State v. Eller

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .

NO. COA13-1433
NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

Iredell County
v. Nos. 08 CRS 59811-15, 59892-
96; 09 CRS 7498-99, 7500; 12
CRS 51941-43
MARSHALL LEE ELLER

Appeal by Defendant from Judgments entered 22 March 2013 by

Judge Joe Crosswhite in Iredell County Superior Court. Heard in

the Court of Appeals 21 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Alexandra Gruber, for the State.

Glover & Petersen, P.A., by James R. Glover and Ann B.
Petersen, for Defendant.

STEPHENS, Judge.

Factual Background and Procedural History

On 12 October 2009, Defendant Marshall Lee Eller was

indicted on sixteen counts of indecent liberties with a child
 -2-
and one count of first-degree sex offense.1

Prior to the trial, the State moved for joinder of all

charges. The trial court granted the motion and found that the

charges constituted a single scheme or plan, noting that the

same attorney represented Defendant on all charges, the facts

surrounding each charge were similar in scheme or plan, joinder

would not impair Defendant’s ability to present a defense, and

the charges were “not so separate in time and place or so

distinct in circumstance as to render their consolidation unjust

or prejudicial to . . . Defendant.” The case came on for trial

on 18 March 2013, and verdicts were rendered on 22 March 2013.

The State’s evidence tended to show the following:

Over the span of twenty-two years, Defendant engaged in

indecent liberties with three children: Defendant’s

stepdaughter, “Mary”; Mary’s childhood friend, “Brenda”; and

Defendant’s stepgranddaughter, “Alison.”2 The incidents involving

Mary took place between 1985 and 1992, beginning when she was

nine years old. The incidents involving Brenda took place

1
Neither the indictment nor the verdict for the charge of first-
degree sex offense appears in the record. However, both the
record and transcript indicate that Defendant was charged with
and found not guilty of this offense.
2
Pseudonyms are used to protect the juveniles’ identities.
 -3-
between August of 1987 and April of 1988, beginning when she was

eleven years old. The incidents involving Alison took place

between 2004 and 2008, beginning when she was eleven years old.

A. Mary (1985 to 1992)

Mary testified to two specific incidents between her and

Defendant as well as a series of reoccurring incidents that took

place from when she was nine years old until she was eighteen.

In addition, Mary testified to two other types of reoccurring

incidents, the first of which took place beginning when she was

ten years old until she was thirteen and the second of which

went on as she grew older. The first specific incident between

Defendant and Mary occurred when Mary was about nine years old.

Defendant took Mary, who lived with Defendant until she was

eighteen, into his bedroom, wrestled with her, lifted her shirt,

and kissed her on the stomach and chest. The second specific

incident occurred when Mary was approximately twelve years old.

Defendant instructed Mary to lie on the floor in his bedroom,

where he rubbed her back and bottom through her nightgown,

reached his hand underneath her underwear, and placed his finger

in her vagina.

The series of reoccurring incidents took place from the

time Mary was ten until she was eighteen. Defendant would
 -4-
regularly instruct her to sit on his lap, raise her shirt,

fondle her, and put his mouth on her breasts for roughly fifteen

minutes at a time. About once a week, Defendant would also place

Mary’s hand “on the outside of his pants at his crotch area”

where she could feel his erect penis. About three times a week,

Defendant would come to Mary’s room at night and, as she lay on

her stomach, lift her nightgown, rub her back, pull down her

underwear slightly, and rub her bottom. During these bedtime

visits, Defendant would also attempt to roll Mary over or put

his hands underneath her in an attempt to touch her breasts.

These visits occurred “pretty often” and would last “[thirty]

minutes to an hour at times.”

The first other reoccurring incident took place when Mary

was between the ages of ten and thirteen. While staying at a

house he owned and rented to his sister, Defendant took Mary for

motorcycle rides and, in a secluded area, “would turn around and

. . . feel [Mary’s] breasts.” Second, as Mary got older,

Defendant “[attempted] to come into the bathroom whenever [Mary]

was in the shower.” Defendant would open the shower curtain,

peek at Mary, and touch her breasts.

