearsay purposes. Tellez, 200 N.C. App. at 526—27, 684 S.E.2d at 740 (citations omitted). “The trial court is [ultimately] in the best position to determine whether the testimony of [one witness as to a prior statement of another witness] corroborate[s] the testimony of [the latter].” State v. Bell, 159 N.C. App. 151, 156, 584 S.E.2d 298, 302 (2003) (citation omitted). statement contradicts statement be the excluded.” trial Tellez, “Only if the prior testimony should 200 App. N.C. the at prior 527, 684 S.E.2d at 740 (citation omitted). During defendant’s cross-examination of Barbara, Barbara testified about her interviews with Detective Monette and about the typed Monette statement she had prepared and given to Detective at his request. On redirect, the State questioned Barbara further about her statements to Detective Monette for purposes of transcript clarifying indicates her that answers. Barbara’s A prior review of the statements trial made to -19Detective Monette statements were were consistent indeed corroborative, with her testimony since the regarding the sequence of events involving defendant that transpired beginning 13 September Barbara 2010. about statements, Further, specific such as the although details defendant contained order in which in Amy challenged her prior removed the surveillance camera and its components from the air vent and attic, any slight variations between Barbara’s prior statements and her trial inconsistency in testimony her did account not of create discovering camera and what happened thereafter. a fundamental the surveillance See State v. Lloyd, 354 N.C. 76, 104, 552 S.E.2d 596, 617 (2001) (“[P]rior consistent statements are admissible even though they contain new or additional information so long as the narration of events is substantially similar to the witness' in-court testimony.” (citation omitted)). Accordingly, defendant’s final argument is overruled. No error. Judges ELMORE and ERVIN concur.

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