State v. Clapp

NO. COA13-785
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
STATE OF NORTH CAROLINA

Alamance County
v.
Nos. 11 CRS 51768, 51892

ROBERT ALFONZO CLAPP

Appeal by defendant from judgments entered 5 February 2013

by Judge Shannon Joseph in Alamance County Superior Court.

Heard in the Court of Appeals 6 January 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Margaret A. Force, for the State.

Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for Defendant.

ERVIN, Judge.

Defendant Robert Alfonzo Clapp appeals from judgments

entered based upon his convictions for committing a sexual

offense against a 13, 14, or 15 year old child and taking

indecent liberties with a student while acting as a first

responder. On appeal, Defendant argues that the trial court

erred by refusing to instruct the jury concerning the law of

accident, precluding Defendant from eliciting evidence tending

to show that Defendant did not have an unnatural lust or sexual

interest in children, and refusing to instruct the jury
 -2-
concerning the use of evidence tending to show Defendant’s

character for honesty and trustworthiness for substantive

purposes. After careful consideration of Defendant’s challenges

to the trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgments

should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

On 23 March 2011, H.D.1 was a fifteen-year-old freshman at

Walter Williams High School. At that time, Defendant served as

a first responder at Walter Williams. Individuals acting as

first responders, who had previously been known as athletic

trainers, were supposed to be present at practices in order to

assess injuries, determine if additional medical services were

needed, and assist student athletes in addressing problems

associated with actual and potential injuries by performing such

functions as taping ankles, stretching sore muscles, and

providing ice. The compensation that Defendant received was

provided by funds supplied to the Alamance County schools and

the Walter Williams booster club.

1
H.D. will be referred to throughout the remainder of this
opinion as Hailey, a pseudonym used for ease of reading and to
protect H.D.’s privacy.
 -3-
Hailey ran cross country during her freshman year and

participated in outdoor track during her freshman and sophomore

years. As a result of the fact that she had sustained injuries

during both the cross country and track seasons, Hailey sought

assistance from Defendant after her cross country and track

coach, Brian Smith, told her to be stretched by Defendant. In

accordance with that instruction, Defendant periodically

stretched Hailey in the field house.

On 23 March 2011, Defendant approached Hailey and inquired

about the status of her ankle injury. After Defendant asked

Hailey if she wanted to be stretched, Hailey agreed to allow

Defendant to stretch her ankle and followed Defendant to the

stretching room in the field house. At that time, Hailey was

wearing loose running shorts that included built-in underwear

and an additional pair of underwear.

After the two of them arrived in the field house, Defendant

asked Hailey to remove her socks and shoes and began bending

Hailey’s foot back and forth. During that process, Defendant

asked Hailey if she was still experiencing pain as the result of

an earlier hip injury. After Hailey stated that her hip

occasionally hurt when she ran, Defendant told Hailey that he

would stretch her hip in addition to her ankle.
 -4-
As Hailey laid on her back, Defendant stretched Hailey’s

leg in two different ways. In one instance, Defendant lifted

Hailey’s leg up and pushed it towards her chest using her foot.

In the other instance, Defendant had Hailey curve her leg and

then pushed the leg to the side. While Defendant performed

these stretches, he massaged the inner portion of Hailey’s leg

at the point where her thigh met her torso using two or three

fingers while instructing Hailey to let him know if she

experienced pain. As he massaged Hailey’s leg, Defendant

mentioned that he had to leave shortly in order to sell tickets

to the baseball game.

At some point during the leg stretching process, Defendant

began massaging an area near her vagina underneath both of the

pairs of underwear that Hailey was wearing. As he did so,

Defendant inserted his finger or thumb into the area in or

around Hailey’s vagina on two different occasions. On the first

of these occasions, one of Defendant’s fingers went to the side

of the lips of Hailey’s vaginal opening. On the second of these

two occasions, Defendant’s finger penetrated Hailey’s vagina.

Defendant made no response after Hailey mumbled, “Watch your

fingers.” In light of Defendant’s silence, Hailey reiterated,

“Watch your fingers.” Although Defendant removed his fingers

from the area around Hailey’s vagina after the making of the
 -5-
second statement, he continued to make massaging motions beneath

Hailey’s underwear.