Mary testified that “most of the time,” the incidents

occurred in the mobile home that Defendant shared with Mary’s
 -5-
mother. Other times, the incidents occurred when Defendant and

Mary were in a car or in the house Defendant owned and rented to

his sister.

B. Brenda (1987 to 1988)

Brenda came to know Defendant through his stepdaughter,

Mary. The first incident between Defendant and Brenda occurred

when Defendant entered Mary’s room to tuck in both Mary and

Brenda during a sleepover. As Defendant tucked in the two girls,

he “went up [Brenda’s] shirt and [rubbed her] breasts.” He then

put “his hand . . . under [her] panties . . . [and rubbed] the

outside of [her] vagina.”

A second incident occurred in spring 1988 when Defendant

invited Brenda on a motorcycle ride with him. Defendant stopped

his motorcycle in the woods and “took his hand and put it on

[Brenda’s] . . . vagina outside of [her] clothes and started

rubbing [her].”

C. Alison (2004 to 2008)

In 1995, Defendant sold his rental property and purchased a

house. In 2004, Defendant installed a pool at that residence.
 -6-
Alison and her family3 spent almost every weekend at Defendant’s

house between 2004 and 2008. Defendant also visited Alison at

her home.

According to Alison, the first incident with Defendant

occurred in August of 2004 when Alison was about eleven years

old. In his garage, Defendant “put his hands up [Alison’s] skirt

on the outside of [her] panties, and [Defendant] rubbed [her]

butt.”

A second incident occurred when Alison was about twelve.

Defendant gave her a piggyback ride in the pool at his

residence. During the piggyback ride, Defendant rubbed and

squeezed Alison’s buttocks and thighs. He then “told [her] that

he was sorry that he made [her] feel uncomfortable and that if

he ever made [her] feel uncomfortable again that [she] should

tell [Defendant], and he wouldn’t do it anymore.”

A third incident occurred in 2008 when Alison was about

fifteen. Defendant and Alison were alone in Defendant’s basement

when he “put his hand on [her] thigh and was rubbing it and then

moved [his hand] down towards [her] vagina” and touched Alison’s

vagina through her clothing.

Although Alison did not cite specific dates, she testified

3
Alison’s father, Michael, is Mary’s brother.
 -7-
to two additional incidents involving Defendant. First, she

testified that Defendant visited her and her brother at her

home. After sending Alison’s brother to take a shower, Defendant

approached Alison and rubbed and squeezed her breasts through

her shirt as she sat at her computer. Second, after Defendant’s

wife went to bed, Defendant attempted to kiss Alison on the

mouth.

Alison also testified to reoccurring incidents of

misconduct. “There were several times that [Alison] would be in

the basement, and [Defendant] would come down and just rub [her]

on the butt from behind, and he would take [her] hands and put

them on his penis.” Additionally, “[a] few times in the car,

[Defendant] would . . . rub [Alison’s] leg while he was

driving.” Besides these few times in the car, the touching

occurred “[n]owhere else besides [Alison’s and Defendant’s]

houses.”

At the close of the State’s evidence, Defendant moved to

dismiss the charges against him. The trial court denied the

motion. Thereafter, Defendant testified, denied all the

allegations, and again moved to dismiss the charges. Again, the

trial court denied the motion.

The jury returned guilty verdicts on sixteen counts of
 -8-
indecent liberties with a child. The jury found Defendant not

guilty on one count of first-degree sex offense. Defendant gave

notice of appeal in open court.

Discussion

On appeal, Defendant contends the trial court erred by (1)

joining the charges arising from the incidents occurring between

1985 and 1992 with those arising from the incidents occurring

between 2004 and 2008 and (2) denying Defendant’s motion to

dismiss one of the three charges of indecent liberties with

Brenda. We hold that the trial court committed harmless error in

joining all the charges for trial. We vacate one of the three

convictions of indecent liberties with Brenda and remand for

resentencing.

