State v. Riquelme

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-289 NORTH CAROLINA COURT OF APPEALS Filed: 7 October 2014 STATE OF NORTH CAROLINA v. Union County No. 12 CRS 52806 DANIEL HERNANDEZ RIQUELME Appeal by defendant from judgment entered 18 September 2013 by Judge Jeffrey P. Hunt in Union County Superior Court. Heard in the Court of Appeals 9 September 2014. Attorney General Roy Cooper, by Assistant Attorney General Jennifer T. Harrod, for the State. James W. Carter for defendant-appellant. BRYANT, Judge. Where the trial court did not err in admitting the video of the witness interview with police as corroborating evidence and where the trial court did not err in denying defendant s motion to dismiss the charge of taking indecent liberties with a child, we hold no error. -2On 4 September 2012, a Union County Grand Jury indicted defendant minor. Union on one count of taking indecent liberties with a The matter came to trial on 16 September 2013 before a County presiding. jury, the Honorable Jeffery P. Hunt, Judge The evidence presented at trial tended to show that in May 2012, Carl,1 a nine-year-old boy who lived in the same apartment complex as defendant, went to defendant s apartment to ask for money. gift. Carl wanted to buy his mother a Mother s Day Carl had been to defendant s residence before to watch a movie, and defendant had previously purchased toys for Carl. Defendant said he would give Carl money and invited Carl into the residence. bed. Defendant instructed Carl to go to defendant s While Carl lay on the bed, defendant instructed Carl to close his eyes. neck. Then defendant kissed Carl on his mouth and Carl testified that this went on for ten to fifteen minutes before Carl made up an excuse to leave. Later, when Carl s younger brother told his mother that he had been in defendant s apartment, Carl told his mother what had happened while Carl was inside defendant s apartment. Carl s mother immediately called the police. 1 A pseudonym has been used to juvenile. protect the identity of the -3After counsel, the the presentation jury found liberties with a child. of evidence defendant guilty and of arguments taking of indecent The trial court entered judgment in accordance with the jury verdict and sentenced defendant to an active term of 16 to 29 months. Defendant appeals. _______________________________________ On appeal, defendant raises the following issues, whether the trial court: (I) committed plain error by admitting the video of Carl s interview with police; and (II) erred in denying defendant s motion to dismiss the charge of taking indecent liberties with a child. I Defendant argues that the trial court committed plain error by admitting Carl. the video Specifically, of Detective defendant Garcia s contends that interview with statements made during Carl s interview with Detective Garcia contradicted his trial testimony and went beyond the scope of his testimony at trial, introducing new facts. On these contends that he is entitled to a new trial. grounds, defendant We disagree. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error -4had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotations omitted). A witness s prior consistent statements may be admitted to corroborate the witness's Harrison, 328 N.C. (citation and courtroom 678, 681, quotations 403 omitted). testimony. S.E.2d State 301, 303 Corroboration v. (1991) is the process of persuading the trier of the facts that a witness is credible. add We have defined corroborate as to strengthen; to weight or credibility to confirming acts or evidence. 468, 349 omitted). S.E.2d 566, 573 a thing by additional and State v. Ramey, 318 N.C. 457, (1986) (citations and quotations In order to be corroborative and therefore properly admissible, the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility S.E.2d at 573 to (citations such testimony. omitted). [T]he Id. at 469, witness's 349 prior contradictory statements may not be admitted under the guise of -5corroborating his testimony. 200, 207, 584 S.E.2d State v. McCree, 160 N.C. App. 861, 866 (2003) (citation omitted). However, [i]f the previous statements offered in corroboration are generally variations consistent between them with will the witness' not testimony, render the slight statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury. Harrison, 328 N.C. at 681 82, 403 S.E.2d at 304 (citations and quotations omitted). Defendant contends that statements made in Carl s videorecorded interview with Detective Garcia contradicted and went far beyond Carl s trial testimony. We note Carl s video- recorded interview was accepted into evidence and played for the jury during Detective Garcia s testimony, prior to the time Carl testified as a witness. In the video, Detective Garcia questions Carl about the sequence of events which led Carl into defendant s apartment. Defendant points out that Carl initially states that he went to defendant s residence and [h]e dragged me into . What did he say? That he was going to give me money. Later in the interview, Detective Garcia again asked Carl explain to what happened when he went to defendant s apartment. Detective Garcia: Explain to me what happened when you went to his house, -6what happened? . . . When you were outside and he told you he was going to give you twenty dollars. How did it happen when you went inside? Carl: First off, I went to his house, I told you. About if I could give him a smoothie [made with strawberries] and he really, really wanted me to come in there. Then he told me he would