State v. McCanless

NO. COA13-1292

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Buncombe County
No. 11 CRS 57933, 12 CRS 000043
STEVEN RIGIL MCCANLESS

Appeal by defendant from judgments entered 20 May 2013 by

Judge Mark E. Powell in Buncombe County Superior Court. Heard

in the Court of Appeals 23 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Amy Kunstling Irene, for the State.

Paul Louis Bidwell and Douglas A. Ruley, for defendant.

ELMORE, Judge.

On 17 May 2013, a jury found Stephen Rigil McCanless

(defendant) guilty of attempted sexual offense by an adult with

a child and indecent liberties with a child. Judge Mark E.

Powell sentenced defendant to consecutive terms of 157-198

months and 13-16 months active imprisonment. Defendant appeals.

After careful consideration, we find no prejudicial error.

I. Facts
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The State indicted defendant for offenses that allegedly

occurred on 3 September 2010 and 1 July 2011. The State alleged

that on 3 September 2010, defendant, who was fifty-seven-years-

old at the time, “expose[d] his private parts in a public place,

the Goodwill Store . . . in the presence of another person,

[M.S.,]” and committed indecent liberties with her. The State

also charged defendant with the sexual offense of a child

occurring on 1 July 2011 by “engag[ing] in a sexual act with

[K.C.][,]” first degree kidnapping, and another count of

indecent liberties.

Before trial, both parties filed motions with the trial

court. The State made a motion to join the September and July

offenses for trial pursuant to N.C. Gen. Stat. § 15A-926(a).

Defendant filed a motion in limine to exclude “almost comic book

form” Japanese anime images that depicted sexually suggestive

pictures of a young girl. The images were found on a computer

that was seized by law enforcement officers from defendant’s

home during the criminal investigation. Defendant also filed a

motion to suppress statements made by him to officers of the

Asheville Police Department on 6 July 2011. Defendant told

officers that he was at a Salvation Army Store on 1 July 2011,

interacted with a young girl, pulled her pants down, touched her
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leg and vagina, and “motorboated” (blowing air from a person’s

mouth on to the skin of another) the girl in her buttock area.

He also divulged facts implicating his involvement with M.S. at

the Goodwill Store in September 2010 by stating that he may have

“flashed” someone. The trial court granted the State’s motion

to join and denied both defendant’s motion in limine and motion

to suppress.

II. Analysis

a.) Admission of Images

Defendant first argues that the trial court committed

prejudicial error by admitting evidence of seven anime images

taken from defendant’s computer. We disagree.

Pursuant to N.C. Gen. Stat. § 15A-1443 (2013):

[a] defendant is prejudiced by errors
relating to rights arising other than under
the Constitution of the United States when
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 arises.
The burden of showing such prejudice under
this subsection is upon the defendant.

Thus, our standard of review is “whether a reasonable

possibility exists that the evidence, if excluded, would have

altered the result of the trial.” State v. Anderson, 177 N.C.

App. 54, 62, 627 S.E.2d 501, 505 (2006). Important to our
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analysis is our Supreme Court’s holding that “the presence of

[other] overwhelming evidence of guilt” can render the erroneous

admission of evidence harmless. State v. Autry, 321 N.C. 392,

400, 364 S.E.2d 341, 346 (1988) (citation omitted).

We need not answer the question of whether the trial court

erred in admitting this evidence in order to dispose of this

issue on appeal. Even assuming arguendo that the trial court

erred in admitting the images, we conclude that the error was

not prejudicial as to defendant’s convictions of attempted

sexual offense and indecent liberties with a child against K.C.

on 1 July 2011.

At trial, the State offered evidence that on 1 July 2011,

seven-year-old K.C., K.C.’s mother, and K.C.’s adult sister

arrived at the Salvation Army Store. K.C. testified that she

walked into the furniture room alone, sat down in a lawn chair,

defendant approached her, and he used his finger to touch the

inside of her “pee-pee” or “front part[,]” which were words used

to describe her vagina. Thereafter, defendant took K.C. behind

a grill, and she stated that defendant pulled her pants and

underwear down, “put his tongue on my butt and started licking

the inside of my butt.” K.C.’s version of events remained

consistent when she subsequently told her mother, Detective John
 -5-
Rikard, Nurse Alicia Eifler and Dr. Cindy Brown. Cassie York, a

customer at the store, testified that she observed defendant

with one knee on the ground as he stood next to K.C. Another

customer, Wenona Rogers, testified that she saw K.C. with her

pants partially down as defendant had his tongue on K.C.’s butt

while “fondling” her. Two store employees, Gary King and Sharon

Brown, heard K.C. say that defendant licked her buttock.