I. Joinder of Charges

A. Transactional Relationship

As noted above, the trial court joined the 1985–1992

charges with the 2004–2008 charges on the grounds that “the

transactions are connected together and . . . constitute a

single scheme or plan.”

On appeal, Defendant argues that joinder of all the charges

was improper. According to Defendant, the fact that all the

charges may have been committed “under the same general modus
 -9-
operandi is not enough to supply the required transactional

connection [and, therefore, is] not enough to make [the charges]

a series of connected acts which constitute a single plan or

scheme.” Defendant further argues that “sexually abus[ing]

adolescent girls that were in . . . [D]efendant’s home or to

whom [Defendant] had access” does not constitute a common scheme

or plan. In addition, Defendant points out that the twelve years

separating the 2004–2008 charges from the 1985–1992 charges is a

far greater gap in time than in previous cases where this Court

has found joinder of charges to be proper.

When determining whether offenses should be joined for

trial, N.C. Gen. Stat. § 15A-926(a) “requires a two-step

analysis: (1) a determination of whether the offenses have a

transactional connection, and (2) if there is such a connection,

consideration then must be given as to whether the accused can

receive a fair hearing on more than one charge at the same

trial.” State v. Perry, 142 N.C. App. 177, 180-81, 541 S.E.2d

746, 748–49 (2001) (citation and internal quotation marks

omitted). “The [legal] determination of whether a group of

offenses are [sic] transactionally related so that they may be

joined for trial is a question of law fully reviewable on

appeal.” State v. Guarascio, 205 N.C. App. 548, 553, 696 S.E.2d
 -10-
704, 709 (2010) (citation and internal quotation marks omitted).

However, the decision regarding whether to join offenses

pursuant to that relationship is within the sound discretion of

the trial court. State v. Miller, 61 N.C. App. 1, 5, 300 S.E.2d

431, 435 (1983) (citations omitted). Therefore, the

determination of whether the offenses have a transactional

connection is reviewed de novo, and the determination of whether

the defendant can receive a fear hearing if the offenses are

joined is reviewed for abuse of discretion. See Perry, 142 N.C.

App. at 180-81, 541 S.E.2d at 748–49.

Joinder of charges in a criminal case is proper when the

charges are “based on the same act or transaction or on a series

of acts or transactions connected together or constituting parts

of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a)

(2013). Joinder is improper when “the offenses are so separate

in time and place and so distinct in circumstances as to render

consolidation unjust and prejudicial [to the defendant].” State

v. Chandler, 324 N.C. 172, 188, 376 S.E.2d 728, 738 (1989)

(citation and internal quotation marks omitted). “[O]ffenses

that are committed on separate dates cannot be joined for trial,

even when they are of like character, unless the circumstances

of each offense are so distinctly similar that they serve almost
 -11-
as a fingerprint.” State v. Williams, 74 N.C. App. 695, 697, 329

S.E.2d 705, 707 (1985).

This Court has allowed joinder of charges involving the

sexual abuse of minors when that abuse was separated by five

months. State v. Street, 45 N.C. App. 1, 5-6, 262 S.E.2d 365,

368 (1980) (“[W]e think that even though the time period [of

five months] between some of the acts was substantial, the acts

were nonetheless so similar in circumstance and place as not to

render the [joinder] of the offenses prejudicial to the

defendant.”). We have declined, however, to join charges

involving the sexual abuse of minors when that abuse was

separated by as many as seven years. See generally State v.

Bowen, 139 N.C. App. 18, 29, 533 S.E.2d 248, 255 (2000) (holding

that the seven years between offenses and the non-uniform nature

of the individual acts meant that the defendant did not have a

single scheme or plan); State v. Owens, 135 N.C. App. 456, 459–

60, 520 S.E.2d 590, 593 (1999) (“[I]n light of (1) the extended

interval of as much as [seven] years between some of these

offenses and (2) the lack of a consistent pattern in [the]

defendant’s molesting behavior, we hold that . . . all of the

charged acts did not constitute part of a single scheme[.]”).

