State v. Chaudhry

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-161 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 STATE OF NORTH CAROLINA v. Guilford County No. 10 CRS 94422 SALMAN ASLAM CHAUDHRY, Defendant. Appeal by defendant from order entered 8 September 2011 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 29 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State. Daniel F. Read for defendant-appellant. HUNTER, Robert C., Judge. Defendant appeals from judgment entered against him after a jury found him guilty of indecent exposure to a minor for the purpose of arousing or gratifying sexual desire. Defendant argues on appeal that the trial court erred by: (1) denying defendant s motions to dismiss for insufficient evidence; (2) denying defendant s evidence regarding motion for defendant s a mistrial; citizenship (3) status; excluding and (4) -2finding that the offense involved the mental abuse of a minor for sentencing purposes. After careful review, we find no error. Background Defendant Salman Aslam Chaudhry ( defendant ) was charged with indecent exposure, a violation of N.C. Gen. Stat. § 14190.9, and indecent liberties with a child, a violation of N.C. Gen. Stat § 14-202.1. the following: Ritchie ) M.L.1 shopped The evidence at trial tended to establish and her weekly grandmother at the Terry Hilltop Ritchie grocery ( Hilltop ), a convenience store where defendant worked. ( Ms. store M.L. testified that on 14 November 2010, she and her grandmother stopped at Hilltop to buy gas and milk. While Ms. Ritchie stayed outside pumping gas, M.L. went inside Hilltop to buy the milk and pay for the gas. After taking the change and milk out to her grandmother s car, M.L. went back into Hilltop because defendant had asked her to do a favor for him. M.L. alleged that defendant came around from the counter and pulled his penis over top of his pants. Defendant asked her to put his penis in her mouth; after she said no, defendant asked her to not tell anyone about the incident and gave her $10. 1 After We use the initials M.L. throughout this opinion to protect the identity of the minor victim. -3leaving the store, M.L. got in her grandmother s car and told Ms. Ritchie about the incident. They called 9-1-1. Defendant testified in his own defense at trial and stated that he is trying to become a citizen of the United States. When his attorney tried to ask more specific questions about defendant s citizenship status, the State objected claiming that the evidence was not relevant. After the trial court excused the jury to hear counsels arguments, defendant contended that the evidence was relevant because it show[ed] a lack of motive to commit [] this offense since an incident like this could potentially jeopardize his chance of becoming a citizen. During the arguments, the State indicated that it may ask defendant about his seven felony worthless check charges. told the State that those charges are defense counsel open[ed] the door[.] sustained the State s objection to not The trial court coming in unless The trial court then the evidence regarding defendant s citizenship status pursuant to Rules 401, 402, and 403. Defendant s mother-in-law Jeanette Griggs ( Ms. Griggs ) testified that defendant has a tendency for truthfulness. On cross-examination, the State asked Ms. Griggs if her opinion as to defendant s truthfulness would change if she knew that on -4January 18th, [$]8,959[.] sustained strike. 2011, [defendant] After the defendant objection and wrote a worthless objected, allowed the check trial defendant s for court motion to The trial court then told the jurors to not consider that [question] in any way at all[.] The trial court asked the jurors to raise their hands to indicate that they understood, and they all did. After the curative instructions, defendant made a motion for a mistrial. The prosecutor argued that she thought defendant had opened the door for the question because the witness testified as to defendant s truthful character. The trial court admonished the State to not mention the charges again and denied defendant s motion because [it] sustained the objection immediately and . . . asked all the -- told the jurors to disregard that, and they all raised their hand [sic] when I asked them. On 8 September 2011, the jury found defendant guilty of indecent exposure and not guilty of indecent liberties. trial court sentenced defendant to 30 months of The supervised probation and imposed special conditions of probation because the offense constitutes a reportable conviction pursuant to N.C. Gen. Stat. § 14-208.6 (2012) and found that the offense -5involved the physical, mental, or sexual abuse of a minor. Defendant gave oral notice of appeal at his sentencing hearing on 9 September 2011. Argument Defendant first argues that denying his motions to dismiss. defendant does not argue that the trial court erred in In support of his argument, the State failed to provide substantial evidence of each element; instead, defendant argues that the evidence was inherently incredible. 2 Specifically, defendant claims that the inherently incredible evidence is based on: (1) Ms. Ritchie s testimony that she did not see defendant expose himself even though she was standing right outside Hilltop and could see inside the store; (2) M.L. s conduct of staying in the store with defendant for five minutes even after he exposed himself; and (3) M.L. s conflicting stories of the events in her testimony at trial and statements to other witnesses. We disagree. This Court reviews the trial court s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). 2 In support of his contention that the Since defendant did not specifically argue that the evidence was not substantial to support his conviction, we will not address this issue on appeal and will only address defendant s contention that the evidence was inherently incredible. -6evidence was inherently incredible, defendant cites State v. Miller, 270 N.C. 726, 730, 154 S.E.2d 902, 904 (1967), where our Supreme Court stated that [o]rdinarily, the credibility of witnesses and the proper weight to be given their testimony is to be determined by the jury, not by the court upon a motion for judgment of nonsuit. However, the only evidence connect[ing] the defendant with the crime was an eyewitness who identified the defendant while standing 286 feet away from him. 732, 154 S.E.2d at 905. inherently incredible surrounding the perpetrator and The based the defendant s motion for nonsuit. In applying on identification reversed Miller, Court the of found physical the trial the evidence conditions defendant court s Id. at denial as the of the Id. at 732, 154 S.E.2d at 906. defendant argues that the evidence that Mr. Chaudhry exposed himself is not inherently incredible because he was far away and the lighting was poor. It is inherently incredible because