The stretching and massaging process involving Defendant

and Hailey lasted for approximately thirty to forty-five

minutes. During that time, a number of other people entered the

field house in order to ask Defendant to provide them with tape

or ice. At such times, Defendant would hold brief conversations

with the new arrivals while moving his hand from beneath

Hailey’s underwear to a location on Hailey’s thigh or knee. The

stretching and massaging process ended when Defendant was

summoned to help sell tickets to the baseball game.

After she left the field house, Hailey told her friend,

T.H.,2 that Defendant had touched her “in places” and moved his

fingers beneath her underwear. Although Teresa insisted that

the incident be reported to Mr. Smith, Hailey was too

embarrassed to tell Mr. Smith what had happened. As a result of

the fact that Mr. Smith was involved in a romantic relationship

with the mother of another student named R.B.,3 Teresa and Hailey

decided to ask Rachel to speak with Mr. Smith instead. After

2
T.H. will be referred to throughout the remainder of this
opinion as Teresa, a pseudonym used for ease of reading and to
protect T.H.’s privacy.
3
R.B. will be referred to throughout the remainder of this
opinion as Rachel, a pseudonym used for ease of reading and to
protect R.B.’s privacy.
 -6-
Rachel spoke with Mr. Smith, Hailey told him that Defendant had

touched her vagina.

After returning home, Hailey met with investigating

officers, told them what had happened, and stated that another

girl on the track team, whom she identified as A.B.,4 had had a

similar experience with Defendant. On the same evening,

Detective Steven Reed of the Alamance County Sheriff’s

Department interviewed Defendant, who denied having engaged in

the conduct that Hailey had described and asserted that any

contact that he might have had with Hailey’s vagina would have

been the result of an accident.

In the fall of 2010, Amy was a sixteen-year-old junior at

Walter Williams who was experiencing pain as the result of an

earlier groin injury. For that reason, Amy asked Defendant to

stretch her. At the time that Defendant and Amy went to the

field house in order to complete the stretching process, Amy was

wearing yoga shorts and underwear. After the two of them

reached the field house, Defendant stretched Amy’s leg in three

different ways. First, Defendant lifted Amy’s leg. Secondly,

Defendant had Amy push back with her lifted leg while the other

4
A.B. will be referred to throughout the remainder of this
opinion as Amy, a pseudonym used for ease of reading and to
protect A.B.’s privacy.
 -7-
leg remained on the table. Finally, as Amy remained seated,

Defendant pushed her knee towards her chest.

While Defendant stretched Amy’s leg, he used his hand to

massage the muscles in that appendage. As he did so,

Defendant’s fingers went beneath Amy’s underwear. Although

Defendant’s fingers touched the interior of the lips of Amy’s

vaginal opening, he did not touch the vicinity of Amy’s vagina

in any other way. As she left the training room, Amy told a

member of the coaching staff that Defendant was a “creep”

without describing what he had just done to her. Amy did not

report the details of Defendant’s conduct to anyone because she

was embarrassed about what had happened.

In addition, M.A.5 testified that she had participated in

soccer and volleyball during her years as a Walter Williams

student. After sustaining a groin injury during her senior

year, Mandy asked Defendant for advice about stretches and other

exercises that she could perform. In response to this request,

Defendant told Mandy to meet him in the gym on the following

day. At the appointed time, Defendant took Mandy to the

athletic training room instead of the gym at a time when no one

else was there.

5
M.A. will be referred to throughout the remainder of this
opinion as Mandy, a pseudonym used for ease of reading and to
protect M.A.’s privacy.
 -8-
After asking Mandy to lie down on a table, Defendant

stretched Mandy’s groin by lifting her leg, which was in a bent

position, and pushing it to the side. Subsequently, Defendant

massaged Mandy’s groin area while using some sort of oil. As he

did so, Defendant’s hands were near Mandy’s “bikini line,” which

she described as the area in which her thigh met her torso.

After massaging Mandy’s groin for five or ten minutes, Defendant

asked Mandy to flip over and lie on her stomach. Once she had

done as he requested, Defendant massaged Mandy’s lower back and

upper buttocks area. As he did this, Defendant’s hands went

beneath Mandy’s underwear.

At approximately the same time that Mandy flipped over in

order to lie on her back a second time, a loud bang was heard in

the locker room immediately adjacent to the athletic training

room. After telling Mandy to stay in the training room,

Defendant went outside to check on the origin of the noise.