In Owens, this Court determined that certain sex-based
 -12-
offenses separated by at least one year and at most seven years

were not transactionally related. Id. According to the Court,

the following actions were not sufficiently uniform: “[s]ome

molestations took place when [the defendant] was alone in the

house with a single child. On other occasions, he would isolate

a child in his bedroom while others were in the house. [The

d]efendant twice took indecent liberties while all three girls

were present.” Id. Due to the separation of time and the lack of

uniformity in the defendant’s conduct, this Court concluded that

joinder was improper. See id.

In Bowen, this Court was unwilling to permit joinder of

charges of alleged sexual crimes against children when the

charges occurred over twelve years, were separated by a maximum

of seven years, involved three different victims, and the

individual acts were of differing natures. Bowen, 139 N.C. App.

at 30, 533 S.E.2d at 255. There, the first victim testified that

in May of 1996, the defendant forced her onto a bed, pinned her

down, and inserted his fingers into her vagina. Id. at 21, 533

S.E.2d at 250. She also testified that the defendant “had

inappropriately touched her on a regular basis.” Id. at 21, 533

S.E.2d at 250–51. The second victim testified that “in the

summer of 1996, [the] defendant forcibly touched her private
 -13-
parts[.]” Id. The third victim, nineteen years old at the time

of trial, testified that the defendant had abused her since she

was a young child, including forcing her to perform oral sex on

the defendant multiple times. Id. at 21, 533 S.E.2d at 251.

By contrast, in Street, this Court found joinder of alleged

sexual crimes involving three victims to be proper when the

incidents were separated by five months. 45 N.C. App. at 6, 262

S.E.2d at 368. There, each alleged incident “occurred at the

same place and under the same circumstances.” Id. at 5-6, 262

S.E.2d at 368. In that case, the victims were siblings; all the

incidents occurred for a long period of time; every time the

defendant was given access, he abused his stepchildren; and, in

each incident, the defendant used his authority as a parent to

coerce his victims. Id. at 6, 262 S.E.2d at 368.

Here, the offenses concerning Alison took place, at a

minimum, twelve years after the offenses concerning Mary and

Brenda. In addition, the incidents involving Alison were not

sufficiently similar to the incidents involving Mary and Brenda.

Alison testified that she was abused in Defendant’s home, in her

home, and in Defendant’s car. Defendant gained access to Alison

through family gatherings and his relationship with Alison’s

brother. In contrast, Mary testified that the abuse occurred on
 -14-
a motorcycle, in her bedroom in Defendant’s house, in

Defendant’s bedroom, and in Defendant’s bathroom when Mary would

shower. Notably, Defendant would often visit Mary in her bedroom

at night. Defendant had access to Mary because she lived in his

home whereas Alison never lived with Defendant. Brenda’s abuse

occurred in Mary’s bedroom and on a motorcycle. Because

Defendant’s access to Mary was of a different character than his

access to Alison, the crimes against Mary and Alison are no more

uniform than the conduct in Owens. See 135 N.C. App. at 459-60,

520 S.E.2d at 593. As in Owens, the incidents in this case took

place in a number of different ways and places. Defendant would

isolate Alison by instructing her brother to take a shower,

leaving Defendant alone with his victim; he would molest his

victims when he was alone in the victim’s house; he would molest

his victims when the victim was alone in Defendant’s house; and,

once, he took indecent liberties with two victims while both

were present. Moreover, the abuse occurred on a motorcycle, in

several bedrooms, in a pool, and in a basement.

“North Carolina appellate courts have been willing to find

a transactional connection in cases involving sexual abuse of

children.” Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255

(citation and internal quotation marks omitted). However, we are
 -15-
not aware of any cases allowing joinder of offenses separated by

a period of time longer than two years. See, e.g., State v.