Furthermore, K.C.’s adult sister testified that she went to

locate K.C. and saw defendant “kneeling” in front of K.C. and

pulling her pants up.

After K.C.’s sister confronted defendant to ask him what he

was doing, he ran out of the store and drove away in a truck.

During his interview with police, defendant admitted to patting

K.C. on the leg, pulling her pants down, touching her buttock

and vagina, and said that “I’m not looking for sex from a child.

. . . I’m pretty sure I’m not, but I -- I’d like to find out for

sure.” This overwhelming evidence of defendant’s guilt

presented by the State defeats defendant’s contention that a

reasonable possibility exists that a different result would have

been reached at trial had the trial court barred admission of

the anime images from the jury. Accordingly, any error, if any,

was not prejudicial to defendant.
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b.) Joinder of Offenses

Defendant also argues that the trial court erred in joining

the 3 September 2010 offenses and the 1 July 2011 offenses for

trial because “[t]here [w]as [i]nsufficient [t]ransactional

[c]onnection [b]etween [t]hese [o]ffenses.” We disagree.

“[T]he trial judge’s decision to consolidate for trial

cases having a transactional connection is within the discretion

of the trial court and, absent a showing of abuse of discretion,

will not be disturbed on appeal.” State v. Williams, 355 N.C.

501, 529-30, 565 S.E.2d 609, 626 (2002) (citation and quotation

omitted). “Abuse of discretion results where the court’s ruling

is manifestly unsupported by reason or is so arbitrary that it

could not have been the result of a reasoned decision.” State

v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988); see

also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833

(1985) (“A trial court may be reversed for abuse of discretion

only upon a showing that its actions are manifestly unsupported

by reason . . . [or] upon a showing that [the trial court’s

decision] was so arbitrary that it could not have been the

result of a reasoned decision.”). “[T]he test on review is are

the offenses so separate in time and place and so distinct in

circumstances as to render consolidation unjust and prejudicial
 -7-
to the defendant.” State v. Peterson, 205 N.C. App. 668, 672,

695 S.E.2d 835, 839 (2010) (citation and quotation omitted).

Under N.C. Gen. Stat. § 15A-926 (2013), “[t]wo or more

offenses may be joined in one pleading or for trial when the

offenses, whether felonies or misdemeanors or both, 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.” In ruling on a motion to join, the

trial court “must first determine if the statutory requirement

of a transactional connection is met.” Williams at 529, 565

S.E.2d at 626 (citation omitted). The presence or absence of a

transactional connection “is a fully reviewable question of

law.” Id. (citation omitted). The trial court “should consider

(1) the nature of the offenses charged; (2) any commonality of

facts between the offenses; (3) the lapse of time between the

offenses; and (4) the unique circumstances of each case.”

Peterson at 672, 695 S.E.2d at 839 (citation and quotation

omitted). Joinder “is made prior to trial; the nature of the

decision and its timing indicate that the correctness of the

joinder must be determined as of the time of the trial court’s

decision and not with the benefit of hindsight.” State v.

Silva, 304 N.C. 122, 127, 282 S.E.2d 449, 453 (1981).
 -8-
We first note that although the trial court dismissed the

charge of indecent liberties with a child against M.S. at the

close of the State’s evidence and the jury found defendant not

guilty of felony indecent exposure against M.S., those facts are

irrelevant in analyzing whether the trial court abused its

discretion at the time it entered the order for joinder of the

offenses. See id. at 127, 282 S.E.2d at 452 (“Although the

conspiracy charge, the actual link connecting the armed robbery

and larceny charges, was dismissed at the close of the evidence,

that fact . . . cannot enter into our consideration of whether

[the trial judge] abused his discretion in allowing joinder.”).

The evidence in the two cases show resemblances in victim,

location, motive, and modus operandi. Just like the

circumstances surrounding the acts against K.C. on 1 July 2011

as described above, the alleged acts against M.S. on 3 September

2010 were similar. Four-year-old M.S. and her mother were

inside a Goodwill store. M.S. and her mother became separated

by a clothing rack, and M.S. testified that a man showed her his

“bummy.” By the time M.S. told her mother what happened, the

alleged perpetrator had already left the store. In sum, the

State’s theory alleged that in each case defendant’s victim was

a prepubescent young girl, the acts occurred within months of
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one another in a donation store while the girl was momentarily

alone, defendant immediately fled the store after committing the

act, and defendant exerted acts of sexual misconduct. This

evidence was sufficient to constitute a transactional connection

between the acts such that joinder of the offenses was not an

abuse of discretion.

c.) Motion to Suppress

In his last argument on appeal, defendant contends that the

trial court erred in denying his motion to suppress statements

made by him to law enforcement officers because they were not

voluntary. Again, we disagree.