Although Mandy remained in the athletic training room after

Defendant’s departure, she got dressed. When Defendant

returned, Mandy told Defendant that she needed to go to practice

and left. Mandy never told anyone about Defendant’s conduct due

to embarrassment.

2. Defendant’s Evidence
 -9-
At the time of trial, Defendant was forty-seven years old.

Defendant had become involved with the sports program at Walter

Williams because his two sons wanted to play football at that

institution. For that reason, Defendant began helping the

football team in the summer of 2007 by filling the water cooler.

After his volunteer efforts were noticed, Defendant was asked to

join the staff and help the football team. Subsequently,

Defendant worked with the basketball, wrestling, track,

lacrosse, and cross country teams as well as the football team.

During the first year in which Defendant was compensated

for his services, his title was assistant trainer. However,

Defendant’s job title was changed to first responder, rather

than a trainer, because he did not have a four-year college

degree and because the Alamance County school system did not

want people who lacked four-year degrees to be referred to as

assistant trainers. As a part of the process by which he served

as a member of the Walter Williams athletic staff, Defendant

attended injury management classes for three consecutive years,

which is the maximum amount of training available to individuals

in his position. Defendant served as a member of the Walter

Williams athletic staff for four consecutive years.

In the autumn, Defendant’s primary responsibility was to

assist the football team. However, volleyball and cross country
 -10-
students would ask for Defendant’s assistance during that time

of year as well. Although Defendant assisted student athletes

both outdoors and in the field house, he generally elected to

take student athletes to the field house if he needed to plug in

a massaging instrument or use equipment located in that

building. The door to the field house was always propped open

with a steel pole in order to prevent the door from slamming on

windy days. People freely entered and exited the field house

during times when Defendant was assisting student athletes.

On 23 March 2011, Defendant approached a group of students

to ask about their injuries. As part of that process, Defendant

asked Hailey, who was standing nearby, about her ankle, which

had been swollen the previous week. After Hailey indicated that

she had hurt her other ankle, Defendant asked Hailey if she

wanted him to stretch her ankle. After Hailey agreed, the two

of them went to the field house.

Initially, Defendant checked both of Hailey’s ankles and

twisted and flexed the recently injured ankle for the purpose of

determining the extent to which it was tight or loose. Next,

Defendant spent five or ten minutes stretching Hailey’s ankles.

As Defendant worked, various individuals entered and exited the

field house for the purpose of obtaining ice, wraps, or

assistance with various injuries.
 -11-
After he finished stretching Hailey’s ankles, Defendant

asked Hailey if she had any other injuries. In response, Hailey

stated that an old right hip flexor injury had begun hurting her

again. Upon receiving this information, Defendant stretched

Hailey’s hip by taking her right leg and pushing it towards her

chest and across her left leg and body. Although Defendant

placed two fingers on Hailey’s right hip, Defendant kept those

two fingers at the spot at which Hailey said that she was

experiencing pain and never moved them from that spot.

In view of the fact that he had been trained to treat both

sides of an injured student athlete’s body, Defendant stretched

Hailey on the left as well as on the right. After stretching

the left side of her body, Defendant returned to the right side

to eliminate any remaining soreness before stretching Hailey’s

ankles further. Defendant spent about ten to fifteen minutes

stretching each of Hailey’s legs. Defendant denied having ever

put his fingers or thumbs into Hailey’s vagina.

At the time that he received a phone call asking for help

in selling baseball tickets, Defendant ended his treatment

session with Hailey. As Defendant was exiting the field house,

two other female student athletes asked Defendant for

assistance. After assisting the two female student athletes,

Defendant left to help with the baseball ticket sales.
 -12-
According to Defendant, Amy was a dedicated runner who

would not stop to rest even when advised to do so. Defendant

acknowledged that he had assisted Amy on a couple of occasions

during her freshman year. During her sophomore year, Amy

suffered numerous injuries, including shin splints, a sore knee,

and a recurring hip injury. As a result of the fact that Amy

had sustained a hip injury, Defendant stretched her leg on

occasion and saw her more than once a week. On those occasions,

Defendant iced and stretched Amy and used a massaging instrument

in order to relieve the effects of muscle strains and pulls.

Defendant denied having ever touched Amy’s genital area.