Estes, 99 N.C. App 312, 317, 393 S.E.2d 158, 161 (1990). Here,

the incidents involving Alison took place twelve years after the

incidents involving Mary and Brenda. The State cites Street, 45

N.C. App. at 1, 262 S.E.2d at 365, to support its position that

the time between the 1985–1992 charges and the 2004–2008 charges

is not too long to make joinder improper. That case, however,

held only that incidents occurring “at the same place and under

the same circumstances,” five months apart, may be joined.

Street, 45 N.C. App. at 5–6, 262 S.E.2d at 368. Street is not

controlling where the charges are separated by twelve years, as

here. Therefore, because the incidents are separated by twelve

years and the conduct is no more uniform than the conduct in

Owens, we hold that the trial court erred in determining that

the abuse concerning Alison from 2004 to 2008 was so

transactionally linked to the abuse concerning Brenda and Mary

from 1985 to 1992 that joinder of all the charges was proper.

B. Unfair Prejudice

Even though the charges were improperly joined, Defendant

does not articulate any meaningful prejudice resulting from that

joinder, nor do we perceive any. On appeal, Defendant merely
 -16-
asserts that “joinder would prejudice . . . [his] ability to

receive a fair trial.” At trial, Defendant argued that joinder

was improper because “any arguments made by the [d]efense would

be clouded by these other allegations . . . hanging over

[Defendant’s] head.” We note, however, that “evidence of other

molestations would have been admissible pursuant to . . . Rule

404(b) [of the North Carolina Rules of Evidence] to show intent,

plan, or design” even if the charges had not been joined. See

Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255 (“[S]hould the

trial court allow joinder, and on appeal that joinder be deemed

error, this Court should review any resulting prejudice with

reference to Rule 404(b).”) (citation and internal quotation

marks omitted).

Under Rule 404(b), intent, plan, or design may be

established using a “lower threshold of proof than that needed

to establish the ‘series of acts or transactions connected

together or constituting parts of a single scheme or plan,’

which must be shown for joinder of offenses for trial under

section 15A-926(a).” Id. “The very terms used in section 15A-

926(a) requiring a ‘single scheme or plan,’ are more exacting

than the term ‘plan’ used in Rule 404(b).” Owens, 135 N.C. App.

at 460, 520 S.E.2d at 593. Therefore, even if joinder is
 -17-
improper, additional victims may still testify about similar

incidents under Rule 404(b). As a result, the jury would still

be aware of the existence of allegations from multiple victims

and give that fact weight in their deliberations. See N.C. Gen.

Stat. § 8C-1, Rule 404(b) (2013).

In a criminal case, evidence of other crimes, wrongs, or

acts is admissible under Rule 404(b) as long as it is relevant

for some purpose other than to show that the defendant has a

propensity for the type of conduct for which he is being tried

and as long as it is not too remote. See, e.g., State v.

Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (holding

that prior acts of sexual abuse alleged to have occurred over a

time period of seven to twenty-seven years before trial were

admissible to show a common plan or scheme); State v.

DeLeonardo, 315 N.C. 762, 771, 340 S.E.2d 350, 357 (1986)

(holding that testimony of the defendant’s three-year-old

daughter regarding his sexual conduct toward her was admissible

to establish a common plan or scheme in the defendant’s trial

for molesting his two sons); State v. Goforth, 59 N.C. App. 504,

506, 297 S.E.2d 128, 129 (1982) (affirming the trial court’s

admission of two sisters’ testimony regarding the defendant’s

sexual abuse to show a pattern of conduct in the defendant’s
 -18-
trial for sexual abuse of his stepdaughter), reversed on other

grounds, 307 N.C. 699, 307 S.E.2d 162 (1983).