give me twenty dollars. Detective Garcia: Carl: And then what happened? Then he pushed me to his bed. During the trial, Carl testified that he went to defendant s apartment and asked defendant if I can borrow like some money. And then he said sure. And then he told me then to get -- like go into the bed . . . . The difference between Carl s testimony at trial, that defendant told him to go in to the bed and his video statement that defendant pushed [Carl] to his bed, credibility statements. Detective testimony. overruled. is a and slight not the variation that admissibility affects of the only the video-taped Carl s statements made during his interview with Garcia are not inconsistent with Carl s trial Therefore, as to this point, defendant s argument is -7Defendant goes on to argue that the jury found defendant guilty of taking indecent liberties with a child in part based on the allegation that [defendant] told the child to stick out his tongue so that Defendant contends defendant kissed evidence came defendant there Carl from on was the Carl s could no kiss him substantive mouth and interview admitted for purposes of corroboration. that with in the mouth. evidence that the such only Detective Garcia However, we note Carl s testimony during direct examination at trial. A So I went to his house -- I mean apartment. And he said sure. Then he told me to go to the bed and was kissing me. Oh, yeah, then he told me to stick my tongue out. . . . Q Where on your body did he kiss you? A My mouth, my neck a little bit, and he touched me like kind of my arms -well, maybe my arms. . . . Q When this was did you feel? A happening, [Carl], how Well, disgusted. This testimony supports the charge that defendant had Carl stick out his tongue so defendant could kiss Carl in the mouth and that defendant did kiss Carl in the mouth. The challenged -8video-recorded statements made by Carl during the course of his interview with Detective Garcia did not go beyond the scope of Carl s trial testimony corroborative evidence. in admitting the video and was properly admitted as Therefore, the trial court did not err recording as corroborating evidence. Accordingly, defendant s argument is overruled. II Next, defendant denying defendant s indecent liberties argues motion with that to a the trial dismiss child. the court charge Specifically, erred of in taking defendant contends there was no evidence defendant willfully committed or attempted to take any immoral, improper, or indecent liberties with Carl for the purpose of arousing or gratifying sexual desire nor did he willfully commit or attempt to commit any lewd or lascivious act upon Carl. We disagree. We review denial of a motion to dismiss criminal charges de novo, to determine whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and perpetrator of such offense. (2) of defendant's being the State v. Mobley, 206 N.C. App. 285, 291, 696 S.E.2d 862, 866 (2010) (citation and quotations omitted). [T]he trial court must analyze the evidence in the -9light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. . . . trial court unfavorable credibility. does to not the State weigh State, v. the evidence, or Trogdon, consider determine 216 N.C. any App. The evidence witness' 15, 25, 715 S.E.2d 635, 641 (2011) (citation and quotations omitted). Pursuant to North Carolina General Statutes, section 14202.1, [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: (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; or (2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years. N.C. Gen. Stat. § 14-202.1(a) (2013). Defendant testified in his own defense and admitted that at the time of trial he was forty-one years old. that at the time of trial he was ten years old. Carl testified Carl further testified that he went to defendant s apartment to ask for some -10money to buy apartment, a Carl Mother s Day testified gift. that Once defendant inside told defendant s him defendant s bed and there, started kissing him. to go to Carl testified that he was lying on the bed and defendant was on top of him. Q Where on your body did he kiss you? A My mouth, my neck a little bit, and he touched me like kind of my arms -well, maybe my arms. Carl testified that this encounter went on for ten to fifteen minutes. As there was substantial evidence that defendant was more than five years older than Carl who was less than sixteen years old and that defendant took immoral, improper, or indecent liberties with Carl for the purpose of arousing or gratifying sexual desire,2 defendant s 2 the motion to trial court dismiss the did not charge of err in denying taking indecent In State v. Hammett, this Court held that [the] defendant's action in french kissing [his thirteen-year-old daughter] constituted a lewd or lascivious act within the meaning of G.S. § 14 202.1(a)(2). 182 N.C. App. 316, 322, 642 S.E.2d 454, 458 (2007). See also State v. Banks, 322 N.C. 753, 767, 370 S.E.2d 398, 407 (1988) (holding that where defendant a thirty-year-old man kissed two eight-year-old girls, putting his tongue in their mouths, ears and noses, the trial court s instruction that such acts were immoral, improper, or indecent within the meaning of subsection (1) of N.C. Gen. Stat. ' 14-202.1 and lewd or lascivious within the meaning of subsection (2) was proper). -11liberties with a child. S.E.2d at 866. See Mobley, 206 N.C. App. at 291, 696 Accordingly, this argument is overruled. No error. Chief Judge McGEE and Judge STROUD concur. Report per Rule 30(e).

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