According to Defendant, Mandy approached him in order to

obtain treatment for a groin injury. Prior to the date upon

which this request was made, Defendant had treated Mandy for

wrist, shoulder, and groin injuries. As a result of the fact

that Mandy was not available for treatment at the time that she

made this request, Defendant suggested that the two of them get

together on the following day.

Although Mandy met with Defendant according to the agreed-

upon schedule, she was in a hurry to go to practice. Even so,

Defendant and Mandy went to the training room beneath the gym,

where Defendant treated Mandy using a massage instrument,

putting pressure where Mandy’s upper thigh met her torso, and
 -13-
applying ice. Mandy did not say anything to him or appear to be

upset during the treatment process.

After hearing a heavy weight dropping in another room,

Defendant left Mandy alone while he investigated what he had

heard. Upon Defendant’s return, Mandy stated she needed to get

to practice and departed. When Defendant saw Mandy, Mandy

thanked Defendant for his assistance. Defendant denied having

ever touched Mandy’s vagina.

A number of individuals associated with the athletic

program at Walter Williams testified that Defendant was

trustworthy and had a good reputation for honesty and

truthfulness. Similarly, four female students who participated

in the Walter Williams athletic program testified that Defendant

was honest and truthful, with several of them also asserting

that he was trustworthy.

B. Procedural History

On 24 March 2011, a warrant for arrest charging Defendant

with committing a statutory sexual offense against a 13, 14, or

15 year old child and committing a sexual offense against Hailey

while acting as a coach was issued. On 31 March 2011, a warrant

for arrest charging Defendant with taking indecent liberties

with Amy while acting as a coach was issued. On 8 August 2011,

the Alamance County grand jury returned bills of indictment
 -14-
charging Defendant with committing a statutory sexual offense

against a 13, 14, or 15 year old child, committing a sexual

offense against Hailey while acting as a coach, and taking

indecent liberties with Amy while acting as a coach.

Although the case was called for trial before Judge G.

Wayne Abernathy and a jury at the 29 May 2012 criminal session

of the Alamance County Superior Court, the jury was unable to

reach a unanimous verdict, resulting in the declaration of a

mistrial on 5 June 2012. On 11 June 2012, the Alamance County

grand jury returned superseding bills of indictment charging

Defendant with committing a statutory sexual offense against a

13, 14, or 15 year old child, committing a sexual offense

against Hailey while acting as a coach, and committing a sexual

offense against Hailey while acting as a first responder, taking

indecent liberties with Amy while acting as a coach, and taking

indecent liberties with Amy while acting as a first responder.

The charges against Defendant came on for trial before the

trial court and a jury at the 28 January 2013 criminal session

of the Alamance County Superior Court. At the beginning of

Defendant’s second trial, the State announced that it had

elected not to proceed against Defendant on the charges alleging

that he had committed a sexual offense against Hailey and had

taken indecent liberties with Amy while acting as a coach. On 5
 -15-
February 2013, the jury returned a verdict convicting Defendant

of committing a statutory sexual offense against a 13, 14, or 15

year old child, committing a sexual offense against Hailey while

acting as a first responder, and taking indecent liberties with

Amy while acting as a first responder. At the conclusion of the

ensuing sentencing hearing, the trial court arrested judgment in

the case in which Defendant was convicted of committing a sexual

offense against Hailey while acting as a first responder and

entered judgments sentencing Defendant to a term of 192 to 240

months imprisonment based upon his conviction for committing a

sexual offense against a child of 13, 14, or 15 years of age and

to a consecutive term of 6 to 8 months imprisonment based upon

his conviction for taking indecent liberties with Amy while

acting as a first responder, with this sentence being suspended

and with Defendant being placed on supervised probation for 24

months on the condition that he pay attorney’s fees and costs,

obtain a mental health assessment, have no contact with Amy, and

comply with the usual terms and conditions of probation.

Defendant noted an appeal to this Court from the trial court’s

judgments.

II. Substantive Legal Analysis

A. Accident Instruction
 -16-
In his first challenge to the trial court’s judgments,

Defendant contends that the trial court erred by failing to

instruct the jury concerning the law of accident in accordance

with Defendant’s request. More specifically, Defendant contends

that the trial court was required to submit the accident

instruction that he requested given that the record contained

evidence that would have supported a jury determination that

Defendant had not penetrated Hailey’s vagina intentionally.