While the admissibility of evidence is not dispositive of

the absence of prejudice, admissibility “may be considered in

determining whether the consolidation [of charges for purposes

of joinder] was unjust and prejudicial to the defendant.” State

v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983). When

examining the prejudicial impact of joining offenses, this Court

“must look to whether [the] defendant was hindered or deprived

of his ability to defend one or more of the charges.” Id. at

389, 307 S.E.2d at 144. Although the trial court erred in

joining the charges in this case, neither the record nor

Defendant’s arguments support the conclusion that Defendant was

prejudicially hindered or deprived of his ability to defend one

or more of the charges. Accordingly, Defendant’s first argument

is overruled.

II. Motion to Dismiss

“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) (citation omitted).

Upon [the] defendant’s motion for dismissal,
the question for the Court is whether there
is substantial evidence (1) of each
essential element of the offense charged, or
 -19-
of a lesser offense included therein, and
(2) of [the] defendant’s being the
perpetrator of such offense. If so, the
motion is properly denied.

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455

(citation and internal quotation marks omitted), cert. denied,

531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” State v. Smith, 300 N.C. 71,

78-79, 265 S.E.2d 164, 169 (1980). “In making its determination,

the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the

State, giving the State the benefit of every reasonable

inference and resolving any contradictions in its favor.” State

v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994)

(citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d

818 (1995).

On appeal, Defendant argues that the trial court erred in

denying his motion to dismiss one of the charges of indecent

liberties concerning Brenda because “[t]ouching two parts of a

child’s body in the course of a single incident is one crime,

not two.” The State offers no objection and concedes that it “is

unable to distinguish the cases cited by [D]efendant from the

case at bar.” We find Defendant’s argument persuasive.
 -20-
When examining acts prosecuted under the statute governing

the taking of indecent liberties with children under N.C. Gen

Stat. § 14-202.1(a)(1),

our Supreme Court has stated that the evil
the legislature sought to prevent in this
context was the defendant’s performance of
any immoral, improper, or indecent act in
the presence of a child for the purpose of
arousing or gratifying sexual desire. [The
d]efendant’s purpose for committing such act
is the gravamen of this offense; the
particular act performed is immaterial.

State v. Jones, 172 N.C. App 308, 315, 616 S.E.2d 15, 20 (2005)

(citation and internal quotation marks omitted). “[A]lthough

[N.C. Gen. Stat § 14-202.1] sets out alternative acts that might

establish an element of the offense, a single act can support

only one conviction.” Id.

As Defendant notes in his brief, this case is

indistinguishable from State v. Laney, 178 N.C. App. 337, 631

S.E.2d 522 (2006). There we found that “[the] defendant’s acts

of touching the victim’s breasts and putting his hands inside

the waistband of her pants were part of one transaction that

occurred the night [in question]. The sole act involved was

touching — not two distinct sexual acts.” Id. at 341, 631 S.E.2d

at 524. Here, Defendant was indicted for and convicted of three

acts of indecent liberties against Brenda. However, Brenda’s
 -21-
testimony proved only two occasions on which Defendant touched

her inappropriately. The first occasion occurred when Brenda

spent the night with Mary in her bed. The second occasion

occurred when Defendant took Brenda on a motorcycle ride. The

three indictments concerning indecent liberties against Brenda

lay out no specifics other than a date range, and all three

indictments are identical. Accordingly, we conclude that the

trial court erred in denying the motion to dismiss one of the

three indecent liberties charges concerning Brenda, and we

vacate the corresponding conviction.

Defendant’s three convictions for indecent liberties

against Brenda were consolidated into one judgment. When one

such conviction is vacated, “the better procedure is to remand

for resentencing . . . .” State v. Wortham, 318 N.C. 669, 674,

351 S.E.2d 294, 297 (1987). Accordingly, we remand judgment

number 12 CRS 51941 to the trial court for resentencing

consistent with this opinion.

NO PREJUDICIAL ERROR in part; VACATED AND REMANDED in part.

Judges STROUD and MCCULLOUGH concur.

Report per Rule 30(e).