Our review of a trial court’s denial of a motion to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). If a finding of fact is

not challenged on appeal, it is “presumed to be supported by

competent evidence and is binding on appeal.” State v. Taylor,

178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation and

quotation omitted). “The trial court’s conclusions of law . . .
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are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000).

The voluntary nature of a statement is determined by the

“totality of the circumstances[.]” State v. Greene, 332 N.C.

565, 579, 422 S.E.2d 730, 738 (1992) (citation omitted). We

consider the following factors, none of which is determinative:

“the defendant’s mental capacity; whether the defendant was in

custody at the time the confession was made; and the presence of

psychological coercion, physical torture, threats, or promises.”

Id. (citation omitted).

We initially note that defendant does not challenge any of

the trial court’s findings of fact as being unsupported by

competent evidence. Instead, he merely states that the findings

only addressed “some of the statements made by the detectives”

and were “undermined” by other testimony. However, “the trial

court’s findings of fact are conclusive on appeal if supported

by competent evidence, even if the evidence is conflicting.”

State v. McArn, 159 N.C. App. 209, 211, 582 S.E.2d 371, 373

(2003) (citation and quotation omitted). Thus, in the case sub

judice, the trial court’s findings of fact are binding on

appeal, and our sole task is to determine whether these findings
 -11-
support the trial court’s legal conclusion that defendant’s

statements to law enforcement officers were voluntary.

While defendant argues that “[t]he detectives’ lies,

deceptions, and implantation of fear and hope established a

coercive atmosphere[,]” the trial court’s findings indicate the

contrary:

23. Information was given to the Defendant
regarding several topics including the Child
Medical Examination (CME) performed on the
minor child following the incident of July
1, 2011 and the Sexual Assault Kit involving
saliva residue and DNA upon the minor child.
Rikard wanted the Defendant to believe that
DNA testing implicated the Defendant however
the detective never lied to the Defendant by
stating that the officer had received DNA
testing implicating the Defendant with the
minor child. Officer Rikard informed the
Defendant that the CME was performed on the
minor child but did not tell the Defendant
that the test results of the CME had not
been received by the officers[.]

. . .

24. Officer Loveland informed the Defendant
that there was a video of the incident,
without indicating exactly what information
the video revealed[.]

. . .

29. Detective Rikard followed standard
interrogation procedure with the Defendant
which included sharing some information with
the Defendant to elicit a response and
withholding other information thereby
allowing the Defendant to speak if he wished
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to do so on the topic being discussed.

30. The profanity used by Rikard was not
continuous, ongoing or in a manner which was
used to intimidate the Defendant over an
extended period of time. The profanity used
by Rikard did not appear to have a
significant effect upon the Defendant and
his statements to the officers.

. . .

35. The officers did not tell the Defendant
the entire contents of the Goodwill Store
video nor were they obligated to do so.

Moreover, the trial court found that:

Defendant arriv[ed] at the police department
on his own volition, [was] under no
compulsion to remain in the interview room,
[was] not being restrained in any manner,
was not intimidated by a show of force of
the officers, display of any type of
weapons, promise of reward, leniency or any
other inducement. In addition the interview
room was open, the Defendant was left alone,
departed the police department alone when
the interview was completed, and was offered
amenities such as drinking water and
bathroom facilities. The interview was not
excessively long in duration and there is no
indication the Defendant was incommunicado
from friends or family. . . . There is no
evidence that the Defendant was under any
physical or mental impairment nor was he
under the influence of controlled
substances, medications, or alcohol during
this interview[.]

These findings are sufficient to conclude that defendant’s

statements were voluntary. See State v. Barden, 356 N.C. 316,
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339, 572 S.E.2d 108, 125 (2002) (holding that defendant’s

statements to police were voluntary where defendant was offered

cigarettes and refreshments, had the freedom to use the rest

room without being accompanied by an officer, was never

restrained or handcuffed during questioning, did not remain in

the interview for a prolonged period of time, and did not

receive threats or pressure to give a statement). Thus, the

trial court did not err in denying defendant’s motion to

suppress and admitting his statements at trial.

III. Conclusion

In sum, we expressly decline to address whether or not the

trial court actually erred by denying defendant’s motion in

limine to preclude the State from presenting jurors with the

anime images found on defendant’s computer. Even assuming

arguendo that the trial court erred, the images did not

prejudice defendant due to other overwhelming evidence of his

guilt. Furthermore, the trial court did not err in joining the

September and July offenses for trial because a transactional

connection was present between the acts. Finally, the trial

court’s denial of defendant’s motion to suppress and subsequent

admission of defendant’s statements was free of error as his

statements were voluntary.
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No prejudicial error.

Judges McCULLOUGH and DAVIS concur.