Defendant’s contention lacks merit.

1. Standard of Review

“[Arguments] challenging the trial court’s decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “‘Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment’ for that of

the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33,

669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,

Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

“[A]n error in jury instructions is prejudicial and requires a

new trial only if ‘there is a reasonable possibility that, had

the error in question not been committed, a different result

would have been reached at the trial out of which the appeal
 -17-
arises.’” State v. Castaneda, 196 N.C. App. 109, 116, 674

S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A-1443(a)).

2. Appropriateness of Accident Instruction

“‘[W]hen a defendant requests a special instruction which

is correct in law and supported by the evidence, the trial court

must give the requested instruction, at least in substance.’”

State v. Thompson, 118 N.C. App. 33, 36, 454 S.E. 2d 271, 273

(quoting State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d

922, 924 (1993)), disc. review denied, 340 N.C. 262, 456 S.E.2d

837 (1995). “If a requested instruction is refused, defendant

on appeal must show the proposed instruction was not given in

substance, and that substantial evidence supported the omitted

instruction,” with “‘[s]ubstantial evidence’ [being] that amount

of relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Id. (internal quotation

marks omitted) (quoting State v. White, 77 N.C. App. 45, 52, 334

S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864

(1985), and State v. Gray, 337 N.C. 772, 777-78, 448 S.E.2d 794,

798 (1994)).

At the jury instruction conference, Defendant requested

that the trial court instruct the jury concerning the law of

accident in accordance with N.C.P.J.I. 307.11, which begins by

stating that “the defendant asserts the victim’s injury was the
 -18-
result of an accident” and indicates that, if the State failed

to satisfy the members of the jury that “the injury was in fact

accidental, the defendant would not be guilty of any crime even

though his acts were responsible for the victim’s injury.”

After the trial court refused to deliver the requested

instruction, Defendant made no further request for the delivery

of an accident instruction. During its deliberations, the jury

inquired about what it should do “if there is proof beyond a

reasonable doubt that penetration however slight by an object

into the genital opening of a person’s body occurred but the

State has not proven beyond a reasonable doubt that the

penetration was ‘willful’ and of a sexual nature.” In response,

the trial court instructed the jury that “[t]he words [‘]of a

sexual nature[’] have not appeared in your instruction and you

are to apply the instruction that the Court has given you”;

that, “[w]ith respect to the willful[ness] question, that word

doesn’t appear in the instructions”; and that “the defendant’s

conduct must be intentional and not accidental.”

Although the trial court did refuse to deliver the

requested accident instruction based on the inclusion of

language in N.C.P.J.I. 307.11 to the effect that “the defendant

asserts” that the victim’s injury was accidental in nature,

Defendant’s contention that the trial court’s action was not
 -19-
motivated by the absence of sufficient record support for the

proposed accident instruction is not consistent with our reading

of the record. Instead, we read the record to reflect that the

trial court refused to deliver the requested accident

instruction given the complete absence of any evidence tending

to show that he digitally penetrated Hailey’s vagina with his

fingers in an accidental manner, a determination that we believe

to have been correct.

At trial, Defendant explicitly denied having inserted his

finger into Hailey’s vagina or touching Amy’s genital area in

any way. Even so, Defendant asserts that he was entitled to the

delivery of an accident instruction given the presence of other

evidence contained in the record, including Detective Reed’s

statement that Defendant, at one point, said, “I f I did touch

her in any way it was innocent and I didn’t mean to do it,” and

Hailey’s statement that “I didn’t say anything though because I

thought that he wasn’t thinking about it like that or he didn’t

realize it and was only doing his job.” In spite of Defendant’s

assertions to the contrary, neither of these statements provide

any basis for a jury determination that Defendant accidentally

penetrated Hailey’s vagina with his finger. On the contrary,

Defendant’s statement to Detective Reed was hypothetical in

nature and immediately preceded a renewed denial that Hailey’s
 -20-
allegations were true. Similarly, Hailey’s assertion that

Defendant might not have known what he was doing amounted to

mere speculation about Defendant’s mental state and provides no

basis for a determination that Defendant accidentally penetrated

Hailey’s vagina with his finger. As a result, we have no

hesitancy in concluding that the record simply did not support

the delivery of the requested accident instruction.