he was so close and in such a public place. In other words, defendant seems to argue that the evidence was inherently incredible because the conditions were too good for Ms. Ritchie to not see what defendant was doing inside Hilltop. is misplaced because However, defendant s reliance on Miller the inherently incredible evidence in -7Miller only involved the identification of the defendant as the perpetrator. Here, defendant s identification as the perpetrator was never at issue, only his actions were at issue. M.L. identified defendant as the perpetrator, and there was nothing inherently incredible about that identification; Ms. Ritchie s identification unnecessary. of defendant as the perpetrator was Moreover, the fact that Ms. Ritchie did not see what happened in Hilltop does not mean that it did not happen. M.L. testified sufficient. as to the events in Hilltop, and that was Therefore, defendant s argument that the evidence was inherently incredible is without merit, and Miller is not applicable. Furthermore, while defendant points to contradictions in M.L. s testimony at trial and statements made to other witnesses in support of his contention that the evidence was inherently incredible, this evidence speaks to credibility which is not a factor in determining whether the trial court erred in denying his motions to dismiss. See State v. Thaggard, 168 N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005) (noting that [t]he trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witnesses credibility ). Defendant next argues that the trial court erred in denying -8his motion for a mistrial after the State asked Ms. Griggs about the felony worthless check charge. We disagree. Pursuant to N.C. Gen. Stat. § 15A-1061 (2011), [u]pon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant s case. Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995) (citations omitted), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). The trial court should grant a defendant s motion for a mistrial only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law. State v. Blackstock, 314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985). The State asked Ms. Griggs about the worthless check charge after the trial court had specifically ruled that this evidence was inadmissible. After the question, the trial court -9immediately sustained defendant s objection and gave curative instructions to the jury to disregard the question. When a court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured. Morgan, 164 N.C. App. 298, 302, 595 S.E.2d 804, State v. 808 (2004) (internal quotation marks omitted). Moreover, the trial court asked the jurors to indicate their understanding instruction by raising their hands, which they all did. of his Because the trial court gave curative instructions and ensured that the jury understood those instructions, any potential prejudice caused by the question was cured and would have no effect on the fairness or impartiality of the verdict. Therefore, the trial court did not abuse its discretion in denying defendant s motion for mistrial. Defendant sustaining the next argues State s that objection the to trial court questions erred regarding by the steps defendant is taking to obtain United States citizenship. Specifically, defendant contends these questions established defendant s motive to avoid engaging in random acts of sexual misconduct. questions In support of his argument, defendant claims the regarding his pursuant to Rule 404(b). citizenship status were admissible -10Here, although defendant argued that the evidence was admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2011) as proof of motive, the trial court excluded the evidence under N.C. Gen. Stat. § 8C-1, Rules 401, 402, and 403. Therefore, the issue is whether the trial court properly excluded the evidence, not whether the trial court erred in not admitting the evidence under Rule 404(b). Pursuant to Rule 401, [r]elevant evidence means evidence 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. Stat. § 8C-1, Rule 401 (2011). is not admissible. N.C. Gen. Evidence which is not relevant N.C. Gen. Stat. § 8C-1, Rule 402 (2011). Although the trial court s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. 259, 266, 591 S.E.2d 11, 17 Dunn v. Custer, 162 N.C. App. (2004) (citations and internal quotation marks omitted). Here, the trial court did allow defendant to testify that he was trying to become a citizen of the United States over the State s objection for relevancy. However, the trial court -11sustained the State s objections when defendant was asked what he was doing to try to become a citizen and whether defendant had attended a formal hearing in that process. This evidence does not have the tendency to make any fact of consequence more or less probable since it is not relevant as to any fact or issue in determining whether defendant exposed himself to M.L. or committed indecent liberties with her. Therefore, the evidence was irrelevant and was properly excluded by the trial court under Rule 402. Because we find that exclusion was proper pursuant to Rule 402, we will not address whether the trial court s exclusion under Rule 403 was proper. Finally, defendant argues that the trial court erred in finding that the offense involved the mental abuse of a minor at sentencing. Defendant concedes that even if the trial court erred in finding the indecent exposure conviction involved the mental abuse of M.L., the special probation conditions would still apply because defendant s conviction reportable offense under § 14-208.6(4). Pursuant trial court defendant to N.C. must who has Gen. Stat. impose special been convicted § a We are not persuaded. 15A-1343(b2) probation of constitutes an (2011), conditions offense the for which is a a reportable conviction as defined in G.S. 14-208.6(4), or which -12involves the physical, mental, or sexual abuse of a minor. According to N.C. Gen. Stat. § 14-208.6(4) (2011), reportable convictions include sexually violent offenses. A [s]exually violent offense, as defined in N.C. Gen. Stat. § 14-208.6(5), includes felonious indecent exposure N.C. Gen. Stat. § 14-190.9(a1). convictions pursuant to Therefore, since defendant s conviction for indecent exposure constitutes a sexually violent offense, the special probation conditions of N.C. Gen. Stat. § 15A-1343(b2) would have been imposed even if the trial court determined the conviction did not involve the physical, mental, or sexual abuse of M.L. by defendant. Thus, we need not address whether the trial court s finding that the offense involved the physical, mental, or sexual abuse of M.L. was Defendant s argument is without merit. Conclusion Based on the foregoing reasons, we find no error. No error. Judges BRYANT and STEELMAN concur. Report per Rule 30(e). error.

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