Moreover, even if the trial court’s decision to refrain

from instructing the jury in accordance with N.C.P.J.I. 307.11

was erroneous, any such error was rendered harmless by the trial

court’s subsequent decision to instruct the jury with respect to

the issue of accident. During its deliberations, the jury asked

the trial court, among other things, what it should do if “the

State has not proven beyond a reasonable doubt that the

penetration was ‘willful’ and of a sexual nature must we still

rule guilty in Count One?” Upon reviewing this inquiry, the

trial court proposed that the jury be instructed that, in order

to support of a finding of guilt, “the conduct -- defendant’s

conduct at issue must be intentional, not accidental.” After

Defendant indicated that he did not object to the trial court’s

proposal, the trial court instructed the jury that a finding

that the defendant acted intentionally, rather than

accidentally, was necessary in order for the jury to return a
 -21-
guilty verdict. In view of the fact that the trial court

explicitly told the jury during the course of its deliberations

that Defendant could not be convicted if his conduct was

accidental, we are unable to see how the trial court’s initial

refusal to instruct the jury in accordance with N.C.P.J.I. in

any way prejudiced Defendant. State v. Rogers, 299 N.C. 597,

603-05, 264 S.E.2d 89, 93-94 (1980) (holding that any error in

the trial court’s initial jury instructions was cured by a

correct instruction given in response to a jury inquiry). As a

result, for both of these reasons, Defendant is not entitled to

relief from the trial court’s judgments based upon the trial

court’s refusal to instruct the jury with respect to the law of

accident.

B. Excluded Witness Testimony

Secondly, Defendant contends that the trial court erred by

refusing to allow Scott Frazier, a former member of the Walter

Williams coaching staff, to testify that he possessed the

character trait of working well with children and not having an

unnatural lust or desire to have sexual relations with children.

More specifically, Defendant contends that the excluded evidence

should have been admitted since it related to a pertinent

character trait that had a special relationship to the crimes
 -22-
with which he had been charged. We do not find Defendant’s

argument persuasive.

1. Standard of Review

The essential issue raised by Defendant’s second challenge

to the trial court’s judgments is whether the testimony in

question tended to show that Defendant possessed a character

trait that is relevant to the matters at issue in this case. In

other words, the inquiry that we are required to conduct in this

instance is relevance-based in nature. Although “a trial

court’s rulings on relevancy technically are not discretionary

and therefore are not reviewed under the abuse of discretion

standard applicable to [N.C. Gen. Stat. § 8C-1,] Rule 403, such

rulings are given great deference on appeal.” State v. Wallace,

104 N.C. App. 498, 502, 410 S.E.2d 226, 228, appeal dismissed,

331 N.C. 290, 416 S.E.2d 398 (1991), cert. denied, 506 U.S. 915,

121 S.E.2d 321, 121 L. Ed. 2d 241 (1992). As a result, we will

review Defendant’s challenge to the exclusion of Mr. Frazier’s

testimony using the loose de novo standard of review utilized in

addressing relevance-related issues.

2. Admissibility of Proposed Character Evidence

According to N.C. Gen. Stat. § 8C-1, Rule 404(a)(1),

“[e]vidence of a pertinent trait of [the accused’s] character

offered by an accused” is admissible. “The exception allowing
 -23-
evidence of a ‘pertinent’ trait should be ‘restrictively

construed,’ [however,] since such evidence is excluded as a

general rule.” State v. Wagoner, 131 N.C. App. 285, 293, 506

S.E.2d 738, 743 (1998) (quoting State v. Sexton, 336 N.C. 321,

359-60, 444 S.E.2d 879, 901, cert. denied, 513 U.S. 1006, 115 S.

Ct. 525, 130 L. Ed. 2d 429 (1994)), disc. review denied, 350

N.C. 105, 533 S.E.2d 476 (1999). As a result, “an accused may

only introduce character evidence of ‘pertinent’ traits of his

character and not evidence of overall ‘good character.’” Id.

(quoting State v. Mustafa, 113 N.C. App. 240, 245-46, 437 S.E.2d

906, 909, cert. denied, 336 N.C. 613, 447 S.E.2d 409 (1994)).

This Court addressed the admissibility of similar evidence

in Wagoner, in which we held that the trial court properly

excluded evidence tending to show the defendant’s “psychological

make-up,” including testimony that he was not a high-risk sexual

offender, on the theory that such evidence, which amounted to

proof of the defendant’s normality, did not tend to show the

existence or non-existence of a pertinent character trait. Id.

at 292-93, 506 S.E.2d at 743. Similarly, the evidence at issue

in this case, which consisted of testimony from Mr. Frazier to

the effect that he saw no indication that Defendant had an

unnatural lust for or sexual interest in young girls,

constituted nothing more than an attestation to Defendant’s
 -24-
normalcy. As a result, given that the excluded testimony did

not tend to show the existence or non-existence of a pertinent

trait of character, the trial court did not err by excluding Mr.

Frazier’s testimony concerning Defendant’s lack of unnatural

lust for or sexual interest in young girls.

C. Instruction Concerning Defendant’s Character
for Honesty and Trustworthiness

Finally, Defendant contends that the trial court erred by

refusing to instruct the jury that it could consider evidence

concerning his character for honesty and trustworthiness as

substantive evidence of his guilt or innocence. According to

Defendant, the trial court was required to deliver the requested

instruction given that it constituted an accurate statement of

the law arising from the evidence. We do not find Defendant’s

argument persuasive.

1. Standard of Review

As we have previously noted, arguments “challenging the

trial court’s decisions regarding jury instructions are reviewed

de novo by this Court.” Osorio, 196 N.C. App. at 466, 675

S.E.2d at 149. Thus, we will review Defendant’s challenge to

the trial court’s refusal to instruct the jury that it was

entitled to consider the evidence tending to show that Defendant

was honest and trustworthy as substantive evidence of his guilt

or innocence using a de novo standard of review.
 -25-
2. Appropriateness of Honesty and Trustworthiness Instruction

At trial, five witnesses testified, in essence, that

Defendant was honest and trustworthy. During the jury

instruction conference, Defendant requested that the trial court

instruct the jury in accordance with N.C.P.J.I. 105.60, which

informs the jury that a person having a particular character

trait “may be less likely to commit the alleged crime(s) than

one who lacks the character trait” and tells the jury that, if

it “believe[d] from the evidence [that the defendant] possessed

the character trait” in question, it “may consider this in [its]

determination of [Defendant’s} guilt or innocence[.]” The trial

court rejected Defendant’s request.

As we have already noted, “when a request is made for a

specific instruction that is supported by the evidence and is a

correct statement of the law, the court, although not required

to give the requested instruction verbatim, must charge the jury

in substantial conformity therewith.” State v. Holder, 331 N.C.

462, 474, 418 S.E.2d 197, 203 (1992). For that reason, the

trial court would have been required to deliver the requested

instruction in the event that the jury could reasonably find

that an honest and trustworthy person was less likely to commit

the crimes at issue in this case than a person who lacked those

character traits. As the Supreme Court noted in State v. Bogle,
 -26-
“a person is ‘truthful’ if she speaks the truth” and “is

‘honest’ if his conduct, including his speech, is free from

fraud or deception.” 324 N.C. 190, 202, 376 S.E.2d 745, 752

(1989). Similarly, a person is “trustworthy” if he or she is

“worthy of trust; dependable, reliable.” Webster’s New World

College Dictionary 1537 (4th ed. 2006). Although an

individual’s honesty and trustworthiness are certainly relevant

to an individual’s credibility, we are unable to say that a

person exhibiting those character traits is less likely than

others to commit a sexual offense against a child of 13, 14, or

15 years of age or to take indecent liberties with a student

while acting as a first responder. Bogle, 324 N.C. at 202, 376

S.E.2d at 752 (stating that, since “[n]either trafficking by

possession nor by transporting marijuana necessarily involves

being untruthful or engaging in fraud or deception,” “we hold

that the traits of truthfulness and honesty are not ‘pertinent’

character traits to the crime of trafficking in marijuana by

possession or transportation”). As a result, the trial court

did not err by refusing to instruct the jury that it could

consider the evidence tending to show that Defendant was an

honest and trustworthy individual as substantive evidence of his

guilt or innocence.

III. Conclusion
 -27-
Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Chief Judge MARTIN and Judge McCULLOUGH concur.

Chief Judge MARTIN concurred in this opinion prior to 1

August 2014.